Opinion
10-05-2017
Jacqueline A. GILLERN, as administrator of the estate of John J. Gillern, Jr., et al., Plaintiffs–Respondents, v. Ed MAHONEY, et al., Defendants, Memorial Sloane Kettering, Defendant–Appellant.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for respondents.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for respondents.
Order, Supreme Court, New York County, (Joan M. Kenney, J.), entered January 7, 2016, which, to the extent appealed from, denied defendant Memorial Sloane Kettering's (MSK) motion to dismiss plaintiff's causes of action for negligence and wrongful death, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same Court and Justice, entered on or about August 8, 2016, which denied the motion of MSK seeking leave to amend its answer to assert the worker's compensation affirmative defense, unanimously dismissed, without costs, as academic.Decedent, plaintiff's husband and an employee of MSK, became intoxicated at a holiday party organized by workers in MSK's facilities department. The party was not sanctioned by MSK, held on MSK property, or paid for by MSK, and all employees there were off duty. Coworker friends of the decedent contacted plaintiff, a registered nurse at MSK, and then helped decedent into her car. Plaintiff drove home and left decedent in the car, parked in their driveway, to sleep off his condition. Approximately one hour later, plaintiff checked on decedent, and found him now on the floor of the back seat, unresponsive. The autopsy report lists the cause of the death as alcohol intoxication and positional asphyxia.
The motion court erred in denying summary judgment to MSK. Their employees, in assisting decedent and placing him in his wife's care, did not assume a duty, and nothing they did placed him in a worse or different position of danger (see Malpeli v. Yenna, 81 A.D.3d 607, 915 N.Y.S.2d 628 [2d Dept.2011] ; compare Seeger v. Marketplace, 101 A.D.3d 1691, 956 N.Y.S.2d 770 [4th Dept.2012] ). Any opinions rendered about medical attention being unnecessary were nonactionable gratuitous commentary (see Feeney v. Manhattan Sports Club, 227 A.D.2d 293, 642 N.Y.S.2d 674 [1st Dept.1996] ). Moreover, placing decedent into the car was not the proximate cause of his death; it merely furnished the occasion for the unfortunate occurrence (see Sheehan v. City of New York, 40 N.Y.2d 496, 387 N.Y.S.2d 92, 354 N.E.2d 832 [1976] ; see also Bonomonte v. City of New York, 79 A.D.3d 515, 914 N.Y.S.2d 19 [1st Dept.2010], affd. 17 N.Y.3d 866, 932 N.Y.S.2d 421, 956 N.E.2d 1266 [2011] ).
Our findings render MSK's remaining arguments, including those regarding the affirmative defense of workers' compensation, academic.
ACOSTA, P.J., RENWICK, WEBBER, OING, MOULTON, JJ., concur.