Linda Ciccotto, as executor of the estate of Emilio S. Laneri, also known as Emilio Silvio Laneri, appellant,
Fulton Commons Care Center, Inc., respondent. Index No. 732/12
Sullivan Papain Block McGrath & Cannavo, P.C., New York,
NY (Stephen C. Glasser and Gabriel A. Arce-Yee of counsel),
Catalano, Gallardo & Petropoulos, LLP, Jericho, NY (James
P. Connors and Jessica L. Smith of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J.
MILLER, BETSY BARROS, JJ.
DECISION & ORDER
action, inter alia, to recover damages for negligence,
wrongful death, and violation of Public Health Law §
2801-d, the plaintiff appeals (1), as limited by her brief,
from so much of an order of the Supreme Court, Nassau County
(Woodard, J.), dated November 12, 2014, as granted that
branch of the defendant's motion which was for summary
judgment dismissing the complaint, and (2) from an order of
the same court (Murphy, J.), dated April 27, 2015, which
denied her motion for leave to reargue.
that the appeal from the order dated April 27, 2015, is
dismissed, as no appeal lies from an order denying leave to
reargue (see Spann v City of New York, 145 A.D.3d
934); and it is further, ORDERED that the order dated
November 12, 2014, is affirmed insofar as appealed from; and
it is further, ORDERED that one bill of costs is awarded to
plaintiff's decedent, who suffered from several medical
conditions, including significant dementia, was a resident of
the defendant residential health care facility for
approximately 1½ months. When he was admitted to the
facility, the decedent was assessed as being at a moderate
risk of falling, and he ultimately fell several times despite
interventions that were put in place for fall prevention.
After the decedent's third fall, he was taken to the
hospital and X rays indicated that he had broken his hip.
Surgery was performed, and the decedent died shortly
thereafter. The plaintiff commenced this action alleging
negligence, negligent hiring, violation of Public Health Law
§ 2801-d, and wrongful death, as well as a claim for
punitive damages. The defendant answered and subsequently
moved, inter alia, for summary judgment dismissing the
complaint. The Supreme Court granted the defendant's
motion. The plaintiff then moved for leave to reargue, and
that motion was denied.
defendant established its prima facie entitlement to judgment
as a matter of law on the causes of action alleging
negligence, negligent hiring, and wrongful death, and the
claim for punitive damages by submitting evidence
demonstrating that it did not depart from accepted standards
of care with regard to the plaintiff's decedent (see
DePaso v Sarah Neuman Ctr. for Healthcare &
Rehabilitation, 119 A.D.3d 727, 727-728; Domoroski v
Smithtown Ctr. for Rehabilitation & Nursing Care, 95
A.D.3d 1165, 1166; D'Elia v Menorah Home & Hosp.
for Aged & Infirm, 51 A.D.3d 848, 850). In
opposition to the defendant's prima facie showing, the
plaintiff failed to raise a triable issue of fact as to any
of those causes of action (see Alvarez v Prospect
Hosp., 68 N.Y.2d 320, 324).
regard to the cause of action premised on violation of Public
Health Law § 2801-d, "[l]iability under the Public
Health Law contemplates injury to the patient caused by the
deprivation of a right conferred by contract, statute,
regulation, code or rule, subject to the defense that the
facility exercised all care reasonably necessary to prevent
and limit the deprivation and injury to the
patient'" (Moore v St. James Health Care Ctr.,
LLC, 141 A.D.3d 701, 703, quoting Gold v Park Ave.
Extended Care Ctr. Corp., 90 A.D.3d 833, 834; see
Zeides v Hebrew Home for Aged at Riverdale, 300 A.D.2d
178, 179). Here, the defendant established its prima facie
entitlement to judgment as a matter of law dismissing the
cause of action alleging deprivation of rights pursuant to
Public Health Law § 2801-d by submitting evidence that
the decedent's alleged injuries did not arise through any
action or negligence of its employees (see Moore v St.
James Health Care Ctr., LLC, 141 A.D.3d 701, 703;
Novick v South Nassau Communities Hosp., 136 A.D.3d
999; Gold v Park Ave. Extended Care Ctr. Corp., 90
A.D.3d 833; Shapiro v Gurwin Jewish Geriatric Nursing
& Rehabilitation Ctr., 84 A.D.3d 1348, 1349). In
opposition, the plaintiff failed to raise a triable issue of
fact, as the affidavit of her expert offered only conclusory
and unsubstantiated allegations of violations of certain
regulations (see Zuckerman v City of New York, 49
N.Y.2d 557, 562; Gold v Park Ave. Extended Care Ctr.
Corp., 90 A.D.3d 833; Shapiro v Gurwin Jewish
Geriatric Nursing & Rehabilitation Ctr., 84 A.D.3d
the Supreme Court properly granted that branch of the
defendant's motion which was for summary ...