Summary
In Mucciola v. City of New York, 207 A.D.2d 435, 436, 616 N.Y.S.2d 227, 228, the Court held that plaintiff's negligence claim against a defendant for causing decedent's suicide was without merit where "[t]here [was] no competent evidence to establish that the defendant's agents undertook a special relationship with the plaintiffs' decedent.").
Summary of this case from Perlov v. Port Auth. of StateOpinion
August 15, 1994
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the judgment and order are affirmed, with costs.
The procedural history of this case is outlined in Mucciola v City of New York ( 177 A.D.2d 553). On the present appeal from the final judgment in favor of the defendant, we review the prior order dated October 10, 1989, but not the prior order dated February 15, 1990. The latter order denied what was in effect a motion to reargue (Mucciola v. City of New York, supra, at 553; see also, CPLR 5501 [a] [1]; Polednak v. County-Wide Ins. Co., 153 A.D.2d 930).
We see no improvident exercise of discretion in the Supreme Court's denial of the plaintiffs' motion to restore their action to the trial calendar. There is no competent evidence to establish that the defendant's agents undertook a special relationship with the plaintiffs' decedent (see, Cuffy v. City of New York, 69 N.Y.2d 255; Mahnke v. County of Westchester, 203 A.D.2d 336) or that the failure of the defendant's agents to compel the decedent to go to the hospital was the cause in fact of the decedent's subsequent suicide (see, Nieves v. City of New York, 91 A.D.2d 938; Moye v. City of New York, 168 A.D.2d 342; Cygan v City of New York, 165 A.D.2d 58, 68). In addition to this failure to demonstrate the merit of the plaintiffs' cause of action, the plaintiffs' attorney failed to present a valid excuse for his failure to make a motion to restore the action to the calendar within one year (see, CPLR 3404; 22 NYCRR 202.21 [f]; Barton v Jablon, 181 A.D.2d 755; Balducci v. Jason, 133 A.D.2d 436; cf., Syndicate Bldg. Corp. v. Lorber, 193 A.D.2d 506).
For these reasons, the judgment appealed from and the order brought up for review should be affirmed. Mangano, P.J., Bracken, Joy and Hart, JJ., concur.