Brancaccio v Kateri Residence

[*1] Brancaccio v Kateri Residence 2009 NY Slip Op 50847(U) [23 Misc 3d 136(A)] Decided on May 5, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 5, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570738/08.

Joseph Brancaccio, Plaintiff-Appellant,

against

Kateri Residence, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered October 14, 2008, which granted defendant's motion for summary judgment dismissing the complaint and denied his cross motion for partial summary judgment.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered October 14, 2008, affirmed, with $10 costs.

Defendant was properly awarded summary judgment dismissing this action stemming from AIDS phobia. Plaintiff, who has not tested seropositive for HIV during the four-year period following the incident, failed to present evidence sufficient to raise a triable issue as to whether he was actually exposed to the virus (see Ornstein v New York City Health and Hospitals, 10 NY3d 1 [2008]), where the nursing home records show that no patient had been treated for either HIV or AIDS for two weeks preceding the incident, and that no patient was known to be HIV positive or afflicted with the AIDS virus (see Kelly v Our Lady of Mercy Med. Ctr., 279 AD2d 290 [2001], lv denied 96 NY2d 719 [2001]). Nor did plaintiff's allegations with respect to the misplacement of the needle or delay in disclosing patient information constitute "special circumstances" providing an independent basis for a finding of negligent infliction of emotional distress (see Siegrist v State of New York, 15 Misc 3d 1129[A], 2007 NY Slip Op 50909[U] [2007], affd 55 AD3d 717 [2008]). We have considered and rejected plaintiff's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 05, 2009