Cortez v. Terrence Cardinal Cooke Health Ctr.

• Decision Date: 09 November 2021
• Docket Number: 14580-14580A,Index No. 20485/15E,Case No. 2021-00079, 2021-01228
• Citation: 199 A.D.3d 450,158 N.Y.S.3d 22
• Parties: Ernesto CORTEZ, as administrator of the Estate of Juana Cortez, Plaintiff–Appellant, v. TERRENCE CARDINAL COOKE HEALTH CENTER, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 450
158 N.Y.S.3d 22

Ernesto CORTEZ, as administrator of the Estate of Juana Cortez, Plaintiff–Appellant,
v.
TERRENCE CARDINAL COOKE HEALTH CENTER, Defendant–Respondent.

14580-14580A
Index No. 20485/15E
Case No. 2021-00079, 2021-01228

Supreme Court, Appellate Division, First Department, New York.

ENTERED November 9, 2021

158 N.Y.S.3d 24

Bamundo Zwal Schermerhorn & Caffrey, LLP, New York (Ben Bartolotta of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondent.

Manzanet–Daniels, J.P., Oing, Moulton, Scarpulla, JJ.

Order, Supreme Court, Bronx County (Lline´t M. Rosado, J.), entered on or about July 7, 2020, which granted in part defendant's motion for summary judgment to the extent it dismissed all causes of action other than those claims related to the formation, care, and treatment of decedent's bedsores while in defendant's care, unanimously reversed, on the law, without costs, to deny the motion in its entirety. Order, same court and Justice, entered April 7, 2021, to the extent it granted defendant's cross motion to change venue of this action to New York County, unanimously reversed, on the law and facts, without costs, and the cross motion denied.

The medical record established that plaintiff's decedent was admitted to Terrence Cardinal Cooke Health Center (TCC), a nursing and rehabilitation center, for short-term rehabilitation following a spinal compression fracture. During her three-month admission period at TCC, decedent, among other things, became so malnourished and dehydrated as to develop acute kidney injury. She died approximately three months after being transferred out of TCC. Plaintiff, as administrator of decedent's estate, asserted causes of action based on violation of Public Health Law §§ 2801–d and 2803–c, negligence, and wrongful death.

Defendant subsequently moved for summary judgment, relying on the expert affirmation of Lawrence N. Diamond, M.D., and plaintiff submitted the expert affidavit of Thomas Perls, M.D., in opposition. The court granted defendant's...