Beville v Olean Gen. Hosp.

Beville v Olean Gen. Hosp. 2015 NY Slip Op 00177 Decided on January 2, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
1460 CA 14-00944

[*1]DOLORES A. BEVILLE, PLAINTIFF-RESPONDENT,

v

OLEAN GENERAL HOSPITAL AND UPPER ALLEGHENY HEALTH SYSTEMS, INC., DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Cattaraugus County (Paula L. Feroleto, J.), entered January 9, 2014. The order denied the motion of defendants to dismiss the complaint.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (SALLY J. BROAD OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

BROWN CHIARI LLP, LANCASTER (MICHAEL R. DRUMM OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the claim for punitive damages and as modified the order is affirmed without costs.

Memorandum: In February 2011 plaintiff was hospitalized at Olean General Hospital (defendant) and received insulin injections during her stay. In January 2013 defendant sent plaintiff a letter informing her that, during the period in which she was hospitalized, insulin pens used to administer insulin may have been shared by more than one patient. The letter also offered her free and confidential testing for hepatitis B, hepatitis C and HIV. Plaintiff thereafter commenced this action alleging, inter alia, that defendant was negligent in permitting the use of insulin pens on more than one patient and that, as a result of such negligence, she suffered emotional distress arising from her fear of contracting a blood-borne illness.

Supreme Court properly denied defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (7). Affording plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), we conclude that "the complaint state[s] causes of action for negligence and negligent infliction of emotional distress" (Brijlall v R.G. Ortiz Funeral Home, Inc., 13 AD3d 322, 323). Nevertheless, we agree with defendants that, even affording the complaint a liberal construction and accepting the facts alleged in the complaint as true, those allegations do not support a claim for punitive damages (see Fragrancenet.com, Inc. v Fragrancex.com, Inc.,

68 AD3d 1051, 1052). We therefore modify the order accordingly.

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court