Duran v. Isabella Geriatric Ctr.

• Decision Date: 15 February 2023
• Docket Number: Index No. 805282/2021,Motions Esq. No. 001
• Citation: 2023 NY Slip Op 30500 (U)
• Parties: MELBA DURAN, by her Proposed Administrator, ANGELA NUNEZ Plaintiff, v. ISABELLA GERIATRIC CENTER, INC., Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 30500(U)

MELBA DURAN, by her Proposed Administrator, ANGELA NUNEZ Plaintiff, v. ISABELLA GERIATRIC CENTER, INC., Defendant.

Index No. 805282/2021, Motions Esq. No. 001

Supreme Court, New York County

February 15, 2023

Unpublished Opinion

Motion Date 11/01/2022

PRESENT: HON. JOHN J. KELLEY, Justice

DECISION + ORDER ON MOTION

HON JOHN J. KELLEY, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11 were read on this motion to/for JUDGMENT-DEFAULT.

In this action to recover damages for violation of Public Health Law §§ 2801-d and 2803-c, negligence, medical malpractice, and gross negligence, arising from a patient's fall at a nursing home, the plaintiff moves pursuant to CPLR 3215 for leave to enter a default judgment against the defendant. The defendant does not oppose the motion. The motion is granted to the extent that the plaintiff is granted leave to enter a default judgment against the defendant on the issue of liability on the Public Health Law cause of action, the motion is otherwise denied and the matter is set down for an inquest on damages as set forth herein.

The plaintiff commenced this action on September 14, 2021 (see CPLR 304[a]). On September 27, 2021, the plaintiff caused two copies of the summons and complaint to be served upon the defendant corporation by delivering them to the Secretary of State and paying the applicable fee. On September 29, 2021 the plaintiff caused an additional copy of the summons and complaint to be served upon the defendant by delivering it to a person named Christophante at the defendant's offices, and thereafter filed an affidavit of service attesting that Christophante was authorized to accept process on behalf of the defendant. On March 16, 2022, the plaintiff dispatched yet another copy of the summons and complaint to the defendant by first class mail to its last known address. The defendant has yet to answer or move with respect to the complaint or otherwise appear in the action.

Where a plaintiff moves for leave to enter a default judgment, he or she must submit proof that the summons and complaint properly was served upon the defaulting defendant, proof of the defendant's default, and proof of the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 [2003]; Gray v Doyle, 170 A.D.3d 969, 971 [2d Dept 2019]; Rivera v Correction Officer L. Banks, 135 A.D.3d 621 [1st Dept 2016]; Atlantic Cas. Ins. Co. v RJNJ Services, Inc. 89 A.D.3d 649 [2d Dept 2011]; Allstate Ins. Co. v Austin, 48 A.D.3d 720, 720 [2d Dept 2008]; see also Manhattan Telecom. Corp, v H & A Locksmith, Inc., 21 N.Y.3d 200 [2013]).

The service effectuated upon the defendant, as described in the two affidavits of service that were submitted by the plaintiff, was proper, and was sufficient to obtain jurisdiction over it pursuant to CPLR 311(a)(1), which authorizes service of process upon a domestic business corporation by, among other methods, personal delivery to an agent authorized by appointment or personal delivery of two copies of the summons and complaint to the Secretary of State in accordance with Business Corporation Law § 306. To the extent that the plaintiff is relying upon the personal delivery of process to Christophante, the defendant had 20 days after service to answer, move, or appear (see CPLR 3012[a]), or until October 19, 2021. To the extent that the plaintiff is relying upon the delivery of process to the Secretary of State, the defendant had 30 days after service to answer, move, or appear (see CPLR 3012[c]), or until October 27, 2021. To obtain a default judgment against the defendant based on service upon the Secretary of State, the plaintiff also must satisfy the requirement that "an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the defendant corporation at its last known address at least twenty days before the entry of judgment" (CPLR 3215[g][4][i]). The plaintiff's attorney has provided an appropriate affirmation attesting that this mailing was timely made.

The affirmation of the plaintiff's counsel also was sufficient to establish that the defendant did not appear, answer, or move with respect the complaint on or before either October 19, 2021 or October 27, 2021, and has yet to appear, answer, or move. Counsel thus has established the defendant's default.

With respect to the proof of the facts constituting the claim,

"CPLR 3215 does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac paras. 3215.22-3215.27). The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts"

(Joosten v Gale, 129 A.D.2d 531,535 [1st Dept 1987]; see Martinez v Reiner, 104 A.D.3d 477, 478 [1st Dept 2013]; Beltre v Babu, 32 A.D.3d 722, 723 [1st Dept 2006]). Stated another way, while the "quantum of proof necessary to support an application for a default judgment is not exacting . . . some firsthand confirmation of the facts forming the basis of the claim must be proffered" (Guzetti v City of New York, 32 A.D.3d 234, 236 [1st Dept 2006]). In other words, the proof submitted must establish a prima facie case (see id., Silberstein v Presbyterian Hosp., 95 A.D.2d 773 [2d Dept 1983]). "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 A.D.2d 635, 636 [2d Dept 1992]; see Walley v Leatherstocking Healthcare, LLC, 79 A.D.3d 1236, 1238 [3d Dept 2010]). In moving for leave to enter a default judgment, the plaintiff must "state a viable cause of action" (Fappiano v City of New York, 5 A.D.3d 627, 628 [2d Dept 2004]). In evaluating whether the plaintiff has fulfilled this obligation, the defendant, as the defaulting party, is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71 [2003]). The court, however, still must reach the legal conclusion that those allegations establish a prima facie case (see Matter of Dyno v Rose, 260 A.D.2d 694, 698 [3d Dept 1999]).

Proof that the plaintiff has submitted "enough facts to enable [the] court to determine that a viable" cause of action exists (Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; see Gray v Doyle, 170 A.D.3d at 971) may be established by an affidavit of a party or someone with knowledge, authenticated documentary proof, or by complaint verified by the plaintiff that sufficiently details the facts and the basis for the defendant's liability (see CPLR 105[u]; Woodson v Mendon Leasing Corp., 100 N.Y.2d at 71; Gray v Doyle, 170 A.D.3d at 971; Voelker v Bodum USA, Inc., 149 A.D.3d 587, 587 [1st Dept 2017]; Al Fayed v Barak, 39 A.D.3d 371, 371 [1st Dept 2007]; see also Michael v Atlas Restoration Corp., 159 A.D.3d 980, 982 [2d Dept 2018]; Zino v Joab Taxi, Inc., 20 A.D.3d 521, 522 [2d Dept 2005]; see generally Mitrani Plasterers Co., Inc. v SCG Contr. Corp., 97 A.D.3d 552, 553 [2d Dept 2012]).

Public Health Law § 2801-d(1) provides, in relevant part, that "[a]ny residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation." That subsection defines "right or benefit" as a

"right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation, where noncompliance by said facility with such statute, code, rule or regulation has not been expressly authorized by the appropriate governmental authority"

(id. [emphasis added]). Where a plaintiff alleges a deprivation of such right or benefit, the subsection further makes the nursing home's compliance with the relevant contract, statute, code, rule, or regulation an affirmative defense, so that the burden of proof is on the nursing home to prove compliance. The statute goes on to provide that

"unless there is a finding that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient, compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury, but in no event less than twenty-five percent of the daily per-patient rate of payment established for the residential health care facility under section twenty-eight hundred seven of this article or, in the case of a residential health care facility not having such an established rate, the average daily total charges per patient for said facility, for each day that such injury exists."

(Public Health Law § 2801-d[2]). The statute also permits a patient's legal representative to prosecute such an action to recover damages (see Public Health Law § 2801-d[4-a]).

Public Health Law § 2803-c is a state statute that defines numerous rights of nursing home patients and articulates general duties and standards of care applicable to nursing home operators. As relevant here, it includes the "the right to receive adequate and appropriate medical care" (Public Health Law § 2803-c[3][e]). 42 CFR Part 483.25 is a set of federal regulations that governs nursing home operations Those regulations require a nursing home to "[e]nsure that a resident's environment remains free of accident hazards" (42 CFR. 483.25[h][1]) and to "[c...