                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      519730
________________________________

GISELLE MAYR,
                    Appellant,
     v
                                            MEMORANDUM AND ORDER
DIMITRI ALVAREZ,
                    Respondent,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   May 27, 2015

Before:   Peters, P.J., Lahtinen, Garry and Devine, JJ.

                             __________


      Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel),
for appellant.

      Fumuso, Kelly, DeVerna, Synder, Swart & Farrell, LLP,
Hauppauge (Scott G. Christensen of counsel), for respondent.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Melkonian, J.),
entered April 4, 2014 in Ulster County, which, among other
things, granted defendant Dimitri Alvarez's motion for summary
judgment dismissing the complaint against him.

      Plaintiff was a patient at defendant Family Practice of
Kingston and, on July 26, 2008, presented with complaints of
chest pain. She and her adult daughter, Brittney Mayr, were
ushered into an examination room and plaintiff was examined by
defendant Dimitri Alvarez. Alvarez listened to plaintiff's heart
with a stethoscope, holding it by placing his entire hand
underneath her shirt on her left breast. Alvarez asked plaintiff
                              -2-                519730

to lay on the examination table while he listened, and began to
blink his eyes rapidly. He then began making moaning sounds that
plaintiff and her daughter both perceived to be sexual, and
rubbed his genitalia back and forth against the table. Both
women fled the room in short order, despite Alvarez continuing to
hold his hand against plaintiff's breast and shoving her down on
the table when she first attempted to escape.

      Plaintiff commenced this action in 2009, alleging that
Alvarez had committed an assault and battery and that Family
Practice had negligently hired and supervised him. Following
joinder of issue and discovery, defendants separately moved for
summary judgment dismissing the complaint. They argued, among
other things, that the behavior of Alvarez was not intentional
because his actions were caused by a subsequently-diagnosed
seizure disorder. Supreme Court granted both motions. Plaintiff
now appeals, focusing solely upon the grant of summary judgment
to Alvarez.1

      In order for Alvarez to succeed upon his motion for summary
judgment, he was obliged to show that he "did not intentionally
place plaintiff in apprehension of imminent harmful or offensive
contact, and did not intentionally engage in offensive bodily
contact without plaintiff's consent" (Guntlow v Barbera, 76 AD3d
760, 766 [2010], appeal dismissed 15 NY3d 906 [2010]; see Cicci v
Chemung County, 122 AD3d 1181, 1183 [2014], lv dismissed and
denied 25 NY3d 1062 [2015]). Alvarez endeavors to make that
showing by way of an affirmation from his treating neurologist,
Alfred Frontera, who examined him after the July 2008 incident
and diagnosed him with hippocampal atrophy. Frontera stated that
this condition is associated with partial complex seizures in
adults, and noted that the medical history of Alvarez suggested
that he suffered from those seizures. Partial complex seizures
are characterized by "non-purposeful, stereotyped and repetitive


    1
        Inasmuch as plaintiff failed to raise any issue in her
appellate brief as to the grant of summary judgment to Family
Practice, we deem any arguments in that regard to be abandoned
(see Waldron v New York Cent. Mut. Fire Ins. Co., 88 AD3d 1053,
1054 n [2011]).
                               -3-                519730

behaviors" that are involuntary, and Frontera opined that the
complained-of behavior was "consistent with" such a seizure.
Alvarez accordingly argued that his actions were wholly
involuntary and that he could not have formed the requisite
intent to threaten plaintiff with, or subject her to, offensive
physical contact (see Restatement [Second] of Torts § 895J,
Comment c, Illustration 2; compare Miele v United States, 800 F2d
50, 53 [2d Cir 1986]; Albicocco v Nicoletto, 11 AD2d 690, 690
[1960], affd 9 NY2d 920 [1961]).

      While Alvarez met his initial burden upon his motion for
summary judgment with the above proof, plaintiff rebutted that
showing by raising questions of fact regarding the genesis of his
behavior. Alvarez testified at his deposition that he does not
recall the bulk of the incident.2 He does recall deliberately
placing a stethoscope on plaintiff's chest and listening to her
heart, however, and both she and her daughter stated that he did
so in an unusual, groping manner. Both women also witnessed the
subsequent behavior of Alvarez and, while "[l]ay witnesses cannot
properly give an opinion as to the mental capacity of" an
individual, they are free to "state the impressions which the
acts and declarations of the [individual] . . . produced upon
their minds at the time, and as to whether they were rational or
irrational" (Wyse v Wyse, 155 NY 367, 371 [1898]; see Gomboy v
Mitchell, 57 AD2d 916, 916 [1977]). Both observed what they
believed to be deliberate behavior on the part of Alvarez, such
as shoving plaintiff back onto the examination table as she
attempted to get up and turning to watch her daughter as she left
the room to get help. It is also worthy of note that Alvarez
attempted to contact plaintiff on several occasions after the
incident and, while he apologized for the incident, he never
expressed his belief that it had been caused by a seizure.
Inasmuch as the foregoing raised questions of fact as to whether
Alvarez committed an assault and battery with the requisite
intent, he should not have been granted summary judgment (see


     2
        His supervisor, in contrast, averred that Alvarez did not
indicate any problem with his recall after the incident and
Alvarez told the supervisor that "he was listening to
[plaintiff's] heart . . . and then she got up and left."
                              -4-                519730

e.g. Winslow v Freeman, 257 AD2d 698, 699 [1999]; Casimir v
Hoffman, 13 AD2d 532, 533 [1961]).

      We also agree with plaintiff that, even if the offensive
contact stemmed from a seizure and was not intentional, summary
judgment was not warranted (see e.g. Zgraggen v Wilsey, 200 AD2d
818, 819 [1994]). Plaintiff specifically claims that Alvarez
owed her a duty to take his anti-seizure medication and that he
could be held liable for his negligent failure to do so. Alvarez
had been involved in two automobile accidents prior to the
incident at issue, prompting concerns as to whether he had a
seizure disorder. Alvarez accordingly consulted with a
neurologist, who did not diagnose him with a seizure disorder.
Alvarez also consulted with medical colleagues in Haiti, however,
and one of those individuals indicated that Alvarez likely did
have a seizure disorder and provided him with anti-seizure
medication. Alvarez testified that he failed to take the
medication on a daily basis because he had not been definitively
diagnosed with a seizure disorder. This proof permits the
inference that Alvarez was aware that he suffered from a seizure
disorder at the time the incident occurred which would, in turn,
call into question his failure to take the medication on a
regular basis. Thus, questions of fact exist as to whether
Alvarez failed to "exercis[e] caution to compensate for any
increased hazard occasioned by his known disabilities" in
conducting his examination of plaintiff (Homser v Distler, 150
AD2d 974, 975 [1989]; see Restatement [Second] of Torts § 283C).

     Peters, P.J., Lahtinen and Garry, JJ., concur.
                              -5-                  519730

      ORDERED that the order is modified, on the law, with costs
to plaintiff, by reversing so much thereof as granted defendant
Dimitri Alvarez's motion for summary judgment dismissing the
complaint against him; said motion denied; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
