Motion sequence numbers 04 and 05 are hereby consolidated for disposition.

In motion sequence number 04, defendant Terence Cardinal Cooke Health Center ("TCC") moves for dismissal of plaintiff's Public Health Law § 2801-d claims and, in the alternative, amendment of its answer to assert an affirmative defense pursuant to Public Health Law § 2801-d(3). Plaintiff Ada Washington ("Ms. Washington") opposes the motion.

In motion sequence number 05, Ms. Washington moves for an order deeming her to have pled a cause of action against TCC pursuant to Public Health Law § 2801-d, or, in the alternative, permission to amend her complaint to add a cause of action under that statute. TCC opposes this portion of the motion.

Ms. Washington also moves for permission to amend her bill of particulars as to all [*2]defendants to include injuries to her left lower extremity.^[FN1] Defendant Joseph Winik, M.D. ("Dr. Winik") and TCC oppose the amendment.

On June 14, 2001, defendant Zergabachew Asfaw ("Dr. Asfaw") began treating Ms. Washington at St. Clare's Hospital and Medical Center ("St. Clare's") for gout and osteoarthritis. See, Decision and Order on Motion Sequence Number 03 ("Dec. 03"), at 2.

About one month later, on June 26, 2001, Ms. Washington transferred to TCC. Dec. 03, at 2. For the four months that she remained at TCC until October 22, 2001 Dr. Asfaw continued to treat Ms. Washington. Affirmation in Support of Motion Sequence Number 04 ("Aff. 04"), at ¶ 7. During that time, Ms. Washington developed pressure sores on her sacrum, right malleolus and both heels; she also received treatment from Dr. Winik. Dec. 03, at 2; Aff. 04, at ¶ 7.

On November 28, 2001, Ms, Washington underwent below-the-knee amputation of her right leg at St. Clare's. Dr. Winik's Affirmation in Opposition ("Opp. 05"), at 2. Shortly thereafter, Dr. Asfaw referred Ms. Washington to Cabrini Wound Care ("Cabrini") where she underwent vascular bypass surgery on her left leg on February 14, 2002. Dec. 03, at 2-3; Opp. 05, at 2. She was discharged on May 2, 2002, at which time she returned to treatment with Dr. Asfaw. Dec. 03, at 4.

In this medical malpractice action commenced in 2002 Ms. Washington claims that defendants negligently caused her to sustain pressure ulcers on both feet and to require below-the-knee amputation of her right leg. Aff. 04, at ¶¶ 3,7. In particular, Ms. Washington alleges that defendants violated Public Health Law § 2801-d, which governs patients' rights in a nursing home, 10 New York City Rules and Regulations ("NYCRR") 415.12(c)(1)-(2), which deal with the development of pressure sores, and CPLR 2803-d, which addresses abuse, neglect or mistreatment of a patient in a nursing home. Aff. 04, Ex. A, at ¶¶ 1,37.

On January 19, 2005, TCC commenced a third-party action against Dr. Asfaw. Aff. 04, at ¶ 4. The note of issue was filed on May 23, 2005. Opp. 05, at 3. Jury selection commenced in this action on August 24, 2006. Aff. 04, at ¶ 6.

Shortly after jury selection on August 29, 2006 plaintiff's counsel informed defendants that Ms. Washington's left toes were amputated on March 29, 2006. Aff. 04, at ¶ 6. Plaintiff's counsel then requested a mistrial and time to move to amend his bill of particulars. Id. The Court granted his request and the jury was disbanded. Id.

Plaintiff now moves for permission to amend her bill of particulars to add the left-toe amputations as a new injury. Affirmation in Support of Motion Sequence Number 05 ("Aff. 05"), at ¶ 39. In particular, plaintiff avers that counsel only learned of the amputation during [*3]jury selection and did not delay in making this motion. Aff. 05, at ¶ 44. She argues, moreover, that defendants will not be prejudiced by the amendment because she has consented to further disclosure and, indeed, already provided authorizations for medical records concerning the amputation. Aff. 05, at ¶ 48.

In support of the amendment, Ms. Washington submits the affidavit of Eric Munoz, M.D. ("Dr. Munoz"), a physician board-certified in surgery, who opines to a reasonable degree of medical certainty based on his review of the records and testimony in this case that Ms. Washington's left-toe injuries are proximately related to her right-leg injuries. Aff. 05, Ex. E. Specifically, Dr. Munoz concludes that, as a result of defendants' failure to provide appropriate medical treatment, Ms. Washington sustained pressure sores on her sacrum, right foot, and both heels. Aff. 05, Ex. E, at ¶ 19. The doctor states, moreover, that defendants proximately caused Ms. Washington to require below-the-knee amputation of her right leg and that plaintiff's left-toe injuries developed because she could not ambulate while recovering from right-leg amputation. Aff. 05, Ex. E, at ¶¶ 42, 46.

Dr. Winik and TCC oppose inclusion of these new injuries in plaintiff's complaint. They argue that Ms. Washington has not shown special circumstances warranting amendment because she knew that her left limb was injured when she underwent bypass surgery on it in February 2002 but failed to make this motion until November 13, 2006. Opp. 05, at 5. Further, defendants point out that the left-toe amputation took place in March 2006. They contend that plaintiff should have moved to amend at that time, not five months later, at trial. Opp. 05, at 5.

TCC, in particular, relies on the affirmation of Luigi Capobianco, M.D. ("Dr. Capobianco"), a physician board certified in family practice, geriatrics and wound care, who opines to a reasonable degree of certainty that TCC did not cause Ms. Washington's left-toe injuries. Affirmation in Reply to Motion Sequence 04 ("Reply 04"), Ex. A, at ¶¶ 1-3.

Plaintiff's motion to amend the bill of particulars is granted.

Leave to amend the bill of particulars is ordinarily freely given unless it would unduly prejudice the non-moving party. CPLR 3042(b); Kassis v. Teachers Ins. and Annuity Assoc., 258 AD2d 271, 272 (1st Dept. 1999). Mere lateness does not bar amendment; rather, for a motion to amend to be denied, the amendment must cause significant prejudice to the non-movant. Heller v. Louis Provenzano, Inc., 303 AD2d 20 (1st Dept. 2003).

Nonetheless, when there has been "an extended delay in moving to amend, an affidavit of reasonable excuse for the delay in making the motion and an affidavit of merit should be submitted in support of the motion." Kassis v. Teachers Ins. and Annuity Assoc., 258 AD2d, at 272; see also, Spada v. Sepulveda, 306 AD2d 270, 271 (2d Dept. 2003); Torres v. Educ. Alliance, Inc., 300 AD2d 469, 470 (2d Dept. 2002); Volpe v. Good Samaritan Hosp., 213 AD2d 398, 398-99 (2d Dept. 1995).

Here, plaintiff has submitted an affidavit of merit, namely, the affirmation of Dr. Munoz, who concludes that Ms. Washington's inability to ambulate as a result of her prior right-leg injuries, which were allegedly caused by defendants and in turn caused her to sustain left-toe injuries. Aff. 05, Ex. E, at ¶ 19. Ms. Washington has also presented a reasonable excuse for the delay: the recent left-toe amputation and counsel's belated notice of its occurrence. [*4]

Case law is clear that absent prejudice, amendment should only be denied on the eve of trial or later. See e.g., Licht v. Trans Care NY, Inc., 3 AD3d 325 (1st Dept. 2004) (denying amendment of bill of particulars on eve of trial because it changed theory of liability from heart injury to brain injury); Heller v. Louis Provenzano, Inc., 303 AD2d, at 21 (denying amendment of bill of particulars after trial); Videobox Networks, L.P. v. Durst, 259 AD2d 429 (1st Dept. 1999) (denying amendment on eve of trial).

In this case, however, the trial date is not until March 1, 2007 and it need not be adjourned to accommodate the amendment. Moreover, defendants' claim that the amendment would prejudice them because they have not had a full opportunity to conduct disclosure on the newly-alleged injuries is easily curable. See, e.g., Sahdala v. New York City Health and Hosps. Corp., 251 AD2d 70 (1st Dept. 1998); Cepeda v. Hertz, 141 AD2d 394 (1st Dept. 1988); Kurnitz v. Croft, 91 AD2d 972 (2d Dept. 1983). Indeed, TCC admitted that, "counsel has ample to time to adjust their trial strategy." Reply 04, at ¶ 10.

This Court will re-open disclosure as to the newly-alleged injuries. Because defendants have now been aware of the newly-alleged injuries since August 2006, all disclosure, including depositions, is to be completed by February 16, 2007.

Public Health Law Claims

There is also a question as to whether plaintiff has properly pled a cause of action under Public Health Law § 2801-d. Ms. Washington argues that she has while TCC counters that she has not.

Public Health Law § 2801-d provides a private right of action to nursing home patients injured while in the facility. In particular, the statute provides that a nursing home may be sued for deprivation of any right effected for the well-being of a patient by any state or federal statute, code, rule or regulation. One such protected right is the right to receive adequate and appropriate medical care. Public Health Law § 2803-c(3)(e); Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178, 179 (1st Dept. 2002), rearg. denied, 306 AD2d 959 (1st Dept. 2003); Morisette v. Terence Cardinal Cooke Health Care Ctr., 8 Misc 3d 506, 508-09 (Sup. Ct., New York County, 2005).

CPLR 3013 mandates that statements in a pleading be "sufficiently particular to give the court and parties notice of the transactions."

Based on a review of plaintiff's pleadings, it is clear that Ms. Washington has properly pled a cause of action pursuant to Public Health Law § 2801-d by discussing TCC's alleged negligence under the statute in both the complaint and the bill of particulars. The complaint states that this "is an action for damages * * * under the laws of New York State, specifically Public Health Law § 2801-d * * *." Aff. 04, Ex. A, at 2. It further provides that plaintiff "entered [TCC] without pressure sores, and developed sores that were avoidable, but [TCC] did not make every reasonable effort to prevent them." Aff. 04, Ex. A, at 11-12. Moreover, the bill of particulars contains a lengthy discussion of how TCC caused Ms. Washington's pressure sores. See, Aff. 04, Ex. C.

These allegations are sufficiently particular to meet the requirements of CPLR 3013. As such, contrary to TCC's assertion, plaintiff has properly pled a cause of action pursuant to Public [*5]Health Law § 2801-d.

TCC also moves for dismissal of plaintiff's Public Health Law claims on the ground that plaintiff failed to set forth what "rights or benefits" enumerated in Public Health Law § 2803-c she was denied. Aff. 04, at ¶ 11; Reply 04, at ¶¶ 4-5. TCC points out that although Ms. Washington alleges a violation of 10 NYCRR 415.12(c)(1)-(2), which deals with the duty to prevent pressure sores, she does not alleged any violation of Public Health Law § 2803. Reply, at ¶¶ 4-5. Finally, TCC claims that it would be severely prejudiced if it had to defend a Public Health Law claim because plaintiff never provided expert disclosure on that issue. Aff. 04, at ¶ 13.

In opposition, Ms. Washington avers that TCC fails to specify under what section of the CPLR it is moving to dismiss and that, regardless, the motion is belated and meritless. Aff. 05, at ¶¶ 7-8.

Once again, plaintiff is correct.

The parties preliminary conference order directed the parties to make any motions for summary judgment within 60 days of filing the note of issue. Since plaintiff filed the note of issue on May 23, 2005, TCC's time to make a CPLR 3212 motion expired on or about July 23, 2005, more than 14 months before TCC made this motion. Moreover, TCC has not presented any "good cause" for the lateness as required for the Court for entertain a late motion for summary judgment. See, Brill v. City of New York, 2 NY3d 648 (2004); Cabibel v. XYZ Assocs., L.P., __ AD3d __, 2007 WL 111598 (1st Dept. 2007); Perini Corp. v. City of New York, 16 AD3d 37, 40 (1st Dept. 2005); Keeley v. Berley Realty Corp., 271 AD2d 299, 301 (1st Dept. 2000); Rosario v. D.R. Kenyon & Son, Inc., 258 AD2d 265 (1st Dept. 1999). Thus, the Court cannot consider the motion if TCC seeks summary judgment pursuant to CPLR 3212.

TCC's motion to dismiss also fails if it was brought pursuant to CPLR 3211(a)(7).

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(7), plaintiff need only demonstrate that the facts as she alleges them fit within any discernible legal theory. Leon v. Martinez, 84 NY2d 83, 87-88 (1994); Sheila C. v. Povich, 11 AD3d 120, 122 (1st Dept. 2004). In examining a motion to dismiss, the court must afford plaintiff's pleadings a liberal construction and accept as true the facts alleged in the complaint. Sheila C. v. Povich, 11 AD3d, at 122; Barrows v. Rozansky, 111 AD2d 105, 107 (1st Dept. 1985). "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977).

As discussed above, plaintiff's complaint properly makes out a cause of action pursuant to Public Health Law § 2801-d. Furthermore, TCC's argument that plaintiff cannot maintain an action because she has not specifically alleged a violation of Public Health Law § 2803-c is without merit.

To begin, the statute provides that a nursing home may be sued for deprivation of "any right or benefit created or established for the well-being of the patient by the terms of any statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation * * *." Public Health Law § 2801-d (emphasis added). The statute does not limit recovery to compensation for deprivation of only those patient rights enumerated in Public Health Law § 2803-c. Indeed, Public Health Law § 2803 states that the rights and responsibilities it intends to protect "shall include, but not be limited to" the rights enumerated in the provision. Public [*6]Health Law § 2803-c(3) (emphasis added).

Moreover, Ms. Washington has, in essence, pled a cause of action under Public Health Law § 2803-c. The statute provides that "every patient shall have the right to receive adequate and appropriate medical care." Public Health Law § 2803-c(3)(e). To this end, plaintiff alleges that TCC failed to provide proper medical care by allowing her to develop pressure sores.

In addition, Ms. Washington properly alleges violation of another relevant statute: 10 NYCRR 415.12, which governs the development of pressure sores. Case law is clear; a plaintiff may seek relief pursuant to the Public Health Law for violations of 10 NYCRR 415.12. See, e.g., Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d, at 179.

Finally, TCC contends that Ms. Washington cannot simultaneously maintain causes of action seeking recovery for common law negligence and violations of the Public Health Law. TCC relies solely on Appellate Division, Fourth Department case law of questionable validity despite First Department binding case law that holds differently. See, Reply 04, at ¶¶ 25-33.

TCC primarily bases its argument on Goldberg v. Nursing Plaza Home Co., Inc., 222 AD2d 1082 (4th Dept. 1995), a case that held that plaintiff could not maintain both a medical malpractice wrongful death action and a Public Health Law claim. Goldberg was reversed in Doe v. Westfall Health Care Ctr., 303 AD2d 102, 112 (4th Dept. 2002). Amazingly, in its submissions, TCC asserts that Doe merely distinguished Goldberg. The Doe court, however, explicitly stated in no uncertain terms, "We therefore overrule our decision in Goldberg * * *." Doe v. Westfall Health Care Ctr., 303 AD2d, at 112.

TCC's reliance on Begandy v. Richardson, 510 Misc 2d 357 (Sup. Ct., Monroe County, 1987) a case that comes out of a court within the Fourth Department that was decided 15 years before Doe is thus misplaced as well.

More significant than the questionable validity of the Fourth Department cases cited by TCC, is the fact that the Appellate Division, First Department, which is binding on this Court, has rendered a contrary conclusion.

In Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178, the First Department explicitly allowed plaintiff to maintain causes of action based upon Public Health Law violations and ordinary negligence. Id., at 178; see also, Ward v. Eastchester Health Care Ctr., 34 AD3d 247 (1st Dept. 2006).

Other courts in the First Department have reached the same conclusion. For example, Justice Stanley Sklar, after a lengthy review of the statute's legislative history, held that Public Health Law § 2801-d was enacted to create "an additional avenue of relief to the vulnerable nursing home population" and that it is not duplicative of a patient's right to maintain a simultaneous cause of action for medical malpractice. Morisette v. Terence Cardinal Cooke Health Care Ctr., 8 Misc 3d, at 514 (emphasis added).

Likewise, Justice Dianne Renwick of Supreme Court, Bronx County permitted plaintiff to maintain both a Public Health Law and common-law negligence claim concluding that, "nothing in Zeides * * * suggests to this Court that the First Department, Appellate Division, would adhere to the Fourth Department's strict interpretation of [Public Health Law] § 2801-d(1) * * *." Pasqua v. Bon Secours New York Health Sys., 13 Misc 3d 1036 (Sup. Ct., Bronx County, 2006).

Moreover, the First Department's position is in line with the plain language of the statute [*7]and its legislative history. In enacting the legislation and proposing the Bill, Senator John E. Flynn explained that, "the remedies created by this section are to be cumulative with any other remedies and suits authorized by this section * * *." Senator Introducer Mem. in Support, Bill Jacket, L 1975, ch 658, at 17. Furthermore, the statute itself provides that its remedies "are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by an administrative proceedings." Public Health Law § 2801-d(6).

In the end, TCC has failed to establish that plaintiff's Public Health Law claims should be dismissed.

Amend Answer

TCC's motion for permission to amend its answer and plead an affirmative defense to plaintiff's Public Health Law claims namely, that it used all reasonable efforts to protect Ms. Washington from developing pressure sores is granted. Aff. 04, at ¶ 16.

As is the case with leave to amend the bill of particulars, leave to amend the answer is generally granted unless the proposed amendments are palpably insufficient on their faces. CPLR 3025(b); McCaskey, Davies and Assocs., Inc. v. New York City Health and Hosps. Corp., 59 NY2d 755, 757 (1983); Stroock & Strook & Lavan v. Beltramini, 157 AD2d 590, 591 (1st Dept. 1990); Hawkins v. Genesee Place Corp., 139 AD2d 433, 434 (1st Dept. 1988). The lateness of a motion to amend is not dispositive; it will only be denied if the amendment will cause substantial prejudice to the non-movant. Edenwald Contracting Co., Inc. v. City of New York, 60 NY2d 957, 959 (1983); Lanpont v. Savvas Cab Corp., Inc., 244 AD2d 208, 210 (1st Dept. 1997) ("The lateness of the motion, by itself [is] no barrier"); Seda v. New York City Housing Auth., 181 AD2d 469, 470 (1st Dept. 1992) (no prejudice to plaintiffs despite three-year delay), lv. denied, 80 NY2d 759; but see, Gallo v. Aiello, 139 AD2d 490 (2d Dept. 1988); Shanahan v. Shanahan, 92 AD2d 566, 568 (2d Dept. 1983).TCC seeks to invoke Public Health Law § 2801-d(1) as a defense. The statute provides that, "no person who pleads and proves, as an affirmative defense, that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted shall be liable under this section."

In this case, trial is not scheduled until March 1, 2007 and plaintiff cannot claim prejudice in allowing further discovery at this stage in the litigation process because the parties are already engaging in post-note-of-issue discovery related to plaintiff's new left-toe injuries. Thus, in the interest of resolving the parties' statutory claims on the merits, the Court will permit TCC to amend its answer to assert an affirmative defense under the Public Health Law.

Accordingly, it is

ORDERED that plaintiff's motion to amend the bill of particulars to add a cause of action for her left-toe injuries is granted and the bill of particulars is deemed served on defendants nunc pro tunc; and it is further

ORDERED that all disclosure related to the newly-alleged injuries is to be completed by February 16, 2007; and it is further

ORDERED that TCC's motion to dismiss plaintiff's Public Health Law claims is denied; and it is further [*8]

ORDERED that TCC's motion to amend its answer is granted and the amended answer is deemed served on plaintiffs nunc pro tunc; and it is further

ORDERED that all disclosure related to plaintiff's Public Health Law claims and TCC's Public Health Law affirmative defense is to be completed by February 16, 2007; and it is further

This constitutes the Decision and Order of the Court.

Dated: New York, NY

January ___, 2007

ENTER

_________________

Hon. Eileen Bransten