Montalvo v. Episcopal Health Servs., Inc.

• Decision Date: 29 May 2019
• Docket Number: Index No. 28835/08,2017–07789
• Citation: 102 N.Y.S.3d 74,172 A.D.3d 1357
• Court: New York Supreme Court — Appellate Division
• Parties: Melvin MONTALVO, Respondent, v. EPISCOPAL HEALTH SERVICES, INC., et al., Appellants, et al., Defendant.

172 A.D.3d 1357
102 N.Y.S.3d 74

Melvin MONTALVO, Respondent,
v.
EPISCOPAL HEALTH SERVICES, INC., et al., Appellants, et al., Defendant.

2017–07789
Index No. 28835/08

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 28, 2019
May 29, 2019

102 N.Y.S.3d 75

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains, N.Y. (Samantha E. Quinn of counsel), for appellants.

Valli, Kane & Vagnini LLP, Garden City, N.Y. (Matthew Berman and Robert J. Vali, Jr., of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

172 A.D.3d 1358

In an action to recover damages for assault and battery, the defendants Episcopal Health Services, Inc., and St. John's Episcopal Hospital South Shore appeal from an order of the Supreme Court, Queens County (Diccia T. Pineda–Kirwan, J.), entered April 25, 2017. The order denied that branch of those defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and that branch of the motion of the defendants Episcopal Health Services, Inc., and St. John's Episcopal Hospital South Shore which was for

102 N.Y.S.3d 76

summary judgment dismissing the complaint insofar as asserted against them is granted.

The plaintiff commenced this action in 2008 against the defendants Episcopal Health Services, Inc., and St. John's Episcopal Hospital South Shore (hereinafter St. John's; hereinafter together the defendants), and another, to recover damages for an alleged sexual assault committed against him while he was hospitalized at St. John's in December 2007. The complaint set forth causes of action alleging assault and battery. The defendants moved, inter alia, pursuant to CPLR 3212(b) for summary judgment dismissing the complaint insofar as asserted against them.

In an order entered April 25, 2017, the Supreme Court denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The court concluded that the motion was procedurally improper, since it violated the rule against successive motions for summary judgment, and since the defendants failed to submit a copy of all of the pleadings with their motion.

The Supreme Court should not have determined, sua sponte, that the defendants' motion violated the rule against successive motions for summary judgment. While the defendants had previously moved for summary judgment following the filing of a note of issue, and their motion was denied on the ground that it had not been made within the time allowed by CPLR 3212(a), the note of issue was subsequently vacated. The vacatur of the note of issue returned the case to its pre-note of issue status (see Montalvo v. Mumpus Restorations, Inc. , 110 A.D.3d 1045, 1046, 974 N.Y.S.2d 87 ) and the defendants could again seek summary judgment (see Farrington v. Heidkamp , 26 A.D.3d 459, 460, 809 N.Y.S.2d 458 ).

Furthermore, although the Supreme Court indicated that it would have, in any event, denied that branch of the defendants'

172 A.D.3d 1359

motion for failure to submit a copy of all of the pleadings with their motion papers, we nonetheless exercise our discretion to reach the merits. While CPLR 3212(b) requires that...