Opinion
502025/16
10-24-2016
Clotilde Saintime, as Proposed Administratrix of the Estate of CECILE SAINTIME and CLOTILDE SAINTIME, Individually, Plaintiffs, v. Visiting Nurse Service of New York, VISITING NURSE SERVICE OF NEW YORK HOME CARE, MJ-MC HOME HEALTH CARE AGENCY AND HAMILTION PARK NURSING & REHABILITATION CENTER, Defendants.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendants' motions to dismiss the complaint.
Papers Numbered
Notice of Motion, Affirmation and Exhibits Annexed 1-7, 8-12, 13-17 Affirmation in Opposition and Exhibits Annexed 18-19, 20-21, 22-23 Reply 24, 25
Upon the foregoing cited papers, the decision/order on this motion is as follows:
Defendants MJ-MC Home Health Care Agency (Seq #1), Hamilton Park Nursing & Rehabilitation (Seq #2) and Visiting Nurse Service of New York and Visiting Nurse Service of New York Home Care (Seq #3), comprising all of the defendants herein, move to dismiss the complaint.
The complaint comprises seven causes of action, for negligence, medical malpractice and wrongful death. The first three causes of action allege negligence against the defendants in Motion Seq. # 1 and 3. The fourth, fifth and sixth causes of action are against defendant Hamilton Park, a nursing home, for violations of the NY State Public Health Law and regulations, for negligence and for medical malpractice. The decedent died while a resident of this defendant's facility. The seventh cause of action is against all of the defendants for wrongful death.
All of the movants claim the plaintiff lacks capacity to sue, as the action was brought after Letters were applied for, but before Letters were issued by the Surrogates' Court, by the plaintiff as "proposed administrator." In her opposition, plaintiff provides a Certificate of Letters of Administration from the Surrogates' Court, Kings, County, dated September 15, 2016. As such, this branch of the motions must be denied. The court notes that had the motions been heard before the Letters had been issued, the motions would have been granted, but the plaintiff would have then had six months to re-commence the action after the dismissal, pursuant to CPLR 205(a), which dismissal would not have been on the merits. See Robles v Brooklyn — Queens Nursing Home, Inc., 131 AD3d 1032 [2d Dept 2015]; Vasquez v Wood, 18 AD3d 645 [2d Dept 2005]. The caption is amended to reflect the administrator's appointment, and the plaintiff shall hereafter be described as follows:
Clotilde Saintime, as Administrator of the Estate of Cecile Saintime and Clotilde Saintime Individually, Plaintiffs.
The other branch of MC-MJ's motion (Seq. #1) alleges that the action must be dismissed as it was not commenced within the statute of limitations. Counsel is correct in her interpretation of the statutory toll, which runs for one year from the date of death, pursuant to CPLR 210(a), unless the decedent would have had a longer period of time to sue, had she not died. The statutory toll cannot shorten the statute of limitations. It is only applicable in situations where the claimant dies with less than one year remaining for the relevant period of limitations. See Barnes v County of Onondaga, 103 AD2d 624, affd 65 NY2d 664 [1984].
In this matter, as to this defendant, the court finds that the action was not commenced timely. The claims for negligence are subject to a three year statute of limitations, as adjusted by the toll in CPLR 210(a). If the negligence claims in the cause of action are actually claims for medical malpractice, as counsel for defendant avers, then the statute of limitations for medical malpractice would apply. Claims for medical malpractice are subject to a two and one-half year statute of limitations, as adjusted by the toll in CPLR 210(a). In either case, the action was untimely.
Plaintiff has not overcome defendant MC-MJ's claim that the last date of services rendered to the decedent was January 25, 2013. In their papers, defendant provides an affidavit from Myron P-Sutton, dated May 10, 2016, which states that he is the CEO of defendant and has reviewed their records and that the decedent was last seen by a home health aide provided by this company on January 25, 2013. This is evidence in admissible form. Plaintiffs do not provide anything to overcome this evidence and to support the plaintiffs' claim in the complaint that services were provided by MC-MJ until January 2014. Thus, using the January 23, 2013 date, both negligence and medical malpractice claims were still viable on February 3, 2015, the date of death. However, as this action was not commenced within one year of the decedent's death, the complaint must be dismissed as to this defendant. As the court states in Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612 [2d Dept 2012], "[t]he plaintiffs, as the decedent's representatives, did not take advantage of CPLR 210 (a) by commencing the instant action within one year of the decedent's death."
To be clear, at the time of death, the statute of limitations had not run for either cause of action, but the action was not thereafter commenced timely for decedent's personal injuries. The only claim that was timely is the claim for wrongful death, which the court finds is inapplicable to this defendant, a home health care agency which ceased providing services to the decedent almost two years before she died. Indeed, the complaint, in the cause of action for wrongful death, fails to state any facts with regard to this defendant. The wrongful death statute, EPTL 5-4.1, was enacted to compensate a decedent's distributees for the pecuniary injuries suffered by them as a result of their decedent's death caused by the wrongful act, neglect, or default of another. The complaint does not allege that the decedent's death was caused by this defendant. Therefore, the complaint must be dismissed as to this defendant.
In 9-124 Warren's Heaton on Surrogate's Court Practice at § 124.09, concerning wrongful death actions, it is stated as follows:
"As a general rule, pursuant to the provisions of EPTL 5-4.1, a wrongful death action must be commenced within two years of the decedent's death. In addition to commencing the action within two years of decedent's death, the decedent must have had a viable cause of action against the defendant on the day he died. That is, if the statute for personal injury had run at the time of decedent's death, there is no cause of action for wrongful death since the decedent himself would have been time-barred from prosecuting an action had he lived. If the statute for personal injury had not run at decedent's death, but runs out prior to the timely commencement of a wrongful death action, recovery can be for wrongful death only, and not personal injury. The limitations period specifically provided for in wrongful death actions applies no matter what the cause of death and no matter what the theory of liability."
Defendant Hamilton Park (Seq. #2) does not argue that the action as against it is barred by the statute of limitations. The decedent was a resident of their nursing home until she died on February 3, 2015. They do not provide the date of her admission. The action was commenced on or about February 15, 2016.
Turning to the motion by the VNS defendants (Seq. #3), which also claims the action is barred by the statute of limitations and that the complaint fails to state a cause of action, the court notes that defendants allege that "decedent was last seen by VNS on May 1, 2013, after which time she was hospitalized and ultimately expired on February 3, 2015." In addition, defendants provide an affidavit from Estelle Masiello, dated June 2, 2016, which states that she is an employee at VNS and reviewed their records and that the decedent was last seen by a VNS nurse on May 1, 2013. This is evidence in admissible form. Plaintiffs do not provide anything to overcome this evidence and to support the plaintiffs' claim in the complaint that services were provided by VNS until January 2014. On the date of death, the statute of limitations had not run for the decedent's claims whether interpreted to be claims for negligence or medical malpractice. The statute of limitations for medical malpractice claims was on or about November 1, 2015, and was on or about May 1, 2016 for negligence claims. Thus, with the toll in CPLR 210(a), the statute ran on February 3, 2016, one year after the date of death, for medical malpractice claims, and May 1, 2016 for negligence claims, as the three year statute is longer than the one year toll. The tolling statute may not shorten the statute but may only extend it. See Barnes v County of Onondaga, 103 AD2d 624, affd 65 NY2d 664 [1984]. As a result, any claims against VNS for medical malpractice must be dismissed, but claims for negligence and wrongful death were timely asserted.
However, VNS claims that the plaintiffs' claims are in actuality claims for medical malpractice, as ¶ 24 of the complaint states the defendants' negligence included, but is not limited to, negligent nursing care which caused the development of pressure ulcers. The papers in support then allege that plaintiffs attached a CPLR 3012-a certificate to the complaint, as evidence that the claims are for medical malpractice. The court finds that it is premature to dismiss the plaintiffs' First and Second Causes of Action on this basis.
First, the CPLR 3012-a certificate is required for the medical malpractice claims against defendant Hamilton Park. Second, the defendants VNS have not even answered the complaint as yet, and no bill of particulars has been exchanged or discovery conducted. Thus, it is not possible for the court to conclude that the entirety of plaintiffs' claims against VNS are claims which sound in medical malpractice. The complaint states that the cause of action against each of the two VNS defendants is for negligence. While a medical malpractice cause of action may be asserted against a registered nurse for departures from good and accepted nursing practice that proximately cause a plaintiff's injuries, (Schmitt v Medford Kidney Ctr., 121 AD3d 1088 [2d Dept 2014], not every act on a nurse's part is an act that qualifies as one which, if not performed with requisite care qualifies as medical malpractice. See Abrams v Bute, 138 AD3d 179 [2d Dept 2016].
As the court states in Costanza v Friends Home Care, LLC, 2015 NY Misc. LEXIS 3782, 6-7 (Sup Ct Suffolk Co 2015) "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can he assessed on the basis of the common everyday experience of the trier of facts (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]). A claim sounds in medical malpractice when the conduct at issue constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician (Bleiler v Bodnar, 65 NY2d 65, 72, 479 NE2d 230, 489 NYS2d 885 [1985]; see Scott v Uljanov, 74 NY2d 673, 541 NE2d 398, 543 NYS2d 369 [1989]; Spiegel v Goldfarb, 66 AD3d 873 [2d Dept 2009]; Pacio v Franklin Hosp., 63 AD3d 1130 [2d Dept 2009]). Conversely, a claim sounds in negligence when "the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital's [or medical provider's] failure in fulfilling a different duty," such as protecting a patient against a risk of falling or adopting proper procedures and regulations [citations omitted].
Additionally, when determining a motion to dismiss pursuant to CPLR 3211 (a)(7), the court's role is ordinarily limited to determining whether the complaint states a cause of action. Frank v Daimler Chrysler Corp., 292 AD2d 118 [1st Dept 2002]. On such a motion, the court must accept as true the factual allegations of the complaint and accord the plaintiff all favorable inferences which may be drawn therefrom. Dunleavy v Hilton Hall Apartments Co., LLC, 14 AD3d 479, 480 [2nd Dept 2005]; Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193 [2nd Dept 2000].
The standard of review is not whether the party has artfully drafted the pleading, "but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained." Offen v Intercontinental Hotels Group, 2010 NY Misc. LEXIS 2518 [Sup Ct NY Co 2010] quoting Stendig, Inc. v Thorn Rock Realty Co., 163 AD2d 46 [1st Dept 1990]; See also Leviton Manufacturing Co., Inc. v Blumberg, 242 AD2d 205 [1st Dept 1997]; Feinberg v Bache Halsey Stuart, 61 AD2d 135, 137-138 [1st Dept 1978]; Edwards v Codd, 59 AD2d 148, 149 [1st Dept 1977]. If the plaintiff can succeed upon any reasonable view of the allegations, the complaint may not be dismissed. Dunleavy v Hilton Hall Apartments Co. LLC, 14 AD3d 479, 480 [2d Dept. 2005]; Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562. The role of the court is to "determine only whether the facts as alleged fit within any cognizable legal theory" Dee v Rakower, 2013 NY Slip Op 07443 [2d Dept], citing Leon v Martinez, 84 NY2d 83 at 87 [1994]. Finally, when considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed. Offen v Intercontinental Hotels Group, 2010 NY Misc LEXIS 2518.
In Motion Seq. #3, the VNS defendants also argue that the Seventh Cause of Action of the Complaint must be dismissed as to them, for failing to state a cause of action. This is a cause of action for wrongful death, which includes one paragraph which seems to ask for damages for loss of consortium. While loss of consortium is not compensable in a wrongful death action, as movant correctly avers, this alone does not warrant dismissal of the entire cause of action, as is requested. However, the court finds that the wrongful death cause of action in the complaint does not make any specific claims as regards VNS. Therefore, the cause of action for wrongful death must be dismissed as to defendants VNS. The wrongful death statute, EPTL 5-4.1, was enacted to compensate a decedent's distributees for the pecuniary injuries suffered by them as a result of their decedent's death caused by the wrongful act, neglect, or default of another. As over a year and a half had passed between the date VNS' home nursing services were terminated and the date of death, and as there is no claim in the complaint that the actions of the VNS nurses were the proximate cause of the decedent's death, the seventh cause of action, for wrongful death, is dismissed as to the VNS defendants. Parrilla v Buccellato, 95 AD3d 1091 [2d Dept 2012].
In conclusion, all three motions are denied on the issue of the plaintiffs' standing, and the caption is amended as stated above. However, the complaint is dismissed in its entirety as against defendant MC-MJ Home Health Care Agency, as the action was not commenced within the applicable statute of limitations with regard to this defendant. The medical malpractice and wrongful death claims are dismissed as against defendants VNS, leaving the claim for negligence.
The remaining defendants must serve an Answer to the Complaint within thirty days of service of this decision and order with notice of entry.
This shall constitute the decision and order of the court. Dated: Brooklyn, New York
October 24, 2016 Hon. Debra Silber, J.S.C.