Demicoli v Townhouse Operating Co., LLC
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Demicoli v Townhouse Operating Co., LLC 2009 NY Slip Op 33287(U) July 20, 2009 Supreme Court, Nassau County Docket Number: 1549/07 Judge: John M. Galasso Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ....................................... ~~~~~~~~~~~~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~....... """ ....... ................ ......................... ........................ ..................... """ ................................. ............ """ ..... ............. [* 1] , SHORT FORM ORDE: R SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU PRESEN"" HONORABLE JOHN M. GALASSO, J. ANTHONY DEMICOLI Plaintiff Index No. 11549/07 - against - Sequence #001 & #002 TOWNHOUSE OPERA: ING CO. , LLC individually and d/b/a TOWNHOUSI: EXTENDED CARE FACILITY 7/20/2009 Defendants. .0.""""""""""",,,,,,,,,,, Notice of Motion (Seq. #001) ............................................................................. . Affirmation In OpposiH m........ Affirmation In Reply.... ...... ............ ..................,.. Order to Show Cause. (Seq. #002)...................................................................... Affrmation in Opposih: m............,......... ......... Upon the foregoirlg papers , Defendant' s motion for partial summary judgement 3212 Is determined as follows: pursuant to CPl R This is an action b ought by a patient against Defendant , a residential health care facility, for injuries susta ned while undergoing short- term rehabiltation. It is alleged that Plaintiff suffered fro n sub-standard care during the period from June 8 through October I , 2006 , causing the development of additional and worsening of pre-existing decubitus ulcers , sepsis a ld gangrene. It includes a cause of action under Public Health Law 280 I- Defendant seeks d smissal of Plaintiff s claims for punitive damages , the third cause of action for gross llegligence , the re- classification of the second cause of action as one for medical malpracti:;e and additional relief. In determining fin: : that portion of Defendant's motion seeking dismissal of the third cause of action for g tOSS negligence , the undersigned notes that Plaintiff seeks not only common law punitiv damages under this claim , but also punitive damages pursuant to Public Health Law (see 2:: 0 I- Since punitive dan: ages are inextricably linked to the underlying cause of action Pocanova v Equitabk Life Assurance Socitey , 83 NY2d 603), damages sought 280 l- , including statutory punitive damages, are more pursuant to Public Health Law " ( ': [* 2] appropriately linked with the first cause of action. This is also appl cable to the second cause of action for common law negligence and compensatory dam: Iges. Nevertheless , with respect to gross negligence and either cor,l:fon law or statutory punitive damages parment regarding its imposition is " clear and convincing evidence Randi A. J. V LO lg Island SurgiGreenbaum v Svenska Hat delsbanken , 979 Center , 46 AD3d 74 , the evidentiary standard of proof in the Second I , declining to follow Supp. 973 , Sotomayor , J. In support of its motion to dismiss the third cause of action i I1d all punitive damages , Defendant submits Plaintiff s nursing home and hospital r cords , thereby providing a highly detailed account of the care he received at the facllity, especially with respect to Plaintiffs decubitus ulcers. Consequently, Defendant ha5, met its initial burden prima facie Alvarez v Prosp :ct Hospital , 68 Everett v Loretto Adult Community, Inc. , 32 AD3d 127: ). of establishing it right to judgment (see NY2d 320; In order to raise an issue of fact , Plaintiff submits an affidavil' from Charlotte Sheppard RN- , BSN , LHRM , a geriatric nurse and expert in geric tric residential care. Upon reviewing Plaintiffs medical records Nurse Sheppard conclud: d that Defendant deviated from standards of care and its treatment of Plaintiff was grc sly inadequate. After outlining her opinions stating Plaintiff s treatment was j 11effective insufficient , or lacking for skin care and how it affected Plaintiff s c1lldition , Nurse Sheppard described his treatment as " reckless " and consisting of " ou Irageous acts and omissions (that) were gross and demonstrated deviation from the eXI I cted standard of care ... (and were otherwise a clear violation of r the Public Health Law). Plaintiffs rights und, Thus , Plaintiff s expert couches her conclussory terms more iJ . line with the language employed in the statute. However, under common law , gro ;.s negligence means a failure to use even slight care , or conduct that is so careless as to sh ;)w a complete disregard for the rights and safety of others (PH 2:21OA). The undersigned finds that Defendant's alleged failure to rend r proper care , while serious , does not in and of itself evince a reckless or complete disreg: rd or conscious indifference to justify punitive damages as defined under the commOlI law. Therefore Plaintiff s opposition fails to raise an issue of fact regarding the repre Ilensible degree of conduct necessary to establish gross negligence. According, the third cause of action for common law gross ne ligence and its attendant punitive damages is dismissed. [* 3] As to statutory punitive damages under Public Health Law ~ 280 I- , Plaintiff expert' s entire opinion is generated around fulfillng the elements n,:cessary for a cause of 28091- d (2). However , the :actual predicate for statutory punitive damages is less than that imposed under common law. action pursuant to Public Health Law Consequently, Plaintiff has successfully raised an issue offa:t , the first cause of action. concerning punitive damages under the statute Defendant' s application to dismiss that portion ofthe second cause of action for Talavi ra v Arbit, 18 AD3d 738 and other cases cited by Defendant , Plaintiff is not alleging ne l.igent hiring or retention as a separate cause of action. The alleged lack of training to follow protocols etc. is but one aspect of the over-all negligence claim against Defer dant and it is not specifically directed toward one employee. negligent hiring and training of employees is denied. Unlike With regard to Defendant' s argument that the second cause uf action for negligence be re- classified as medical malpractice and compellng :' laintiff to file a certificate of merit and notice of medical malpractice action (CPLH gg 30I2-a and 3046), Rey v Park View Nursing H pme. Inc. 26 2AD2d cf. Mor setter v Terrance Weiner v Lenox Hil Hospital Cardinal Cooke Health Care Center , 8 Misc. 3d 506). that application is likewise denied (see , 88 NY2d 784; 624; see also Finally, in considering Defendant' s motion to dismiss the ccmplaint' s fifth and sixth causes of action for breach of contract, that portion of the app lication being unopposed , is granted. Plaintiff s application by order to show cause for a trial pref ::rence based on Plaintiffs age is granted (Seq. # 002). Dated: July 20 , 2009 ER" JUL 2 2 2009 NASSAU COUNrV CO CLERK' 0F!
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