MAYERI v. VILLAGE MEDICAL CENTER (2026)

DECISION & ORDER

In a consolidated action to recover damages for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated October 3, 2023.  The order denied the plaintiff's motion for summary judgment on the issue of liability and granted the defendants' motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced two separate actions, which were subsequently consolidated, against the defendants, asserting causes of action sounding in negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress arising out of the suspension of the plaintiff's driver license.  According to the amended complaint, the defendant Patrice Thornton, a physician, negligently completed a form provided to her by the plaintiff and thereafter submitted the form to the New York State Department of Motor Vehicles (hereinafter the DMV), and the DMV suspended the plaintiff's driver license.  The plaintiff moved for summary judgment on the issue of liability.  The defendants moved for summary judgment dismissing the amended complaint.  In an order dated October 3, 2023, the Supreme Court denied the plaintiff's motion and granted the defendants' motion.  The plaintiff appeals.

Contrary to the determination of the Supreme Court, the first cause of action sounds in ordinary negligence rather than medical malpractice (see Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787, 650 N.Y.S.2d 629, 673 N.E.2d 914;  Tracy v. Vassar Bros. Hosp., 130 A.D.3d 713, 715, 13 N.Y.S.3d 226).  Nonetheless, the court properly granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on that cause of action.  “To establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty and damages” (Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 576, 934 N.Y.S.2d 43, 958 N.E.2d 77;  see Starker v. Trump Vil. Section 4, Inc., 162 A.D.3d 946, 948, 80 N.Y.S.3d 79).  Here, the defendants established, prima facie, that Thornton did not breach a duty to the plaintiff.  In opposition, the plaintiff failed to raise a triable issue of fact.  For similar reasons, the plaintiff failed to establish his entitlement to summary judgment on the issue of liability on the first cause of action (see Taylor v. State of New York, 191 A.D.3d 915, 915, 138 N.Y.S.3d 383).

The Supreme Court also properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging negligent infliction of emotional distress and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on that cause of action.  A cause of action to recover damages for negligent infliction of emotional distress “generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety” (Aklipi v. American Med. Alert Corp., 216 A.D.3d 712, 713, 189 N.Y.S.3d 533 [internal quotation marks omitted];  see Gaylord v. Fiorilla, 28 A.D.3d 713, 813 N.Y.S.2d 534).  Here, the plaintiff failed to establish, prima facie, that Thornton breached a duty to the plaintiff that either unreasonably endangered his physical safety or caused him to fear for his own safety.  Conversely, the defendants established, prima facie, that Thornton did not breach a duty to the plaintiff, and the plaintiff, in opposition, failed to raise a triable issue of fact (see Fox v. Mark, 181 A.D.3d 560, 565, 118 N.Y.S.3d 726;  KM v. Fencers Club, Inc., 164 A.D.3d 891, 893, 83 N.Y.S.3d 197).

As conceded by the plaintiff, the cause of action alleging intentional infliction of emotional distress is time-barred (see Silver v. Silver, 162 A.D.3d 937, 939, 79 N.Y.S.3d 270;  Bellissimo v. Mitchell, 122 A.D.3d 560, 561, 995 N.Y.S.2d 603).

The plaintiff's remaining contentions are either improperly raised for the first time on appeal or without merit.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.