Opinion
1372 CA 17–00675
02-02-2018
Marlene CORNELL, as Administrator of the Estate of Samuel Condello, Deceased, Plaintiff–Respondent–Appellant, v. COUNTY OF MONROE, Defendant–Appellant–Respondent. (Appeal No. 1.)
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (MATTHEW D. BROWN OF COUNSEL), FOR DEFENDANT–APPELLANT–RESPONDENT. DAVID L. MURPHY, PC, ROCHESTER (DAVID L. MURPHY OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (MATTHEW D. BROWN OF COUNSEL), FOR DEFENDANT–APPELLANT–RESPONDENT.
DAVID L. MURPHY, PC, ROCHESTER (DAVID L. MURPHY OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiff's decedent, Samuel Condello, was a wheelchair-bound resident at Monroe Community Hospital (MCH). On December 6, 2012, Condello was deprived of his manual wheelchair by MCH's executive director. Condello's health thereafter deteriorated, and he died on January 9, 2013. Plaintiff filed the instant complaint asserting causes of action for violations of Public Health Law
§ 2801–d, negligence, and wrongful death. Plaintiff moved for partial summary judgment on the issue of liability with respect to her Public Health Law cause of action, and defendant moved for partial summary judgment seeking to dismiss the causes of action concerning the Public Health Law and negligence on the ground that plaintiff allegedly failed to file a timely notice of claim. Plaintiff cross-moved for leave to file a late or amended notice of claim, if necessary, and leave to amend the complaint. By the order on appeal in appeal No. 1, Supreme Court denied the motions and cross motion. Thereafter, by the order on appeal in appeal No. 2, the court granted defendant's motion for leave to reargue its prior motion for partial summary judgment and, upon reargument, adhered to its determination denying that motion. Defendant appeals in appeal Nos. 1 and 2, and plaintiff cross-appeals in appeal No. 1.
As a preliminary matter, we note that, because the court granted leave to reargue with respect to that part of the order in appeal No. 1 that denied defendant's motion, we dismiss defendant's appeal from the order in appeal No. 1 (see Griffith Oil Co., Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 15 A.D.3d 982, 983, 789 N.Y.S.2d 352 [4th Dept. 2005] ; Loafin' Tree Rest. v. Pardi [appeal No. 1], 162 A.D.2d 985, 985, 559 N.Y.S.2d 154 [4th Dept. 1990] ). We treat the order in appeal No. 1 only with respect to plaintiff's cross appeal.
Contrary to plaintiff's contention on her cross appeal in appeal No. 1, the court properly denied her motion. Liability under Public Health Law § 2801–d is not based on a deviation from accepted standards of medical practice or a breach of a duty of care (see Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1001, 26 N.Y.S.3d 182 [2d Dept. 2016] ). Rather, liability under the statute "contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient" ( Moore v. St. James Health Care Ctr., LLC, 141 A.D.3d 701, 703, 35 N.Y.S.3d 464 [2d Dept. 2016] [internal quotation marks omitted] ). Here, even assuming, arguendo, that plaintiff met her initial burden on the motion, we conclude that defendant raised triable issues of fact by submitting evidence that it "exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient" ( id. ; see § 2801–d [1 ] ). In light of our determination, we see no need to address plaintiff's contention concerning punitive damages.
Contrary to defendant's contention in appeal No. 2, we conclude that the court properly denied its motion inasmuch as it admitted in its answer that the notice of claim was timely as to all three causes of action. It is well settled that "[f]acts admitted by a party's pleadings constitute judicial admissions" ( Falkowski v. 81 & 3 of Watertown, 288 A.D.2d 890, 891, 732 N.Y.S.2d 497 [4th Dept. 2001] ), and that "[f]ormal judicial admissions are conclusive of the facts admitted in the action in which they are made" ( Zegarowicz v. Ripatti, 77 A.D.3d 650, 653, 911 N.Y.S.2d 69 [2d Dept. 2010] ; see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 412, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014] ; Brainard v. Barden, 148 A.D.3d 1687, 1688, 50 N.Y.S.3d 656 [4th Dept. 2017] ). In view of defendant's admission, we conclude that plaintiff's notice of claim was timely and, thus, we see no need to address the parties' remaining contentions with respect to the notice of claim.
It is hereby ORDERED that said appeal is unanimously dismissed and the order is affirmed without costs.