Cameron v. 150 Riverside Op. LLC

• Decision Date: 10 April 2020
• Docket Number: INDEX NO. 154077/2019
• Parties: DEBORAH CAMERON, Plaintiff, v. 150 RIVERSIDE OP. LLC,CARERITE CENTERS LLC Defendant.
• Court: New York Supreme Court

2020 NY Slip Op 30921(U)

DEBORAH CAMERON, Plaintiff,
v.
150 RIVERSIDE OP. LLC,CARERITE CENTERS LLC Defendant.

INDEX NO. 154077/2019

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 47EFM

RECEIVED: April 13, 2020
April 10, 2020

NYSCEF DOC. NO. 30

PRESENT: HON. PAUL A. GOETZ Justice

MOTION DATE N/A

MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION

The following e-fiied documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24 were read on this motion to/for DISMISS.

This action arises from the allegedly negligent treatment of decedent Gracie Cameron while she was under care at defendants' nursing home facility from approximately August 14, 2017 to March 7, 2018. Plaintiff's complaint alleges eight causes of action, as follows: (1) Negligence; (2) Conscious pain and suffering; (3) Negligence per se; (4) Violation of Public Health Law § 2801-d; (5) Lack of informed consent; (6) Breach of Implied Warranty; (7) Breach of Contract; and (8) Wrongful death. Defendants now move pursuant to CPLR 3211(a)(7) to dismiss the negligence per se, the breach of implied warranty and the breach of contract causes of action and to conditionally dismiss the entire complaint for failure to serve a certificate of merit pursuant to CPLR 3012-a.

Defendants first argue that the negligence per se claim should be dismissed because it is duplicative of the fourth cause of action for violation of Public Health Law § 2801-d. Public Health Law § 2801-d confers a private right of action on a patient in a nursing home for injuries sustained as a result of the deprivation of the patient's rights. Public Health Law § 2801-d(1); Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 A.D.2d 178, 179 (1^st Dep't 2002). It

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is well settled that a cause of action to recover damages for deprivation of rights under the Public Health Law is separate and distinct and involves considerations different from those that sound in medical malpractice or negligence. Ward v. Eastchester Health Care Center, LLC, 34 A.D.3d 247, 248 (1^st Dep't 2006); Zeides, 300 A.D.2d at 179; Sullivan v. Our Lady of Consolation Geriatric Care Ctr., 60 A.D.3d 663 (2d Dep't 2009). Indeed, the statute explicitly provides that "[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings, including tort causes of action . . . ."...