Opinion
504014/17
10-12-2017
Francine Demes as Proposed Administratrix of the of the Estate of Margaret Joseph, Deceased, and Margaret Joseph, Individually, Plaintiffs, v. Boro Park Center for Rehabilitation And Healthcare, BORO PARK OPERATING CO., LLC, CENTER FOR NURSING AND REHABILITATION, INC., CENTERLIGHT HEALTH SYSTEM, INC., HAMILTON PARK NURSING AND REHABILITATION CENTER and HAMILTON PARK MULTICARE, LLC., Defendants.
Attorney for Plaintiff Sara A. Strickland, Esq. 777 Third Avenue, 31st Floor New York, New York 10017 (212) 751-9800 Attorney for Boro Park Center for Rehabilitation and Healthcare Geogiana Boss, Esq. Rubin Sheeley Paterniti Gonzalez and Kaufman, LLP 420 Lexington Avanue, Ste. 1820 New York, New York 10017 (646) 650-5952 Attorney for Defendants Center for Nursing and Rehabilitation and Centerlight Health System, Inc. Dyan Kleinman, Esq. 77 Water Street, Suite 702 New York, New Yok 10005 (212) 599-8200 Attorney for Defendants Hamilton Park Multicare LLC, Hamilton Park Nursing and Rehabilitation Center Wilson, Elser, Msokowitz, Edelman & Dicker, LLP 1133 Westchester Avenue White Plains, New York 10604
Attorney for Plaintiff Sara A. Strickland, Esq. 777 Third Avenue, 31st Floor New York, New York 10017 (212) 751-9800 Attorney for Boro Park Center for Rehabilitation and Healthcare Geogiana Boss, Esq. Rubin Sheeley Paterniti Gonzalez and Kaufman, LLP 420 Lexington Avanue, Ste. 1820 New York, New York 10017 (646) 650-5952 Attorney for Defendants Center for Nursing and Rehabilitation and Centerlight Health System, Inc. Dyan Kleinman, Esq. 77 Water Street, Suite 702 New York, New Yok 10005 (212) 599-8200 Attorney for Defendants Hamilton Park Multicare LLC, Hamilton Park Nursing and Rehabilitation Center Wilson, Elser, Msokowitz, Edelman & Dicker, LLP 1133 Westchester Avenue White Plains, New York 10604 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of Boro Park Center for Rehabilitation and Healthcare (hereinafter BPCRH) and Boro Park Operating Co., LLC (hereinafter BPOC)(jointly the Boro Park defendants) for an order: (1) dismissing the complaint pursuant to CPLR 3211 (a) (3) on the grounds that the plaintiff lacks capacity and in the alternative (2) dismissing the claim for punitive damages.
- Notice of motion
- Affirmation in support
- Exhibits A-B
- Affidavit in opposition
- Exhibits A-B
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of Center for Nursing and Rehabilitation, Inc. (hereinafter CNR) and Centerlight Health System, Inc. (hereinafter CHS) for an order: (1) dismissing the complaint pursuant to CPLR 3012-a for failure to provide a certificate of merit or in the alternative; (2) dismissing the complaint pursuant to CPLR 3406 for failure to file a Notice of Medical Malpractice; and (3) dismissing the claim for punitive damages for failure to plead a claim for punitive damages and (4) compelling plaintiff to provide certain discovery pursuant to CPLR 3124.
- Notice of motion
- Affirmation in support
- Exhibits A-B
- Affidavit in opposition
- Exhibits A-B
Recitation in accordance with CPLR 2219 (a) of the papers considered on the cross-motion of the plaintiff for an order: (1) extending their time to file a certificate of merit pursuant to CPLR 3012-a and a Notice of Medical Malpractice pursuant to CPLR 3406 (a).
- Notice of cross motion
- Affirmation in support
- Exhibits A-D
- Reply of CNR and CHS
BACKGROUND
On February 28, 2017, the plaintiff commenced the instant action by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office The complaint contains seventy allegations of fact in support of five denominated causes of action. The first cause of action is denominated nursing home negligence. The second cause of action alleges violations of 10 NYCRR § 415.12 (c) (2) and (3) and 42 C.F.R. 483.25 (c) (2) and (e). The third cause of action is for negligent hiring and supervision. The fourth cause of action is for wrongful death. The fifth cause of action is for loss of parental support and guidance.
The Boro Park defendants joined issue by verified answer dated April 21, 2017. CNR and CHS joined issue by verified answer dated April 6, 2017. Hamilton Park Nursing and Rehabilitation Center and Hamilton Park Multicare, LLC filed a notice of appearance dated August 23, 2017.
LAW AND APPLICATION
The Boro Park Defendants' motion pursuant to CPLR 3211 (a) (3)
The Boro Park defendants have moved for and order dismissing the complaint pursuant to CPLR 3211 (a) (3) on the grounds that plaintiff lacks capacity to sue. The motion is premised on the alleged failure of Francine Demes to be appointed as Administratrix of Margaret Joseph's estate before the commencement of the action.A personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a survival action for personal injuries sustained by the decedent and a wrongful death action to recover the damages sustained by the decedent's distributees on account of his or her death (Jordan v Jordan, 120 AD3d 632 [2nd Dept 2014], citing EPTL 1—2.13, 5—4.1[1]; 11—3.2[b]; Mingone v. State of New York, 100 AD2d 897, 899 [2nd Dept 1984]).
The only documents annexed to the Boro Park defendants' motion papers are the commencement papers and their answer. The Boro Park defendants did not submit a death certificate for Margaret Joseph or any other documentary evidence of the date of her demise. Nor did they submit any documentary evidence of the date of appointment of Francine Demes as representative of Margaret Joseph's estate. The affirmation of the Boro Park defendant's counsel does not aver any personal knowledge of either of these facts. CPLR 2214 (c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved (Alizio v Perpignano, 225 AD2d 723 [2nd Dept 1996]). The Boro Park defendants have not provided documents necessary to the consideration of their motion. Accordingly, this branch of the motion is denied without prejudice for failure to comply with CPLR 2214 (c). The Boro Park defendants' motion pursuant to CPLR 3211 (a) (7)
The Boro Park defendants have moved in the alternative for an order dismissing the plaintiff's claim for punitive damages on the basis that the complaint does not plead sufficient facts demonstrating that the Boro Park defendants have engaged in reckless or wonton conduct. There has been no discovery in the action. At this stage of the litigation it is premature to conclude that the allegations in the complaint are insufficient to support the claim that the Boro Park defendants have acted so recklessly or wantonly as to warrant an award for punitive damages (see Gipe v DBT Xpress LLC, 150 AD3d 1208 [2nd Dept 2017]). This branch of the Boro Park defendants's motion is denied without prejudice as premature. CNR and CHS's motion pursuant to CPLR 3012-a
CNR and CHS have jointly moved for, among other things, an order dismissing the complaint pursuant to CPLR 3012-a for failure to provide a certificate of merit. The motion consists of an affirmation of their counsel and five annexed exhibits. Exhibit A is the summons and complaint. Exhibit B is CNR and CHS's joint answer. Exhibit C is CNR and CHS's combined discovery demand, including a request for a bill of particulars. Exhibit D is CNR and CHS's demand for authorizations. Exhibit E is a letter from CNR and CHS to plaintiff regarding outstanding discovery.
The affirmation of CNR and CHS's counsel in support of the motion avers without elaboration that the issues before the Court involve issues of medical care. At oral argument of the motion their counsel claimed, among other things, that the allegations of fact in the complaint, although bare boned and vague, appear to assert a claim for medical negligence. To the extent that it does so, they seek dismissal of the complaint based on the plaintiff's failure to provide a certificate of merit in accordance with CPLR 3012-a.
CPLR 3012-a requires, among other things, a plaintiff's attorney prosecuting a medical malpractice action to serve a certificate of merit along with the complaint. CPLR 3012-a (g) allows a plaintiff, "in lieu of serving the certificate required by this section, [to] provide the defendant . . . with the information required by paragraph one of subdivision (d) of section thirty one hundred one of this chapter within the period of time prescribed by this section."
The critical question in determining whether an action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff which the defendant is alleged to have breached (Halas v Parkway Hospital, 158 AD2d 516 [2nd Dept 1990]; see also Caso v St. Francis Hospital, 34 AD3d 714 [2nd Dept 2008]). When the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician, the claim sounds in medical malpractice (Caso v St. Francis Hospital, 34 AD3d 714 [2nd Dept 2008]). However, if the conduct complained of may be readily assessed on the basis of common, everyday experience of the trier of facts, and expert testimony is unnecessary for such review, then the cause of action sounds in negligence (De Leon v Hosp. Of Albert Einstein Coll. of Med., 164 AD2d 742 [1st Dept 1991]). If an action sounds in medical malpractice, a plaintiff must comply with CPLR 3012—a and CPLR 3406.
It is well settled that dismissal of a complaint is an unauthorized sanction for failure to timely comply with CPLR 3012-a (see Russo v Pennings, 46 AD3d 795, 797 [2nd Dept 2007]; see also Grant v County of Nassau, 28 AD3d 714, 714 [2nd Dept 2006]). Rather, such a failure usually results in a conditional order compelling plaintiff to comply with CPLR 3012-a (see Rice v Vandenebossche, 185 AD2d 336, 338 [2nd Dept 1992]). It is noted that CNR and CHS have not moved for an order compelling plaintiff to comply with CPLR 3012-a. Accordingly, this branch of CNR and CHS's motion is denied on that basis alone. CNR and CHS's motion pursuant to CPLR 3406
CNR and CHS have also jointly moved, in the alternative, for an order dismissing the complaint pursuant to CPLR 3406 based on the plaintiff's failure to file a notice of medical malpractice. CPLR 3406 (a) provides, in pertinent part: Not more than sixty days after issue is joined, the plaintiff in an action to recover damages for dental, medical or podiatric malpractice shall file with the clerk of the court in which the action is commenced a notice of dental, medical or podiatric malpractice action, on a form to be specified by the chief administrator of the courts ... The time for filing a notice of dental, medical or podiatric malpractice action may be extended by the court only upon a motion made pursuant to section two thousand four of this chapter.
There is no dispute that the plaintiff has not filed a notice pursuant to CPLR 3406 (a). However, neither the plain language of CPLR 3406 (a) nor the structure of the newly enacted procedural scheme supports the conclusion that the Legislature intended dismissal to be a sanction for failure to timely file the notice (see D'Esposito, as Administrator of Estate of Stella D'Esposito v Haym Salomon Home for the Aged, 23 Misc 3d 1116 (A) [New York Sup. Kings County 2009] citing Tewari v Tsoutsouras, 75 NY2d 1, 7 [1989]). CNR and CHS have not moved for an order, in the alternative, compelling plaintiff to comply with CPLR 3406. Accordingly, this branch of CNR and CHS's motion is denied. CNR and CHS' motion pursuant to CPLR 3211 (a) (7)
CNR and CHS have also moved for an order dismissing the plaintiff's claim for punitive damages. This branch of its motion is denied as premature for the reasons set forth above (see Gipe v DBT Xpress LLC, 150 AD3d 1208 [2nd Dept 2017]).
CNR and CHS's motion pursuant to CPLR 3124
CNR and CHS have also moved for an order pursuant to CPLR 3124 compelling the plaintiff to provide certain outstanding discovery. Uniform Court Rule § 202.7 provides that no motion relating to disclosure shall be filed with the court unless it is accompanied by "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." Such affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions" (see 22 NYCRR § 202.7[c]).
The affirmation of CNR and CHS's counsel fails to indicate the time, place and nature of any consultation with plaintiffs' counsel, the issues discussed, and any resolutions. While their counsel does refer to an annexed letter sent to plaintiff's counsel, merely sending a letter to opposing counsel is not sufficient to satisfy the requirement of 22 NYCRR § 202.7 (c). Furthermore, there is nothing in either letter indicating that CNR and CHS's counsel actually conferred with plaintiffs' counsel in a good faith attempt to resolve the dispute (241 Fifth Ave. Hotel, LLC v GSY Corp., 110 AD3d 470, 472 [2nd Dept 2013], citing Mironer v City of New York, 79 AD3d 1106, 1107—08 [2nd Dept 2010]). On this ground alone, defendant's motion must be denied (Id.).
At oral argument, however, the plaintiff stipulated to respond to CNR and CHS's demand for a bill of particulars. Plaintiff's Cross-motion to Extending their Time to Comply Plaintiff has cross-moved for an order extending their time to file a certificate of merit pursuant to CPLR 3012-a and a notice of medical malpractice pursuant to CPLR 3406 (a) should the Court find that such notices are required. The plaintiff's request seeks a determination by the Court that such notices are required. Inasmuch as the facts in the complaint are not yet amplified by a bill of particulars, the Court declines to make such a determination. Rather the decision on whether to file such notices will be left up to the plaintiff.
In accordance with its stipulation, the plaintiff is directed to respond to CNR and CHS's request for a verified bill of particulars within thirty days of receipt of notice of entry of the instant decision and order. Plaintiff may file a certificate of merit pursuant to CPLR 3012-a and a notice of medical malpractice pursuant to CPLR 3406 (a) within twenty days of the service of its verified bill of particulars.
CONCLUSION
The motion of Boro Park Center for Rehabilitation and Healthcare and Boro Park Operating Co., LLC for an order dismissing the complaint pursuant to CPLR 3211 (a) (3) on the grounds that plaintiff lacks capacity is denied without prejudice.
The motion of Boro Park Center for Rehabilitation and Healthcare and Boro Park Operating Co., LLC for an order dismissing the claim for punitive damages pursuant to CPLR 3211 (a) (7) is denied without prejudice.
The motion of Center for Nursing and Rehabilitation, Inc. and Centerlight Health System, Inc. for an order dismissing the complaint pursuant to CPLR 3012-a for failure to provide a certificate of merit is denied.
The motion of Center for Nursing and Rehabilitation, Inc. and Centerlight Health System, Inc. for an order dismissing the complaint pursuant to CPLR 3406 for failure to file a Notice of Medical Malpractice is denied.
The motion of Center for Nursing and Rehabilitation, Inc. and Centerlight Health System, Inc. for an order dismissing the claim for punitive damages pursuant to CPLR 3211 (a) (7) is denied without prejudice.
The motion of Center for Nursing and Rehabilitation, Inc. and Centerlight Health System, Inc. for an order compelling plaintiff to provide certain discovery pursuant to CPLR 3124 is denied without prejudice.
However, in accordance with its stipulation, the plaintiff is directed to respond to CNR and CHS's request for a verified bill of particulars within thirty days of receipt of notice of entry of the instant decision and order.
Plaintiff's motion for an order pursuant to CPLR 2004 extending their time to file a certificate of merit pursuant to CPLR 3012-a and a notice of medical malpractice pursuant to CPLR 3406 (a) is granted.
Plaintiff may file a certificate of merit pursuant to CPLR 3012-a and a notice of medical malpractice pursuant to CPLR 3406 (a) within twenty days of the service of its verified bill of particulars on Center for Nursing and Rehabilitation, Inc. and Centerlight Health System, Inc.
The foregoing constitutes the decision and order of this Court. Enter: J.S.C.