Patricia Peters,
as Executrix for the Estate of ARTHUR OWEN, Plaintiff,
against
Nesconset Center for Nursing and Rehabilitation,
NESCONSET ACQUISITION, LLC, ROBERT HEPPENHEIMER, ANUPADEVI
SUZEY DOUYON, Defendants.
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700845/12
Robert J. McDonald, J.
Defendants moved for summary judgment on August 8, 2014, seeking to dismiss the
complaint. The parties agreed to adjourn the motion to September 24, 2014, and the
parties' signed stipulation to that effect was electronically filed by plaintiff, as agreed, on
August 19, 2014. Defendants subsequently learned that the motion was "marked off" due
to the non-appearance of all parties and failure to submit a working copy of the e-filed
stipulation.
CPLR 5015(a)(1) permits vacatur of a default where a reasonable excuse has
been established and there is a meritorious cause of action or defense, provided that a
motion seeking such relief is made within one year after service of a copy of the default
judgment (see Strunk v Revenge
Cab Corp., 98 AD3d 1029 [2012]; Sussman v Jo-Sta Realty Corp., 99 AD3d 787 [2012]).
In its discretion, the court finds that this instance of law office failure is excusable, as
defendants averred that it was understood by the parties that plaintiff would be
coordinating the adjournment of the motion, the stipulation had been e-filed with receipt
acknowledged by the court clerk, they were never informed that the adjournment was
denied, and the default was not willful, as they had appeared at all prior conferences (see Sarcona v J & J Air
Container Sta., Inc., 111 AD3d 914 [2013]; Liotti v Peace, 15 AD3d 452 [2005]). Moreover,
defendants promptly moved to vacate the default (see Sarcona, 111 AD3d 914)
and submitted the affidavit of Dr. Jeffrey Farber, which constitutes competent medical
evidence sufficient to demonstrate a meritorious defense (see Santos v Penske Truck Leasing
Co., 105 AD3d 1029 [2013]).
Defendants' summary judgment motion is thus restored to the court's
calendar and shall be decided herein, as all necessary papers have been submitted.
Decedent was a 79 year old man diagnosed with Alzheimer's dementia who
was previously admitted to non-party Mather Hospital from January 2 to January 25,
2010 to treat aspiration pneumonia, dysphagia, and underwent percutaneous endoscopic
gastrostomy (PEG) placement on January 19 due to his severe vascular dementia. On the
date of discharge, decedent's medical records from Mather Hospital revealed normal
creatinine levels and slightly elevated blood urea nitrogen (BUN) levels at 28, without
any evidence kidney disease.
He was then transferred to Nesconset Center for Nursing and Rehabilitation
(Nesconset) on January 25, where he stayed until July 7, 2010, under the care of
non-party attending physician Dr. [*2]Richard Gold.
Decedent was administered nutritional feedings via PEG tube by the Nesconset staff,
including 2500 cc of water daily, which were documented as being duly administered.
Despite normal creatinine levels, decedent's BUN continued to rise. By July 7, 2010,
decedent's BUN had elevated to 113 with poor creatinine levels, and he was transferred
back to Mather Hospital. Decedent's BUN and creatinine levels continued to worsen, and
decedent had a Foley catheter placed on July 12, 2010. Decedent passed away on July 13,
2010 without autopsy.
The moving party on a motion for summary judgment has the burden of
demonstrating "a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material issues of fact from the case"
(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the
movant has made this showing, the burden of proof shifts to the party opposing the
motion to produce evidentiary proof in admissible form to establish that material issues
of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320,
324 [1986]).
Here, defendants establish a prima facie showing by tendering sufficient
evidence, including affidavits by Dr. Jeffrey Farber and registered nurse Jennifer
Muilenburg, to demonstrate that they were not negligent in the care and delivery of
nursing home services to decedent and that the alleged deficiencies were not the cause of
decedent's death (see D'Elia v
Menorah Home & Hosp. for the Aged & Infirm, 51 AD3d 848
[2008]; see also Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad,
64 NY2d at 853). Dr. Farber concluded that the Nesconset staff provided appropriate
nutrition and hydration for decedent and that decedent's death was consistent with a
diagnosis of advanced dementia with dysphagia, recurrent aspiration pneumonia,
possible lung cancer, acute tubular necrosis, and post-obstructive uropathy (kidney
damage due to mechanical obstruction of urine output).
In opposition, plaintiff raises material issues of fact through the submission
of Dr. Luigi Capobianco's expert affidavit, among other things, which precludes
summary judgment (see Alvarez, 68 NY2d at 324; Winegrad, 64 NY2d at
853). Dr. Capobianco stated that it was "physiologically impossible" for decedent to have
received the amount of water documented in his medical records, given his laboratory
values, but Nesconset never investigated the discrepancy. Contrary to Dr. Farber's
finding that among the conditions from which decedent died was post-obstructive
azotemia (rather than dehydration), Dr. Capobianco noted that decedent's July 12, 2010
renal ultrasound [*3]did not reveal any mass obstructing
the kidneys. Moreover, Dr. Capobianco opined that Dr. Farber's affidavit attributing the
death to causes other than dehydration did not conclusively eliminate death resulting
from dehydration-based renal failure because those other conditions may result from
dehydration-related issues. These triable issues are among those that must be resolved at
trial (see Maltese-Kojallo v Fairview Nursing Care Center, Inc., 2010 WL
337306 , 2010 NY Slip Op 30144[U] [2010]).
Similarly, in light of decedent's medical records evincing worsening BUN
and creatinine levels during his residence at Nesconset, whether defendants violated
Public Health Law § 2801-d by depriving decedent of a right or benefit codified
under law, such as sufficient hydration and fluid intake under 42 CFR 483.25(j) and
appropriate and adequate medical care under and Public Health Law § 2803-c,
remains to be determined at trial.
Turning to the branch of the motion seeking to dismiss the gross negligence
and punitive damages claims, punitive damages are recoverable in a medical malpractice
action only where the defendant's conduct evinces "a high degree of moral culpability or
willful or wanton negligence or recklessness" (see Dmytryszyn v Herschman, 78 AD3d 1108 [2010]; Hill v 2016 Realty Assoc., 42
AD3d 432 [2007]). Defendants correctly assert that there is no evidence of willful or
reckless conduct to support a claim of gross negligence herein (see Morton v Brookhaven Mem.
Hosp., 32 AD3d 381 [2006]).
However, given the "less stringent standard" under Public Health Law
§ 2801-d compared to that under medical malpractice (Osborne v Rivington House-The
Nicholas A. Rango Health Care Facility, 19 Misc 3d 1132[A], 2008 WL
2042699, *6 [Sup Ct, New York County 2008]), whether defendants willfully deprived
decedent of or recklessly disregarded any right or benefit due to him under the statute
shall be decided together with the underlying cause of action (see Vaynberg v St.
Vincents Catholic Med. Ctrs. of New York, 2009 NY Slip Op 32371[U]; 2009 WL
3412982 [2009]; Osborne, 19 Misc 3d 1132[A], 2008 WL 2042699).
Finally, contrary to defendants' contentions, claims under Article 28 of
Public Health Law do not require a showing that the individual defendants participated
in alleged wrongful conduct; rather, such "controlling person[s]" need only possess the
"ability . . . to direct or cause the direction of the management or policies of the facility"
(Pub. Health Law § 2808-a[1]), and defendants have not proffered evidence
showing that such statute is inapplicable (see generally Ocean Side Institutional
Indus. v United Presbyt. Residence, 254 AD2d 337 [1998]; Gorton v Fellner,
[*4]88 AD2d 742 [1982]).
Accordingly, defendants' motion for summary judgment is granted to only
the extent of dismissing the gross negligence claim.
Dated: Long Island City, NY
April 15, 2015
______________________________
ROBERT J. McDONALD
J.S.C.