Santoro v Poughkeepsie Crossings, LLC

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Santoro v Poughkeepsie Crossings, LLC 2019 NY Slip Op 33765(U) December 5, 2019 Supreme Court, Dutchess County Docket Number: 2016-52070 Judge: James V. Brands Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] DUTCHESS COUNTY CLERK 12/06/2017 04:38 PM NYSCEF DOC. NO. 56 INDEX NO. 2016-52070 RECEIVED NYSCEF: 12/05/2017 SUPREME COURT- STATE OF NEW YORK DUTCHESS COUNTY Present: Hon. JAMES V. BRANDS Justice. SUPREME COURT: DUTCHESS COUNTY x SANDRA SANTORO, as Executrix of the Estate of INEZ J. SAL VATO RE, Deceased, Plaintiff, -against- DECISION AND ORDER ON TWO MOTIONS Index No: 2016-52070 POUGHKEEPSIE CROSSINGS, LLC, Defendant. Motion Seq. NO.2, 3 x POUGHKEEPSIE CROSSINGS, LLC, Third-Party Plaintiff, -againstSANDRA SANTORO, Third-Party Defendant. x The following papers were read and considered on Poughkeepsie Crossings, LLC's motion to disqualifY Goldstein and Goldstein, LLP ("G&G") from representing Sandra Santoro in both actions. Also considered were papers submitted in connection with Santoro's cross-motion for dismissal of the third-party action. NYSCEF DOC. No. 31-52 Background Facts This is a wrongful death action commenced by Sandra Santoro, as executrix of the Estate of decedent Inez J. Salvatore. The action arose from an incident whereby Inez Salvatore suffered a fall while residing in the home of Sandra Santoro following her release from hospitalization, after which Inez Salvatore was further hospitalized for a fractured hip which required surgery. Inez Salvatore suffered septic shock caused by a bacteria infection and died in the hospital shortly thereafter. Sandra Santoro, in her capacity as the executrix ofthe estate, commenced this wrongful death action. In essence, it is alleged that the defendant, as owner of a residential healthcare facility known as the Pines at Poughkeepsie Center for nursing and rehabilitation, failed to provide adequate care and treatment of the decedent during all times when she was under their care spanning from March 17, 2015 through May 9, 2015. (See Defendant's Motion Exhibit C). 1 of 3 [*FILED: 2] DUTCHESS COUNTY CLERK 12/06/2017 04:38 PM , NYSCEF DOC. NO. 56 INDEX NO. 2016-52070 RECEIVED NYSCEF: 12/05/2017 In tum, Defendant commenced a third-party action against Sandra Santoro in her individual capacity. In pertinent part, it is alleged that Santoro failed to follow defendant's discharge instructions related to the care of the decedent. It is their claim that Inez Salvatore was discharged from their facility with specific instructions to provide her 24-hour care 7-days per week. Counsel cites Santoro's deposition testimony wherein she stated that she provided a nurse to come to her home only 3-times per week during morning hours. It is bascd on the foregoing that the defendant claims that Santoro was negligent in failing to comply with the dischargc instructions which consequcntly resulted in Inez Salvatore suffering further injury while residing at Santoro's home which ultimatcly caused her death. Motion Seq. NO.2 Dcfendant filed a motion to disqualify 0&0 from reprcscnting Sandra Salvatore in her capacity as the executrix of the estate in the primary action and representing Sandra Salvatore in hcr individual capacity in the third-party action. Counsel claims that therc is an inherent conflict of interest based upon the allegations of the pleadings. Defense counsel claims that based on the foregoing pleadings, it is apparent that the interests of Santoro as a defendant in the third-party action are "directly adverse" to those interests of the decedent's estate in the wrongful death action as asserted by Santoro in her capacity as the executrix of the estate. (See Oornitsky Affirmation ~23). Motion Seq. NO.3 Santoro filed a cross-motion to dismiss the third-party action based upon the failure to state a cause of action against Santoro (citing CPLR 3211( a][7]). Counsel contends that an adult child cannot be liable to their parent for failure to provide adequate supervision as there is "no judicially recognized legal duty" imposed by an adult family member caring for their parent. Counsel also refutes defcndant's motion to disqualify 0&0. In that regard, counsel argues there is no inherent contlict posed by 0&0 representing Santoro in both the underlying action and the third-party action. Decision This court, having reviewed the motion record before it and upon due deliberation thereof, finds that dismissal of the third-party action filed by Poughkeepsie Crossings, LLC as against Sandra Santoro is not warranted at this juncture. The record raises issues of fact as to whether Santoro assumed the duty of care for her mother upon her mother's dischargc from the Pines in accordance with all discharge instructions as directed by the Pines, and if so whether Santoro was negligent in her post-discharge care, and whether any such negligence caused or contributed to the death ofinez Salvatore. As it relates to defendant's motion to disqualify 0&0, thc motion record does not resolve all factual issues for this court to render determination on papers only. Accordingly, the court recognizes that this matter is scheduled for a conference within on Decembcr 6, 2017 at which time counsel shall be prepared to provide the court with additional information on the record related to 2 2 of 3 [*FILED: 3] DUTCHESS COUNTY CLERK 12/06/2017 04:38 PM NYSCEF DOC. NO. 56 INDEX NO. 2016-52070 RECEIVED NYSCEF: 12/05/2017 the estate, namely whether Sandra Santoro is the only heir and beneficiary of the estate and, if so how G&G 's representation ofthe sole heir and sole beneficiary ofthe estate and G&G representation of Santoro in a related third-party action would pose a conflict of interest. Based on the foregoing, it is hereby ORDERED that Santoro's cross-motion for dismissal ofthe third-party complaint is denied. It is further ORDERED that counsel are directed to appear at the previously-scheduled conference on .January I~ ,2018 at 9:15 a.m. at which time counsel shall be prepared to provide this court with additional information with respect to the heirs and/or beneficiaries of the estate of the decedent for this court to render determination as to whether G&G's continued representation of Santoro in both her capacity as the executrix of the estate and in her individual capacity in the third-party action poses any conflict of interest. It s further ORDERED that in light of the foregoing, the conference scheduled for December 6, 2017 is cancelled. Any relief not specifically granted herein is denied. The foregoing constitutes the decision and order of this court. Dated: December 5, 2017 Poughkeepsie, New York ENTER: Paul 1. Goldstein, Esq. Goldstein & Goldstein, LLP Aflamey for PlaintifJIThird-Party Defendant I Civic Center Plaza, Suite 541 Poughkeepsie, NY 12601 Joshua I. Gornitsky, Esq. Simon Lesser, PC Aflamey for Defendant/Third-Party 355 Lexington Avenue, 10th Floor New York, NY 10017 Plaintiff Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of entry, the appeal must be taken within thirty days thereof. When submitting motion papers to .Judge Brands' Chambers, Submit only the original papers. 3 3 of 3 please do not submit any copies.

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