Opinion
13136 Index No. 300405/13 Case No. 2019-03449
02-16-2021
Glenn REID, as Administrator of the Estate of William Reid, Plaintiff–Respondent–Appellant, v. ST. LUKE'S–ROOSEVELT HOSPITAL CENTER, Defendant–Appellant–Respondent, Annette Reid, Defendant.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Samantha E. Quinn of counsel), for appellant-respondent. Shayne, Dachs, Jonathan A. Dachs, New York, for respondent-appellant.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Samantha E. Quinn of counsel), for appellant-respondent.
Shayne, Dachs, Jonathan A. Dachs, New York, for respondent-appellant.
Manzanet–Daniels, J.P., Webber, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about June 27, 2019, which denied defendant St. Luke's–Roosevelt Hospital Center's motion to dismiss the complaint and denied without prejudice plaintiff's motion for summary judgment on liability, unanimously modified, on the law, to grant defendant's motion as to the third claim, alleging violation of the Public Health Law, and otherwise affirmed, without costs.
Defendant contends that plaintiff's claims are untimely. It is undisputed that the claims are untimely if the one-year statute of limitations for intentional tort claims is applied, but timely if the two-year statute of limitations for wrongful death claims or the three-year statute of limitations for negligence or statutory violation claims is applied (see CPLR 214[2], [5] ; 215[3]; EPTL 5–4.1[1] ; Havell v. Islam, 292 A.D.2d 210, 739 N.Y.S.2d 371 [1st Dept. 2002] ).
The first and second claims sound in wrongful death and are thus timely. Plaintiff's initial failure to allege that the decedent's surviving distributees suffered pecuniary loss by reason of his death (see James v. Middletown Community Health Ctr., 278 A.D.2d 280, 281, 718 N.Y.S.2d 358 [2d Dept. 2000] ) was cured by his claims of loss of parental guidance and inheritance in the supplemental bill of particulars (see Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 668, 569 N.Y.S.2d 915, 572 N.E.2d 598 [1991] ). Even if the supplemental bill of particulars was improperly served without leave of court (see CPLR 3025[b] ; 3043[b]; Barrera v. City of NY, 265 A.D.2d 516, 517–518, 697 N.Y.S.2d 132 [2d Dept. 1999] ), there is nothing to prevent consideration of plaintiff's affidavit submitted in opposition to defendant's motion to dismiss, in which he adopted the statements in the supplemental bill of particulars as his own (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ["a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint"]). Contrary to defendant's contention, punitive damages may properly be recovered in a wrongful death case under appropriate circumstances (see EPTL 5–4.3[b] ).
The fourth claim sounds in negligence and thus is timely. Although plaintiff uses language like "malicious, willful and reprehensible" in his accompanying request for punitive damages, this boilerplate language is not dispositive. Contrary to defendant's contention, punitive damages may properly be recovered in a negligence case under appropriate circumstances (see Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 200–201, 551 N.Y.S.2d 481, 550 N.E.2d 930 [1990] ; Guariglia v. Price Chopper Operating Co., Inc., 38 A.D.3d 1043, 1043–44, 830 N.Y.S.2d 871 [3d Dept. 2007], lv denied 9 N.Y.3d 801, 840 N.Y.S.2d 566, 872 N.E.2d 252 [2007] ).
The third claim, styled as a statutory violation, that is, a violation of articles 29–C and 29–CC of the Public Health Law, must be dismissed because there is no provision in these sections for a private right of action for individual emotional or pecuniary damages (see DeCintio v. Lawrence Hosp., 299 A.D.2d 165, 166, 753 N.Y.S.2d 26 [1st Dept. 2002], lv denied in part, dismissed in part 100 N.Y.2d 549, 762 N.Y.S.2d 871, 793 N.E.2d 408 [2003] ; cf. Public Health Law §§ 2986[1], 2994–o[2] ).
Plaintiff's motion for summary judgment on liability is premature. No depositions have yet taken place, and depositions are necessary to flesh out the circumstances of the conduct at issue (see CPLR 3212[f] ).