| Sullivan v Our Lady of Consolation Geriatric Care Ctr. |
| 2009 NY Slip Op 01637 [60 AD3d 663] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 42—James D. Sullivan,Respondent-Appellant, v Our Lady of Consolation Geriatric Care Center,Appellant-Respondent. |
—[*1] Parker Waichman Alonso, LLP (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E.DiJoseph III], of counsel), for respondent-appellant.
In an action, inter alia, to recover damages for deprivation of rights pursuant to Public HealthLaw § 2801-d and for negligence, the defendant appeals, by permission and as limited byits brief, from so much of an order of the Supreme Court, Suffolk County (Berler, J.), datedDecember 15, 2006, as, in effect, granted that branch of the plaintiff's oral application pursuantto CPLR 4401 which was for judgment as a matter of law on the cause of action to recoverdamages for negligence to the extent of directing a new trial on that cause of action, and grantedthose branches of the plaintiff's separate oral application pursuant to CPLR 4404 (a) which wereto set aside, as contrary to the weight of the evidence, the jury verdict as to the fourth throughseventh interrogatories propounded to the jury, relating to the cause of action to recover damagesfor deprivation of rights pursuant to Public Health Law § 2801-d and for a new trial withrespect thereto, and the plaintiff cross-appeals, by permission and as limited by his brief, from somuch of the same order as, in effect, denied that branch of his application pursuant to CPLR4401 which was for judgment as a matter of law on the cause of action to recover damages fordeprivation of rights pursuant to Public Health Law § 2801-d insofar as it was predicatedon the second through seventh interrogatories propounded to the jury, and granted that branch ofthat application which was for judgment as a matter of law with regard to the [*2]cause of action to recover damages for negligence only to theextent of directing a new trial on that cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the plaintiff's application pursuant to CPLR 4404 (a) which were to set aside,as contrary to the weight of the evidence, the jury verdict as to the fourth through seventhinterrogatories propounded to the jury, and substituting therefor a provision denying thosebranches of the application; as so modified, the order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements, the jury verdict as to the fourth throughseventh interrogatories propounded to the jury is reinstated, and the matter is remitted to theSupreme Court, Suffolk County, for a new trial in accordance herewith.
From May 7, 1998, to the date of her death, the plaintiff's decedent, an elderly, disabledwoman, was a resident at the defendant, Our Lady of Consolation Geriatric Care Center, aresidential health care facility. Alleging that the decedent sustained certain injuries while in thedefendant's care, the plaintiff set forth causes of action to recover damages, inter alia, fordeprivation of rights pursuant to Public Health Law § 2801-d and negligence.
The matter proceeded to a jury trial. In rendering its verdict, the jury answered certaininterrogatories relating to the cause of action to recover damages for deprivation of rightspursuant to Public Health Law § 2801-d.
In the second through sixth interrogatories, the jury found, in essence, that the defendant didnot violate certain Federal and State regulations and, thus, did not deprive the plaintiff's decedentof the rights and benefits those regulations created or established for her well-being (seePublic Health Law § 2801-d [1]). In contrast, in the first interrogatory, the jury found,in essence, that the defendant violated a particular Federal regulation requiring long-term carefacilities to "ensure" that "[e]ach resident receives adequate supervision and assistance devices toprevent accidents" (42 CFR 483.25 [h] [2]) and, thus, deprived the plaintiff's decedent of therights and benefits the regulation created or established for her well-being. However, in theseventh interrogatory, the jury found, in essence, that there were no "injuries suffered" by thedecedent "as a result of said deprivation" (Public Health Law § 2801-d [1]).
In the order appealed from, the Supreme Court, inter alia, granted those branches of theplaintiff's oral application pursuant to CPLR 4404 (a) which were to set aside, as [*3]contrary to the weight of the evidence, the jury verdict as to thefourth through seventh interrogatories and for a new trial with respect thereto. However, a juryverdict should not be set aside as against the weight of the evidence unless the jury could nothave reached the verdict on any fair interpretation of the evidence (see Nicastro v Park,113 AD2d 129, 134 [1985]) and, here, the jury's determinations that the defendant did notviolate certain regulations, and did not cause the decedent to suffer any injuries by violating aparticular regulation, were based upon a fair interpretation of the evidence. Accordingly, thosedeterminations should not have been disturbed (see Bobek v Crystal, 291 AD2d 521,522-523 [2002]).
However, under the circumstances, we conclude, as did the Supreme Court, that a new trialmust be held on the cause of action to recover damages for negligence, which was neversubmitted to the jury for its determination. Such a cause of action is separate and distinct from,and involves considerations different from, a cause of action to recover damages for deprivationof rights pursuant to Public Health Law § 2801-d (cf. Public Health Law §2801-d [4]; Doe v Westfall Health Care Ctr., 303 AD2d 102, 111-112 [2002]; Zeidesv Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179 [2002]). For that reason, weemphasize that the reinstated jury verdict, pertaining only to the cause of action to recoverdamages for deprivation of rights pursuant to Public Health Law § 2801-d, has nopreclusive effect with respect to the issues to be litigated and determined at the new trial,namely, whether the defendant was negligent, whether the defendant's negligence, if any, was aproximate cause of the decedent's alleged injuries, and the amount of the decedent's damages, ifany (see generally People v Evans, 94 NY2d 499, 502 [2000]).
The plaintiff's contention that a particular trial ruling was erroneous is not properly beforethis Court (see Bernard v Magliore, 304 AD2d 781 [2003]; Kiersh v Kiersh, 222AD2d 411 [1995]; see also Kopstein v City of New York, 87 AD2d 547 [1982]).
The parties' remaining contentions are without merit. Skelos, J.P., Dillon, Santucci andCovello, JJ., concur.