Rodriguez v. New York City Health & Hospitals Corp.

• Decision Date: 07 July 1986
• Citation: 132 Misc.2d 705,505 N.Y.S.2d 345
• Parties: Susan RODRIGUEZ, as Administratrix of the Estate of Jose Rodriguez, Deceased, Plaintiff, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Vincent Arolay and Leo Arolay, and City of New York, Defendants.
• Court: New York Supreme Court

Page 345

505 N.Y.S.2d 345

132 Misc.2d 705

Susan RODRIGUEZ, as Administratrix of the Estate of Jose

Rodriguez, Deceased, Plaintiff, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Vincent Arolay and Leo Arolay, and City of New York, Defendants.

Supreme Court, Kings County.

July 7, 1986.

Richard Kranis, New York City, for plaintiff.

Bower & Gardner, New York City, for defendant NYCH & H Corp.

Joan D. Ariola, Staten Island, for defendant Arolay.

MEMORANDUM

NICHOLAS A. CLEMENTE, Justice.

Plaintiff, Susan Rodriguez, commenced this action by summons and verified complaint dated November 24, 1982, alleging that the medical treatment rendered her deceased husband, Jose Rodriguez, was negligent. The ninth paragraph of the complaint states that "Prior to his death, the decedent did consult with the defendant, Vincent Arolay, for the purpose of receiving treatment, care and diagnosis of a condition then afflicting him".

Dr. Vincent Arolay now moves for the complaint to be dismissed and summary judgment to be entered in his favor, essentially contending that he never treated the deceased and that there never existed any relationship of doctor and patient between them.

In support of his position, the moving defendant relies upon a deposition of Susan Rodriguez, a Notice to Admit to which plaintiff has not responded and his own affidavit setting forth his view of the occurrence.

The doctor's affidavit states:

"I was ascending the stairs to my apartment at one o'clock in the morning when I was stopped by Susan Rodriguez, the plaintiff herein, and asked 'to look in' at her ailing husband, Jose Rodriguez, who was the superintendent of the building. When I saw him Jose Rodriguez looked very sick and moribund. I took his pulse and told his wife, Susan, that her husband was a very sick man, that I could not help him in any way, and that he needed immediate hospitalization. I telephoned the police at 911, asked for any ambulance, and left. That was the total of my involvement in the diagnosis and treatment of the deceased. I refused to take the case because I felt that I personally could not help him in anyway. It was my opinion, fortified by 55 years of experience as a general medical practitioner, that his sole, slim chance for survival lay in immediate hospitalization."

Additionally, Dr. Arolay points to the examination before trial of Susan Rodriguez wherein she testified that "I saw him in the building and I asked him if he would come in". She also testified that all this doctor did was take Jose's pulse and heart rate and that he then called for an ambulance.

As for the Notice to Admit to which plaintiff never responded (and to which defendant New York City Health & Hospitals Corporation advised that it had no information) it requested admissions that defendant Vincent Arolay had never examined the deceased, had never made any diagnosis as to his physical or mental condition and had never treated the deceased.

In opposition to the motion, both plaintiff and co-d...