The following papers numbered EF-19 to EF-103 read on this motion by defendant JAMICA HOSPITAL MEDICAL CENTER for summary judgment and dismissal of plaintiff's Complaint pursuant to CPLR §3212.

Notice of Motion, Affirmation, Exhibits EF19-EF33

Affirmation in Opposition, Exhibits EF53-EF67

Reply Affirmation EF91-EF93

Supplemental Memorandum EF102-EF103

Upon the foregoing papers, and after oral argument, it is ordered this motion is determined as follows:

Defendant Jamaica Hospital Medical Center's motion for summary judgment and dismissal of plaintiff's Complaint pursuant to CPLR §3212 is granted as to plaintiff's medical malpractice claim but denied as to plaintiff's negligence claim. Plaintiff commenced this medical malpractice and negligence action by filing the Summons and Complaint on November 3, 2021, and issue was joined by defendant Jamaica Hospital Medical Center (hereinafter referred to as "Jamaica Hospital") via the filing of its Answer on January 19, 2022.

Plaintiff's Complaint alleges defendant is liable for medical malpractice and negligence because after his birth in May 1960, at Jamaica Hospital, he was switched with another infant, Ross McMahon without the knowledge of plaintiff's parents. The Complaint alleges the babies were born within two hours of each other and had consecutive numbers on their birth certificates. Plaintiff alleges his birth parents were Ross Joseph McMahon and Helen Marie [*2]McMahon, but he was raised by Donald John McMahon and Catherine Margaret McMahon, and Ross McMahon was raised by Ross Joseph McMahon and Helen Marie McMahon, plaintiff's birth parents. Plaintiff's Complaint further alleges in October of 2020 plaintiff's sister Carol Vignola and other family members submitted their DNA to Ancestry.com. Upon discovering a DNA connection to Ross McMahon as her brother, Carol Vignola notified plaintiff, who submitted his DNA to Ancestry.com. Plaintiff received his DNA results on January 24, 2021, demonstrating he and Carol Vignola did not share DNA but he was the brother of Keith McMahon. Plaintiff's Complaint alleges defendant was negligent in failing to adequately supervise the newborn plaintiff while in its custody and care, causing him to be released to and raised by non-biological parents, and causing emotional pain and suffering. Plaintiff's Complaint further alleged defendant breached its duty of professional care and departed from accepted medical practice in causing plaintiff to be switched with Ross McMahon and released to Catherine Margaret McMahon instead of Helen McMahon, causing severe emotional distress and emotional shock.

Defendant Jamaica Hospital moves for summary judgment and presents the pleadings, Bill of Particulars, birth certificates of plaintiff and Ross McMahon, Ancestry.com DNA results, deposition testimony of plaintiff and non-party Carol Vignola, and affirmations by employees Sheila Hill-Hightower and Richard Bautista in support of its motion. Defendant argues the evidence shows plaintiff's Complaint should be dismissed as time-barred and there are no triable issues of fact in dispute. Defendant argues plaintiff's negligence claim is time-barred by the applicable three-year statute of limitations and the medical malpractice claim is time-barred by the applicable two and one-half years statute of limitations. Defendant acknowledges plaintiff and non-party Ross McMahon were born at Jamaica Hospital on the same day in May 1960 within two hours of each other but argues plaintiff's claims are time-barred because the alleged malpractice and negligence took place more than sixty-one years before this action was commenced. Defendant argues courts strictly construe the statute of limitations for medical malpractice actions and none of the exceptions to the medical malpractice statute of limitations apply. Defendant argues the continuous treatment doctrine is inapplicable because there is no evidence of a course of treatment including wrongful acts between plaintiff and defendant beyond plaintiff's birth and immediate post-birth care. Defendant further argues the foreign object exception to the medical malpractice statute of limitations is inapplicable, as plaintiff claims he was negligently switched at birth, and has no allegations regarding injuries due to a foreign object left in his body. Finally, defendant argues the exception for medical malpractice claims alleging negligent failure to diagnose cancer is inapplicable, as plaintiff's claims do not involve a diagnosis of cancer or malignant tumor.

Defendant also argues plaintiff cannot recover for negligent infliction of emotional distress because his injuries were a consequential, rather than a direct, result of the alleged negligence. It argues under the recent Court of Appeals decision in SanMiguel v. Grimaldi (2025 NY Slip Op 05780 [2025]), plaintiff's allegations do not fit the "special circumstances" that would permit a claim for negligent infliction of emotional distress, and any expansion of those circumstances should come from the legislature rather than the judiciary. Defendant further argues none of the witnesses or medical records from plaintiff's 1960 birth are available, and therefore plaintiff cannot meet his burden of proof at trial. Defendant further argues the doctrine of res ipsa loquitor is inapplicable, as plaintiff cannot establish defendant was in exclusive control of the nursery in May 1960.

Defendant presents the affirmation of Sheila Hill-Hightower, its Release of Information Manager in the Department of Health Information Management, in support of its motion. Hill-Hightower affirmed she has worked in the Health Information Management department since 1991 and is responsible for gathering and obtaining medical records upon receipt of requests. She further affirmed prior to 2011, defendant maintained its records in paper format and those records are stored in a warehouse facility operated by Medisys Management, LLC in Melville, NY. Based upon a search of Medisys' electronic database, Hill-Hightower affirmed there are no medical records for plaintiff, Ross McMahon, or their biological mothers, Helen and Catherine McMahon. She further affirmed she is not aware of any person at Jamaica Hospital with knowledge of record retention policies that were in effect at Jamaica Hospital in 1960.

Defendant also presents the affirmation of Richard Bautista, Medisys Management LLC's Warehouse Operations Manager, in support of its motion. Bautista affirmed he has been employed by Medisys Management LLC since June 1989, and he oversees the warehouse, including indexing, cataloguing, storing, searching and retrieving Jamaica Hospital records. He affirmed the warehouse contains archived records of Jamaica Hospital, including but not limited to paper medical records, billing records, employment records, payroll records, financial records and insurance records, and these records are inventoried, indexed and catalogued in a spreadsheet. Bautista affirmed he reviewed the spreadsheet and determined the warehouse does not contain any records relating to defendant's maternity ward from 1960, including photographs, nursing records, nursing progress notes, correspondences, memoranda, billing records, or insurance records pertaining to 1960. Based upon the foregoing, defendant argues plaintiff's Complaint should be dismissed.

Plaintiff opposes defendant's motion and presents the pleadings, deposition testimony of plaintiff and non-party Carol Vignola, plaintiff's DNA test results, defendant's employee affirmations, and affirmation by Cory Ellen Gatrall, PHD, RN in support of his opposition. Plaintiff argues this case is factually unique, one of first impression in New York, but the rules determining the applicable statute of limitations warrant denial of defendant's motion. Plaintiff argues his claims are not time-barred, as the statute of limitations for his negligence and medical malpractice claims have not expired. He argues he timely filed his claim for negligent infliction of emotional distress, as the three-year statute of limitations began to run on January 24, 2021, when he discovered Jamaica Hospital's negligence, and he commenced the action on November 3, 2021. Contrary to defendant's argument, plaintiff contends the statute of limitations for negligent infliction of emotional distress could not have begun to run in 1960 when Jamaica Hospital committed the negligence, because the cause of action accrues when he discovered he had been switched at birth and suffered the resulting emotional trauma.

With respect to the medical malpractice claim, plaintiff conceded he would voluntarily discontinue the cause of action for medical malpractice if the Court determined his claim for negligent infliction of emotional distress was timely and properly pled on the facts. Alternatively, plaintiff argues his claim for medical malpractice was timely, as the statute of limitations began to accrue upon plaintiff discovering Jamaica Hospital's negligence, not the negligent switching of the babies at birth. He argues it is well-settled law that no plaintiff may be forced to bring a claim before any actionable injury exists, and therefore his claim did not accrue until January 2021 when he discovered he was switched at birth. Plaintiff also argues based upon his expert's affirmation, defendant Jamaica Hospital departed from 1960 standards of care in newborn identification, supervision and discharge protocol under defendant's exclusive [*3]control. He argues Jamaica Hospital staff maintained exclusive control over the infants including their handling, movements, and identification procedures. Plaintiff further argues the doctrine of res ipsa loquitor is applicable, as Jamaica Hospital maintained sole custody of the infants, plaintiff did not contribute to the negligence, and there is no reasonable explanation for the infants being switched other than Jamaica Hospital's negligence. Plaintiff also argues the SanMiguel decision supports his claim, as the unique facts of this case constitute a special circumstance under which he can recover for negligent infliction of emotional distress.

Plaintiff presents the affirmation of Cory Ellen Gatrall, PhD, RN, a historian and registered nurse, in support of his opposition. Gatrall stated she is a historian and registered nurse who practiced in labor/delivery/postpartum care since 2016. She noted she prepared this report to evaluate the historical practices and protocols surrounding newborn care and identification in hospitals leading up to and during 1960, with a specific focus on Jamaica Hospital. Gatrall stated the objective of her report was to evaluate the practices at Jamaica Hospital up to and during 1960 and assess whether the hospital's identification procedures, staffing and operational oversight were sufficient to prevent misidentification errors. She further stated the findings will demonstrate whether Jamaica Hospital adhered to the prevailing standards of care in newborn identification and whether its deficiencies created a foreseeable risk of infants being switched. Gatrall indicated the report will further examine whether the circumstances of this case met three critical conditions: that Jamaica Hospital maintained exclusive control over the identification and handling of newborns in the maternity ward; that the misidentification and switching of newborns is an event that does not occur in the absence of failure or negligence in hospital oversight; and that the families involved had no access to the newborn nursery.

Gatrall stated the report aimed to analyze whether Jamaica Hospital's operational and procedural failures likely caused the baby switch involving Kevin McMahon and Ross McMahon. She explained the history surrounding infant separation and explained hospitals devised multifaceted identification protocols to ensure infants would not be switched, such as foot printing infants and using matching tags on the infant and mother with uniquely identifying information. Gatrall noted these protocols were not foolproof and instances of "baby-switching" occurred. Gatrall explained a study in 1952 resulted in recommendations to revise Section 110 of the New York Sanity Code regarding maternity and newborn nursery services to be in line with the best practices recommended by the American Academy of Pediatrics. She noted the report emphasized to prevent infection, no visitors would be permitted in the nursery, and the nursery would be limited to physicians, nurses, students and attendants. Gatrall noted the 1952 report indicated of the 104 newborn nurseries surveyed, only 64 met the recommended staffing ratio of 8-1 during the day shift, 34 on the evening shift and only 25 overnight, and some hospitals assigned as many as 27 babies per nurse. She opined in such overstressed conditions, secure identification and movement of infants between the newborn nursery and maternity room required control and supervision that would likely have been difficult to reliably achieve.

Gatrall reviewed plaintiff's DNA results and noted they confirm he is unrelated to Carol Vignola who was raised as his sister but is a full sibling to Keith McMahon who was raised as Ross McMahon's brother. Gatrall opined this evidence establishes Kevin McMahon and Ross McMahon were switched while under the care of Jamaica Hospital after their births. She opined this oversight likely arose from insufficient precautions despite the clear risk of two white women in their 30s sharing the same last name and giving birth within an hour and forty-five [*4]minutes of each other on the same day. Gatrall opined proper protocols were either not followed or proved inadequate, and the failure to account for such foreseeable risks underscores a breakdown in staffing, training and operational oversight.

Gatrall opined at the time of the switch, the prevailing standard practice was for newborns to be in the exclusive care of the hospital staff in the nursery. She noted parents had no access to the nursery or ability to oversee identification protocols, thereby demonstrating the hospital had sole control of the infants. Gatrall further opined Jamaica Hospital relied on methods of wristbands and foot printing that were subject to human error, as were use of adhesive tags that could fall off or be misread during high-volume periods. She opined Jamaica Hospital's reliance on these methods, combined with insufficient oversight, likely facilitated the switch between Kevin and Ross McMahon. Gatrall opined hospital protocols should have required additional security measures and whether it was due to inadequate training, inattentiveness, or insufficient protocols, the failure to carefully check, implement, or secure proper identification procedures led to this tragic mistake. Gatrall added the combination of overcrowding and understaffing in defendant's maternity ward would have further increased the likelihood of such critical mistakes.

Based upon the foregoing, Gatrall opined the evidence strongly indicates defendant failed to prevent the misidentification and switching of plaintiff and Ross McMahon. Gatrall explained at the time of plaintiff's birth, newborns were in the exclusive care of hospital staff in the nursery and parents had no ability to oversee identification protocols. Gatrall noted no hospital staff from Jamaica Hospital in 1960 was available to testify about the exact identification procedures used at the time, but explained historical research into prevailing practices in similar hospitals suggest standard identification methods included wristbands and foot printing. Gatrall noted it cannot be determined whether these safeguards were improperly applied, insufficient, or disregarded due to lack of available records. She opined it can be said with certainty the switch occurred, as proven by modern DNA evidence, and that fact alone demonstrates a fundamental failure in the hospital's responsibility to ensure accurate newborn identification. Gatrall opined the presence of two mothers with the same last name, who gave birth within an hour and forty-five minutes of each other, required heightened precautions that were evidently not followed. She opined proper protocols should have ensured newborn identification was verified multiple times, and the documented overcrowding and understaffing further contributed to an environment where such errors were foreseeable and directly led to the wrongful assignment of Kevin and Ross to the wrong families. Gatrall opined with a reasonable degree of certainty that the baby switch involving Kevin McMahon and Ross McMahon was the result of the negligence of Jamaica Hospital, and whatever safeguards were in place were either not properly enforced or entirely insufficient, resulting in life-altering consequences. Therefore, plaintiff argues defendants are not entitled to summary judgment or dismissal of plaintiff's Complaint.

Pursuant to CPLR §3212, a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." (Smith v. City of New York, 210 AD3d 53, 68 [2d Dept. 2022].) 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 demonstrate the absence of any material issues of fact. (Morejon v. New York City Tr. Auth., 216 AD3d 134, 136 [2d Dept. 2023].) If there is any doubt as to the existence of a triable issue of fact, the motion must be denied. (Id.) The failure to make such a [*5]prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposition papers. (Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Antonyuk v. Brightwater Towers Condo Homeowners' Assn., Inc., 147 AD3d 711, 712 [2d Dept. 2017].) In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party. (Matter of New York City Asbestos Litig., 33 NY3d 20, 25 [2019].) Additionally, the court's function in determining a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. (Reyes v. S. Nicolia & Sons Realty Corp., 212 AD3d 851, 852-853 [2d Dept. 2023].) Once the moving party has demonstrated a prima facie entitlement to summary judgment, the burden then shifts to the non-moving party to demonstrate the existence of material issues of fact. (See generally Coscia v. Mosca, 203 AD3d 695 [2d Dept. 2022].)

In moving for summary judgment in a medical malpractice action, the defendant must establish a prima facie case that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby, and the plaintiff in opposition must submit evidentiary facts or materials to demonstrate the existence of a triable issue of fact. (Stukas v. Streiter, 83 AD3d 18, 24 [2d Dept. 2011].) In presenting opposition to raise a triable issue of fact, the plaintiff is required to provide an affidavit of merit by a medical expert, and the failure to submit an affidavit by a medical expert competent to attest to the meritorious nature of the plaintiff's claims requires dismissal of the Complaint. (Id. at 28.) Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. (Buch v. Tenner, 204 AD3d 635, 638 [2d Dept. 2022].) In general, a hospital may be vicariously liable for the negligence or malpractice of its employees acting with the scope of employment under the doctrine of respondeat superior. (See Valerio v. Liberty Behavioral Mgt. Corp., 188 AD3d 948 [2d Dept. 2020].)

A cause of action alleging negligent infliction of emotional distress has elements of a defined duty, a breach of that duty, and proximate causality between the breach and the plaintiff's injuries. (Ballan v. Greenberg, 241 AD3d 1233, 1234 [2d Dept. 2025].) A cause of action to recover damages for medical malpractice accrues on the date of the alleged act, omission, or failure complained of, and is subject to a two and one-half years statute of limitations. (Santana v. St. Vincent Catholic Med. Ctr. of NY, 65 AD3d 1119, 1119 [2d Dept. 2009]; see also CPLR §214-a.) Negligence actions are governed by a three-year statute of limitations. (Broecker v. Conklin Prop., LLC, 189 AD3d 751, 754 [2d Dept. 2020]; see also CPLR §214[4].)

This case presents questions of first impression, as it involves the application of the statute of limitations to an action involving allegations that two infants were switched at birth at Jamaica Hospital sixty years ago. Questions before this Court include when these claims accrued and whether they are time-barred by the applicable statute of limitations, and if not, whether plaintiff may recover damages for negligent infliction of emotional distress absent physical injury. While the essential facts are largely undisputed, the procedural questions are sharply contested by the parties.

Defendant established a prima facie entitlement to dismissal of plaintiff's Complaint, as defendant demonstrated plaintiff's claims for negligence and medical malpractice are time-barred. It is undisputed the alleged malpractice and negligence occurred in May 1960 when plaintiff alleges he was switched at birth with Ross McMahon, taken home and raised by his [*6]non-biological family. Defendant demonstrated prima facie that plaintiff did not file the Summons and Complaint until November 3, 2021, more than sixty years later after his birth and release to the non-biological parents and therefore is time-barred. Defendant also demonstrated the continuous treatment doctrine, discovery of a foreign object exception, and failure to diagnose exception to the medical malpractice statute of limitations do not apply. Based upon the foregoing, defendant demonstrated plaintiff's claims are time-barred.

In opposition, plaintiff failed to present sufficient facts to refute defendant's evidence that his medical malpractice claim is time-barred. (See B.F. v. Reproductive Medicine Assoc. of NY, LLP, 30 NY3d 608, 615 [2d Dept. 2017].) Additionally, plaintiff conceded the factual allegations in his Complaint give rise to a negligence, not medical malpractice claim, and therefore plaintiff's claim for medical malpractice is dismissed.

However, plaintiff established he timely commenced the action with respect to his claim for negligent infliction of emotional distress claim, as the action was filed within three years of obtaining the DNA results that gave rise to the claim. A cause of action alleging negligent infliction of emotional harm accrues "when all of the elements, including damages, could be truthfully alleged in the complaint." (Yong Wen Mo v. Gee Ming Chan, 17 AD3d 356, 359 [2d Dept. 2005].) It is undisputed that plaintiff was unaware of his DNA match to a different family until 2021, when he received the results of his DNA sample, and it was at that time he suffered emotional trauma and stress. Defendant's argument that plaintiff's family, in particular his grandmother, questioned his paternity during his childhood, and put him on sufficient notice of a claim is without merit, as family comments and opinions are insufficient to give actual notice of a valid cause of action for negligent infliction of emotional distress. (See id.) Based upon the deposition testimony, there was no competent evidence of plaintiff's lack of DNA connection to his family beyond mere conjecture and speculation. Instead, plaintiff established based upon the deposition testimony and DNA results that he was unaware of his actual lack of DNA connection to his family prior to receiving the results in January 2021, after which he suffered emotional distress and shock, and at which time the cause of action began to accrue. (See Dixon v. City of New York, 76 AD3d 1043, 1044 [2d Dept. 2010][plaintiffs' negligent infliction of emotional distress claim arising out of an alleged violation of the right of sepulcher did not begin to accrue on the date of autopsy but when plaintiffs became aware of the defendant's actions and suffered mental anguish as a result].)

While this Court has determined plaintiff timely commenced the cause of action for negligent infliction of emotional distress, what makes this action one of first impression in New York is whether plaintiff has a valid cause of action for negligent infliction of emotional distress because he was allegedly switched at birth with another infant at Jamaica Hospital. Negligent infliction of emotional distress claims generally require 'a plaintiff to show a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety or caused him [or her] to fear for his [or her] own safety." (Chiesa v. McGregor, 209 AD3d 963, 966 [2d Dept. 2022].) In demonstrating unreasonable endangerment or fear, the Appellate Divisions have uniformly held extreme and outrageous conduct is not an essential element of the claim. (Brown v. New York Design Ctr., Inc., 215 AD3d 1, 7 [1st Dept. 2023].) The courts have also held a breach of duty of care resulting directly in emotional harm is compensable without evidence of a physical injury, but the mental injury must be 'a direct, rather than a consequential, result of the breach.' (Id. at 9, citing Kennedy v. McKesson Co., 58 NY2d 500, 504-506 [1983].) Furthermore, [*7]the claim of negligent infliction of emotional distress based upon mental injury must 'possess some guarantee of genuineness.' (Cleary v. Wallace Oil Co., Inc., 55 AD3d 773, 775 [2d Dept. 2008], citing Ferrara v. Galluchio, 5 NY2d 16, 21 [1958].)

It is undisputed that defendant's alleged negligence did not result in physical harm or fear for plaintiff's safety. However, plaintiff alleges defendant's negligence directly caused him emotional shock and harm sufficient to establish a valid cause of action for negligent infliction of emotional distress, even if the Complaint merely alleges negligence. While this case is one of first impression, there have been analogous circumstances where courts have permitted a claim for negligent infliction of emotional distress to proceed. In Dana v. Oak Park Marina, 230 AD2d 204, 206 (4d Dept. 1997), the Appellate Division recognized the facts in the Complaint could serve as a basis for a valid cause of action where a corporation installed a video surveillance camera in restrooms and videotaped 150 to 200 female patrons and guests in various stages of undress without their consent. In Ornstein v. New York City Health & Hosps. Corp., 10 NY3d 1, 3 (2008), the Court of Appeals found a valid cause of action for negligent infliction of emotional distress where the plaintiff was exposed to HIV while working as a nurse at the defendant's hospital and was stuck by a blood-filled hypodermic needle that had been left in the bed of a patient with acquired immune deficiency syndrome.

Most recently, the Court of Appeals addressed this claim in great detail in SanMiguel v. Grimaldi, 2025 NY Slip Op. 05780 (2025), where the plaintiff sued defendants claiming emotional damages suffered during the delivery, post-birth care and death of her newborn child. The majority in SanMiguel identified three circumstances that would permit a valid cause of action for emotional damage without physical injury, including false reports of a family member's death or serious illness or mishandling of family members' remains, defendant's breach of duty unreasonably placed plaintiff in fear of physical harm that resulted in emotional harm with physical manifestations, and emotional damage as a result of witnessing a physical injury to an immediate family member while in the 'zone of danger' caused by defendant's negligent conduct. (Id. at 6.)

What is notable in the above cases is that the defendant's alleged negligent conduct was directed at a non-party that caused the plaintiff to suffer emotional injuries. Therefore, it is arguable that the Court of Appeals in SanMiguel recognized these claims are 'viewed with suspicion" because plaintiffs are seeking to recover for negligent actions that were directed at others and for which defendants could not reasonably foresee a claim by plaintiffs. However, what makes this case unique is that the alleged negligent conduct was directed at plaintiff, as defendant's alleged failure to properly supervise him as a newborn in the hospital allegedly caused plaintiff's release from the hospital to non-biological parents. Therefore, in this unique circumstance, defendant's alleged breach of duty to plaintiff proximately caused him to sustain emotional injuries, by growing up with a non-biological family for sixty years and missing the opportunity to develop a familial relationship with his biological parents.

Defendant established a prima facie entitlement to summary judgment and dismissal of plaintiff's Complaint, as it demonstrated plaintiff failed to allege a physical or economic injury sufficient to establish negligent infliction of emotional distress. Defendant demonstrated through the deposition testimony and applicable caselaw that there are limited circumstances under which a plaintiff may recover for negligent infliction of emotional distress, none of which apply in this unique case. Defendant demonstrated plaintiff suffered no physical or economic injury by learning he grew up with a family with which he did not have any biological [*8]connection. Defendant further demonstrated the facts of this case do not constitute special circumstances because they do not involve a false report of a family member's death or serious illness, or the mishandling of a family member's remains. Defendant also demonstrated plaintiff did not establish the manifestation of physical symptoms as a result of his emotional distress and was not in the "zone of danger" while an immediate family member was injured. Defendant argues while the courts have permitted recovery for purely emotional distress, these cases are limited and involve a careful, cautious weighing of the conflicting policy considerations best left to the legislature. Defendant further demonstrated it has no witnesses or records that would show it had exclusive control of plaintiff to warrant application of the theory of res ipsa loquitor. Based upon the foregoing, defendant established a prima facie case with respect to plaintiff's negligent infliction of emotional distress claim.

However, plaintiff raised triable issues of fact with respect to whether the facts of this case would constitute a special circumstance permitting recovery for negligent infliction of emotional distress. Plaintiff presented sufficient circumstantial evidence to raise issues of fact whether he was negligently supervised at defendant's hospital after his birth, resulting in his release to the wrong parents, which he subsequently discovered and caused him emotional shock and trauma. It is noted plaintiff's purported expert affirmation did not raise triable issues of fact, as the expert failed to demonstrate sufficient knowledge, experience, and training to render opinions in this action, which were wholly conclusory and speculative. However, under a theory of res ipsa loquitor, plaintiff presented sufficient facts to permit an inference of negligence to be determined by a jury.

Defendant's argument that the decision in SanMiguel limits the available exceptions for negligent infliction of emotional harm where there is no physical injury is without merit. A plain reading of the case demonstrates the Court of Appeals addressed the applicability of a claim for negligent infliction of emotional distress involving emotional injuries sustained by the mother in the birth, and subsequent death, of a newborn child. This interpretation of SanMiguel is supported by the majority language stating, "New York's long-established skepticism of claims for purely emotional damages necessarily prohibits some plaintiffs with emotional injuries from recovering for that harm." (SanMiguel, 2025 NY Slip Op. 05780 at *20.) The majority found the bar on emotional damages is applicable to the facts in SanMiguel, limited to actions involving mother's claims for emotional damages due to medical malpractice or lack of informed consent. As this case is substantively distinguishable from the facts in San Miguel, the majority's decision does not bar plaintiff's claim in the instant case.

Defendant's claim that plaintiff cannot establish liability under a theory of res ipsa loquitor is also without merit. New York courts have recognized there are circumstances where a plaintiff who is owed a duty of care from defendant cannot directly prove what happened or show a specific act by defendant demonstrating negligence, and 'in a proper case, under the doctrine of res ipsa loquitor, the law allows a jury to consider the circumstantial evidence and infer that the defendant was negligent in some unspecified way." (Morejon v. Rais Constr. Co., 7 NY3d 203, 205-206 [2006].) In establishing the criteria for res ipsa loquitor the plaintiff must demonstrate:

"(1) the event must of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Id. at 209, citing Corcoran v. Banner Super [*9]Mkt., 19 NY2d 425, 430 [1967].)

In Morejon, the Court of Appeals held the doctrine of res ipsa loquitor is permitted to create an inference of negligence and does not establish as a matter of law negligence by a defendant. (See id. at 211). Here, plaintiff presented circumstantial evidence that would allow, but does not require a jury, to infer defendant was negligent in supervising him as a newborn infant and resulting in his release to non-biological parents. (See Giantomaso v. T. Weiss Realty Corp., 142 AD3d 950 [2d Dept. 2016].) Contrary to defendant's argument, plaintiff presented sufficient evidence to establish he was in the exclusive control of Jamaica Hospital from his birth until his release from the hospital to non-biological parents. He presented sufficient evidence that a switch of babies is something that does not occur in the absence of negligence and did not occur due to any voluntary act by plaintiff. Should a jury determine defendant negligently supervised and monitored plaintiff after his birth, and its negligence resulted in plaintiff's release from the hospital to a non-biological family who raised him for more than sixty years, it is more than plausible that discovering his true identity would result in direct emotional shock and trauma as a result of defendant's breach. (See Ferrara, 5 NY2d at 22.)

Defendant makes valid arguments regarding the lack of witnesses and evidence to demonstrate what occurred sixty years ago in May 1960 when plaintiff was born, and whether plaintiff will be able to sustain his burden of proof at trial to establish negligent infliction of emotional distress. This Court notes that while negligent infliction of emotional distress claims based solely on emotional harm are rare, it cannot be said that negligence resulting in two infants allegedly switched at birth and raised by the "wrong families" who make this discovery over sixty years later does not constitute a special circumstance for which plaintiff can recover purely emotional damages. Based upon the foregoing, plaintiff raised triable issues of fact with respect to his claim for negligent infliction of emotional distress.

Accordingly, defendant Jamaica Hospital Medical Center's motion for summary judgment and dismissal of plaintiff's Complaint pursuant to CPLR §3212 is granted as to plaintiff's medical malpractice claim but denied as to plaintiff's negligence claim. It is hereby

ORDERED plaintiff's medical malpractice claim is dismissed as time-barred.

This constitutes the decision and Order of the Court.