BLAKE v. HIGHLANDS AT BRIGHTON (2022)

Plaintiff Ann Robinson Blake as Administratrix for her decedent Jane A. Robinson (hereinafter “Plaintiff”) initiated this action against The Highlands at Brighton (hereinafter “Defendant Highlands”), The Meadows at Westfall, Inc., and University of Rochester Medical Center alleging various causes of action related to Plaintiff's care while a patient and resident of the Defendants. Relevant to the issues herein, Plaintiff has alleged in their third cause of action that the Defendants deprived Plaintiff of her rights and benefits pursuant to Public Health Law §§ 2801-d and 2803-c while she was a resident of the Defendants’ residential health care facility, and that punitive damages are warranted.

Plaintiff, while a resident of Defendant Highlands fell while walking and being assisted by Defendant Highlands’ employee, Lynecia Henderson. Plaintiffs assert that Defendant Highlands was negligent and reckless, deviating from the accepted standards of care, and Plaintiff's fall (and resultant injuries) was a direct result.

Before the Court is the Defendants’ motion for summary judgment pursuant to CPLR 3212 seeking to dismiss the Plaintiff's complaint. For the reasons that follow, Defendants’ motion for an order granting summary judgment as to the request for punitive damages is GRANTED; as to the remaining causes of action, summary judgment is DENIED.

When considering a summary judgment motion “the proponent ․ must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” necessitating a trial. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; CPLR 3212(b).) Proof offered by the moving party must be in admissible form. (See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Dix v Pines Hotel, Inc., 188 AD2d 1007 [4th Dept 1992].) And once a prima facie showing has been made “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez, 68 NY2d at 324; see also, Mortillaro v Rochester Gen. Hosp., 94 AD3d 1497, 1499 [4th Dept. 2012].)

In support of their motion, the Defendants present, among other things ¹ , the affidavit of Cathy Ciolek.² Ms. Ciolek has her doctorate in physical therapy, and has sufficient qualifications as an expert.³ She opined that Plaintiff was physically able to ambulate and that the “stand-by-assist” used by the Defendants was appropriate. She further opined that a heightened level of assistance would have been unnecessary and negatively impacted Plaintiff's quality of life. Relevant to the issues herein, she determined that Defendant Highlands’ employee, Lynecia Henderson, was “appropriately performing a stand-by-assist with [Plaintiff]”. Finally, she opined that the care provided to Plaintiff was within the standard of care. (NYSCEF #31 at ¶¶ 4-19.)

Plaintiff counters the Defendants’ evidentiary showing with the expert affidavit of Patricia E. Nowakowski. Ms. Nowakowski has a master's degree in Advanced Orthopedic Physical Therapy and a doctorate in counselor education-rehabilitation, and has sufficient qualifications as an expert.⁴ She opined in her affidavit that Defendants deviated from the accepted standards of care in failing to assess Plaintiff's risk of falling, adjusting her care plan accordingly, and in failing to take proper precautions to avoid the fall that lead to Plaintiff's injuries. (NYSCEF # 28 at 9-10; 44-72.)

In light of the conflicting expert opinions, there exists a quintessential battle of the experts and such battles are best left for a jury's resolution and not this Court on papers. “Where, as here, a nonmovant's expert affidavit ‘squarely opposes’ the affirmation of the moving parties’ expert, the result is ‘a classic battle of the experts that is properly left to a jury for resolution’ ” (Mason v Adhikary, 159 AD3d 1438, 1439 [4th Dept 2018]). (Nowelle B. v. Hamilton Med., Inc., 177 AD3d 1256, 1258, [4th Dept. 2019].) Thus, on this record and assuming arguendo that Defendants have met their prima facie burden establishing entitlement to summary judgment as a matter of law, Plaintiff raised triable issues of fact in response, with the exception being her claim for punitive damages.

Public Health Law § 2801-d establishes liability against a residential health care facility that deprives any patient therein of any right or benefit resulting in injury. “In addition, 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].)

Upon a review of the evidence in the light most favorable to the Plaintiff, it cannot be said the Defendants’ actions were either willful or in reckless disregard such that punitive damages are warranted.

Plaintiff was assessed by Defendant Highlands to need “stand by assist” while ambulating. This determination was done after several assessments that occurred immediately prior to the date of her fall. (NYSCEF # 36 at 25, 25; NYSCEF # 34 at 22-23, 25). While a resident at Defendant Highlands, Plaintiff's bed and chair were affixed with alarms to notify staff if Plaintiff began to walk unaccompanied. On the day in question, Plaintiff's alarm activated and Defendant Highlands’ employee, Lynecia Henderson, began assisting Plaintiff as she walked down the hall.⁵ Plaintiff fell during the walk, hitting her head on a scale, suffering injuries.

Plaintiff, through her expert, argues that the Defendants’ failed to adequately assess Plaintiff's needs while ambulating, and that instead of a “stand by assist” Defendants should have employed “contact guard assistance”. Plaintiff's expert opines that the assessment Plaintiff needed only “stand by assist” was negligent and “recklessly inefficient” and “recklessly” placed Plaintiff at risk of falling.⁶ She also argues that Defendant Highlands’ employee, Lynecia Henderson, incorrectly performed the stand-by assist measure, and as she was not looking at Plaintiff and did not stop her from falling, she deviated from the standards of care.⁷

Even in the light most favorable to the Plaintiff, it cannot be said that the actions of the Defendants were “willful” or done in “reckless disregard” of the Plaintiff's rights.

Public Health Law § 2801-d does not define “willful” or “reckless disregard”, nor are those terms defined in the definitional statute of Article 28 of the Public Health Law. (PHL § 2801.) As noted by the Court in Holder v. Menorah Home & Hosp. for Aged & Infirm: “[i]n addressing the similar reckless disregard standard imposed under Vehicle and Traffic Law § 1104(e), which protects drivers of emergency vehicles, the Court of Appeals has stated: ‘This standard demands more than a showing of a lack of “due care under the circumstances,”—the showing typically associated with ordinary negligence claims. It requires evidence that “the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” and has done so with conscious indifference to the outcome (Saarinen v. Kerr, 84 NY2d 494, 501 [1994] [quoting Prossor and Keeton, Torts § 34, at 213 (5th ed.)])’. (Holder v. Menorah Home & Hosp. for Aged & Infirm, 36 Misc 3d 1210(A), 954 N.Y.S.2d 759 [Sup. Ct. 2011].)

This Court concurs with the Court in Holder v. Menorah Home & Hospital for Aged & Infirm, supra, that “reckless disregard” under PHL § 2801-d requires more than ordinary negligence. Instead, “reckless disregard” is akin to “gross negligence”. Plaintiff must establish that Defendants were either “willful” or that Defendants’ actions were in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow. (Saarinen v. Kerr, 84 NY2d 494, 501 [1994].) Thus, to defeat summary judgment on the issue of whether punitive damages are possible, Plaintiff must establish that there is a triable issue of fact as to whether Defendants failed to appropriately assess Plaintiff's risk of falling while ambulating, and that the failure was so significant that it was highly probably Plaintiff would suffer harm. This Plaintiff failed to do.

Certainly, the Defendants’ actions were not in “willful” disregard to the risk of falling. Defendants repeatedly assessed Plaintiff's physical therapy needs while walking to evaluate the appropriate level of assistance. Thus, it cannot be said Defendants willfully disregarded the risk of harm to Plaintiff, even in the light most favorable to Plaintiff. Defendants’ agent, Lynecia Henderson, was possibly negligent, but her actions were certainly not in willful disregard of the risk of falling.

Furthermore, despite Plaintiff's expert's characterization of Defendants’ actions as “reckless”, nowhere in her affidavit are there allegations that Defendants’ multiple assessments (determining only stand by assist was necessary) were a gross deviation from the standards of care. Absent the assertion of this opinion, Plaintiff's expert conclusions sound in negligence only, a standard below “reckless disregard”. “Gross negligence involves a reckless disregard for the rights of others, bordering on intentional wrongdoing (see Lemoine v. Cornell Univ., 2 AD3d 1017, 1020, 769 N.Y.S.2d 313 [2003], lv. denied 2 NY3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912 [2004]; Sutton Park Dev. Corp. v. Guerin & Guerin Agency, 297 AD2d 430, 431, 745 N.Y.S.2d 622 [2002]).” (Haire v. Bonelli, 57 AD3d 1354, 1358 [2008]; see also Fed. Ins. Co. v. Automatic Burglar Alarm Corp., 208 AD2d 495, 496, [2nd Dept. 1994]: “[w]hen used in this context, grossly negligent conduct is conduct that evinces a reckless disregard for the rights of others or that smacks of intentional wrongdoing (see, Colnaghi, U.S.A. v. Jewelers Protection Servs., supra, 81 NY2d at 823—824, 595 N.Y.S.2d 381, 611 N.E.2d 282; see also, Sommer v. Federal Signal Corp., supra, 79 NY2d at 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365)”.)

Here, Defendants’ actions — in the light most favorable to the Plaintiff — were, at most, negligent, and do not support punitive damages under Public Health Law § 2801-d. (See e.g., Valensi v. Park Avenue Operating Co, LLC, 169 AD3d 960 [2nd Dept. 2019]; Vissichelli v. Glen-Haven Residential Health Care Facility, Inc., 136 AD3d 1021, 1023 [2nd Dept. 2016] [“the court properly determined that the defendants met their initial burden by establishing “the absence of any conduct that could be viewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others”]; Gauger v. Ghaffari, M.D., 8 AD3d 968 [4th Dept. 2004].)

Based upon the foregoing, it is hereby

ORDERED, that Defendants’ motion for summary judgment pursuant to CPLR 3212 is GRANTED as to the claim for punitive damages, and it is further

ORDERED, that Defendants’ motion for summary judgment dismissing all causes of action is DENIED.

This constitutes the Decision and Order of the Court.

FOOTNOTES

1.   Defendants submitted, in addition to the affidavit of Cathy Ciolek (NYSCEF #31), the Summons and Complaint (NYSCEF # 23), the Answer (NYSCEF # 24), Plaintiff's Bill of Particulars (NYSCEF # 26); Plaintiff medical records (NYSCEF # 27, 28), Deborah Harris’ EBT transcript (NYSCEF # 29), and Lynecia Henderson's EBT transcript (NYSCEF # 30).

2.   Plaintiff argues that Ms. Ciolek's affidavit is inadmissible as it was not properly authenticated, having been affirmed in the State of Delaware and lacked a certificate of conformity pursuant to CPLR § 2309. The Court shall exercise its discretion to deem the affidavit admissible, and shall consider Ms. Ciolek's affidavit in determining the issues herein. (See Edwards v. Myers, 180 AD3d 1350 [4th Dept. 2020]; Stiso v. Berlin, 176 AD3d 388 [2nd Dept. 2019].)

3.   Cathy Ciolek Affidavit (NYSCEF #31) at paragraphs 1-2.

4.   Patricia E. Nowakowski Affidavit (NYSCEF # 38) at paragraphs 1-5.

5.   These material facts were not contested by Plaintiff. (NYSCEF # 34 at 27-28.)

6.   NYSCEF #38 at paragraph 52.

7.   Although not dispositive, Plaintiff's expert did not characterize Ms. Henderson's actions as “reckless”.

Daniel J. Doyle, J.