MUHLSTOCK v. HEBREW HOME FOR AGED AT RIVERDALE (2024)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered July 31, 2023, which granted defendant's motion for partial summary judgment dismissing plaintiff's gross negligence claim and corresponding demand for punitive damages, unanimously affirmed, without costs.

Plaintiff's decedent resided at defendant facility from 2005 to 2012 while suffering from dementia with depression, questionable Lewy Body versus Alzheimer's disease, Parkinson's disease, tremors, seizure disorder, and hypertension.  While decedent fell in excess of 20 times during the years he resided at defendant facility, the records reflect that as his condition deteriorated, his fall risk protocols were progressively increased until, at the time of his death, he was in the dementia unit and on close supervision such that he would be placed during waking hours in the vicinity of the nurse's station for supervision.  Although the experts disagree as to whether additional safety devices could have been effective and whether one-on-one supervision should have been implemented, defendant's failure to take such measures cannot be considered willful conduct that evidences a high degree of moral culpability so as to support a claim of punitive damages (see Charell v. Gonzalez, 251 A.D.2d 72, 73, 673 N.Y.S.2d 685 [1st Dept. 1998], lv denied 92 N.Y.2d 816, 684 N.Y.S.2d 187, 706 N.E.2d 1211 [1998];  see also Schiffer v. Speaker, 36 A.D.3d 520, 521, 828 N.Y.S.2d 363 [1st Dept. 2007];  compare Hairston v. Liberty Behav. Mgmt. Corp., 138 A.D.3d 467, 29 N.Y.S.3d 310 [1st Dept. 2016];  Graham v. Columbia-Presbyt. Med. Ctr., 185 A.D.2d 753, 588 N.Y.S.2d 2 [1st Dept. 1992]).

We have considered plaintiff's remaining arguments and find them unavailing.