Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 18, 2012. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this action in November 2011 to recover the sum of $12,500 for defendant hospital's "failure to provide proper services [and] failure to return money." At a nonjury trial, plaintiff stated that defendant was liable to her for $25,000 because defendant did not provide for the safekeeping of her money when she was admitted to the hospital, did not count the money in front of her and did not take her signature. Plaintiff also alleged that she had been assaulted in the hospital in 2009. Defendant's witness, one of its nurses, described the hospital's procedure for holding a patient's cash if the amount exceeds $1,000. The witness testified that she and two other hospital employees had counted plaintiff's cash and prepared a voucher showing the sum of $8,720, and that all three employees had signed the receipt. Upon plaintiff's discharge from the hospital, plaintiff signed the receipt, which indicated, among other things, "patient acknowledgment of receipt in entirety." The receipt was admitted into evidence. [*2]It indicated that plaintiff's cash had been placed in a sealed envelope on March 15, 2011 and that the cash had been returned to her on March 21, 2011. During the trial, plaintiff acknowledged the receipt of $8,720, but maintained that the hospital had retained the sum of $1,237. Plaintiff appeals from a judgment of the Civil Court which dismissed the complaint.

"On a bench trial, the decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of the witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]).

Here, defendant demonstrated through admissible evidence that it had returned $8,720 to plaintiff upon her discharge. Plaintiff failed to support her claims at trial that defendant had retained an additional sum of her money and that defendant was liable to her for $25,000. We note that plaintiff commenced the action to recover the sum of $12,500.

Plaintiff testified that she had been assaulted in the hospital in 2009. While defendant moved at trial to dismiss this claim on statute of limitations grounds, that defense is waived since defendant failed to preserve the defense in its answer (see CPLR 3211 [e]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]). With respect to plaintiff's claim that she had been assaulted while in the hospital, it is the general rule that "a hospital is under a duty to exercise reasonable care and diligence in safeguarding its patient from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety" (Clinton v City of New York, 140 AD2d 404, 405 [1988]). To establish a prima facie case of negligence, it was plaintiff's burden to prove that defendant had breached its duty and that the breach proximately caused her injury (see J.E. v Beth Israel Hosp., 295 AD2d 281 [2002]). Here, plaintiff failed to produce sufficient evidence to establish that her alleged injuries were caused by a breach of defendant's duty to her.

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 29, 2013