Peters v Nesconset Ctr. for Nursing & Rehabilitation

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[*1] Peters v Nesconset Ctr. for Nursing & Rehabilitation 2015 NY Slip Op 50555(U) Decided on April 15, 2015 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 15, 2015
Supreme Court, Queens County

Patricia Peters, as Executrix for the Estate of ARTHUR OWEN, Plaintiff,


Nesconset Center for Nursing and Rehabilitation, NESCONSET ACQUISITION, LLC, ROBERT HEPPENHEIMER, ANUPADEVI SUZEY DOUYON, Defendants.

Robert J. McDonald, J.

Defendants moved for summary judgment on August 8, 2014, seeking to dismiss the complaint. The parties agreed to adjourn the motion to September 24, 2014, and the parties' signed stipulation to that effect was electronically filed by plaintiff, as agreed, on August 19, 2014. Defendants subsequently learned that the motion was "marked off" due to the non-appearance of all parties and failure to submit a working copy of the e-filed stipulation.

CPLR 5015(a)(1) permits vacatur of a default where a reasonable excuse has been established and there is a meritorious cause of action or defense, provided that a motion seeking such relief is made within one year after service of a copy of the default judgment (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; Sussman v Jo-Sta Realty Corp., 99 AD3d 787 [2012]).

In its discretion, the court finds that this instance of law office failure is excusable, as defendants averred that it was understood by the parties that plaintiff would be coordinating the adjournment of the motion, the stipulation had been e-filed with receipt acknowledged by the court clerk, they were never informed that the adjournment was denied, and the default was not willful, as they had appeared at all prior conferences (see Sarcona v J & J Air Container Sta., Inc., 111 AD3d 914 [2013]; Liotti v Peace, 15 AD3d 452 [2005]). Moreover, defendants promptly moved to vacate the default (see Sarcona, 111 AD3d 914) and submitted the affidavit of Dr. Jeffrey Farber, which constitutes competent medical evidence sufficient to demonstrate a meritorious defense (see Santos v Penske Truck Leasing Co., 105 AD3d 1029 [2013]).

Defendants' summary judgment motion is thus restored to the court's calendar and shall be decided herein, as all necessary papers have been submitted.

Decedent was a 79 year old man diagnosed with Alzheimer's dementia who was previously admitted to non-party Mather Hospital from January 2 to January 25, 2010 to treat aspiration pneumonia, dysphagia, and underwent percutaneous endoscopic gastrostomy (PEG) placement on January 19 due to his severe vascular dementia. On the date of discharge, decedent's medical records from Mather Hospital revealed normal creatinine levels and slightly elevated blood urea nitrogen (BUN) levels at 28, without any evidence kidney disease.

He was then transferred to Nesconset Center for Nursing and Rehabilitation (Nesconset) on January 25, where he stayed until July 7, 2010, under the care of non-party attending physician Dr. [*2]Richard Gold. Decedent was administered nutritional feedings via PEG tube by the Nesconset staff, including 2500 cc of water daily, which were documented as being duly administered. Despite normal creatinine levels, decedent's BUN continued to rise. By July 7, 2010, decedent's BUN had elevated to 113 with poor creatinine levels, and he was transferred back to Mather Hospital. Decedent's BUN and creatinine levels continued to worsen, and decedent had a Foley catheter placed on July 12, 2010. Decedent passed away on July 13, 2010 without autopsy.

The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, defendants establish a prima facie showing by tendering sufficient evidence, including affidavits by Dr. Jeffrey Farber and registered nurse Jennifer Muilenburg, to demonstrate that they were not negligent in the care and delivery of nursing home services to decedent and that the alleged deficiencies were not the cause of decedent's death (see D'Elia v Menorah Home & Hosp. for the Aged & Infirm, 51 AD3d 848 [2008]; see also Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad, 64 NY2d at 853). Dr. Farber concluded that the Nesconset staff provided appropriate nutrition and hydration for decedent and that decedent's death was consistent with a diagnosis of advanced dementia with dysphagia, recurrent aspiration pneumonia, possible lung cancer, acute tubular necrosis, and post-obstructive uropathy (kidney damage due to mechanical obstruction of urine output).

In opposition, plaintiff raises material issues of fact through the submission of Dr. Luigi Capobianco's expert affidavit, among other things, which precludes summary judgment (see Alvarez, 68 NY2d at 324; Winegrad, 64 NY2d at 853). Dr. Capobianco stated that it was "physiologically impossible" for decedent to have received the amount of water documented in his medical records, given his laboratory values, but Nesconset never investigated the discrepancy. Contrary to Dr. Farber's finding that among the conditions from which decedent died was post-obstructive azotemia (rather than dehydration), Dr. Capobianco noted that decedent's July 12, 2010 renal ultrasound [*3]did not reveal any mass obstructing the kidneys. Moreover, Dr. Capobianco opined that Dr. Farber's affidavit attributing the death to causes other than dehydration did not conclusively eliminate death resulting from dehydration-based renal failure because those other conditions may result from dehydration-related issues. These triable issues are among those that must be resolved at trial (see Maltese-Kojallo v Fairview Nursing Care Center, Inc., 2010 WL 337306 , 2010 NY Slip Op 30144[U] [2010]).

Similarly, in light of decedent's medical records evincing worsening BUN and creatinine levels during his residence at Nesconset, whether defendants violated Public Health Law § 2801-d by depriving decedent of a right or benefit codified under law, such as sufficient hydration and fluid intake under 42 CFR 483.25(j) and appropriate and adequate medical care under and Public Health Law § 2803-c, remains to be determined at trial.

Turning to the branch of the motion seeking to dismiss the gross negligence and punitive damages claims, punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces "a high degree of moral culpability or willful or wanton negligence or recklessness" (see Dmytryszyn v Herschman, 78 AD3d 1108 [2010]; Hill v 2016 Realty Assoc., 42 AD3d 432 [2007]). Defendants correctly assert that there is no evidence of willful or reckless conduct to support a claim of gross negligence herein (see Morton v Brookhaven Mem. Hosp., 32 AD3d 381 [2006]).

However, given the "less stringent standard" under Public Health Law § 2801-d compared to that under medical malpractice (Osborne v Rivington House-The Nicholas A. Rango Health Care Facility, 19 Misc 3d 1132[A], 2008 WL 2042699, *6 [Sup Ct, New York County 2008]), whether defendants willfully deprived decedent of or recklessly disregarded any right or benefit due to him under the statute shall be decided together with the underlying cause of action (see Vaynberg v St. Vincents Catholic Med. Ctrs. of New York, 2009 NY Slip Op 32371[U]; 2009 WL 3412982 [2009]; Osborne, 19 Misc 3d 1132[A], 2008 WL 2042699).

Finally, contrary to defendants' contentions, claims under Article 28 of Public Health Law do not require a showing that the individual defendants participated in alleged wrongful conduct; rather, such "controlling person[s]" need only possess the "ability . . . to direct or cause the direction of the management or policies of the facility" (Pub. Health Law § 2808-a[1]), and defendants have not proffered evidence showing that such statute is inapplicable (see generally Ocean Side Institutional Indus. v United Presbyt. Residence, 254 AD2d 337 [1998]; Gorton v Fellner, [*4]88 AD2d 742 [1982]).

Accordingly, defendants' motion for summary judgment is granted to only the extent of dismissing the gross negligence claim.

Dated: Long Island City, NY

April 15, 2015




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