CORDERO v. St. Vincent's Hospital and Medical Center of New York, Defendant-Respondent-Appellant. (2002)

Order, Supreme Court, Bronx County (Alan Saks, J.), entered March 27, 2002, which, inter alia, granted defendant hospital's motion for summary judgment to the extent of dismissing plaintiff's false imprisonment claim, and denied said motion with respect to plaintiff's negligence claim, unanimously modified, on the law, to grant said motion with respect to the negligence claim and, except as thus modified, affirmed, without costs or disbursements.

As plaintiff concedes, the motion court properly found that the statute of limitations barred her false imprisonment claim.   Neither the allegations in the complaint nor the record afford a basis for finding that the claim, which was based on plaintiff's brief involuntary commitment when she returned for ongoing treatment after she had been discharged from the defendant hospital, sounded in either ordinary or professional negligence.

The hospital's report with respect to a September 16, 1995 incident, upon which plaintiff relies to sustain her negligence claim, indicates that as a result of plaintiff's having “bumped r/elbow into wall when ambulating,” X-rays were taken and a diagnosis made of “Fx-dislocation [right] elbow.”   In moving for summary judgment on this claim, defendant hospital submitted a medical affidavit from an orthopedic surgeon, which went unchallenged, stating that upon review of the X-rays taken on admission and the post-incident X-rays of September 19, 1995 he found that the elbow dislocation and fracture “diagnosed on September 19, 1995, was present on plaintiff's initial x-rays taken upon admission ․ on August 30, 1995.”   Plaintiff neither alleges nor shows any other injury.   Thus, the only injury shown occurred 17 days before the incident complained of and the cause of action against the hospital based on negligence should therefore have been dismissed.