The following electronically filed documents for Motion Sequence No. 003, listed on NYSCEF as document numbers "121" through "141," and all exhibits, have been read and considered on this motion.

Defendants South Shore Rehabilitation and Nursing Center and South Shore Rehabilitation, LLC move pursuant to CPLR §4404(a) for an Order: 1) setting aside the jury's verdict and directing a new trial; 2) in the alternative, vacating the jury's award; 3) in the alternative, reducing the award and ordering a new trial as to damages on the ground that the jury verdict is excessive and against the weight of the evidence; 4) in the alternative, vacating the jury award and ordering a new trial as to damages on the ground that the jury awarded duplicative damages and improperly awarded damages for wrongful death; 5) in the alternative, vacating the jury award and dismissing the case on the ground that the Plaintiff failed to make a prima facie matter by failing to submit evidence to support causation to any injury; 6) in the alternative, setting aside the jury verdict in its entirety on the grounds that the post-death autopsy photos were improperly submitted to the jury and unduly prejudiced Defendants; and 7) for such other and further relief as this Court may deem just and proper. Plaintiff submits opposition.

This case involves claims against Defendants pursuant to Public Health Law §2801-d for damages, including punitive damages and nursing negligence, arising from the Plaintiff's decedent, Henry Serrapica's residency at South Shore Rehabilitation and Nursing Center in 2018 and 2019. The trial of this matter commenced on June 17, 2025, and continued with the jury returning the verdict in favor of the Plaintiff on June 26, 2025.

The jury found a deprivation of Plaintiff's decedent's rights under Public Health Law §2805-d with violations of 42 CFR 483.10, 42 CFR 483.24, 42 CFR 483.25, and 42 CFR 483.35, [*2]which included violating the right to a dignified existence, self-determination, be treated with respect and dignity; violating the right of the resident to retain and use personal possessions and clothing; failing to maintain medical records of the resident that are complete and accurately documented; failing to ensure that the resident received necessary services to maintain grooming and personal hygiene; failing to provide care, consistent with professional standards of practice to prevent pressure ulcers and to not develop pressure ulcers unless the individual's clinical condition demonstrates that they are unavoidable; and violating rights in failing to have licensed nurses with specific competencies and skill sets necessary to care for the resident's needs. The jury found that South Shore did not exercise all care reasonably necessary to prevent and limit the deprivation and/or injury claimed by Plaintiff's decedent.

Based upon the jury findings, the jury awarded $2,000,000.00 for Plaintiff's decedent's physical harm resulting from one or more violation of the Public Health Law. The jury also awarded $1,000,000.00 for the death of Plaintiff's decedent resulting from the violation of the Public Health Law. The jury found willful and reckless conduct violating Plaintiff's decedent's rights under the Public Health Law and awarded $1,000,000.00 in punitive damages.

Additionally, the jury found that the nursing care and treatment was negligent, proximately causing injuries and awarded $1,000,000.00 for conscious pain and suffering. The jury did not find that the nursing care and treatment was a substantial factor in causing Plaintiff's decedent's death. Contrary to Defendants' relief requested in the Notice of Motion, the jury did not award damages on the claim for wrongful death. (See Verdict Sheet #18a and #18b; NYSCEF Doc. No. 118).

Defendants' motion is supported by the Plaintiff's Summons and Complaint, South Shore's Answer, Plaintiff's Bill of Particulars, the trial transcripts of Defendants' expert nurse Diane Yastrub, Defendants' Expert Norman Chideckel, M.D., and Plaintiff's expert nurse Colleen Usherwood. Significantly, missing from Defendants' motion is the trial testimony of Plaintiff's medical expert Michael Finkelstein, M.D., treating nurse Tiffany Butler, and family members, Matthew Serrapica, Cheryl Piazza, and Diane Terracciano.

The son of Plaintiff's decedent, Matthew Serrapica; daughter, Cheryl Piazza; and ex-daughter in law, Diane Terracciano testified at trial describing specific instances and conditions at South Shore involving the Plainitff's decedent that were the foundation of many of the claimed Public Health Law violations. The family testified to a running faucet in the room, Plaintiff's decedent wearing other people's clothing, suctioned mucus being left in the room overnight, and leaving Plaintiff's decedent pantless in soiled diapers. In addition to the living conditions presented, Plaintiff's decedent developed pressure ulcers which were addressed by Plaintiff with expert testimony from Michael Finkelstein, M.D. and Nurse Colleen Usherwood. Treating nurse Tiffany Butler was called by Plaintiff at trial and her lack of wound care training was elicited during her testimony.

Dr. Finkelstein, board certified in internal medicine, testified that the standard of care to turn and position a patient like Plaintiff's decedent is every two hours. Dr. Finkelstein was critical of South Shore's plan of care to turn and position every two to four hours. Dr. Finkelstein testified that four hours was too long of a time interval to turn and position the patient. Dr. Finkelstein testified that Plaintiff's decedent was at a high risk for developing a pressure wound.

Dr. Finkelstein was also critical of the treating nurse, Tiffany Butler, who had not been trained in wound care and had been treating Plaintiff's decedent as the primary wound care nurse for six months. Dr. Finkelstein further opined that the wounds that Plaintiff's decedent developed were avoidable based on the ability of the staff to turn and position him. Dr. Finkelstein stated that Plaintiff's decedent developed pressure injuries due to a combination of poor positioning and turning, and poor nutritional support. Dr. Finkelstein testified that Plaintiff's decedent should have had an individualized care plan, aggressive nutritional support, off-loading via mattresses or other surfaces if he was not able to turn and position himself. Dr. Finkelstein did not find consistent documentation regarding the timing of the turning and positioning except for a checklist. Dr. Finkelstein stated that it was his opinion that the nursing care was not adequate. Dr. Finkelstein opined that the wounds contributed to Plaintiff's decedent's demise due to infection and inability to recover from the wounds.

Plaintiff also presented the testimony of Registered Nurse Usherwood, who testified that the care plan for turning and positioning Plaintiff's decedent every two to four hours was not appropriate. Nurse Usherwood opined that Plaintiff's decedent needed to be turned at least every two hours. Nurse Usherwood testified that the nursing documentation was not adequate and had conflicting information. Nurse Usherwood was critical of the type of dressing used for the deep tissue injury and the documented staging of the wound. Nurse Underwood was further critical of treating Nurse Tiffany Butler who admitted that she did not have the proper training for a wound care nurse. Nurse Usherwood also commented on Plaintiff's decedent's pain level based on the notes in the chart. Nurse Usherwood concluded that the nursing care was not appropriate based on her review of the records and the development of his wounds.

The jury had the opportunity to hear the testimony of the defense expert witnesses. Nurse Practitioner Diane Yastrub, who is wound care certified by the Wound, Ostomy and Continence Nursing Board, board certified as a Diabetes Educator, and with certifications in long-term care and end of life care testified for South Shore. NP Yastrub testified that there was no skin breakdown for the first fifteen months of Plaintiff's decedent's residency at South Shore. NP Yastrub countered the opinion of Nurse Underwood explaining that turning and positioning is individual for each patient and was appropriate for Plaintiff's decedent.

The defense also presented the testimony of Norman Chideckel, M.D., a New York State licensed board-certified surgeon with an additional board certification in wound management. Dr. Chideckel offered the opposing opinion to Dr. Finkelstein stating that the skin wounds were not the cause of Plaintiff's decedent's demise. Dr. Chideckel stated that Plaintiff's decedent had hypertension, diabetes, heart disease, and was on immunosuppressant medications for his kidney and pancreas transplant. Dr. Chideckel opined that Plaintiff's decedent's overall health continued to deteriorate because of these medical issues. Finally, Dr. Chideckel opined that Plaintiff's decedent's co-morbidities contributed to the developing wounds.

At the outset, Defendants mistakenly argue that the Plaintiff's sole trial expert was Nurse Usherwood. Defendants argue that Nurse Usherwood's testimony was insufficient to establish causation, and Plaintiff failed to have a physician's testimony on this required element of the claims. On this basis, Defendants request that the jury verdict be set aside and the case dismissed.

Defendants argue that the $5,000,000.00 damages award is excessive and against the [*3]weight of the evidence and requests a new trial. Defendants claim that the award materially deviates from what would be reasonable compensation in light of the testimony and evidence and prevailing case law. Defendants argue that given the extent of Plaintiff's decedent's co-morbidities, with a predisposition for pressure ulcers, the jury's award deviates materially from reasonable compensation compared to comparable cases.

Defendants argue that the number of days that the pressure ulcers were present should be considered in terms of assessing whether the verdict materially deviated from what would be reasonable compensation. Defendants note that pressure ulcers were first documented on or about April 22, 2019 on the left and right heels, indicating that Plaintiff's decedent suffered with these pressure ulcers for 217 days through his death on December 26, 2019. The next pressure ulcer identified was on the left ankle which Defendants assert was present for a total of 115 days from August 2, 2019 to November 25, 2019. The third and fourth pressure ulcers developed between August 26, 2019 and November 25, 2019 for a total of 91 days. The last pressure ulcer was documented at November 25, 2019, however, Defendants claim that there was no expert testimony regarding this ulcer. Defendants argue that the monetary award associated with the pressure ulcers should be based on 217 days of pain and suffering which Defendants argue is less than half of Plaintiff's decedent's 678-day admission.

Defendants cite to two Supreme Court cases involving nursing home residents with multiple pressure ulcers. In Paylor v The New York Community Hospital of Brooklyn, Inc., Index No. 22589/2014E, the trial court reduced the $1,500,000.00 award for past pain and suffering to $288,935.00. Paylor involved a 78-year-old woman with co-morbidities who suffered multiple pressure ulcers.

Defendants also rely on Rosenblatt v Center for Nursing & Rehabilitation, Inc., 70 Misc 3d 1220(A), 140 NYS3d 396 (Sup. Ct. Kings Co. 2021), involving a 72-year-old man with co-morbidities who suffered from pressure ulcers. The jury award of $3,000,000.00 was reduced to $700,000.00. Defendant argues that there was no testimony of past or present medical expenses or pecuniary loss. Defendants further rely on Rosenblatt to set aside the punitive damages. Punitive damages are permitted only where the jury found there is willful or reckless disregard of the plaintiff's rights. Defendants contend that Plaintiff's experts and the witnesses did not provide evidence or testimony to support a finding of willful or reckless disregard of the Plaintiff's decedent's rights.

Defendants alternatively argue that the jury's award should be set aside because it was an inconsistent verdict. Defendants argue that the jury award is duplicative for death, physical harm, and conscious pain and suffering. Defendants state that Plaintiff cannot recover twice for the same injury. Defendants point out that there are no cases in New York on the issue of double damages involving damages for negligence and violation of the Public Health Law. Defendants argue that the jury's award of $2,000,000.00 for Plaintiff's decedent's physical harm, the $1,000,000.00 award for pain and suffering, and the $1,000,000.00 award for death is an award for the same injury three times. Defendants request a new trial on damages or reduction of the jury award on the grounds that it is improper for the Plaintiff to recover for the same damages multiple times. Defendants contend that Plaintiff produced no evidence of pecuniary damages for a wrongful death claim. Plaintiff also did not produce evidence of medical expenses or Medicare day rate and as such the damages were solely for conscious pain and suffering.

Defendants contend that the jury verdict should be set aside due to post-death autopsy photographs submitted to the jury causing undue prejudice to the Defendants. Defendants claim [*4]that the excessive damages may indicate that the jury was affected by consideration of the post-autopsy photos. Defendants claim that there was no evidence that Plaintiff's decedent death occurred because of the treatment received at South Shore. Plaintiff's decedent was at a hospital and nursing facility after his discharge from South Shore.

Plaintiff argues that the verdict should be upheld and the $5,000,000.00 constitutes reasonable compensation for the Serrapica family in light of the evidence presented. Plaintiff argues that Defendants fail to meet their burden to set aside the verdict on any grounds. Plaintiff notes that the evidence is to be viewed in the light most favorable to the non-moving party. Plaintiff argues that in addition to the pain and discomfort associated with the pressure wounds, the evidence showed that Plaintiff's decedent was repeatedly left half naked in a leaking adult diaper, deprived of his clothes repeatedly, abandoned, and lived out his days in an undignified manner.

Plaintiff points out that the Defendants' argument erroneously states that only Nurse Usherwood testified for the Plaintiff, when in fact Dr. Finkelstein testified at trial. Plaintiff submits that the testimony of Dr. Finkelstein supported that the pressure wounds were avoidable, and Plaintiff's decedent was capable of healing. Plaintiff contends that Dr. Finkelstein testified that the neglect and violations of Public Health Law contributed to Plaintiff's decedent's death.

In response to Defendants' argument that the verdict is excessive, Plaintiff points out that there is no mention in Defendants' motion of the evidence and claims relating to dignity and additional rights that Plaintiff's decedent was deprived of during his stay at South Shore. Plaintiff points out that Defendants make no reference to the testimony of Plaintiff's decedent's family members. Plaintiff argues that even if the 217 days of suffering offered by Defendants are true, Plaintiff's decedent suffered 33% of his two-year admission to South Shore. Plaintiff also argues that Defendants do not support the motion with cases from the Appellate Division, Second Department as required to show the verdict was excessive. Defendants failed to make a showing of lower awards for comparable injuries that appellate courts have sustained.

Plaintiff also argues that Defendants did not move specifically in the Notice of Motion to dismiss the jury's award for punitive damages. Defendants do not offer case law precedent, testimonial or documentary evidence to show that the punitive damages award should be set aside.

Plaintiff argues that the jury award is not duplicative in that Public Health Law claim is separate and distinct from the negligence claim. Public Health Law §2805-d delineates damages for a deprivation of a right conferred by contract, statute, regulation, code or rule. Further, Plaintiff points out that the jury awarded damages for the death of Plaintiff's decedent under Public Health Law and not wrongful death based upon negligence.

As to the photograph entered into evidence as Exhibit 11, Plaintiff argues that Matthew Serrapica and Diane Terraciano authenticated the photograph with testimony that it was taken in proximity to Plaintiff's decedent's death in December 2019. Plaintiff argues that the photograph was probative of the sacral area pressure ulcer for the timeframe at issue and in relation to conscious pain and suffering. Plaintiff further argues that the Exhibit 11 photo was not an autopsy photo, there was no autopsy and there the word autopsy was not used at trial.

Defendants challenge the jury verdict rendered on several grounds. Defendants move pursuant to CPLR §4404(a) to set aside the verdict and for judgment as a matter of law, or alternatively, to set aside the verdict as contrary to the weight of the evidence or in the interest of justice. Pursuant to CPLR §4404(a), after a jury trial, "the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court."

Defendants seek to set aside the verdict and dismiss the entire case. "A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted 'only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party.'" (Larkin v Wagner, 170 AD3d 1145, 1147, 96 NYS3d 664 [2d Dept 2019] quoting Tapia v Dattco, Inc., 32 AD3d 842, 844, 821 NYS2d 124, [2d Dept 2006]).

At the outset, Defendants' arguments related to the lack of testimony from an expert physician on the issue of causation have been retracted by the Defendants upon learning of the testimony of Plaintiff's expert, Dr. Michael Finkelstein. The Court will not address the Defendant's arguments set forth in the reply affirmation on any deficiency with Dr. Finkelstein's testimony, since they are improperly set forth for the first time in the reply affirmation.

Here, Plaintiff adduced legally sufficient proof to establish a claim under Public Health Law §2801-d and for negligence. The Plaintiff's expert, Dr. Finkelstein, opined that the nursing care was insufficient in turning and positioning the patient in causing the pressure ulcers to worsen and ultimately resulted in Plaintiff's decedent's death. Plaintiff's nursing expert, Nurse Underwood, echoed the opinion of Dr. Finkelstein on the nursing care also noting the lack of experience of the treating nurse in wound care. The testimony was sufficient to show negligence by the nursing staff and also violations of 42 CFR 483.10, 42 CFR 483.24, 42 CFR 483.25, and 42 CFR 483.35, concerning pressure ulcers and violations of Plaintiff's decedent's rights. Although the Defendants' nursing and physician experts opined to the contrary, the jury was entitled to resolve the conflicting expert testimony in the Plaintiff's favor. (See Larkin v Wagner, 170 AD3d at 1148).

In the same manner, the jury heard the testimony of treating Nurse Butler, including her lack of qualifications in wound care at the time of her care of Plaintiff's decedent. The jury heard testimony from the family members of the various incidents which occurred while Plaintiff's decedent was a resident impacting his right to retain his personal possessions and clothing, to his quality of life, and dignified existence. Based upon the foregoing, it cannot be said that there was no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury based on the evidence presented at trial. The motion to set aside the jury verdict and dismiss the case is DENIED.

"The standard to be applied on a challenge to a jury verdict in favor of a defendant as contrary to the weight of the evidence is whether the evidence so preponderates in the plaintiff's favor that the verdict could not have been reached upon any fair interpretation of the evidence." (Hervey v Northern Westchester Hosp., 238 AD3d 1117, 1119, 236 NYS3d 208 [2d Dept 2025] quoting Roseingrave v Massapequa Gen. Hosp., 298 AD2d 377, 379-380, 751 NYS218 [2d Dept 2002). "Whether the jury verdict should be set aside as contrary to the weight of the evidence [*5]does not involve a question of law, but rather requires a discretionary balancing of many factors." (Nicastro v Park, 113 AD2d 129, 133, 495 NYS2d 184 [2d Dept 1985]). "The determination that a verdict is contrary to the weight of the evidence 'is itself a factual determination based on the reviewing court's conclusion that the original trier of fact has incorrectly assessed the evidence.'" (Mancellari v Church of Ascension, 188 AD3d 1031, 1031, 132 NYS3d 669 [2d Dept 2020] quoting Cohen v Hallmark Cards, 45 NY2d 493, 498, 382 NE2d 1145, 410 NYS2d 282 [1978]).

The discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution. (See Pecoraro v Tribuzio, 212 AD3d 646, 647, 182 NYS3d 175 [2d Dept 2023]). "Where the parties present conflicting expert testimony, the jury is entitled to accept one expert's opinion and reject that of another expert, and its resolution of the conflicting testimony is entitled to great weight on appeal." (Lewis v Vertex Constr. Corp., 170 AD3d 990, 991, 96 NYS3d 598 [2d Dept 2019]). As stated, there was sufficient evidence presented at trial from which a jury could determine that there were violations of the Public Health Law and negligence. The request to set aside the verdict as against the weight of the evidence is DENIED.

Defendants request that the award of damages be reduced or set aside and grant a new trial on damages. In determining if an award materially deviates from reasonable compensation, the Court looks to what awards have been previously upheld or reduced on appellate review and decide whether the instant award falls within those boundaries. (See Donlon v City of New York, 284 AD2d 13, 727 NYS2d 94 [1st Dept 2001]). "Since the inherently subjective nature of noneconomic awards cannot produce mathematically precise results, the 'reasonableness' of compensation must be measured against the relevant precedent of comparable cases." (Turuseta v Wyassup-Laurel Glen Corp., 91 AD3d 632, 634, 937 NYS2d 240 [2d Dept 2012]).

The jury awarded $2,000,000.00 for the violations of the Public Health Law §2801-d and specifically violations of 42 CFR 483.10, 42 CFR 483.24, 42 CFR 483.25, and 42 CFR 483.35. The jury further award $1,000,000.00 for violations of the Public Health Law §2801-d causing the death of Plaintiff's decedent. Public Health Law §2801-d(1) provides for damages including, but not limited to, "physical harm to a patient, emotional harm to a patient; death of a patient; and financial loss to a patient." (NY Public Health Law 2801-d [1]). Defendants present no Appellate Division case law on the issue of Public Health Law damages to compare. Defendants rely on two Supreme Court cases in support of their motion to reduce the damages.

Defendants rely on Rosenblatt v Center for Nursing & Rehabilitation, Inc., 70 Misc 3d 1220(A), 140 NYS3d 396 (Sup. Ct. Kings Co. 2021). In Rosenblatt, the jury found Public Health Law violation based on the resident developing pressure sores for a period of approximately ten months from the formation up to the date of death. The jury awarded plaintiff $3,000,000.00 in damages. The Supreme Court reduced the award to $700,000.00 for compensatory damages for the injuries sustained as a result of the defendant's violation of Public Health Law §2801-d.

Defendants also rely on Paylor v The New York Community Hospital of Brooklyn, Inc., a Supreme Court Bronx County case, Index No. 22589/2014. Paylor involved a 78-year-old woman who suffered multiple pressure ulcers and had several co-morbidities. The jury awarded $1,500,000.00 to plaintiff which the Supreme Court reduced to $650,000.00 (not the $288,935.00 stated by the Defendant) in an Order dated August 2, 2019. The other cases, Patterson v Montefiore Medical Center, Index No. 303916/2010 and Ivey, Estate of v Jewish Home & Hospital for the Aged, Index No. 18057/03, cited in support of Defendants' motion [*6]could not be found on NYSCEF and are not attached as exhibits to the motion.

A cause of action or negligence is separate and distinct from, and involves considerations different from, a cause of action to recover damages for deprivation of rights pursuant to Public Health Law §2801-d. (See Sullivan v Our Lady of Consolation Geriatric Care Ctr., 60 AD3d 663,665, 875 NYS2d 116 [2d Dept 2009]). The damages awarded for past pain and suffering from a negligence claim are distinct from the violations of the Public Health Law and are not considered comparable cases to determine excessiveness of the jury award on the Public Health Law §2801-d claim. The parties recite cases pertaining to negligence claims in terms of the award for pain and suffering. Alvarez v Beth Abraham Health Servs., 101 AD3d 647, 9555 NYS2d 872 (1st Dept 2012), relied on by Defendants, involved a jury award for past pain and suffering of $500,000.00 and $250,000.00 for future pain and suffering. The award was sustained based on the "relatively young age, and in light of the evidence that his ulcer may reopen in the future." There is no indication that the award was made based on a violation of Public Health Law.

Plaintiff relies on Parson v Interfaith Med. Ctr., 267 AD2d 367, 700 NYS2d 224 (2d Dept 1999), where the award for pain and suffering for negligent nursing practices was a substantial factor in the development of numerous bed sores resulting in the death. The Appellate Division reduced the award for pain and suffering from $1,000,000.00 to $400,000.00. In Messina v Staten Is. Univ. Hosp., 121 AD3d 868, 994 NYS2d 373 (2d Dept 2014), also a nursing malpractice case, the Appellate Division upheld the award for past pain and suffering in the amount of 1,000,000.00 and $1,992,000.00 for further pain and suffering. The nature and extent of the bedsore injuries are not elaborated in the Appellate Division or Supreme Court Order. (See Messina v Staten Is. Univ. Hosp., 2012 NY Slip Op 33636 [Sup Ct. Richmond Co. 2012]). The case did not involve violations of Public Health Law.

Plaintiff further relies on Jump v Farcelle, 292 AD2d 501, 739 NYS2d 730 (2d Dept 2002), a medical malpractice action involving surgery and subsequent treatment related to the plaintiff's decedent's colorectal cancer diagnosis. The jury awarded $1,300,000.00 for past pain and suffering which the Appellate Division upheld in light of the nature of the pain and suffering endured by the patient for the eight months he was hospitalized prior to his death. Plaintiff further argues that an award for pain and suffering even of a short duration has been sustained for $1,000,000.00 in Twersky v Busche, 37 AD3d 704, 830 NYS2d 725 (2d Dept 2007), involving a pedestrian motor vehicle accident where the plaintiff's decedent sustained severe injuries on impact, and expert proof established that the decedent had a two and one half hour period of consciousness where decedent experienced considerable pain.

Defendants agree that there is no authority in New York that prohibits damages based on a violation of Public Health Law §2801-d and damages for pain and suffering based upon a claim for nursing negligence. In fact, the Appellate Division has confirmed that these claims are separate and distinct. It is also of note that the damages for a violation of the Public Health Law §2801-d are stated in the statute. Damages for a negligence cause of action are also firmly established tort law. Public Health Law §2801-d(4) specifically states "[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, the patient's legal representative, or the patient's estate at law or in equity or by administrative proceedings, including tort causes of action, and may be granted regardless of whether such other remedies are available or sought." On the face of the statute, the legislature contemplated recovery under the Public Health Law with its specified injuries of physical harm, emotional [*7]harm, death and financial loss. (See NY Public Health Law §2801-d [1]. There is no legal basis in which to determine that the damages awarded by the jury for the violation of Public Health Law §2801-d and for nursing malpractice are duplicative of one another.

The Court will not disturb the jury awards for violations of the Public Health Law. The jury heard testimony and saw evidence during the trial of not just the pressure wounds that developed but also the conditions that Plaintiff's decedent lived in that threatened his dignity. Defendants addressed the pressure wounds in this motion, but did not address the other multiple violations of the federal regulations found by the jury to exist at South Shore.

As to the Public Health Law §2801-d(2), punitive damages award the statute states in relevant part, "where the deprivation of any such right or benefit is found to have been willful or in reckless disregard of the lawful rights of the patient, punitive damages may be assessed." Public Health Law §2801-d(2)does not provide direction as to an amount to award for punitive damages. The violation of rights must be "so flagrant as to transcend mere carelessness" (Zabas v Kard, 194 AD2d 784, 784, 599 NYS2d 832 [2d Dept 1992]). Based on the evidence presented here, reviewing the evidence in the light most favorable to the non-moving party, the jury reasonably found, under the circumstances, that the Defendants' multiple instances of violations of the regulations warranted an award of punitive damages. The evidence presented reflected not only the negligent treatment of the pressure ulcers resulting in death but showed instances where Plaintiff's decedent's dignity was compromised that was not based on mere carelessness, but rather persistent instances that support the jury's punitive damages award.

This Court finds that the $1,000,000 jury award for past pain and suffering based on nursing negligence is reasonable compensation. The Appellate Division case law relied on by the parties are older, however are comparable enough to serve as a guide to reasonable compensation. The parties are in agreement that Plaintiff's decedent had pressure wounds over the course of approximately nine months in varying degrees. It is also undisputed that Plaintiff's decedent had underlying co-morbidities which played a role in his healing process. Taking these factors into consideration, the jury award does not materially deviate from what would be reasonable compensation.

Defendants' motion seeking to set aside the verdict based on the admission of the photograph of the sacral pressure ulcer is DENIED. A motion pursuant to CPLR §4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. (See Allen v Uh, 82 AD3d 1025, 1025, 919 NYS2d 179 [2d Dept 2011]). "The trial court must decide whether substantial justice has been done and must look to common sense of fairness in arriving at a decision." (Allen v Uh, 82 AD3d at 1025). Defendants refer to the photograph as an autopsy photograph which is incorrect. Diane Terracciano testified at trial that the photograph of Plaintiff's decedent's wound on his back was taken at the hospital after he died on the date of his death by Diane Terracciano. Admitting the photograph into evidence to document the extent of the wound at the time of Plaintiff's decedent's death, did not unfairly prejudice Defendants.

Accordingly, it is hereby

ORDERED, that the branch of Defendants' motion pursuant to CPLR §4404(a) to set aside the jury's verdict and dismiss the case is DENIED; and it is further

ORDERED, that the branch of Defendants' motion pursuant to CPLR §4404(a) to set aside the jury's verdict as against the weight of the evidence and directing a new trial is [*8]DENIED; and it is further

ORDERED, that the branch of Defendants' motion pursuant to CPLR §4404(a) to vacate the jury's award is DENIED; and it is further

ORDERED, that the branch of Defendants' motion pursuant to CPLR §4404(a) to reduce the jury's award or order a new trial as to damages is DENIED; and it is further

ORDERED, that the branch of Defendants' motion to set aside the jury verdict on the grounds that post-death autopsy photos were improperly submitted to the jury and unduly prejudiced the Defendants is DENIED.

All relief not specifically granted herein is DENIED.

This constitutes the Decision and Order of this Court.