Valensi v. Park Ave. Operating Co.

• Decision Date: 20 February 2019
• Docket Number: Index No. 8899/11,2016–02044
• Citation: 169 A.D.3d 960,94 N.Y.S.3d 311
• Parties: David VALENSI, etc., Appellant, v. PARK AVENUE OPERATING CO., LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 960

94 N.Y.S.3d 311

David VALENSI, etc., Appellant,

v.PARK AVENUE OPERATING CO., LLC, et al., Respondents.

2016–02044

Index No. 8899/11

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

Argued—October 16, 2018

February 20, 2019

Parker Waichman LLP, Port Washington, N.Y. (Jay L.T. Breakstone of counsel), for appellant.

Caitlin Robin & Associates PLLC, New York, N.Y. (Gayle M. Halevy and Staesha Rath of counsel), for respondents.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), entered January 8, 2016. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the first cause of action, and substituting therefor a provision granting that branch of the motion only to the extent of awarding the defendants summary judgment dismissing the request for punitive damages in the first cause of action; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

The plaintiff, as the administrator of the decedent's estate, commenced this action to recover damages on behalf of the decedent, related to a fall the decedent suffered while she was a patient at the defendant nursing home facility. The 84–year old decedent was assessed as a high risk for falls and certain interventions were made, such as keeping her bed in a low position, having a call bell within reach, having a bed alarm, encouraging the decedent to call for assistance, and having two people assist her in transferring from her bed. Despite these interventions, on February 5, 2010, the decedent was found sitting on the floor next to her bed, and there was urine on the floor. The decedent said that she was trying to go to the bathroom. There was no visible injury except redness on her elbow, hip, and knee. The next day, X rays were taken of her shoulder and knees, which did not reveal any fractures. Ten days later, X rays were taken of the decedent's spine, which did not reveal any fracture. The decedent was discharged from the nursing home facility on February 18, 2010. On March 26, 2010, the decedent had X rays taken by a private doctor, which revealed signs of a compression fracture

of a vertebra.

The complaint asserted causes of action sounding in violation of Public Health Law §§ 2801–d and 2803–c, negligence, and gross negligence. In addition to the requests for compensatory damages included in all causes of action, the first cause of action sought punitive damages pursuant to Public Health Law § 2801–d(2), and the third cause of action sought common-law punitive damages. The defendants moved for summary judgment dismissing the complaint, arguing that the decedent's fall was not the proximate cause of her injuries or, in the alternative, the evidence did not establish conduct sufficient to warrant the imposition of punitive damages. In an order entered January 8, 2016, the Supreme Court determined that there were triable issues of fact on the issue of proximate cause, but that the defendants were entitled to summary judgment dismissing the requests for punitive damages. However, in the decretal paragraphs of the order, the court granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action in its entirety, and denied those branches of the motion which were for summary judgment dismissing the second and third causes of action. The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action.

Punitive damages may be assessed where a defendant's actions evinced a high degree of moral culpability which manifested a conscious disregard for the rights of others or conduct so reckless as to amount to such disregard (see Welch v. Mr. Christmas, 57 N.Y.2d 143, 150, 454 N.Y.S.2d 971, 440 N.E.2d 1317 ; Walker v. Sheldon, 10 N.Y.2d 401, 404, 223 N.Y.S.2d 488, 179 N.E.2d 497 ; Greenberg v. Meyreles, 155 A.D.3d 1001, 1003, 66 N.Y.S.3d 297 ). Such damages may be imposed for wanton or reckless disregard for the safety or rights of others where the conduct is " ‘sufficiently blameworthy,’ and the award of punitive damages ... advance[s] a strong public policy of the State by deterring its future violation" ( Randi A.J. v. Long Is. Surgi–Ctr., 46 A.D.3d 74, 81, 842 N.Y.S.2d 558, quoting Doe v. Roe, 190 A.D.2d 463, 475, 599 N.Y.S.2d 350 ; see Giblin v. Murphy, 73 N.Y.2d 769, 772, 536 N.Y.S.2d 54, 532 N.E.2d 1282 ; Serota v. Mayfair Super Mkts., Inc., 15 A.D.3d 385, 790 N.Y.S.2d 173 ). The violation of rights must be "so flagrant as to transcend mere carelessness" ( Zabas v. Kard, 194 A.D.2d 784, 784, 599 N.Y.S.2d 832 ). In addition, Public Health Law § 2801–d(2) permits punitive damages against a medical facility where a...