Appeal from an order of the Supreme Court, Monroe County (John J. Ark, J.), entered April 8, 2010 in an action for, inter alia, wrongful death. The order granted the motion and cross motion of plaintiff for leave to amend the complaint and denied the motion of defendants for summary judgment.
Betette v County of Monroe
Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 25, 2011
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.
It is hereby ORDERED that the order so appealed from is modified on the law by granting those parts of defendants' motion seeking to dismiss the complaint insofar as it asserts the failure to provide defendants' employees with proper training and the failure to warn plaintiff's decedent of the allegedly dangerous condition of the door handle and as modified the order is affirmed without costs.
Plaintiff, individually and as administrator of decedent's estate, commenced this action seeking damages for, inter alia, the conscious pain and suffering and wrongful death of decedent, who died while he was a resident of defendant Monroe Community Hospital (MCH), a skilled nursing facility. Decedent had been discharged to the care of the facility upon leaving a hospital where he had been treated after he had fallen in his home. Decedent had previously been a patient of MCH a month earlier, again after being discharged from a hospital after having fallen at his home. During his first stay at MCH, decedent fell on two occasions and, during his instant discharge there, MCH had installed bed and chair alarms to alert staff in the event that decedent attempted to ambulate without assistance, but it is undisputed that bed rails were not used. On the day of the accident, plaintiff alleged that decedent activated the call button to obtain assistance in getting to the bathroom. When the call went unanswered, decedent left his bed in an effort to get to the bathroom, whereupon the alarm sounded. Decedent fell upon leaving his bed, however, and he required130 stitches to repair the laceration that he sustained when he impaled his arm on the door handle. Decedent died two days later of congestive heart failure, and the death certificate noted that the laceration was a "significant condition contributing to death but not related to cause given in Part 1 (a)," i.e., congestive heart failure.
Plaintiff served a timely notice of claim asserting negligence claims, and the summons and complaint alleged two causes of action for negligence, seeking damages for wrongful death and conscious pain and suffering. Plaintiff alleged that defendants were negligent in, inter alia, failing to supervise decedent, failing to use bed rails to prevent decedent from getting out of bed, failing to provide MCH staff with proper training, failing to install the door handle so that it would not constitute a dangerous condition, and failing to warn decedent of that dangerous condition.
Plaintiff thereafter moved for leave to amend the complaint to add a cause of action under Public Health Law § 2801-d, while defendants moved for summary judgment dismissing the complaint arguing, inter alia, that some of plaintiff's claims sounded in medical malpractice rather than negligence. Plaintiff then cross-moved for leave to amend the complaint to add a cause of action for medical malpractice and for an extension of time to file and serve the requisite certificate of merit and notice of medical malpractice. Supreme Court granted plaintiff's motion and cross motion and denied defendants' motion.
We note at the outset that, in opposition to defendants' motion, plaintiff abandoned his claims alleging the failure to provide proper training for MCH employees and the failure to warn of an allegedly dangerous condition (see Ciesinski v Town of Aurora, 202 AD2d 984). We thus conclude that the court erred in denying defendants' motion with respect to those claims, and we therefore modify the order accordingly.
We reject defendants' contention that the court erred in granting the motion of plaintiff seeking leave to amend the complaint to add a cause of action under Public Health Law § 2801-d. It is well settled that "[l]eave to amend the pleadings shall be freely given' absent prejudice or surprise resulting directly from the delay" (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757; see Carro v Lyons Falls Pulp & Paper, Inc., 56 AD3d 1276, 1277). Defendants contend, however, that the court erred in allowing amendment of the complaint to add the Public Health Law § 2801-d cause of action because that cause of action was not included in the notice of claim. We conclude under the circumstances of this case that the notice of claim may be corrected pursuant to General Municipal Law § 50-e (6) to include that new cause of action. Pursuant to section 50-e (6), a court in its discretion may permit the correction of a notice of claim where there has been a "mistake, omission, irregularity or defect made in good faith . . ., provided it shall appear that the other party was not prejudiced thereby." Here, plaintiff asserted a good faith basis for his initial failure to include the Public Health Law § 2801-d cause of action in the notice of claim. He contended that he did not include that cause of action because, prior to our decision in Kash v Jewish Home & Infirmary of Rochester N.Y., Inc. (61 AD3d 146), we did not allow a plaintiff to assert both a cause of action for wrongful death and a cause of action under section 2801-d. While defendants are correct that General Municipal Law § 50-e (6) ordinarily "is not applicable in an attempt to state a new theory of recovery" (Hines v City of Buffalo, 79 AD2d 218, 226), there are exceptions to that general rule. For example, courts have granted leave to serve a supplemental or amended notice of claim to add a derivative cause of action for loss of consortium (see Lopes v Metropolitan Tr. Auth., 66 AD3d 744, 745; Sciolto v New York City Tr. Auth., 288 AD2d 144), and a claim for wrongful death where such claim "results from the same facts as were alleged in a timely and otherwise admittedly valid notice of claim for personal injuries" (Ramos v New York City Tr. Auth., 60 AD3d 517, 519; see Matter of Scheel v City of Syracuse, 97 AD2d 978). Likewise, the corrected notice of claim in this case results from the same timely alleged facts. The determinative factors are whether the plaintiff has shown a good faith basis for the correction and an absence of prejudice to the defendants, and plaintiff has made that showing here.
We reject defendants' further contention that the court erred in denying that part of their motion with respect to the premises liability claim. The door handle at issue was installed with the handle facing up rather than facing down or horizontally, and plaintiff alleged that the upward-facing door handle constituted a dangerous condition. Assuming, arguendo, that defendants met their initial burden of establishing that the door handle did not constitute a dangerous condition, we conclude that plaintiff raised a triable issue of fact with respect thereto by submitting the affidavit of his expert, a registered architect and professional engineer (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The expert had experience in building and renovation projects and was in fact familiar with the design and installation of the type of door handle at issue. In his view, that type of door handle was more dangerous than others because of its thin and open-ended handle, which was more likely to cause injury to someone than other door handles that are more blunt, rounded, or closed-ended. According to plaintiff's expert, the decision on how to install a door handle should be made only after considering the type of facility, the location of the door handle within that facility, and the individuals who will be using the door handle. He opined that the upward-facing door handle was a dangerous condition under the circumstances, where the facility treated elderly patients who had difficulty with ambulation and balance.
Although we agree with defendants that plaintiff's claims sound in both negligence and medical malpractice (see Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966, 967; see generally Bleiler v Bodnar, 65 NY2d 65, 72-73), we reject defendants' contention that the court erred in granting plaintiff's cross motion for leave to file and serve a late certificate of merit (see CPLR 3012-a) and a notice of medical malpractice action (see CPLR 3406 [a]). A court in its discretion may extend a plaintiff's time to file and serve those items "upon such terms as may be just and upon good cause shown" (CPLR 2004; see Tewari v Tsoutsouras, 75 NY2d 1, 11-12; Dye v Leve, 181 AD2d 89). We agree with plaintiff that ...