I would reverse on two grounds: the first based upon the Appellate Division’s erroneous holding that *487the Mental Hygiene Law is implicated here, and the second based upon what I view as defendants’ common-law duty to plaintiff.
With respect to the Appellate Division’s analysis, it is clear that article 22 of the Mental Hygiene Law does not apply. Article 22, entitled “Chemical Dependence Programs, Treatment Facilities, and Services,” is primarily addressed to an entirely different category of medical providers, not general hospitals, with a limited exception for emergency treatment (see Mental Hygiene Law § 22.09 [c], [d], [e]). The Appellate Division held that a person, “brought voluntarily to a medical facility for treatment of alcoholism[,] cannot be involuntarily confined solely for that treatment” (95 AD3d 834 [2d Dept 2012]). But article 22 does not, as the Appellate Division seems to imply, displace a medical provider’s common-law duty relative to patients, incapacitated by alcohol or any other affliction, who voluntarily present themselves for emergency treatment. To hold otherwise distorts both article 22 and the common-law duty of health care providers.
Once the Mental Hygiene Law is removed from the equation, the issue then becomes: what is the common-law duty of defendants to a concededly intoxicated patient once he presents himself to the hospital and comes under the care of a physician? Defendants’ argument in support of their motion for summary judgment is straightforward—plaintiff did not meet the legal standard for involuntary confinement, i.e., he was not an imminent danger to himself or others, and, because he was not such a danger, they owed him no duty. He was free to leave and there was nothing defendants could have done to legally stop him.
But this case has nothing to do with whether “free” individuals may “come and go as they please” (majority op at 485), and has everything to do with defendants’ duty to a patient, like plaintiff, who presents to the emergency department in an intoxicated state. Because plaintiff submitted evidence through expert affidavits establishing that defendants failed to follow their own protocols in treating him, defendants’ motion for summary judgment should have been denied.
Defendants supported their position with three experts, but the opinions of only two of them—a psychiatrist and an RN with a doctorate in the field of adult nursing practice—merit discussion here. The psychiatrist opined that the “undisputed facts demonstrate that [plaintiff] was not suicidal, and had not *488manifested any signs of [being an] imminent [danger] to himself [and] others.” The RN, who submitted an affidavit on behalf of St. Francis, claimed that there was nothing the nursing staff could have done to stop plaintiff because it had no authority to restrain plaintiff, particularly where he had not expressed any desire to harm anyone.
However, these opinions, drawn from the Mental Hygiene Law, are tangential to the basic question of the defendants’ common-law duty to a patient such as this plaintiff, who presented with a fractured nose and in an inebriated state. Underscoring St. Francis’s duty in this regard is the fact that, just one month prior to this admission, plaintiff presented to the same emergency department in an intoxicated and suicidal state. In response to that, St. Francis placed plaintiff on a “one-to-one watch,” consistent with its written policy, until he was discharged to his family two days later. The majority acknowledges that St. Francis’s staff in all likelihood failed to consult the medical records concerning plaintiffs recent visit (majority op at 484).
In opposition to the motion, plaintiff presented affidavits from his own experts—a board-certified emergency medicine physician and an expert in psychiatry and neurology. These medical experts found fault with plaintiffs care and treatment by defendants, beginning with St. Francis’s failure to abide by its own policies for a patient, such as plaintiff, with a history of psychiatric hospitalization, suicidal ideations and heavy drinking, all of which indicated that one-to-one surveillance may be needed. They also opined that, based on plaintiffs behavior, defendant Chintapalli should have assigned a one-to-one watch. These experts explained that the decision by St. Francis and Chintapalli not to monitor plaintiff deviated from the standard of care and violated hospital protocol. Moreover, St. Francis failed to abide by its policy that “potentially unstable patients by history will not be left unattended while in the Emergency Department” (emphasis omitted), which is clearly what occurred here. These aforementioned failures were compounded by Chintapalli’s instructions; when asked, after the patient had left against medical advice, whether the police should be called, he answered “no.”
The majority’s opinion implies that this is an “all or nothing” issue, namely, that because St. Francis had no authority to restrain plaintiff, it owed him no further duty. In my view, plaintiff, through his experts, raised a triable issue of fact with *489respect to the defendants’ common-law duty as outlined in the hospital’s own protocols. Whether plaintiff would prevail at trial is another question; but serious issues of fact with respect to defendants’ conduct remain, as do triable issues of fact concerning proximate cause. I would reverse the Appellate Division order, deny the defendants’ motion for summary judgment and reinstate the complaint.
Chief Judge Lippman and Judges Graffeo, Read and Rivera concur with Judge Smith; Judge Pigott dissents and votes to reverse in an opinion in which Judge Abdus-Sajlaam concurs.
Order affirmed, with costs.