Gullo v Bellhaven Ctr. for Geriatric and Rehabilitative Care Inc.

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Gullo v Bellhaven Ctr. for Geriatric and Rehabilitative Care Inc. 2012 NY Slip Op 32618(U) October 11, 2012 Sup Ct, Suffolk County Docket Number: 09-25986 Judge: Theresa Whelan 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 J'ORM ORDER INDEX No. 09-25986 SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice orthe Supreme Court ---------------------------------------------------------------X LENNY GULLO, MARIA S. GULLO and CATHERINE GULLO, MOTION DATE 5-14-12 ADJ. DATE 7-6-12 Mot. Seq. # 007 - MOlD JOSHI·I Attorney 40 Main Sayville, C. STROBLE, ESQ. for Plaintiffs Street, P.O. Box 596 New York 11782 Plaintiffs, - against BELLHA YEN CENTER FOR GERIATRIC AND REHABIUTA TlYE CARE INC., a/k/a BELLHA YEN NURSING CENTER, "ABC" CORPORATION alkla BELLHA YEN NURSING CENTER, APEX LABORATORY, INC. and MARK SHAPIRO, M.D., Defendants. FUREY, KERLEY, WALSH, MATERA & CINQUEMANI, P.c. Anorney for Defendants Bellhaven 2174 Jackson Avenue Seaford, New York 11783 GElSLER & GABRIELE, LLP Attorney for Defendant Shapiro 100 Quentin Roosevelt Boulevard P.O. Box 8022 Garden City, New York 11530 ---------------------------------------------------------------X Upon the following papers numbered 1 to 23 read on this motion for 511mmaryjudgment; Notice of Motion! Order to Show Cause and supporting papers 1 - 11 ; Notice of Cross Motion and supporting papers __ ; AnsweringAffidavits and supporting papers 12 - 16, 17 - 18.22- 23 ; ReplyingAffidavits and supporting papers 19 - 20 ; Other_; (IlJicl <1nCl helli iilg e(')t111.~el ili~t1PPOi1:alid opp().~ed to tlie Illotioli) it is, ORDERED that this motion by the defendant, Bellhaven Center for Geriatric and Rehabilitative Care, Inc. d/b/a Bellhaven Nursing Center, sued herein as Bellhaven Center for Geriatric and Rehabilitative Care, Inc., a/k1a Bellhaven Nursing Center, and "ABC" Corporation a/k1a Bellhaven Nursing Center, for an order pursuant to CPLR Section 3212 granting summary judgment dismissing the complaint and all cross claims against it is granted to the extent that the complaint is dismissed, and is otherwise denied as academic. This is an action to recover damages for personal injuries suffered by Lenny Gullo (Gullo) due to the alleged medical malpractice of the defendant, Mark Shapiro, M.D. (Shapiro), and the alleged negligence of the defendant, I3ellhavcn Center for Geriatric and Rehabilitative Care, Inc. d/b/a Bellhaven Nursing Center, sued herein as Bellhaven Center for Geriatric and Rehabilitative Care, Inc., aJkIa [* 2] Gullo v Bellhavcn Index No. 09-25986 Page 2 lkllhavcn Nursing Cenwr. and "ABC" Corporation a/k/a Bellhavcn Nursing Center (Bell haven). It is alleged that immediately prior to his employment at ReIlhavcn, as part of the application process, Gullo was required to take a blood test. The tesl was performed in November, 2005 and u laboratory repon was issued on November 29, 2005. which indicated that Gullo was positiw for Jlepatitis C. It is alleged that Bell haven received that' report on or about December L 2005. I Jowcver. Bcllhavell lciilcd to inJ(}rm Gullo of the results. It is also alleged that Shapiro tooK blood from Gullo on November 15,2005, treated Gullo from January L 200710 October 31, 2007, and failed to diagnose Gullo's conditiol1_ In March. 2009, Gullo took a blood test in connection with an unrelated application for life insurance that he had submitted. It was at this point that he first learned that he has Hepatitis C. It is alleged that. due to the acts and omissions of the defendants, he has pennanent liver damage and pecuniary losses. In addition, there are derivative and individual claims made by his wife and daughter. The defendant l3eIIhaven moves for summary judgment on the sole ground that all claims and cross claims herein are balTcd by the exclusivity provision contained in Workers' Compensation Law (WeL) 1J and 6 (sic)l WeL J 1 provides, in pertinent part: ~* * The liability or an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever. to such employee ..his or her personal representatives, spouse. parents. dependents, distributees. or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. tendering sulTicient evidence to el iminate any material issue of fact (see Alvarez v Prmpect Hosp., 68 NY2d 320. 508 NYS2d 923 1.19861;Winegrad v New York Unil'. Med. 01'.,64 NY2d 851. 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion \vhich Illllst produce evidentiary proof in admissihle form sufficient to require a trial of thc matenal issues oft~lct (see Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 pd Dept 2001]: Rebecc"i v Whitmore. 172 AD2d 600. 568 NYS2d 423 12d Dept 1991]; O'Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dcpt 19871). FurthemlOre, the parties' competing interest must he viewed "in a lig.ht most favorable to the pat1y opposing the motion" (Marine Mid/and Bank, N.A, v Dino & Artie's Automatic Tmllsmi!J"sion Co.. 168 i\D2d 610, 563 NYS2d 449 [2d Dept 19901). Here. the sole qucstion before the Court is whether the plaintiIT;' only remcdy for their alleged injuries lies with III the Workers' Compensation Law. As a general rule, the rcceipt of workers· compensation bcndits is the cxclusive remedy that a worker may obtain agalllsl all employer for losses suJTered as a result oran injury sustained in the course: ofcmploymcllt (see WeL ~~ I I, 291.61: Reich r"fer"nct,' I The Court nOles that the we!. 29 (6). we!. docs not contain a section six, <ll1dit will presume Illat the movant mearlllO [* 3] Gullo v 13ellhaven Index No. 09-25986 Puge 3 V Mallhattall BoUer & Equip. Corp., 91 NY2d 772, 779. 676 NYS2d 110 [ 19981; Gaynor l' Cassone Leasing. 79 A03d 967. 914 NYS2d 241 [2d Dcpt 20101: Slikas)' (-:Velolle Realty, 78 AD3d 144, 90R NYS2d 117 [2d Dept 20101: DII/ak v Heier. 77 AlJ3d 787, 909 NYS2d 743 [2d lJept2010l). Ilowever, an Injured employee may avoid the bar to recovering damages from an employer i r he or she can prove that the injury was intentionally perpetrated by the employer or at the direction of the employer (see Ace)Icc/o v COllsolidated Edi.mn Co. o/N. Y., I X9 AD2d 497,596 NYS2d 68 [1st Dcpt 19931~see ({Iso Miller l' 1I111l1il1gtOll Hosp., IS AD3d 548. 792 NYS2d 88 12d Dcrl 20051: Reno )I COUlt()1 Westchester, 289 AD2d 216. 734 NYS2d 464 [2d Dcpt 2001]; I·'"cile v Grand Union Co., (~l 270 AD2d 227, 705 NYS2d 377 pel Dept 2000]: Pitter 1I GlIssi"i Shoes, Inc., 20() AU2d 464.614 NYS2d 568l2d Dcpt 1994·1~Orzechowski 1I Warner-Lambert Co., 92 AD2d 110,460 NYS2d 64 [2d Dcpt 1983 J). "In ordcr to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and apprcciation of a risk is not the same as the intent to cause injury .... A resul1' is intended if the act is done with the purpose of accomplishing such a resulT or with the knowledge that to a substantial cC11aintysuch a rcsult will ensue" (Finch vSwi1tg~".42 AD2d 1035, 1035,348 NYS2d 266, 268 [4th Ocpt 1973]). It is undisputed that Gullo was employed by Bellhaven at all relevant times herein. Therefore, only those causes of action in which the plaintiffs allege an intentional tort on the part of Bel1haven may be maintained in this action. A review of Bellhavcn's submission in support of its motion for summary Judgment reveals that it has established its entitlement to summary judgement regarding Ihe causes of action asserted against it, as [ollo\'vs: the plaintiffs' Third and Fourth Causes of Action which sct forth allegations sounding in negligence and gross negligence; the Sixth, Ninth and Twelfth Causes of Action which SClforth claims of negligcnt inDiction of emotional distress hy Gullo, his wife, and his daughter. respectwely; Lhe Seventh, Tenth and Thirteenth Causes of Action set forth claims by the respective plainti iTs of "violation of statute" hy 13cllhavcn.1 The Court now turns to the only remaining causcs of action asserted against Rellhaven. The Second Cause of Action is a derivative claim by Gullo's daughter for loss ol"parental guidance. The !'"ifth Cause of Action is a derivative claim by Gullo's wife for loss of consOl1iul11. The Eighth, Eleventh and Fourteenth Cuuses of Action set forth claims by Gullo, his wife, and daughter respectively alleging constructive fraud by Bellhaven. "Constructive fraud may be defined as the breach ora duty \-vhich, irrespective of moral guilt and intent, the law declares fraudulent becausc of its tendency to decclvc, to violate a confidence. or to injure public or private interests that the law deems worthy of special protection" (Browlt v Lockwood, 76 AD2d 721. 432 NYS2d 186 [2d Dcpt 1980]; see also Sears v Finl Pioneer Farm Credit, ACA. 46 A03d 1282.850 NYS2d 219 [3d Ocpt 2007]; Williams v Lyltch. 245 /\Dld 715. 666 NYS2d 74913d Ocpt 1997J: Grand U"iolt Mou11t Ki.'lClJ Employee.,· Fed. Credit Union v Kaltaryk. 848 F Supp 446 ISO NY 1994]). '"The c1emcnts of a cause or action to recover for constructive fraud are the salllC as those 10 recover lor actual rraud with the crucial By on.!t:r dawn April 15,2010. the (ou11 denied the plainliffs' cross Illotion rm leave to amend their cOl1lplainllo include these eauses ol'aetion Tllen:rore, lhey arc nOl part of this aClion, unci they have not been consirkred hel·c. [* 4] Gullo v Bellhaven Index No. 09-25986 Page 4 exception that the element of scienter upon the part of the defendant. his lor herJ knowledge of the falsity of his rcpresentation, is dropped ... and is replaced by a requirement that the plaintitTprove the ex.istence of a fiduciary or confidential relationship warranting the trusting party to repose his [or her] confidence in thc defendant and therefore to relax the care and vigilance he [or sheJ would ordinarily exercise in the circumstances" (Brown v Lockwood. 76 AD2d at 731, 432 NYS2d 186: see Levin v Kitsis, 82 AD3d 1051. 920 NYS2d 131 [2d Dept 2011]; Leolll! vSabbatillo, 235 AD2d 460, 652 NYS2d 628 j2d flopt 1997]). Here. the plainlilE' claims do not allege an intentional tort on the part of Bellhaven. Simply put, employment relationships do not create fiduciary relationships (,'ee Rather v CBS Corp., 68 AD3d 49, 886 NYS2d 121 r1Sl Dept 20091; Schellkmall v New York Call. of Health Professiollals, 29 AD3d 671, 815 NYS2d 159 r2d Dcpt 2006]; Melldelsohll v Ferber, 26 Misc3d 190, 887 NYS2d 494 [Supreme Ct, Suffolk County, 20091, l{firmed 73 AD3d 1139, 903 NYS2d 427 [2d Ocpt 201 0]). The cause of action fails to allege facts to demonstrate that a fiduciary relationship existed between BeJlhaven, on the one hand, and Gullo, on the other hand. In addition, Gullo's wife and daughter do not allege that Bellhaven has a fiduciary duty to them. Thus, Bcllhavcn has established its clllitiement to summary judgment regarding the plaintiffs' Eighth, Eleventh and Fourteenth Causes of Action. Inasmuch as Bellhavcn has established its entitlement to summary judgment on the substantive causes of action which scek damages on behalf of Gullo, the derivative causes of action on behalf of the plaintiff's wife and daughter are also subject to dismissal (see Flallagall v Catskill Regiollal Med. Ctr., 65 AD3d 563, 884 NYS2d 13 J [2d Dcpt 2009]; Cubr; v Park, 260 AD2d 525, 688 N YS2d 248 [2d Dept 1999J). In opposition to Bellhavcn's motion, thc plaintiffs submit the affirmation of their attorney, a copy oCthe amcnded complaint, affidavits tl'om cach plaintiff, and a copy of the court order granting them leave to amcnd their complaint. In their atlidavits, the plaintiffs explain the understandable difficulties that"they have experienced regarding this matter. l1owever, nothing in those affidavits changes the Court's analysis of the law as it applies to the f'acts of this action. As noted nbovc, it is undisputed that (Julio was employed by BeJlhavcn at all relevant timcs herein. In his afl'irmation in oppositionlO Bellhavcn's motion, counsel for the plaintiff" contends that the Court determined that the causes of action for constructive fraud have merit ill its order dated April 15,2010. It is wcll settled that the Court should freely grant leave to amend the complaint, pro\'ided that Ihe proposed amendment does not prcJudice or surprise the Jdcndanl, and that it is not palpably insufficicnt or patently devoid of merit (see Kiaer \I Gilligall. 63 AD3d ] 009,883 NYS2d 124 l:ld Dcpt 20091: Kinzer II Bedernum, 59 AD3d 496, 873 NYS2d 692 r2d Oept 20091), The court should not examine the merits or Icgal sufficiency of the proposed amendment unless it is palpably insufficient or devoid of merit on its face (see Vista Prop., LLC v Rockland Ear, Nose & Throat Assoo"., P.c., 60 AD3d 846. 875 NYS2d 248 [2d Ocpt 2009.1). Whereas, in a motion for summary judgment the Court must determine whether the moving party has made a showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see AllI(lrez v Prospect Hospital. 68 NY2d 320. supra: Winegrad v New York Univ. Met!. elr .. 64 NY2d 851. supra). [* 5] Gullo v Bellhaven Index No. 09-25986 Page 5 l-liwing established its entitlement to summary Judgment dismissing the complaint, it is lI1eumbent upon the plallltilfs to produce evidence in admissIble form SUf'flCICIlt require a tnal orthe to material issues of j~lCt see Roth v Barreto, 289 AD2d 557, .l"l/pm; Rehecclti II Whitmore, 172 AD2d ( 600, sup/"({; O'Neill v Fishkill, ]34 AD2d 487, supra). Here, the plamtiffs have failed to raise an issue of fact reqUiring a tria! in tbis action. Accordingly, Bellhaven's motion for summary judgmt.:nt dismlssmg the complaint against it is granted. The Court notes that Bellhaven's motion for sumn1<u)'judgmcnt also seeks to dismiss all cross claims asserted against it. A review of the pleadings reveals that its co-defendant, Mark Shapiro, M.D., bas n01 assclted a cross claim against Bcllhavcl1.3 Accordingly, that branch oj"Bellhaven's motion is deemed academic. :; The computel'ized recOI"dsmailltained by the Coun rellcct that the plaintiffs' action has heen uiscon1inll~d against Ap~'\ Lahoratory, 1nc, by slipulalion daled September 22, 2009, Pursuant to CPLR 3217 [a]' [bj, :md Unihll"lll Rulcs for Trial Os [12 NYCRR] ~ 202,28), said stipulation was nlcd with the Clerk ofll1t Suprcmc Court 011Ocwbt']" I. 2009,

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