| Vissichelli v Glen-Haven Residential Health Care Facility,Inc. |
| 2016 NY Slip Op 01317 [136 AD3d 1021] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Louis Vissichelli, Jr., as Executor of Louis Vissichelli,Deceased, Appellant-Respondent, v Glen-Haven Residential Health CareFacility, Inc., et al., Respondents-Appellants. |
Parker Waichman, LLP, Port Washington, NY (Jay L. T. Breakstone and Andrew B.Federman of counsel), for appellant-respondent.
Kaufman Borgeest & Ryan LLP, Valhalla, NY (Arshia Hourizadeh andJacqueline Mandell of counsel), for respondents-appellants.
In an action to recover damages for negligence, gross negligence, wrongful death,and violations of Public Health Law § 2801-d, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Nassau County(Jaeger, J.), entered June 3, 2013, as granted those branches of the defendants' motionwhich were for summary judgment dismissing, as time-barred, the causes of actionalleging negligence, gross negligence, and violations of Public Health Law§ 2801-d insofar as they relate to care provided to the plaintiff's decedentprior to August 22, 2006, and for summary judgment dismissing the causes of actionalleging gross negligence and wrongful death insofar as they relate to care provided tothe plaintiff's decedent on or after August 22, 2006, and the claim for punitive damages,and the defendants cross-appeal from so much of the same order as denied that branch oftheir motion which was for summary judgment dismissing the causes of action allegingnegligence and violations of Public Health Law § 2801-d insofar as theyrelate to care provided to the plaintiff's decedent on or after August 22, 2006, withrespect to "pressure sores, malnutrition, or dehydration."
Ordered that the order is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
The plaintiff's decedent was a resident at the defendants' residential health carefacility for approximately five years prior to being hospitalized at North Shore UniversityHospital at Glen Cove, where he subsequently died. The plaintiff commenced this actionalleging negligence, gross negligence, wrongful death, and violations of Public HealthLaw § 2801-d, as well as a claim for punitive damages. The defendantsanswered and subsequently moved, inter alia, for summary judgment dismissing thecomplaint or, alternatively, for summary judgment dismissing certain causes of action astime-barred.
On a motion to dismiss on statute of limitations grounds, the moving defendant hasthe initial burden of establishing, prima facie, that the time in which to sue has expired(see Tsafatinos v Law Off. ofSanford F. Young, P.C., 121 AD3d 969 [2014]; Lake v New York Hosp. Med. Ctr.of Queens, 119 AD3d 843 [2014]; Matter of Chung Li, 95 AD3d 881 [2012]). If the defendantmeets that burden, [*2]the burden then shifts to thenonmoving plaintiff to raise a triable issue of fact as to the applicability of an exceptionto the statute of limitations, as to whether the statute of limitations was tolled, or as towhether the action was actually commenced within the applicable limitations period(see Xiu Jian Sun v Wuhua Jing, 136 AD3d 613 [2d Dept 2016]; AmicaMut. Ins. Co. v Kingston Oil Supply Corp., 134 AD3d 750 [2015]; Lopez v Lopez, 133 AD3d722 [2015]).
Here, the defendants established, prima facie, that the causes of action allegingnegligence, gross negligence, and violation of Public Health Law § 2801-dwere time-barred, insofar as they relate to care provided to the decedent prior to August22, 2006 (see CPLR 214 [2], [5]). In opposition, the plaintiff failed to raise atriable issue of fact as to the applicability of the "insanity" toll (see CPLR 208;Burgos v City of New York, 294 AD2d 177 [2002]; cf. Barnes v County ofOnondaga, 65 NY2d 664 [1985]; Ferreira v Maimonides Med. Ctr., 43 AD3d 856 [2007]; Schulman v Jacobowitz, 19AD3d 574 [2005]), or the continuous treatment doctrine (see Hatzfeld v State of NewYork, 104 AD3d 1165 [2013]; Teitell v County of Westchester, 277AD2d 309 [2000]; Matter of Bates v New York City Health & Hosps. Corp.,194 AD2d 422 [1993]).
Contrary to the plaintiff's contention, the Supreme Court properly granted that branchof the defendants' motion which was for summary judgment dismissing the cause ofaction alleging gross negligence insofar as it relates to care provided to the decedent onor after August 22, 2006, and the claim for punitive damages. Construing the evidence ina light most favorable to the nonmovant plaintiff (see Corvino v Mount PleasantCent. School Dist., 305 AD2d 364 [2003]), the court properly determined that thedefendants met their initial burden by establishing "the absence of any conduct that couldbe viewed as so reckless or wantonly negligent as to be the equivalent of a consciousdisregard of the rights of others" (Everett v Loretto Adult Community, Inc., 32 AD3d 1273,1274 [2006]; see Rey v Park View Nursing Home, 262 AD2d 624, 627 [1999];see also Dolphin Holdings, Ltd.v Gander & White Shipping, Inc., 122 AD3d 901, 902 [2014]; Goldstein v Carnell Assoc.,Inc., 74 AD3d 745 [2010]). In opposition, the plaintiff failed to raise a triableissue of fact (see Domoroski vSmithtown Ctr. for Rehabilitation & Nursing Care, 95 AD3d 1165 [2012];Everett v Loretto Adult Community, Inc., 32 AD3d at 1274; Lee v HealthForce, 268 AD2d 564 [2000]; Rey v Park View Nursing Home, 262 AD2d at627; see also Gold v Park Ave.Extended Care Ctr. Corp., 90 AD3d 833 [2011]; Goldstein v Carnell Assoc.,Inc., 74 AD3d at 747).
Likewise, the medical records and the affirmation of the defendants' expert weresufficient to establish the defendants' prima facie entitlement to judgment as a matter oflaw dismissing the wrongful death cause of action (see Shapiro v Gurwin Jewish Geriatric Nursing &Rehabilitation Ctr., 84 AD3d 1348 [2011]; Newport v Rogosin Inst., 71 AD3d 856 [2010]; White v Southside Hosp., 5AD3d 677 [2004]). The defendants' expert asserted that the decedent's developmentof a blood infection, MRSA, septicemia, and cardiopulmonary arrest, and ultimately hisdeath, were not proximately caused by the defendants' alleged failure to provide adequateand appropriate medical care during the relevant period, as the life-threatening infectionswith which the decedent presented upon his hospitalization "were secondary toimmunocompromise resulting from his advanced age and heavy burden of disease." Inopposition, the plaintiff's expert made only a conclusory statement that the defendants'conduct "caused and increased [the decedent's] risk of injury . . . andultimately his death" (see Craigv St. Barnabas Nursing Home, 129 AD3d 643 [2015]; Shapiro v GurwinJewish Geriatric Nursing & Rehabilitation Ctr., 84 AD3d at 1349; Anzolone v Long Is. Care Ctr.,Inc., 26 AD3d 449 [2006]; White v Southside Hosp., 5 AD3d at678-679; Estate of Mollo v Rothman, 284 AD2d 299 [2001]).
Contrary to the defendants' contention, the Supreme Court properly determined thatthey failed to establish their prima facie entitlement to judgment as matter of lawdismissing the causes of action alleging negligence and a violation of Public Health Law§ 2801-d insofar as they relate to the care provided to the decedent on orafter August 22, 2006, with respect to pressure sores. The defendants' expert failed toaddress the multiple pressure sores found on the decedent upon his hospitalization inAugust 2009, which required a wound care consult. The defendants' failure to tendersufficient evidence demonstrating the absence of triable issues of fact regarding thatclaim required denial of that branch of the motion, regardless of the opposing papers(see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851 [1985]; Stukas v [*3]Streiter, 83 AD3d18 [2011]). While the defendants established their prima facie entitlement tojudgment as a matter of law dismissing the subject causes of action insofar as they relateto their alleged failure to prevent the decedent's malnutrition and dehydration during therelevant period, the affirmation of the plaintiff's expert was sufficient to raise a triableissue of fact, thus warranting denial of summary judgment dismissing those claims (cf. Denis v ManhattanvilleRehabilitation & Health Care Ctr., LLC, 111 AD3d 406 [2013]).Chambers, J.P., Hall, Austin and Barros, JJ., concur.