Passet v Menorah Nursing Home, Inc.

[*1] Passet v Menorah Nursing Home, Inc. 2007 NY Slip Op 51452(U) [16 Misc 3d 1117(A)] Decided on July 26, 2007 Supreme Court, Kings County Knipel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 26, 2007
Supreme Court, Kings County

Ann Passet, Plaintiff,

against

Menorah Nursing Home, Inc., d/b/a Menorah Nursing Home & Hospital for the Aged and Menorah Nursing Home Company, Inc., d/b/a Menorah Nursing Home & Hospital for the Aged, , Defendants.



29813/05



Attorneys for Plaintiff

Halperin & Halperin, P.C.

18 East 48th Street

New York, NY 10017

(212) 935-2600

Attorneys for Defendant

Bivona & Cohen, P.C.

88 Pine Street

Wall Street Plaza

New York, NY 10005-1886

(212) 363-3100

Lawrence Knipel, J.

In this action to recover damages for personal injuries, plaintiff moves pursuant to CPLR 3025(b) for leave to serve an amended complaint, to include, inter alia, a cause of action pursuant to Public Health Law § 2801-d.

The complaint alleges that plaintiff, a resident in defendant nursing home, fell when she attempted to get out of bed unaided, and sustained, among other injuries, a fracture of the right femur requiring open reduction and internal fixation. The complaint alleges that the incident was caused by the negligence and carelessness of defendants, among other things, in failing to have proper and sufficiently trained personnel, permitting plaintiff to be left alone and unmonitored in a bed without bed rails or with improper equipment, and in failing to follow proper procedures.

In this motion, plaintiff seeks to amend her complaint to assert a second cause of action, pursuant to Public Health Law §§ 2801-d, which allows for a private action by patients of residential health care facilities for the deprivation of any right or benefit, such as those listed in Public Health Law § 2803-c. Plaintiff seeks to add a third cause of action as well, alleging defendants acted so recklessly that plaintiff is entitled to punitive damages.

Defendants oppose the motion, arguing that the additional causes of action are not supported by any admissible evidence. Plaintiff, it is asserted, was found on the floor near her bed, and could not articulate why she was there. Plaintiff's counsel assumes she fell out of bed. Further, it is argued, there is no expert affidavit supporting the suggestion that the number of nurses assigned was [*2]insufficient, and no evidence at all of willful and wanton conduct. Plaintiff was a resident for over three years before the accident, was not agitated or restless, and never fell out of bed. Indeed, defendants argue, if she was determined to get out of bed and restraints such as bedrails were used, she would have sustained even greater injuries. The purpose of Public Health Law § 2801-d is to provide a remedy for patients who were denied the rights and benefits in Public Health Law § 2803-c - one of which is, ironically, to be free of restraints - not to assert a new cause of action that would duplicate a common law negligence claim.

Public Health Law § 2803-c is entitled "Rights of patients in certain medical facilities" and includes such items as the right to present grievances; the right of a patient to manage his or her own financial affairs; the right to receive adequate and appropriate medical care; the right to receive courteous, fair and respectful care and treatment; the right to be free of mental and physical abuse and from physical and chemical restraints except those authorized in writing by a physician or as are necessary in an emergency; and the right to receive kosher food or halal food. Public Health Law § 2801-d provides that a residential health care facility that deprives any patient of any right or benefit established by the terms of any contract, statute, code, rule or regulations, shall be liable for injuries suffered as a result of said deprivation (Public Health Law § 2801-d[1]).

The statute also provides that "[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings" (Public Health Law § 2801-d[4]). If judgment in an action maintained under this section is rendered in favor of plaintiff, a court may, if justice requires, award attorneys' fees to plaintiffs (Public Health Law § 2801-d[6]).

The issue of whether Public Health Law allows a plaintiff to assert a private right of action that duplicates a common law negligence cause of action was first analyzed by the Appellate Division, Fourth Department, in Goldberg v Plaza Nursing Home Comp.( 222 AD2d 1082). The court held that the statute did not create a new personal injury cause of action based on negligence when that remedy already existed. In Doe v Westfall Health Care Center (303 AD2d 102), however, the Fourth Department overruled its decision in Goldberg. Some courts have held that Doe did not mean to overrule Goldberg where there was no difficulty with plaintiff's proof and no bar to recovery in negligence (see, e.g., Bielewic v Mapelwood Nursing Home, 4 Misc 3d 475 [Sup. Crt, Monroe County, Siracuse, J., 2004][a private cause of action was not authorized in every negligence case]; Acevedo v Augustana Lutheran Home, 7 Misc 3d 1005(A) [Sup. Crt, Kings County, Rosenberg, J., 2004][a separate cause of action under Public Health Law did not exist under the facts of this case, and leave to amend was therefore denied]).

Other courts, however, have held that a claim under the Public Health Law may be asserted with a common law negligence claim. In Zeides v Hebrw Home for the Aged (300 AD2d 178), the Appellate Division, First Department, held that the cause of action under the Public Health Law was not barred by the malpractice statute of limitations, stating that the statute did not indicate an intent to equate its private right of action with one for medical malpractice or ordinary negligence. The court reasoned that the statutory basis for liability under the Public Health Law was a deprivation of a right, not a departure from proper practice nor a breach of duty of care (accord, Washington v Asfaw, 15 Misc 3d 1107(A), 2007 WL 846617 [Sup. Crt., New York County, Bransten, J., 2007]; Pasqua v Bon Secours New York Health System, 13 Misc 3d 1036 [Sup. Crt., Bronx County, Renwick, J., 2006]; Morisette v Terence Cardinal Cooke Health Care Center, 8 Misc 3d 506 [Sup. [*3]Crt., NY County, Sklar, J., 2005][The legislative history evinces an intent to provide an additional avenue of relief to the vulnerable nursing home population to insure their rights are enforced]).

Leave to amend pleadings should be liberally granted (CPLR 3025[b]). Nevertheless, a court should examine the sufficiency of the merits of the proposed amendment, and where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave to amend should be denied (see Morton v Brookhaven Mem. Hosp., 32 AD3d 381; Hill v 2016 Realty Associates, ___ AD3d ___, 2007 WL 2002994). "Punitive damages are warranted where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness" (Buckholz v Maple Garden Apartments, 38 AD3d 584, 585[Supreme Court erred in granting motion to amend to add a demand for punitive damages where the allegations relative thereto were grounded in mere speculation];see Morton v Brookhaven Mem. Hosp.,supra [Record was devoid of any evidence of willful or wanton negligence warranting an award of punitive damages]; Lee v Health Force, 268 AD2d 564 [Leave to amend to assert a demand for punitive damages should have been denied where defendants' conduct did not manifest a high degree of moral culpability and did not constitute willful or wanton negligence]; Rey v Park View Nursing Home, 262 AD2d 624 [Supreme Court correctly dismissed causes of action seeking to recover punitive damages from nursing where 76-year old stroke victim, with senility and dementia, fell out of wheelchair several times and then fell out of recliner and broke her hip]).

Here, in the absence of an explicit precedent from the Appellate Division, Second Department, this court finds persuasive those cases allowing a Public Health Law cause of action to be asserted even where it is cumulative with a common law action for negligence (see Zeides v Hebrew Home for the Aged, supra, 300 Ad2d 178; Pasqua v Bon Secours New York Health System, supra, 13 Misc 3d 1036). This conclusion is in consonance with the statute itself which explicitly states "The remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity" (Public Health Law § 2801-d[4]). Accordingly, the branch of the motion to amend the complaint to assert a cause of action pursuant to Public Health Law § 2801-d is granted.

The branch of the motion to amend to assert a claim for punitive damages is denied. Aside from self-serving and conclusory hyperbole, plaintiff has not presented any evidence in admissible form of ordinary negligence, let alone reckless or wanton conduct that might support an award of punitive damages (see Hill v 2016 Realty Associates, supra, 2007 WL 2002994; Morton v Brookhaven Mem. Hosp., supra, 32 AD3d 381).

Accordingly, plaintiff's motion to amend is granted only to the extent of adding a cause of action under the Public Health Law § 2801-d, and is otherwise denied.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.