FERRIS v. MILLMAN (2007)

Plaintiff commenced this action alleging false imprisonment against the Hospital.  Thereafter, he commenced a second action arising from the same circumstances against Dr. Millman.  By amended complaint dated June 27, 2005, plaintiff added two causes of action sounding in medical malpractice against defendants.  On June 30, 2005, the two actions were consolidated.

More specifically, plaintiff alleges that on December 30, 2002, when a co-worker went to his apartment after he had been suspended from his employment as a nurse, she became concerned about his well being, since he appeared to be intoxicated and had a stool positioned near an open window;  plaintiff claims that he was cleaning the window.  After 911 was telephoned, plaintiff was taken to Roosevelt Hospital.  He was then transferred to the mental health unit of the St. Luke's Hospital Division of St. Luke's Roosevelt Hospital, where he was involuntarily admitted.

Immediately upon being admitted, plaintiff alleges the he denied that he was suicidal.  On December 31, 2002, he delivered a letter to a nurse demanding his release.  Plaintiff was not released until January 9, 2003.

The Parties' Contentions

Plaintiff's Contentions

Plaintiff argues that he is entitled to summary judgment on his cause of action for false imprisonment, since the letter that he delivered on December 31, 2002 was sufficient to begin the process of obtaining a hearing pursuant to Mental Hygiene Law (MHL) § 9.39(a)(2).  Delivery of the letter is reflected in plaintiff's hospital records and Dr. Millman testified that the letter constituted an adequate request for a release.  Despite the receipt of this letter, no hearing was held and plaintiff was released on January 9, 2006.

Defendants' Contentions

In opposition to plaintiff's motion and in support of their cross motion, defendants allege that on December 28, 2002, plaintiff presented to the Hospital's Comprehensive Psychiatric Emergency Program (CPEP), complaining of feeling depressed, being unable to sleep, and having decreased energy and suicidal ideations;  the records indicate that plaintiff was taking valium and prozac and had a history of depression, alcohol abuse and cocaine abuse.  He was treated with seroquel and benadryl, remained over night and was instructed to see his psychiatrist.  When plaintiff was brought to the Hospital on December 30, 2002, it was believed that he posed a potential danger to himself and he was involuntarily admitted by way of a two-physician certification because of his long history of suicidal ideation.  Plaintiff was initially going to be discharged on January 3, 2002, but “that discharge was eventually rescinded because of the understanding that plaintiff could possibly lose his job if he was not admitted into a rehabilitation program.”  Accordingly, after a family meeting, it was decided that plaintiff would be discharged on January 9, 2002.

Defendants argue that plaintiff's contention that his letter of December 31, 2002 required that he be provided with a hearing on the issue of the appropriateness of continued confinement within five days of receipt pursuant to MHL § 9.39(a)(3) is without merit, since actions or inactions under the MHL are privileged and that the privilege can only be pierced by proof of medical malpractice, which plaintiff cannot establish.  Defendants therefore conclude that the complaint must be dismissed as against them.  Defendants also argue that although their cross motion was not made within 60 days as required by this court's rules, inasmuch as plaintiff made his motion for summary judgment on the eve of the expiration of the 60–day period, the court should exercise its discretion and hear their cross motion, since there is no evidence of dilatory conduct and resolution of the motion will not delay the action.

In their reply affirmation, defendants contend that plaintiff was not admitted to the Hospital pursuant to MHL § 9.39, which pertains to emergency admissions for immediate observation, care and treatment, as he claims, but was instead admitted pursuant to MHL § 9.27, which pertains to involuntary admissions on medical certification, as is indicated by the two physician certificates dated December 30, 2002 and as is set forth in the Notice of Status and Rights that was given to plaintiff when he was admitted.  This is alleged to be significant because if a person is admitted under MHL § 9.27, his or her right to demand a hearing is governed by MHL § 9.31(b), which does not require that a patient be provided with a hearing within five days of demand, as does MHL § 9.39.

False Imprisonment

The Law

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986], Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).  Once the proponent has met the initial burden of establishing entitlement to judgment as a matter of law, the party opposing summary judgment must demonstrate that a triable issue of fact exists (see e.g. Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Silverman v. Perlbinder, 307 A.D.2d 230, 762 N.Y.S.2d 386 [2003];  Daljun Yu v. Song Su Pae, 201 A.D.2d 697, 608 N.Y.S.2d 286 [1994] ).

In order to defeat a motion for summary judgment, the opposing party is required to present a material issue of evidentiary fact comprised of more than just mere speculation or conjecture (see e.g. Cillo v. Resjefal Corp., 16 A.D.3d 339, 340, 792 N.Y.S.2d 428 [2005], citing Castro v. New York Univ., 5 A.D.3d 135, 136, 773 N.Y.S.2d 29 [2004] ).  Mere conjecture or surmise will not suffice (see e.g. Youthkins v. Cascio, 298 A.D.2d 386, 751 N.Y.S.2d 216 [2002], affd. 99 N.Y.2d 638, 760 N.Y.S.2d 91, 790 N.E.2d 264 [2003];  Lahowin v. Ganley, 265 A.D.2d 530, 696 N.Y.S.2d 241 [1999] ).  Moreover, the motion cannot be defeated by the assertion of new theories not previously pleaded (see e.g. Figueroa v. Gallager, 20 A.D.3d 385, 387, 798 N.Y.S.2d 143 [2005];  Mompoint v. New York City Tr. Auth., 8 A.D.3d 539, 540, 779 N.Y.S.2d 226 [2004];  Harrington v. City of New York, 6 A.D.3d 662, 663, 776 N.Y.S.2d 592 [2004];  Slacin v. Aquafredda, 2 A.D.3d 624, 625, 768 N.Y.S.2d 341 [2003] ).

 “In order to recover on a cause of action for false imprisonment, four elements must be proved by the plaintiff:  (1) the defendant's intent to confine, (2) the plaintiff's consciousness of the confinement, (3) that the confinement was involuntary and (4) that the confinement was not privileged” (Gonzalez v. State, 110 A.D.2d 810, 812, 488 N.Y.S.2d 231 [1985], citing Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert. denied sub. nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975];  Parvi v. City of Kingston, 41 N.Y.2d 553, 556, 394 N.Y.S.2d 161, 362 N.E.2d 960 [1977] ).  As is also relevant herein, “in an action for damages for false imprisonment, the burden of establishing that the detention was privileged is on those charged with the commission of that tort” (Hollender v. Trump Village Co-op., 58 N.Y.2d 420, 425, 461 N.Y.S.2d 765, 448 N.E.2d 432 [1983], citing Parvi, 41 N.Y.2d at 556, 394 N.Y.S.2d 161, 362 N.E.2d 960;  Broughton, 37 N.Y.2d at 456, 373 N.Y.S.2d 87, 335 N.E.2d 310).

The MHL provides several grounds upon which a patient may be involuntarily confined.  As is relevant to the issues now before the court, MHL § 9.27, involuntary admission on medical certification, provides detailed procedures to be followed if a person is to be involuntarily retained.  Pursuant to MHL § 9.27(a) “[t]he director of a hospital may receive and retain therein as a patient any person alleged to be mentally ill and in need of involuntary care and treatment upon the certificates of two examining physicians, accompanied by an application for the admission of such person.”  The phrase “in need of involuntary care and treatment” is defined to mean “that a person has a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment” (MHL § 9.01).  Section 9.27(b) then lists the persons who may execute an application, which list includes any person with whom the person alleged to be mentally ill resides;  the father or mother, husband or wife, brother or sister, or the child of any such person or the nearest available relative;  the committee of such person;  an officer of any public or well recognized charitable institution or agency or home, including but not limited to the superintendent of a correctional facility;  the director of community services or social services official;  the director of the hospital or of a general hospital;  the director or person in charge of a facility providing care to alcoholics, or substance abusers or substance dependent persons;  and a qualified psychiatrist who is either supervising the treatment of or treating such person for a mental illness in a facility licensed or operated by the office of mental health.

As is also relevant herein, MHL § 9.27(d) provides that:

“Before an examining physician completes the certificate of examination of a person for involuntary care and treatment, he shall consider alternative forms of care and treatment that might be adequate to provide for the person's needs without requiring involuntary hospitalization.  If the examining physician knows that the person he is examining for involuntary care and treatment has been under prior treatment, he shall, insofar as possible, consult with the physician or psychologist furnishing such prior treatment prior to completing his certificate.”

Following admission, MHL § 9.27(e) requires that:

“The director of the hospital where such person is brought shall cause such person to be examined forthwith by a physician who shall be a member of the psychiatric staff of such hospital other than the original examining physicians whose certificate or certificates accompanied the application and, if such person is found to be in need of involuntary care and treatment, he may be admitted thereto as a patient as herein provided.”

If a patient is involuntarily admitted on medical certification, MHL § 9.31(a) provides that he, she, or any relative, friend or the mental hygiene legal services may request a hearing.  MHL § 9.31(b) provides that:

“It shall be the duty of the director upon receiving notice of such request for hearing to forward forthwith a copy of such notice with a record of the patient to the supreme court or the county court in the county designated by the applicant, if one be designated, or if no designation be made, then to the supreme court or the county court in the county where such hospital is located.”

As is relevant herein MHL § 9.39, emergency admissions for immediate observation, care, and treatment, provides that:

“(a) The director of any hospital maintaining adequate staff and facilities for the observation, examination, care, and treatment of persons alleged to be mentally ill and approved by the commissioner to receive and retain patients pursuant to this section may receive and retain therein as a patient for a period of fifteen days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.  Likelihood to result in serious harm' as used in this article shall mean:

“1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or

“2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.”

The statute further sets forth the procedure to be followed for such admission, i.e., the director shall admit the patient:

“only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements of this section.  Such person shall not be retained for a period of more than forty-eight hours unless within such period such finding is confirmed after examination by another physician who shall be a member of the psychiatric staff of the hospital.”

(id.).  As is also relevant to the issues now before the court, the statute provides in pertinent part that:

“[i]f at any time after admission, the patient, any relative, friend, or the mental hygiene legal service gives notice to the director in writing of request for court hearing on the question of need for immediate observation, care, and treatment, a hearing shall be held as herein provided as soon as practicable but in any event not more than five days after such request is received, except that the commencement of such hearing may be adjourned at the request of the patient.”

(MHL § 9.39[2][a] ).

In order to allow a patient to implement the above provisions, MHL § 33.15(a) provides that “[a] person retained by a facility or the department or a relative or friend on his behalf is entitled to a writ of habeas corpus to question the cause and legality of detention upon proper application.”  Subsection (b) goes on to provide that “[u]pon the return of such a writ of habeas corpus, the court shall examine the facts concerning the person's alleged mental disability and detention.”

 It has been held, as argued by defendants, that commitment pursuant to MHL article 9 is privileged in the absence of medical malpractice (see e.g. Tewksbury v. State, 273 A.D.2d 376, 710 N.Y.S.2d 909 [2000], appeal denied 95 N.Y.2d 766, 716 N.Y.S.2d 641, 739 N.E.2d 1146 [2000] ) [claimant was involuntarily committed for ten days pursuant to MHL § 9.37];  Matter of E.K. v. State, 235 A.D.2d 540, 652 N.Y.S.2d 759 [1997], appeal denied 89 N.Y.2d 815, 659 N.Y.S.2d 856, 681 N.E.2d 1303 [1997] [claimant was involuntarily admitted on an emergency basis pursuant to MHL § 9.39(a) for three days];  Ferretti v. Town of Greenburgh, 191 A.D.2d 608, 595 N.Y.S.2d 494 [1993], appeal dismissed 82 N.Y.2d 748, 602 N.Y.S.2d 806, 622 N.E.2d 307 [1993], appeal denied 82 N.Y.2d 662, 610 N.Y.S.2d 149, 632 N.E.2d 459 [1993] [involuntary commitment and detention for almost 48 hours pursuant to MHL § 9.37];  Gonzalez, 110 A.D.2d 810, 488 N.Y.S.2d 231 [involuntary commitment for three days pursuant to MHL § 9.39];  Welch v. County of Westchester, 177 A.D.2d 627, 576 N.Y.S.2d 332 [1991] [confinement under MHL § 9.37(a) ].  Stated differently, “[b]ecause a determination pursuant to Mental Hygiene Law article 9 requires a medical judgment by a treating physician, the determination to retain a patient is privileged only in the absence of negligence, or malpractice, in the exercise of that medical judgment” (Morgan, 32 A.D.3d at 914, 822 N.Y.S.2d 567, citing Tewksbury, 273 A.D.2d 376, 710 N.Y.S.2d 909;  Matter of E.K., 235 A.D.2d 540, 652 N.Y.S.2d 759;   Ferretti, 191 A.D.2d at 608, 595 N.Y.S.2d 494).

In addressing claims arising from what is alleged to be an improper involuntary confinement pursuant to MHL article 9, however, the court has recognized that “since an involuntary confinement to a mental health care facility constitutes a massive curtailment of liberty' (Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552), considerations of due process require that [the institution] comport its conduct with the procedures outlined in the Mental Hygiene Law, and take steps properly to apply the criteria articulated therein” (Morgan v. City of New York, 32 A.D.3d 912, 915, 822 N.Y.S.2d 567 [2006] [decedent was confined, purportedly pursuant to MHL §§ 9.37 and 9.39, for six days] ).  In this regard, it has been held that “the layers of professional [and judicial] review' contained in the New York State Mental Hygiene Law's elaborate notice and hearing provisions, including notice to relatives and others designated by the patient, and the availability of a judicial hearing within five days of demand by the patient, relative or friend, as well as habeas corpus relief” meets procedural due process minima (Project Release v. Prevost, 722 F.2d 960, 975 [1983] ).

Although an institution's failure to provide the required hearings does not constitute a ground for release, it has been held that the “failure to respond to the patient's requests for a hearing challenging his commitment pursuant to Mental Hygiene Law § 9.31, and its retention of the patient without legal status after his authorized retention expired ․ are troubling” (State of New York, ex rel. Karur v. Carmichael, 41 A.D.3d 349, 350, 838 N.Y.S.2d 562 [2007];  accord In re Maimonides Medical Ctr., 173 Misc.2d 111, 660 N.Y.S.2d 614 [1997] ) [the failure to timely apply for continued retention of the patient caused an illegal detention;  the hospital's failure to comply with the statute was unacceptable and could not be condoned or disregarded].  Hence, the court has rigidly applied the procedural dictates of MHL article 9.  For example, in the case of People ex rel. Noel B. v. Jones, 230 A.D.2d 809, 809–810, 646 N.Y.S.2d 820 [1996], lv. dismissed 88 N.Y.2d 1065, 651 N.Y.S.2d 408, 674 N.E.2d 338 [1996], petitioner was admitted to the Kingsborough Psychiatric Center on November 27, 1995, pursuant to MHL § 9.39.  Respondent did not apply for the involuntary admission of petitioner until January 3, 1996, which was past the 15–day deadline, and respondent did not apply for a retention order until February 2, 1996, which was 7 days past the statutory deadline.  In holding that petitioner's proceeding for a writ of habeas corpus, which was commenced on February 7, 1996 on the ground that his continued involuntary confinement was illegal, the court stated that:

“the Supreme Court erred in dismissing the writ as academic.  The record establishes that the petitioner's discharge' from Kingsborough was a transparent attempt by the respondent to avoid the legal consequences of the failure to follow statutory procedures.  The respondent did not dispute the petitioner's allegations that he was transported in handcuffs from Kingsborough to the Kings County Hospital emergency room, that he was admitted to that hospital overnight for evaluation, and that he was readmitted to Kingsborough the next day.

“The record establishes that the petitioner was illegally detained when he commenced this proceeding (see, e.g., People ex rel. Jacobs v. Director of Gowanda State Hosp., 19 A.D.2d 858, 244 N.Y.S.2d 21, affd. 14 N.Y.2d 663, 249 N.Y.S.2d 870, 198 N.E.2d 903).  Because civil commitment constitutes a significant deprivation of liberty (see, Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323), the respondent's failure to comply with the statute cannot be condoned.”

(id. at 810–811, 646 N.Y.S.2d 820).

Also relevant is the case of Ruhlmann v. Smith, 323 F.Supp.2d 356, 360 [2004], where the court held that “[w]hether the confinement here was privileged depended upon whether the mandates of Mental Hygiene Law § 9.39 had been fulfilled.”  Similarly, in the case of Welch v. County of Westchester, 150 A.D.2d 371, 371–372, 540 N.Y.S.2d 820 [1989], the court held that defendant's confinement of plaintiff was not privileged pursuant to MHL § 9.37(a), since defendant did not comply with the requirement that a certificate of another examining physician was necessary since, within seventy-two hours after the patient was admitted, she did not agree to remain in the hospital as a voluntary patient, and defendant failed to offer proof that a second examining physician filed the appropriate certificate.

Discussion

 Herein, the facts clearly establish that plaintiff was involuntarily admitted to the Hospital on December 30, 2002 after being taken to the hospital by ambulance, in handcuffs;  that he delivered a written request for a hearing on the next day;  and that his confinement continued until January 9, 2003, although no hearing was held.  Applying the above principles of law to the facts of this case, the court rejects defendants' assertion that these facts cannot support a cause of action for false imprisonment in the absence of a showing of medical malpractice.

In so holding, it must be noted that although defendants contend that their determination to confine plaintiff is privileged pursuant to MHL § 9.39, none of the cases relied upon for this proposition address the failure of an institution to provide a patient with a hearing within five days of a demand therefore, as is required pursuant to the statute (see e.g. Tewksbury, 273 A.D.2d 376, 710 N.Y.S.2d 909;  Matter of E.K., 235 A.D.2d 540, 652 N.Y.S.2d 759;  Ferretti, 191 A.D.2d 608, 595 N.Y.S.2d 494).  Similarly, defendants' reliance upon Tewksbury, 273 A.D.2d 376, 710 N.Y.S.2d 909, Matter of E.K., 235 A.D.2d 540, 652 N.Y.S.2d 759 and Ferretti, 191 A.D.2d 608, 595 N.Y.S.2d 494 is also misplaced, since the court in those cases found that the evidence submitted by defendant established that the decision to involuntarily commit the patient was made in accordance with the procedures set forth in MHL §§ 9.37 and 9.39, and that the proper application of their dictates would not violate the plaintiff's civil rights, respectively, findings that cannot be made herein.

Defendants' claim that a plaintiff cannot succeed on a claim of false imprisonment in the absence of a showing of medical malpractice is also belied by the holding in Morgan.  Therein, the court found that plaintiff's claim that defendant violated the provisions of MHL § 9.39 when it failed to take the necessary steps to properly apply the statutory criteria stated causes of action alleging a violation of decedent's Fourth and Fourteenth Amendment rights pursuant to 42 USC § 1983, premised upon the claim that defendant deprived decedent of liberty in the absence of procedural due process, so that these portions of his claim were permitted to go to trial (Morgan, 32 A.D.3d at 914–915, 822 N.Y.S.2d 567).  Similarly, as discussed above, People ex rel. Noel B., 230 A.D.2d at 809–810, 646 N.Y.S.2d 820, Ruhlmann, 323 F.Supp.2d at 360 and Welch, 150 A.D.2d at 371–372, 540 N.Y.S.2d 820 also support the conclusion that defendants' actions are not privileged pursuant to MHL article 9 where the procedural safeguards set forth in the statutory provisions relied upon are not followed.

Accordingly, the court agrees that pursuant to MSH § 9.39, defendants were obligated to provide plaintiff herein with a hearing within five days of his demand.  Indeed, any other holding would vitiate the due process protections afforded by MHL § 9.39 and allow a facility to hold a mentally ill person indefinitely, without access to the court for review, a result that this court will not countenance.

 Apparently recognizing that the court may reach this conclusion, in their reply papers, defendants make the belated attempt to assert that plaintiff was not admitted pursuant to MHL § 9.39, but was instead admitted pursuant to MHL § 9.27.  The court finds defendants' argument to avoid summary judgment on this ground to be unpersuasive.  In the first instance, as was noted above, a motion for summary judgment cannot be defeated by the assertion of new theories not previously pleaded (see e.g. Figueroa, 20 A.D.3d at 387, 798 N.Y.S.2d 143;  Mompoint, 8 A.D.3d 539, 540, 779 N.Y.S.2d 226 [2004];  Harrington, 6 A.D.3d at 663, 776 N.Y.S.2d 592;  Slacin, 2 A.D.3d at 625, 768 N.Y.S.2d 341).

More significantly, Dr. Merriam's affidavit and the deposition testimony of both plaintiff and Dr. Millman make it clear that plaintiff was transported to the Hospital by ambulance and admitted through the emergency room.  This unequivocally establishes that he was admitted to the Hospital on an emergency basis, which admission would trigger the procedural safeguards afforded by MHL § 9.39. Further, defendants contend that plaintiff was involuntarily confined because he was suicidal, a ground for admission that is specifically set forth in MHL § 9.39(a).  In addition, the fact that two physicians signed certificates stating that plaintiff should be admitted does not compel the conclusion that he was admitted pursuant to MHL § 9.27, since § 9.37 similarly requires the certificate of two physicians if a patient is to be retained more than 72 hours, i.e., one prior to admission and one within 72 hours thereafter (MHL § 9.37[a] ), while § 9.39 provides that a person shall be retained only if a staff physician finds that the person qualifies and that he or she shall not be retained more than 48 hours unless the finding is confirmed by another staff physician.

Moreover, defendants make no attempt to establish that the admission of plaintiff complied with the detailed requirements of MHL § 9.27, as discussed above.  In this regard, defendants' claim that the Hospital complied with MHL § 9.27 is based upon a conclusory allegation of counsel.  The affirmation, which was not made on the basis of personal knowledge of the facts or supported by evidence in admissible form, is insufficient to defeat the motion for summary judgment (see e.g. Gelesko v. Levy, 37 A.D.3d 528, 529, 828 N.Y.S.2d 904 [2007];  Johannsen v. Rudolph, 34 A.D.3d 338, 339, 824 N.Y.S.2d 276 [2006];  Marietta v. Scelzo, 29 A.D.3d 539, 540, 815 N.Y.S.2d 137 [2006] ).

Further, defendants fail to establish compliance with the provisions of MHL § 9.27.  For example, MHL § 9.27(b) requires that an application for admission be executed by a person specified therein.  In this regard, the signature on the application in plaintiff's record is illegible, as is the title of the person, so that the court is unable to determine if he or she was authorized to file the application on plaintiff's behalf.  In addition, although the pre-printed forms signed by the doctors who allegedly examined plaintiff prior to his admission recite that “I have considered alternative forms of care and treatment but believe that they are inadequate to provide for the needs of this person, or are not available,” no facts are offered to substantiate the claim and no affidavit or affirmation from either doctor is submitted.  Similarly, although plaintiff's records reveal that Dr. Millman and the Hospital were aware that plaintiff was being treated by Dr. Lacey, particularly since defendants rely upon plaintiff's earlier admission to the Hospital and his release, with the direction that he see his treating psychiatrist, there is no indication that any attempt was made to consult with Dr. Lacey prior to completing the certificates.  Accordingly, defendants fail to establish that plaintiff was, in fact, admitted pursuant to the procedures set forth in MHL § 9.27.

Hence, because defendants herein “failed to establish that [they] acted in accordance with the Mental Hygiene Law, [they] did not sustain her burden of proving that [their] conduct was privileged” (Lynskey v. Bailey, 8 Misc.3d 107, 109, 800 N.Y.S.2d 263 [2005] ).  It is therefore concluded that plaintiff's legal rights were violated by the failure to follow the basic procedural requirements of the MHL (see generally In re Nancy H., 177 Misc.2d 30, 31, 675 N.Y.S.2d 774 [1998] ).  From this it follows that plaintiff's demand for summary judgment on his cause of action for false imprisonment is granted.

Claim of Medical Malpractice

Defendants' Contentions

In support of their cross motion seeking dismissal of plaintiff's malpractice claims against them, defendants argue that there were no departures from accepted standards of medical or psychiatric care in the their treatment of plaintiff.  This claim is made in reliance on an affidavit submitted by Dr. Arnold P. Merriam, an alleged expert in the field of psychiatry, wherein he alleges that defendants treated plaintiff in accordance with good and accepted medical practice at all times.  After reviewing the records of plaintiff's admission to the CPEP on December 28, 2002, as well as plaintiff's other medical records and the deposition testimony adduced herein, Dr. Merriam notes that plaintiff was brought to the Hospital by ambulance and admitted again on December 30, 2002 “by way of a two-physician certification,” i.e. certifications by Dr. Melanie Spritz and Dr. Patricia Carey.  Given plaintiff's history of thoughts of suicide;  his previous admission only days earlier;  and being found intoxicated, with a stool near the window of his 27th floor apartment, defendants appropriately admitted him.  Dr. Merriam further opines that plaintiff's discharge on January 3, 2003 was not appropriate, since Dr. St. Victor Hamiden testified that plaintiff's mother told her that plaintiff might lose his job if he was not admitted to rehabilitation;  since the Hospital staff believed that such an occurrence could precipitate an episode of depression and increase his risk of suicide, plaintiff's discharge was properly refused.

In opposition, plaintiff submits an affidavit from his expert psychiatrist in which he alleges that defendants' continued confinement of plaintiff was not sound and that the assertion that something could possibly happen which could then trigger an episode constituted a deviation from acceptable psychiatric practice.  Plaintiff's exert alleges that after reviewing plaintiff's medical records and the deposition testimony, he is of the opinion that defendants deviated from accepted standard of psychiatric practice by reversing their decision to discharge plaintiff on January 3, 2003 and continuing his confinement through January 9, 2003, since the evidence fails to establish any basis to conclude that after the decision to discharge was made, plaintiff was again determined to be a threat to himself and/or to others.  More specifically, the expert avers that reliance upon an unsubstantiated statement made by a family member that plaintiff “could possibly lose his job if not admitted to an acute rehabilitation program,” which may than “precipitate an episode of depression and/or suicidality” does not meet the statutory criteria for involuntary confinement, since the determination that a person constitutes a threat to himself or to others is a deviation from accepted standards of psychiatric care when based upon nothing more than potentialities.  Moreover, there is no indication anywhere in plaintiff's chart that he was suicidal after January 2, 2003.

Untimeliness of Defendants' Cross Motion

Pursuant to CPLR 3212(a), a party seeking summary judgment must do so within 120 days after the filing of the note of issue, “except with leave of court on good cause shown” (CPLR 3212[a] ).  Rule 13 of the Kings County Uniform Civil Term Rules provides that motions for summary judgment shall be made within 60 days of the filing of the note of issue.  Herein, the note of issue was filed on March 7, 2007 and defendants' cross motion was not served until July 6, 2007, or almost four months later.

In addressing the issue of whether an untimely cross motion made in response to a timely motion for summary judgment, it has been held that:

“[A]n untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds because the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a] ) to review the untimely motion or cross motion on the merits' (Grande v. Peteroy, 39 A.D.3d 590, 591–592 [833 N.Y.S.2d 615] ).”

(Ellman v. Village of Rhinebeck, 41 A.D.3d 635, 838 N.Y.S.2d 641 [2007] ).  In the alternative, “[a]n otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion” (Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281, 824 N.Y.S.2d 244 [2006], rearg. denied, appeal granted 2007 N.Y. App.Div. LEXIS 1808 [2007] ).

Discussion

 Herein, that branch of defendants' cross motion seeking to dismiss plaintiff's claim of false imprisonment is properly before the court, since it raises the same issues that had to be addressed in disposing of plaintiff's timely motion for summary judgment.  In fact, summary judgment could have been granted to defendants on plaintiff's motion pursuant to CPLR 3212(b) had the court searched the record, without the need for the cross motion.  Hence, the court has considered and denied defendants' demand for summary judgment on this ground.

A different result must be reached, however, with regard to that branch of the cross motion seeking summary judgment on the issue of medical malpractice.  Inasmuch as plaintiff's argument in support of his motion for summary judgment was predicated upon his contention that he need not establish malpractice in order to recover damages for defendants' failure to comply with the procedural dictates of the MHL, which argument was accepted in this decision, the court did not reach the issue of whether defendants' actions constituted medical malpractice in disposing of his demand for summary judgment on his cause of action sounding in false imprisonment.  From this it follows that since defendants failed to make any showing of good cause for the delay as is required pursuant to Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004], their cross motion must be denied as untimely (see e.g. Bressingham v. Jamaica Hosp. Medical Ctr., 17 A.D.3d 496, 496–497, 793 N.Y.S.2d 176 [2005] ).

 In the alternative, defendants' motion is without merit.  To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove that the defendant deviated from accepted practice and that such deviation proximately caused his injuries (see e.g. Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121 [2007];  Salmeri v. Beth Isr. Med. Center–Kings Highway Div., 39 A.D.3d 841, 841, 834 N.Y.S.2d 314 [2007];  Thompson v. Orner, 36 A.D.3d 791, 791–792, 828 N.Y.S.2d 509 [2007];  Anderson v. Lamaute, 306 A.D.2d 232, 233, 761 N.Y.S.2d 87 [2003] ).  It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see e.g. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).

Hence, “on a motion for summary judgment, a defendant ․ has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby' ” (Keevan v. Rifkin, 41 A.D.3d 661, 662, 839 N.Y.S.2d 151 [2007], quoting Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664 [2004];  accord Thompson, 36 A.D.3d at 792, 828 N.Y.S.2d 509).  The affidavit of Dr. Merriam, defendants' expert, which set forth both his qualifications and the specific facts in plaintiff's medical records leading to his conclusion that Dr. Millman and the Hospital did not deviate from acceptable psychiatric practice, is sufficient to sustain this burden (see generally DiGiaro v. Agrawal, 41 A.D.3d 764, 767, 839 N.Y.S.2d 212 [2007];  Williams, 12 A.D.3d at 368, 783 N.Y.S.2d 664;  Yasin v. Manhattan Eye, Ear & Throat Hosp., 254 A.D.2d 281, 282, 678 N.Y.S.2d 112 [1998] ).

“Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to lay bare his or her proof and demonstrate the existence of a triable issue of fact' ” (Gargiulo v. Geiss, 40 A.D.3d 811, 811–812, 836 N.Y.S.2d 276 [2007], quoting Chance v. Felder, 33 A.D.3d 645, 645–646, 823 N.Y.S.2d 172 [2006] ).  The affidavit submitted by plaintiff's expert, in which the expert opines that defendant deviated from good and accepted medical practice, is similarly sufficient to raise issues of fact, thereby defeating defendants' cross motion (see generally Nassimi v. Petrikovsky, 37 A.D.3d 676, 677, 830 N.Y.S.2d 574 [2007];  Ruddy v. Nolan, 37 A.D.3d 694, 695, 830 N.Y.S.2d 308 [2007];  St. Aubrey v. Smithtown Pediatric Group, 31 A.D.3d 629, 629–630, 819 N.Y.S.2d 80 [2006];  Allone v. University Hosp. of New York Univ. Med. Ctr., 235 A.D.2d 447, 448, 652 N.Y.S.2d 1011 [1997] ).

Conclusion

Plaintiff's motion for partial summary judgment on his claim of false imprisonment is granted.  Defendants' cross motion for summary judgment dismissing the complaint as against them is denied.

The foregoing constitutes the order and decision of this court.

GERARD H. ROSENBERG, J.