Soto v St. John's Episcopal Hosp.

[*1] Soto v St. John's Episcopal Hosp. 2017 NY Slip Op 50454(U) Decided on March 30, 2017 Supreme Court, Queens County McDonald, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2017
Supreme Court, Queens County

Stacy Soto, Plaintiff,

against

St. John's Episcopal Hospital and EPISCOPAL HEALTH SERVICES, INC., Defendants.



13166/2014
Robert J. McDonald, J.

The following papers numbered 1 to 9 read on this motion by defendants for an order pursuant to CPLR 3212(b), granting summary judgment in favor of defendants and dismissing plaintiff's complaint:

Papers

Numbered

Notice of Motion-Affirmation-Exhibits..................1 - 4 Affirmation in Opposition-Exhibits.....................5 - 7

Reply Affirmation......................................8 - 9

______________________________________________________________

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on September 9, 2013 when she attempted to lift a patient out of an alleged defective bed located in Tower 8, Room 805 at St. John's Episcopal Hospital (St. John's) located at 327 Beach 19th Street, Far Rockaway, New York 11691.

This action was commenced by the filing of a summons and complaint on December 26, 2014. Issue was joined by service of defendants' answer on January 12, 2015. Defendants now move for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing the complaint on the grounds that defendants did not have actual or constructive notice of a defective bed and since plaintiff cannot state where the incident occurred.

In support of the motion, defendants submit an affidavit from counsel, Philip J. Denoia, Esq.; a copy of the pleadings; a copy of the verified bill of particulars; a copy of the supplemental verified bill of particulars; the transcripts of the examinations before trial of non-party Michael Collins taken on August 13, 2015, plaintiff taken on April 1, 2016, and defendant by John Rocco taken on August 19, 2016; a copy of the Note of Issue; a copy of the so-ordered stipulation extending the time to serve summary judgment motions; a copy of the incident report; an affidavit from Harlima Mooney dated December 16, 2016; and an affidavit from John Rocco dated December 16, 2016.

At her deposition, plaintiff testified that she was injured due to a defective bed at St. John's. She did not specifically know where inside the hospital the incident occurred. It was somewhere on floors 8 to 11. She along with her Hunter Ambulette Ambulance, Inc. (Hunter) partner, Terance Roland, reported to St. John's for a patient transfer. When she arrived at the room, she proceeded to try to get the patient's bed to rise. The bed was flat on the floor. When she attempted to raise the bed, all she could get up was the feet and head. The bed itself would not go up. She told one of the nurses that she could not lift the bed and that the bed needed to come up. The nurse said try it. She described the nurse as a tall African-American gentleman. She asked the nurse to try it, and he went over and basically did the same thing she did. The nurse saw that the Trendelenburg and the head worked, but said the bed was broken. She asked the nurse how was she supposed to get the patient out. The patient was morbidly obese, weighing around 400 pounds. Her and Mr. Roland transferred the patient to the stretcher at a low level since the bed would not go up. While the patient was on the stretcher, she had to squat down to try to bring the stretcher up from the ground to the position where it can be wheeled out. When she lifted, the weight was a lot, and she felt a sharp pain and a rip in her stomach area. After she hurt herself, she does not remember if she said anything to anybody at St. John's.

Non-party Michael Collins testified that he is employed by Hunter as the vice president of operations. His job duties include hiring staff, handling day-to-day business issues, overseeing scheduling, and handling everything to do with the operations of the company. Plaintiff was employed by Hunter as an emergency medical technician from October 2012 through March, April 2014. One week after plaintiff's incident, plaintiff informed Hunter about the incident at St. John's. Plaintiff completed a work related incident report and provided Hunter with a copy. The incident report does not list the exact location of the incident. Hunter did not send any of their investigation to [*2]St. John's. He did not receive any complaints from any employees about broken beds at St. John's. If he had received a complaint, he would have reported it to St. John's.

John Rocco testified on behalf of defendants. At the time of the deposition, he is currently employed by St. John's as the vice president of operations and accreditations and the safety officer. At the time of the incident, he was the assistant vice president of operations and the safety officer. He testified that he is familiar with hospital procedure for dealing with broken or malfunctioning beds. If a bed was reported to be broken or malfunctioning, the nursing department would contact the engineering department. The engineering department would then evaluate the condition of the bed. If the bed needed to be taken out of service, the engineer evaluating the bed would place a tag on it. If the bed was reported as broken from a specific room, it would be logged as such. St. John's keeps maintenance records for the beds and keeps track of the beds by the manufacturer's serial number. Prior to appearing for his deposition, Mr. Rocco requested that a search for any accident reports and maintenance records be done. He spoke with three departments in the hospital: risk management, workers' compensation/insurance, and engineering. As a result of the searches, there were no records regarding any broken beds that could have lead to the incident. He was not aware of any beds, specifically within Tower 8, Room 805, that were reported to be malfunctioning as of and after plaintiff's incident. He was aware that St. John's performed annual inspections of all the beds. Mr. Rocco also submits an affidavit confirming his prior deposition testimony.

Harlima Mooney submits an affidavit affirming that she is currently employed by St. John's in the Human Resources Department as the Workers' Compensation Manager. She has access to and is able to search and view the personnel, payroll, and human resources records of all employees of the hospital. On December 1, 2016, he was asked to search for and personally conducted a search for personnel, payroll, and human resources records of male nurses who would have been working in Tower 8 on September 9, 2013 during the shift that encompassed 2:00 p.m. The search revealed that two male nurses were working, but neither were African-American.

Based on the above testimony and the search revealing no complaints about a broken bed, defendants' counsel contends that summary judgment is warranted as plaintiff cannot demonstrate that defendants had any notice of any defective bed. Counsel also contends that plaintiff cannot establish where the incident occurred. Specifically, counsel points to plaintiff's testimony [*3]in which she stated that she did not know the exact floor where the incident occurred.

In opposition, plaintiff's counsel, Erik W. Centner, Esq., contends that based on plaintiff's testimony that she told a nurse about the broken bed prior to the incident, there is at least an issue of fact as to whether defendants had notice of the condition and failed to fix it. Additionally, counsel contends that the location is specifically identified in the supplemental bill of particulars, Hunter's records, and was also disclosed by Mr. Collins who exchanged the accident location via a Trip Detail Report that specified that the incident location as Tower 8, Room 805, Bed 1. Mr. Collins also confirmed that plaintiff's assigned partner on the day of the incident was Terance Roland. Although plaintiff submits an affidavit dated January 25, 2017 and a statement dated September 4, 2014 from Mr. Roland, neither document is notarized. An affidavit that is unsworn is not evidentiary proof in admissible form, and thus, Mr. Roland's statements are not capable of raising a triable issue of fact as a matter of law (see Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381 [2004]; Goldberger v Village of Kiryas Joel, 31 AD3d 496 [2d Dept. 2006]; Rupp v City of Port Jervis, 10 AD3d 391 [2d Dept. 2004]).

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant (see Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept. 1990]).

To recover on a theory of negligence for a responsible party's failure to remedy a dangerous or hazardous condition, the plaintiff must first prove that the responsible party had actual or constructive notice of the hazard or defect, or should have known of the condition in the exercise of due care in the maintenance of the premises, and that a reasonable amount of time accrued in which to remedy the condition (see Nussbaum v Lacopo, 24 NY2d 311 [1970]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Bruk v Razag, Inc., 60 AD3d 715 [2d Dept. 2009]).

To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time [*4]prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). "To meet [its] initial burden on the issue of lack of constructive notice, [the defendant] must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the [incident occurred]" (Birnbaum v New York Racing Association, Inc., 57 AD3d 598 [1986]; see Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2d Dept. 2010]; Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]; Braudy v Best Buy Co., Inc., 63 AD3d 1092 [2d Dept. 2008]).

Here, although Mr. Rocco testified about annual inspections of all of the beds and testified that no beds were reported to be malfunctioning or broken in Tower 8, Room 805, there is no testimony in the record and no evidence elicited as to which employees were responsible for the care of the patient in Room 805 and no testimony with regard to when the specific bed had last been inspected. Moreover, plaintiff's testimony that she told the nurse that the bed was broken creates an issue of fact as to whether St. John's had actual notice of the condition.

Accordingly, the evidence submitted by defendants was insufficient to demonstrate, prima facie, that defendants did not have actual or constructive notice of the defective bed prior to plaintiff's incident (see Altinel v John's Farms, 113 AD3d 709 [2d Dept. 2014]; Mercedes v City of New York, 107 AD3d 767 [2d Dept. 2013]; Klerman v Fine Fare Supermarket, 96 AD3d 907[2d Dept. 2012]).

Regarding defendants' claim that plaintiff failed to identify where the incident occurred, based on Mr. Collins' testimony and the supplemental bill of particulars, this Court finds that plaintiff sufficiently established where the incident occurred.

As defendants failed to establish its entitlement to judgment as a matter of law, it is not necessary to consider the sufficiency of plaintiff's opposition papers (see Giraldo v Twins Ambulette Serv., Inc., 946 NYS2d 871 [2d Dept. 2012]; King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012]; Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).

Accordingly, for the above stated reasons, it is hereby

ORDERED, that defendants' summary judgment motion is denied.

Dated: March 30, 2017

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.