Opinion
Nos. 2019-08090 2019-13079 Index No. 709590/18
06-29-2022
Roza Kaziyeva, etc., respondent, v. Temana Associates, Inc., et al., defendants, Dry Harbor HRF, Inc., etc., appellant.
Martin Clearwater & Bell, LLP, East Meadow, NY (Gregory A. Cascino and Conrad A. Chayes of counsel), for appellant.
Martin Clearwater & Bell, LLP, East Meadow, NY (Gregory A. Cascino and Conrad A. Chayes of counsel), for appellant.
BETSY BARROS, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for wrongful death, the defendant Dry Harbor HRF, Inc., appeals from (1) an order of the Supreme Court, Queens County (Robert J. McDonald, J.), dated May 6, 2019, and (2) an order of the same court dated September 30, 2019. The order dated May 6, 2019, denied that defendant's motion pursuant to CPLR 3012-a and 3406(a) to compel the plaintiff to serve a certificate of merit and notice of medical malpractice, and pursuant to 22 NYCRR 202.3 to transfer this action to the Medical Malpractice Part. The order dated September 30, 2019, denied that defendant's motion for leave to renew its prior motion pursuant to CPLR 3012-a and 3406(a) to compel the plaintiff to serve a certificate of merit and notice of medical malpractice, and pursuant to 22 NYCRR 202.3 to transfer this action to the Medical Malpractice Part.
ORDERED that the orders are affirmed, without costs or disbursements.
Roza Kaziyeva, as administrator of the estate of Esa Rafailova (hereinafter the decedent), commenced this action, inter alia, to recover damages for wrongful death. The complaint alleged that on March 9, 2017, the decedent was being transported from a nursing home that was owned and operated by the defendant Dry Harbor HRF, Inc. (hereinafter Dry Harbor), to a doctor's appointment, via an ambulette owned by the defendant Temana Associates, Inc.. The decedent was in a wheelchair at the time, and was accompanied by an aide employed by Dry Harbor. The complaint alleged that the ambulette operator placed the decedent in her wheelchair on the ambulette's lift, and that the decedent was thereafter "caused to be violently propelled to the ground due to lack of proper restraint/securement." As a result, the decedent allegedly sustained severe bodily injuries which ultimately caused her death.
Dry Harbor moved pursuant to CPLR 3012-a and 3406(a) to compel the plaintiff to serve a certificate of merit and a notice of medical malpractice, and pursuant to 22 NYCRR 202.3 to transfer this action to the Medical Malpractice Part. Dry Harbor argued that the allegations set forth in the complaint and the verified bills of particular sounded in medical malpractice. The plaintiff opposed Dry Harbor's motion. In an order dated May 6, 2019, the Supreme Court, upon determining that the allegations in the complaint sounded in ordinary negligence, not medical malpractice, denied Dry Harbor's motion.
Dry Harbor subsequently moved for leave to renew its prior motion. The plaintiff opposed Dry Harbor's motion. In an order dated September 30, 2019, the Supreme Court denied Dry Harbor's motion. Dry Harbor appeals from the May 6, 2019 order and the September 30, 2019 order.
"[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" (Weiner v Lenox Hill Hosp., 88 N.Y.2d 784, 787 [internal quotation marks omitted]). "[A] claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician" to a particular patient (id. at 788 [internal quotation marks omitted]; see Rabinovich v Maimonides Med. Ctr., 179 A.D.3d 88, 93; Jeter v New York Presbyt. Hosp., 172 A.D.3d 1338, 1339-1340). "By contrast, when the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the... failure in fulfilling a different duty, the claim sounds in negligence" (Weiner v Lenox Hill Hosp., 88 N.Y.2d at 788 [internal quotation marks omitted]).
Here, the complaint alleged that the defendants breached their duty to properly "secure the wheelchair in the ambulette, as well as to properly utilize seating restraints in the wheelchair." There is no allegation that these failures were the result of an inadequate medical assessment (cf. Scott v Uljanov, 74 N.Y.2d 673, 675; Rabinovich v Maimonides Med. Ctr., 179 A.D.3d 88, 94; Estate of Bell v WSNCHS N., Inc., 153 A.D.3d 498, 499), and "[t]he core issue... does not implicate questions of medical competence or judgment linked to the treatment of [the decedent]" (Weiner v Lenox Hill Hosp., 88 N.Y.2d at 788; see Bleiler v Bodnar, 65 N.Y.2d 65, 73; Iacono v New York Polyclinic Med. School & Hosp., 269 A.D. 955, 955, affd 296 NY 502; Ranelli v Society of N.Y. Hosp., 269 A.D. 906, 906-907, affd 295 NY 850; see generally Kasper v Metropolitan Transp. Auth. Long Is. Bus, 90 A.D.3d 998, 999). To the extent that the complaint alleged, in effect, that Dry Harbor "failed to use due care in selecting and furnishing [medical] personnel" (Bleiler v Bodnar, 65 N.Y.2d at 73), that it "fail[ed] to adopt and prescribe proper procedures and regulations" (id.), and that it "fail[ed] to provide a functioning wheelchair" (id.), such allegations sounded in ordinary negligence, as they relate to duties that arise outside the scope of medical treatment (see id.; Holtfoth v Rochester Gen. Hosp., 304 NY 27, 32; McCormack v Mount Sinai Hosp., 85 A.D.2d 596, 597). Accordingly, since the conduct challenged in the complaint did not bear a substantial relationship to the rendition of medical treatment to the decedent (see Weiner v Lenox Hill Hosp., 88 N.Y.2d at 788), the Supreme Court properly denied Dry Harbor's motion to compel the plaintiff to serve a certificate of merit and a notice of medical malpractice, and to transfer this action to the Medical Malpractice Part. The court also properly denied Dry Harbor's subsequent motion for leave to renew since, contrary to its contention, there was no change in the law that would impact the court's prior determination (see Deutsche Bank Natl. Trust Co. Ams. v Bernal, 186 A.D.3d 1491, 1493).
BARROS, J.P., RIVERA, CHAMBERS and MILLER, JJ., concur.