Hoyos v. The Riverside Premier Rehab. & Healing Ctr.

• Decision Date: 09 February 2023
• Docket Number: Index No. 805231/2017,Motion Seq. No. 003
• Citation: 2023 NY Slip Op 30446 (U)
• Parties: ALBERTO J. HOYOS, as attorney-in-fact for DOROTHY KUCHTYAK-HERRERA, Plaintiff, v. THE RIVERSIDE PREMIER REHABILITATION AND HEALING CENTER, DEWITT REHABILITATION AND NURSING CENTER, INC., and DEWITT REHABILITATION AND NURSING CENTER, INC., doing business as UPPER EAST SIDE REHABILITATION AND NURSING CENTER, Defendants.
• Court: New York Supreme Court

2023 NY Slip Op 30446(U)

ALBERTO J. HOYOS, as attorney-in-fact for DOROTHY KUCHTYAK-HERRERA, Plaintiff,
v.
THE RIVERSIDE PREMIER REHABILITATION AND HEALING CENTER, DEWITT REHABILITATION AND NURSING CENTER, INC., and DEWITT REHABILITATION AND NURSING CENTER, INC., doing business as UPPER EAST SIDE REHABILITATION AND NURSING CENTER, Defendants.

Index No. 805231/2017, Motion Seq. No. 003

Supreme Court, New York County

February 9, 2023

Unpublished Opinion

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MOTION DATE 11/16/2022.

PRESENT: HON. JOHN J. KELLEY, Justice.

DECISION + ORDER ON MOTION

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 167, 168, 169, 170, 171,172, 173, 174, 175, 176, 177, 178, 179, 180, 181,182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201,202, 203, 204, 205, 206, 207, 208, 209, 210, 211,212 were read on this motion to/for AMEND PLEADINGS/X-MOTION DISMISS

In this action to recover damages, inter alia, for nursing home negligence and medical malpractice, the plaintiff moves pursuant to CPLR 3025(b) and (c) for leave to serve and file an amended complaint conforming the pleading to the proof so as to withdraw the causes of action sounding in gross negligence, medical malpractice, and lack of informed consent, those negligence claims related to falls and pressure ulcers suffered by Dorothy Kuchtyak-Herrera (the patient), and all claims to recover punitive damages. The plaintiff seeks to add claims sounding in negligence based on the failure of the defendant The Riverside Premier Rehabilitation and Healing Center (Riverside) to prevent indoor air pollution emanating from ongoing construction activities at its facility from harming the patient, as well as claims alleging negligence per se and a claim arising under Public Health Law § 2801-d. Riverside opposes the motion, and cross-moves pursuant to CPLR 3211(a)(7) to dismiss the initial complaint. The plaintiff's motion is granted to the extent that he is granted leave to serve and file an amended

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complaint adding causes of action asserting negligence and violation of Public Health Law § 2801-d in the form annexed to his motion papers as Exhibit A, and the motion is otherwise denied. Riverside's cross motion is denied.

By order dated July 17, 2018 (MOT SEQ 001, 002), the court (Madden, J.), among other things, dismissed an amended complaint that the plaintiff had served and filed in an untimely fashion without leave of court, and expressly stated that the initial complaint remained as the operative pleading in the action. That order also joined for trial an action that had been commenced by the defendant Dewitt Rehabilitation and Nursing Center, Inc., doing business as Upper East Side Rehabilitation and Nursing Center (Dewitt), against the patient under Index No. 157867/2017 with the instant action, which had been commenced under Index No. 805231/2017. By stipulation dated May 26, 2020, and entered June 2, 2020, the plaintiff and Dewitt agreed to discontinue all claims and cross claims asserted against each other, leaving Riverside as the only remaining defendant in this action.

In his proposed amended complaint, the plaintiff seeks to allege that the patient, while a resident at Riverside from December 4, 2014 through December 24, 2014, was exposed to indoor air pollution that was generated during the renovation of Riverside's facility, thus "resulting in respiratory problems and conditions." In this regard, the plaintiff seeks to assert, in his first cause of action, that Riverside was negligent because it "failed to ensure that established policies of the nursing home were implemented during construction/renovation/ repair work in the facility," in violation of rules and regulations of the New York State Department of Health (NYS DOH) and the Human Services Centers for Medicare &Medicaid Services (MMS). He further requests that he be permitted to assert that Riverside was negligent in failing to implement its own written safety plan for "interior alterations to existing skilled nursing facility projects, regarding safety signs, safety barriers and means of egress access," also in violation of NYS DOH and MMS rules and regulations, and in failing properly and adequately to separate the patient's room and the surrounding corridors from the construction site during the

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construction, renovation, and repair work, in violation of those same rules and regulations.

Although the plaintiff alleged that he wishes to withdraw his medical malpractice cause of action, he nonetheless seeks to assert, in his first cause of action, that Riverside negligently staffed, trained, and supervised its employees. While these allegations may constitute a species of professional malpractice, rather than garden-variety negligence, the Public Health Law created a private right of action to recover for the violation of state and federal regulations that fix standards of care in that regard, and the plaintiff cites to numerous sections of the Code of Federal Regulations (CFR) that are referable to the standards of care applicable to the operation of nursing homes.

In his proposed second cause of action, the plaintiff seeks to assert a claim sounding in negligence per se, based on Riverside's alleged violations of Public Health Law §§ 2801-d and 2803-c, as well as several state and federal regulations. "[Violation of a State statute that imposes a specific duty constitutes negligence per se" (Elliott v City of New York, 95 N.Y.2d 730, 734 [2001] [emphasis added]). Conversely, the violation of a statute that imposes only a general duty will not constitute negligence per se (see Carcana v New York City Hous. Auth., 26 Misc.3d 1238[A], 2010 NY Slip Op 50460[U], *4, 2010 NY Mise LEXIS 554, *9 [Sup Ct, N.Y. County, Feb. 8, 2010] [Shulman, J.]). Although the alleged violation of a regulation is not negligence per se, but constitutes only "some evidence" of negligence (see Conte v Large Scale Development Corp., 10 N.Y.2d 20, 29 [1961]; Verizon N.Y., Inc. v New York State Elec. &Gas Corp., 151 A.D.3d 614, 616 [1st Dept 2017]), the plaintiff here alleges violation of the CFR and the New York Code Rules and Regulations as a necessary predicate to recovery under Public Health Law § 2801-d, which creates a cause of action to recover for a nursing home's violation of a code provision protective of a nursing home patient's health or safety, where that violation proximately caused physical injury. Nonetheless, although the negligence per se cause of action asserted here might not be duplicative of the proposed third cause of action, which directly asserts the private right of action created by Public Health Law § 2801-d

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(see Cameron v 150 Riverside Op., LLC, 2020 NY Slip Op 30921 [U], *1, 2020 NY Mise LEXIS 1438, *1-2] [Sup Ct, N.Y. County, Apr. 10, 2020]), "the cited sections of the Public Health Law do not impose a 'specific duty' of care or standard of conduct, and do not support a claim of negligence per se" (Whitehead v Pine Haven Operating LLC, 75 Misc.3d 985, 993 [Sup Ct, Columbia County 2022]; see generally...