| Gold v Park Ave. Extended Care Ctr. Corp. |
| 2011 NY Slip Op 09270 [90 AD3d 833] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Robert Gold, Appellant, v Park Avenue Extended CareCenter Corp., Respondent. |
—[*1] Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), forrespondent.
In an action to recover damages for the deprivation of rights pursuant to Public Health Law§ 2801-d, medical malpractice, and gross negligence, the plaintiff appeals from a judgmentof the Supreme Court, Nassau County (Adams, J.), entered June 21, 2010, which, upon so muchof an order of the same court entered May 26, 2010, as granted that branch of the defendant'smotion which was for summary judgment dismissing the complaint, is in favor of the defendantand against him dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff's second cause of action, purportedly to recover damages for negligence,actually sounds in medical malpractice (see Scott v Uljanov, 74 NY2d 673, 675 [1989];D'Elia v Menorah Home & Hosp. for theAged & Infirm, 51 AD3d 848, 850-851 [2008]; Caso v St. Francis Hosp., 34 AD3d 714, 715 [2006]; Raus vWhite Plains Hosp., 156 AD2d 354, 354-355 [1989]; cf. Weiner v Lenox Hill Hosp.,88 NY2d 784, 788 [1996]). Since the complaint concerns the treatment of the plaintiff's decedentat the defendant's facility from June 4, 2004, to June 17, 2004, and the instant action wascommenced on June 11, 2007, the second cause of action is time-barred by the 2½-yearstatute of limitations for a cause of action sounding in medical malpractice (see CPLR214-a).
Liability under the Public Health Law "contemplates injury to the patient caused by thedeprivation of a right conferred by contract, statute, regulation, code or rule, subject to thedefense that the 'facility exercised all care reasonably necessary to prevent and limit thedeprivation and injury to the patient,' " and claims brought pursuant to this statute are governedby the three-year statute of limitations (Zeides v Hebrew Home for Aged at Riverdale,300 AD2d 178, 179 [2002], quoting Public Health Law § 2801-d [1], [2]; seeCPLR 214 [2]; Leclaire v FortHudson Nursing Home, Inc., 52 AD3d 1101, 1102 [2008]; see also Sullivan v Our Lady ofConsolation Geriatric Care Ctr., 60 AD3d 663, 665 [2009]). The defendant establishedits prima facie entitlement to judgment as a matter of law on that branch of its motion which wasfor summary judgment dismissing the first cause of action, which is based on Public Health Law§ 2801-d. The defendant submitted the affirmation of its expert physician, who opined thatthe defendant did not violate the various federal and state [*2]regulations set forth in the plaintiff's bill of particulars as the basisfor this cause of action, and that even if any regulations were violated, none of the allegedinjuries was proximately caused by these violations (see Public Health Law §2801-d [1]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition,the plaintiff failed to raise a triable issue of fact, as the affidavits of his experts offeredconclusory and unsubstantiated allegations of violations of the subject regulations (seeAlvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Graziano v Cooling, 79 AD3d 803, 804-805 [2010]; seegenerally Sullivan v Our Lady of Consolation Geriatric Care Ctr., 60 AD3d at 665).
The defendant also established its prima facie entitlement to judgment as a matter of lawdismissing the third cause of action, which sought to recover damages for gross negligence,through the affidavit of its expert physician and the records of the plaintiff's decedent from herresidency at the defendant's facility, which showed "the absence of any conduct that could beviewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard ofthe rights of others" (Everett v LorettoAdult Community, Inc., 32 AD3d 1273, 1274 [2006]; see Anzolone v Long Is. Care Ctr., Inc.,26 AD3d 449, 450-451 [2006]). In opposition, the plaintiff failed to raise a triable issue offact, as the expert affidavit relied upon by the plaintiff in opposition to that branch of thedefendant's motion offered conclusory and unsubstantiated allegations of gross negligence(see Alvarez v Prospect Hosp., 68 NY2d at 325; Zuckerman v City of New York,49 NY2d at 562; Graziano v Cooling, 79 AD3d at 804-805).
Accordingly, the Supreme Court properly granted that branch of the defendant's motionwhich was for summary judgment dismissing the complaint. Skelos, J.P., Leventhal, Belen andRoman, JJ., concur. [Prior Case History: 2010 NY Slip Op 31376(U).]