Curet v. The City of New York

Full title: JOSEPH CURET, v. THE CITY OF NEW YORK. ET. AL..

Court: Supreme Court, Bronx County

Date published: Jan 11, 2022

2022 N.Y. Slip Op. 32269 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 25963/2018E

01-11-2022

JOSEPH CURET, v. THE CITY OF NEW YORK. ET. AL..

HON. MITCHELL J. DANZIGER, J.S.C.

Unpublished Opinion

PRESENT: HON. MITCHELL J. DANZIGER, J.

DECISION/ORDER

HON. MITCHELL J. DANZIGER, J.S.C.

Recitation as Required by CPLR §2219(a): The following papers Papers Numbered were read on this Motion for Summary Judgment: Notice of Motion. Affirmation in Support with Exhibits. Statement of Material Facts, Memo of Law (003)............................ 1

Affirmation in Opposition with Exhibits, Plaintiffs Statement of Material Facts, Memo of Law in Opp. Response to Statement of Material Facts(003)............................... 2

Affirmation in Reply with Aff in Support (003)............................. 3

Notice of Motion. Affirmation in Support with Exhibits, Statement of Material Facts (004)............................................. 4

Affirmation in Opposition with Exhibits, Statement of Material Facts, Memo of Law in Opp, Response to Statement of Material Facts (004)... 5

Affirmation in Reply(004)....................................................... 6

Upon the foregoing cited papers, the Decision/Order of this Court is as follows:

Motion by defendant, St. Barnabas Hospital ("Hospital) and motion by defendants, the City of New York ("City") and Jonathan Keith ("PO Keith"), for an order pursuant to CPLR §3211 and §3212 granting the defendants summary judgment and dismissing plaintiffs complaint, is granted.

This action stems from an incident wherein plaintiff, on August 25, 2017, while under arrest by the New York City Police Department, was taken by ambulance to St. Barnabas Hospital from the precinct due to complaints of chest pain. Plaintiff was accompanied to the hospital by P.O. Keith. Plaintiffs left arm was cuffed to the stretcher and his legs were in shackles. P.O. Keith remained with plaintiff in the emergency room. While plaintiff was laying on the stretcher in the emergency room, plaintiff was suddenly approached by non-party patient, Tomas Berroa and stabbed in the chest and the right arm. (City and Plaintiffs statements of undisputed facts).

According to plaintiffs testimony, on August 25, 2017. plaintiff took PCP and called 911 threatening to kill police officers, after having an argument with an officer in the 7-Eleven across the street from his home. As a result. NYPD officers responded to his home and he was arrested. He was taken to the 46^lh Precinct and began experiencing chest pains. An ambulance was called, and he was taken to St. Barnabas Hospital. P.O. Keith went with plaintiff to the hospital. Plaintiff testified he was in the emergency room for five minutes when the incident occurred. During the entire time. P.O. Keith was standing with plaintiff. After five minutes passed, a man named Tomas Bcrroa stabbed him. Plaintiff had never seen Mr. Berroa prior to this incident. He did not notice him in the emergency room in the five minutes prior to the incident. He did not have any conversation with Mr. Berroa in the emergency room. Plaintiff testified he was never affiliated with a gang. P.O. Keith was standing next to plaintiff when he was stabbed. After the stabbing occurred P.O. Keith restrained Mr. Berroa.

According to P.O. Keith, plaintiff was arrested at approximately 3:30 am for terroristic threats. At approximately 5:00 am, he accompanied plaintiff to St. Barnabas Hospital for complaints of chest pain. P.O. Keith remained with plaintiff while he was at St. Barnabas Hospital. Plaintiff was placed in a common area next to the nurse's station upon arriving at the hospital. The incident occurred approximately fifteen (15) minutes after their arrival at the hospital. P.O. Keith remained next to plaintiff the entire fifteen minutes. P.O. Keith testified that while the area was active with people, no one other than hospital staff approached plaintiff prior to the incident. P.O Keith noticed Mr. Berroa when he entered the emergency room. As he surveyed the room he noticed him sitting to the left of he and plaintiff. He was sitting in a chair and he appeared to just be waiting. Mr. Berroa was approximately twenty (20) feet from where P.O. Keith was standing. P.O. Keith did not speak to Mr. Berroa, he did not notice him holding anything, and while Mr. Berroa stared at them, it did not seem unusual, given the situation. P.O. Keith did not feel there was cause for concern. Plaintiff did not say anything to P.O. Keith regarding Mr. Berroa. P.O. Keith testified that that he did not see Mr. Berroa walk past him until after plaintiff was stabbed and that point he restrained Mr. Berroa. P.O. Keith testified that if he had seen Mr. Berroa with a knife, he would have stopped him from stabbing plaintiff.

Pursuant to the testimony of Cedric Lopez, security supervisor at the Hospital, Mr. Lopez was in the basement security office when he was summoned to the Emergency Department to render assistance. The Hospital employed one security guard in each of it's emergency departments on the date of the incident. Joseph Bailey was the security officer on dity in ED-1 at the time of the incident. There are no metal detectors in the emergency rooms, nor at the entrance of the Emergency Department. The Hospital security guards were to search persons "under observation" as a potential threat to other patients. Mr. Berroa did not fit that criteria based on his intake assessment.

The Court reviewed the video submitted of the subject incident. The video reveals that at 5:30pm. P.O. Keith and plaintiff can be seen in a common area of the St. Barnabas Emergency Department. P.O. Keith is standing next to plaintiffs stretcher, wherein plaintiff can be seen handcuffed to the bed. At 5:36:48. Mr. Berroa can be seen coming into the frame and walking toward plaintiff and P.O. Keith from their left. At 5:36:48, plaintiff can be seen making a motion with his arm. At 5:36:52, Mr. Berroa stabs plaintiff. At 5:36:53, P.O. Keith begins moving towards Mr. Berroa. At 5:36:53, P.O. Keith begins to attempt to restrain Mr. Berroa. and thereafter. P.O. Keith can be seen taking Mr. Berroa to the ground with the help of another individual at 5:36:59.

The City and P.O. Keith move to dismiss and for summary judgment on the grounds that the assault was not reasonably foreseeable, that reasonable and adequate care was exercised, an intervening criminal act unrelated to the City defendants was the proximate cause of the incident, P.O. Keith was acting within the scope of his employment and as such plaintiffs negligent hiring and retention claim must be dismissed, and lastly, plaintiff did not properly plead a Monell claim and as a result, plaintiffs 42 U.S.C. §1983 claims fail.

Plaintiff opposes the City's motion and avers that P.O. Keith owed plaintiff a duty of care pursuant to the NYPD Patrol Guide, because the City assumed physical custody of plaintiff as he was under arrest when transported to a hospital that has an extensive history of violent criminal activity, and P.O. Keith was negligent in failing to take measures to protect plaintiff and in allowing Mr. Berroa to approach plaintiff in violation of the NYPD Patrol Guide. Moreover, plaintiff submits he never pleaded a cause of action for negligent hiring and retention or a cause of action for Monell liability as against the City. Plaintiff maintains he alleged a 42 U.S.C. §1983 cause of action as against P.O. Keith only, which the City does not move to dismiss in their motion.

The Hospital moves for summary judgment submitting that plaintiff failed to establish the element of foreseeability, the Hospital conformed to its duty of care, the Hospital is not the proximate cause of plaintiffs injuries, and the most intense supervision could not have prevented the incident from occurring.

Plaintiff opposes the Hospital's motion on the grounds that Mr. Berroa's attack was foreseeable in light of the prior criminal activity at the Hospital and that the Hospitals failure to provide adequate security in the Emergency Department was a substantial factor in causing plaintiffs assault.

The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [ 1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized in a light most favorable to non-moving party. (Assaf v. Ropog Cab Corp.. 153 A.D.2d 520 [1^st Dept. 1989]). Summary judgment will only be granted if there are no material, triable issues of fact. (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). Once movant has met his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence to establish the existence of a triable issue of fact. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). It is well settled that issue finding, not issue determination, is the key to summary judgment. (Rose v. Da Ecib USA, 259 A.D.2d 258 [1^st Dept. 1999]). When the existence of an issue of fact is even debatable, summary judgment should be denied. (Stone v. Goodson. 8 N.Y.2d 8, 12 [I960]). The City's Motion

The City defendants have met their prima facie burden and plaintiff fails to raise a triable issue of fact in opposition. There was approximately four (4) seconds from when Mr. Berroa began approaching plaintiff at 5:36:48 and when plaintiff is stabbed at 5:36:52. P.O. Keith reacts at 5:36:53. Prior to the attack, plaintiff and Mr. Berroa had no contact, exchanged no words, and Mr. Berroa caused no reason for concern. Plaintiff did not say anything to P.O. Keith about Mr. Berroa prior to the attack. According to plaintiff, "'everything happened fast" and his attacker "out of nowhere" stabbed him. (P EBT. p. 42 and 50-h, p. 17). The entire incident took 4 seconds and P.O. Keith reacted within one (1) second of the attack. As such, the Court finds that the attack on plaintiff was unprovoked, spontaneous, and not reasonably foreseeable and as a result, liability cannot attach to the City defendants. Sanchez v. State of New York, 99 N.Y.2d 247 [2002]).

Plaintiffs contention that regardless of foreseeability, the New York City Patrol Guide imposes a separate, independent duty of care upon the City defendants is unavailing. As an initial matter, plaintiff cites to a Patrol Guide section that is mostly inapplicable. While the patrol guide section plaintiff references is entitled "hospitalized prisoners," it largely pertains to preventing the escape of the hospital prisoner and preventing the hospital prisoner from gaining access to contraband. While the patrol guide does outline approved visitors and authorized persons who may visit the plaintiff, to say that it imposes a duty on the officer to prevent an unforeseeable event from occurring is to impose a duty greater than that imposed by law. As such, this matter is not analogous to Lubecki v. City of Mew York. 304 A.D.2d 224 (1^st Dept. 2003), wherein the Court found that the applicable Patrol Guide section did not impose a higher duty of care than that appropriate for common-law negligence. A violation of an internal agency guideline that impose a higher standard of care on a defendant than those imposed by law cannot serve as a basis for liability against a governmental agency. (Flynn v. City of New York, 258 A.D.2d 129 [1^st Dept. 1999]).

Moreover, the City defendants cannot be held liable for another individual's "impulsive and spontaneous act," for which reasonable supervision would not have guarded against. Genesis R. v. City of New York. 162 A.D.3d 471 [1st Dept. 2018]). Pursuant to the video, the testimony of the plaintiff, and the testimony of P.O. Keith, P.O. Keith did not leave plaintiffs side while in the emergency department. Plaintiff and P.O. Keith were situated in an active emergency room area. Many people are seen walking by and near both plaintiff and P.O. Keith. According to plaintiffs own testimony, Mr. Berroa came out of nowhere. According to P.O. Keith, he surveyed the area and Mr. Berroa did not concern him. P.O. Keith did not see Mr. Berroa with a knife prior to the incident. As such, the City and P.O. Keith are not liable for Mr. Berroa's impulsive and spontaneous act and plaintiffs negligence cause of action as against the City and P.O. Keith is dismissed.

The City did not move to dismiss plaintiffs second cause of action alleging 42 U.S.C. §1983 violations pursuant to the 8^th and 14^th Amendments for "cruel and unusual punishment, safe conditions, and security from attack by others." However, the Court has reviewed the record and nonetheless, dismisses plaintiffs second cause of action. "It is well settled that protection under the Eighth Amendment to the United States Constitution "does not apply until after conviction and sentence'." Here, plaintiff was simply in custody, taken directly from the precinct after his arrest. Plaintiff does not actually plead any 14^th Amendment violation. As such, plaintiffs second cause of action alleging violations pursuant to 42 U.S.C. §1983, as against P.O. Keith, is dismissed.

The Hospital's Motion

With regard to defendant. Hospital, property owners have a common-law duty to '"minimal precautions" to protect visitors from foreseeable harm, including foreseeable criminal acts. Mason v. U.E.S.S. Leasing Corp.. 96 N.Y.2d 875 (2001). ""Since, however, the owner or possessor is not an insurer of the safety of those who use the premises, he cannot, even in the background of a history of crime committed on the premises, be held to a duty to take protective measures unless it is shown that he knows or, from past experience, has reason to know that there is likelihood of third-party conduct likely to endanger the safety of those using the premises." Williams v. Citibank. N.A.. 247 A.D.2d 49 (1^st Dept. 1998). Pursuant to the evidence submitted by the Hospital, there have been no attacks in the emergency room involving weapons or serious injury in the three years prior to this incident occurring. Further, Mr. Berroa did not meet the criteria for search or for close observation based upon his initial assessment by the Hospital.

Plaintiff contends that the Hospital has an extensive history of prior violent criminal activity regarding patients and visitors. While plaintiff points to calls of service to the hospital, plaintiff submits evidence of calls to any part of the hospital and by both patients and visitors. Additionally, there is no evidence submitted that all of the reported crime took place at or near the hospital. It could have happened in any location and the reporting took place from the hospital. Moreover, the Hospital has reporting requirements regarding certain crimes that did not take place at the hospital that must be reported.

"To establish foreseeability. the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location." Maria T. v. New York Holding Co. Assoc. 52 A.D.3d 356 (1^st Dept. 2008). A review of the incident reports submitted for the Hospital Emergency Department wherein plaintiff was located shows that while there were patient-on-patient assaults within the six year period prior to plaintiffs attack in the Emergency

Department, none involved a weapon such as a knife. The three assaults that did involve the use of an object, involved an IV pole, a chair, and an umbrella. The Court notes that the existence of a metal detector would not have prevented or affected any of those prior assaults. As such, the Court finds that this incident was not foreseeable and plaintiffs complaint as to the Hospital is dismissed. As a result, the Court need not address any further arguments relative to this motion.

Accordingly, the defendants' motions are granted and plaintiffs compliant is dismissed. The defendants are directed serve a copy of this order with notice of its entry, upon the plaintiff within 30 days of the entry date.

The above constitutes the decision and judgment of the Court.