                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 18, 2015                      519822
________________________________

DOROTHY ANN STEIN,
   Individually and as
   Executor of the Estate of
   GEORGE H. STEIN, Deceased,
                    Appellant,
      v
                                             MEMORANDUM AND ORDER
KENDAL AT ITHACA,
                     Defendant,
     and

JACOB W. SKEZAS et al.,
                    Respondents.
________________________________


Calendar Date:    April 28, 2015

Before:    Peters, P.J., Lahtinen, McCarthy and Rose, JJ.

                              __________


      Wiggins & Paulino Law Office, Ithaca (Alessandra DeBlasio,
New York City, of counsel), for appellant.

      Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Anthony R.
Brighton of counsel), for respondents.

                              __________


McCarthy, J.

      Appeal from an order of the Supreme Court (Mulvey, J.),
entered December 2, 2013 in Tompkins County, which granted a
motion by defendants Jacob W. Skezas and Guthrie Clinic, Ltd. for
summary judgment dismissing the amended complaint against them.

      Plaintiff commenced this action alleging that the negligent
medical care of defendant Jacob W. Skezas and defendant Guthrie
                              -2-                519822

Clinic Ltd. – Skezas' employer – caused George H. Stein
(hereinafter decedent) to commit suicide. Skezas and Guthrie
(hereinafter collectively referred to as defendants) thereafter
moved for summary judgment dismissing the complaint against them.
Supreme Court granted defendants' motion. Plaintiff now appeals
and we affirm.

      Skezas, a physician who specialized in internal medicine,
provided outpatient general medical care to decedent for an
approximately seven-month period. During the course of that
treatment, decedent made increasing complaints regarding
abdominal pain. At their final appointment, Skezas informed
decedent of a possibility that decedent had gallbladder carcinoma
that, if left untreated, would be fatal in 6 to 12 months.
Thereafter, decedent broached the subject of suicide. In
creating a medical care plan for decedent, Skezas both prescribed
additional pain medication to decedent and secured for him an
appointment, to take place eight days later, with a medical
specialist. Decedent left that appointment with Skezas and then
committed suicide by gunshot at his home two days later, six days
prior to his scheduled appointment with the specialist.

      As an initial matter, plaintiff failed to properly allege
and argue that Skezas is liable for decedent's suicide because
Skezas failed to "contact the police to have [decedent]
involuntarily committed" after decedent broached the subject of
suicide. Plaintiff failed to mention the conversation regarding
suicide in the bills of particulars that she provided to
defendants. Accordingly, defendants were not required to
disprove that unalleged theory of liability in order to be
entitled to summary judgment dismissing the complaint (see CPLR
3043 [a] [3]; Price-Linden v State of New York, 119 AD3d 1192,
1192-1193 [2014]; Suits v Wyckoff Hgts. Med. Ctr., 84 AD3d 487,
489 [2011]; Hayes v Kearney, 237 AD2d 769, 770 [1997]; compare
Marra v Hughes, 123 AD3d 1307, 1308 n [2014]). Further,
plaintiff raises this theory of liability for the first time on
appeal, rendering the argument unpreserved for our review (see
Seton Health at Schuyler Ridge Residential Health Care v Dziuba,
127 AD3d 1297, 1299 n 2 [2015]; Agility Funding, LLC v Wholey,
119 AD3d 1168, 1169 [2014]).
                              -3-                519822

      As to plaintiff's remaining allegations, defendants were
entitled to judgment as a matter of law because decedent's
suicide was not a foreseeable result of Skezas' alleged
negligence in failing to properly diagnose and/or treat
decedent's abdominal pain. "An intervening act will be deemed a
superseding cause and will serve to relieve [a] defendant of
liability when the act is of such an extraordinary nature or so
attenuates [the] defendant's negligence from the ultimate injury
that responsibility for the injury may not be reasonably
attributed to the defendant" (Kush v City of Buffalo, 59 NY2d 26,
33 [1983] [citations omitted]; see Carson v Dudley, 25 AD3d 983,
984 [2006]). Applying this rule to a person's intentional act of
taking his or her own life, negligent conduct can only support
liability for another person's suicide under certain
circumstances and where suicide is a foreseeable consequence of
such conduct (see Stolarski v DeSimone, 83 AD3d 1042, 1044
[2011]; Watkins v Labiak, 282 AD2d 601, 602 [2001], lv dismissed
96 NY2d 897 [2001]; Van Valkenburgh v Robinson, 225 AD2d 839, 841
[1996]). Here, Skezas did not practice psychiatry, decedent was
not confined to Skezas' care and Skezas did not advise decedent
to commit suicide. The possibility that decedent would choose to
take his own life in the absence of any actual terminal cancer
diagnosis and rather than taking advantage of the second medical
opinion – regarding a diagnosis and/or pain management – from the
specialist that Skezas had secured for decedent is not a
foreseeable consequence of the alleged negligent acts (see
Stolarski v DeSimone, 83 AD3d at 1044; Pinkney v City of New
York, 52 AD3d 242, 243 [2008]; Boehme v A.P.P.L.E., A Program
Planned for Life Enrichment, 298 AD2d 540, 541 [2002]; Watkins v
Labiak, 282 AD2d at 602; Van Valkenburgh v Robinson, 225 AD2d at
841; Darren v Safier, 207 AD2d 473, 475 [1994]; Sullivan v Welsh,
132 AD2d 945, 946 [1987], appeal dismissed 70 NY2d 796 [1987];
Wells v St. Luke's Mem. Hosp. Ctr., 129 AD2d 952, 952-953 [1987],
lv denied 70 NY2d 605 [1987]). These determinations render
plaintiff's remaining contentions academic.

     Peters, P.J., Lahtinen and Rose, JJ., concur.
                        -4-                  519822

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
