Opinion
Index No. 59662/2019 Seq. No. 11
03-04-2024
BARBARA ALLEN, as Co-Executor of the Estate of JUDITH ALLEN, MELISSA ALLEN, as Co-Executor of the Estate of JUDITH ALLEN, and JOSE DOS SANTOS, as Administrator of the Estate of MARIA DOS SANTOS, individually and on behalf of all others similarly situated; Plaintiffs, v. YERTLE OPERATIONS LLC d/b/a FISHKILL CENTER FOR REHABILITATION AND NURSING, MACHLA ABRAMCZYK, ESTHER FARKOVITS, RICHARD PLATSCHEK, ROBERT SCHUCK, and DOES 1 - 25, Defendants.
Unpublished Opinion
Motion Date: 11/28/2023
DECISION AND ORDER
DAMARIS E. TORRENT, A.J.S.C.
The following papers numbered 1 to 52 were read on this motion (Seq. No. 11) by defendants for an order granting summary judgment dismissing the complaint:
PAPERS NUMBERED
Notice of Motion / Affirmation (Loveland) / Statement of Material Facts / Exhibits A - N 1 - 27
Memorandum of Law in Opposition / Statement of Material Facts / Affirmation
(Frei-Pearson) / Exhibits / Affirmation (Gross) / Affidavit
(Halifax) / Exhibit A 18-50
Affirmation in Reply (Loveland) / Exhibit A 51-52
Upon the foregoing papers, the motion is denied.
In this putative class action asserting that the plaintiffs suffered harms as a result of understaffing at the defendants' facility, by Notice of Motion filed on August 14,2023, defendants seek an order granting summary judgment dismissing the complaint. Defendants contend that the complaint should be dismissed because defendants exercised all care reasonably necessary to prevent and limit any deprivation of rights or injury to plaintiffs' decedents. Defendants further contend that plaintiffs have not alleged and cannot prove any individual and particularized injuries. Defendants contend that plaintiffs' claims for punitive damages should be dismissed because the record contains no evidence to support a claim that defendants ever acted intentionally or in a manner exhibiting reckless disregard for plaintiffs' decedents or their conditions. Defendants assert that plaintiffs lack standing to pursue a claim for injunctive relief. Finally, defendants contend that plaintiffs' claims against the individual defendants must be dismissed for failure to plead any injury caused by their management or control of the facility.
Plaintiffs' motion (Seq. No. 12) to renew their application for class certification is currently pending.
Plaintiffs oppose all facets of the motion, contending that conflicting expert opinions as to the level of care exercised by defendants preclude summary judgment. Plaintiffs contend that they have pleaded and provided evidence of deprivation of the rights of their decedents and resulting injuries sufficient to defeat the motion, including evidence of knowing and willful understaffing sufficient to support their claims for punitive damages. Plaintiffs further contend that Judith Allen was a resident of the facility at the commencement of this action, and that her personal representatives are empowered by statute to maintain the cause of action for injunctive relief on her behalf. Finally, plaintiffs contend that the individual defendants are subject to liability by virtue of their ability to direct the management of the facility, regardless of whether they chose to exercise that ability.
In reply, defendants assert that plaintiffs' experts' opinions are speculative and conclusory and thus insufficient to raise triable issues of fact. Defendants contend that plaintiffs lack standing to assert financial injury in connection with Medicaid payments to the facility; that plaintiffs failed to adequately plead physical injury, as their opposition improperly relies on new injuries never before claimed in an attempt to raise issues of fact; that plaintiffs' claims of emotional injury arc speculative and conclusory, and that plaintiffs failed to raise an issue of fact as to intentional acts or reckless disregard. Defendants further contend that plaintiffs no longer have standing to pursue injunctive relief because Judith Allen is now deceased and thus is no longer residing in the facility. Finally, defendants assert that plaintiff failed to raise a triable issue of fact as to whether any of the individual defendants is a controlling person within the meaning of Public Health Law § 2808-a.
The Court has fully considered the submissions of the parties.
The court's function on this motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. . . . Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.... Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [citations omitted]).
Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 N.Y.2d 223 [1978]). The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v New York City Health &Hosps. Corp., 22 N.Y.3d 824 [2014]). As stated in Scott v Long Island Power Auth. (294 A.D.2d 348, 348, [2d Dept. 2002]):
"It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court's function is to determine whether 'by no rational process could the trier of facts find for the nonmoving party' (Jastrzebski v North Shore School Dist., 223 A.D.2d 677, 678 [internal quotation marks omitted]). It is equally well established that the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Dolitsky v Bay Isle Oil Co., 111 A.D.2d 366)."
Injunctive Relief
The motion to dismiss the claim for injunctive relief for lack of standing is denied. Pursuant to Public Health Law § 2801-d(4-a), "any action that may be brought, and any relief that may be sought or received, may be brought, sought or received in an appropriate case by the patient's legal representative or the patient's estate." In addition to bringing an action for money damages, "a patient residing in a residential health care facility may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law" (id. § 2801-d[3]). It is undisputed that the decedent Judith Allen was a resident of the facility when this action was commenced and, by the plain language of the statute, her cause of action for injunctive relief may be maintained by her personal representatives. Defendants cite, and the Court's research revealed, no case holding that the authorization in section 2801-d(4-a) does not permit the representative of the estate of a decedent who was a resident of the facility at the commencement of the action to continue prosecution of a claim for injunctive relief.
Individual Defendants
The branch of the motion seeking dismissal of plaintiffs' claims against the individual defendants is denied. "Every person who is a controlling person of any residential health care facility liable under any provision of this article to any person or class of persons for damages .. shall also be liable, jointly and severally, with and to the same extent as such residential health care facility, to such person or class of persons for damages ..." (Public Health Law § 2808-a[ 1 ]). "For purposes of this section, a 'controlling person' of a residential health care facility shall be deemed to mean any person who by reason of a direct or indirect ownership interest (whether of record or beneficial) has the ability, acting either alone or in concert with others with ownership interests, to direct or cause the direction of the management or policies of said facility" (id. § 2808-a[2]).
It is undisputed that each of the individual defendants holds an ownership interest in the facility. Defendants on their motion contend only that the individual defendants do not control the facility; they do not contend that any of the individual defendants lacks the ability to direct or cause the direction of the management or policies of the facility. By the plain language of the statute, it is the ability to control the management or policies of the facility that subjects the individual defendants to liability, and their election not to exercise that ability is of no moment.
Remaining Claims
The remainder of defendants' motion seeks summary judgment dismissing claims as to which the parties have presented conflicting expert opinions. The parties experts disagree, for example, as to whether the facility was adequately staffed, whether plaintiffs' decedents suffered diminishment of activities of daily living, and whether plaintiffs' decedents suffered physical and emotional injury as a result of defendants' conduct. The experts further disagree as to whether the record demonstrates knowing and willful conduct on the part of the defendants which would support the claim for punitive damages. The "conflicting medical expert opinions present a triable issue of fact" (Darwick v Paternoster, 56 A.D.3d 714, 715 [2d Dept 2008] [citations omitted]).
Furthermore, defendants' argument that plaintiffs cannot rely on the claimed failure to render services for which defendants were compensated via Medicaid reimbursement to establish financial injury is rejected. The daily cost of maintaining a resident at a defendant facility during a period of substandard care has been recognized as a recoverable item of economic damage (see Passucci v Absolut Ctr. for Nursing and Rehabilitation at Allegany, LLC, 2014 NY Slip Op 33459[U] [Sup Ct, Erie County 2014]; aff'd 125 A.D.3d 1313 [4th Dept 2015]). Defendants' attempt to distinguish Passucci on the ground that it involved a class action, and this matter at this time does not, is not persuasive. While the number of residents for whom daily payments during a period of substandard care may be recovered will naturally differ between an action on behalf of a large class and an action currently involving only two residents, the absence of a certified class does not render this item of claimed economic damages unrecoverable.
Accordingly, it is hereby ORDERED that the motion is denied; and it is further
ORDERED that, within ten (10) days of the date hereof, plaintiffs shall serve a copy of this Decision and Order, with notice of entry, upon defendants, and shall file proof of said service via NYSCEF.
The foregoing constitutes the Decision and Order of the Court.