Findley v. Cardiff Bay Ctr., LLC

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Findley v Cardiff Bay Ctr., LLC 2025 NY Slip Op 32310(U) June 26, 2025 Supreme Court, Kings County Docket Number: Index No. 501728/2021 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 06/30/2025 11:33 AM INDEX NO. 501728/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/30/2025

Atan IAS Trial TefIIl, Part 75 ofthe Supreme Court of the State of New York, Kings County, at the Courthouselocated at 360 Adatns Street, Brooklyn, NewYork on the 26th day of June 2025 PRESENT: HON,ANNEJ. SWERN,J.S.C.

DALTON FINDLEY, . . DECISION & ORDER P/aintiff(s), Index No.: 501728/2021

-against- .Calendar No.: 19

CARDIFF .B AY CENTER, LLC d/b/a PENINSULA Motion Seq.: 003 NURSING AND REHABILITATION CENTER,

Defendant.

Recitation ofthefollowing papers as required by CPLR·2219(a)i Papers. Numbered Notice of Motion, Affirmation, and Exhibits (NYSCEF 29-4'.3) ............ ,......... 1~ 2 Affirthatiort and Exhibits in Opposition (NYSCEF 46-54) ......................•... ........3 Reply Affirmation anci Exhibits (NYSCEF 56-57) ... ,.....,......................... ,... ....... .4

Upon the foregoing papers and after oral argument, the decision and order of the Court

is as/allows: Introduction

Plaintiff commenced this action for persona,} injuries arising out pf an accident ·

while admitted.to defendant's facility. The complaint alleges four causes of actions, The.

first aQ.d fourth cause of actfoil seek cpqipensatory and punitjve qamages unde(Public

Health Law § 2801-d [²] and attorney;s fees pursuant to § .2801-d.[⁶]; Defendant has

now moved for summary judgment dismissing the plaintiff's claims for violations ofthe

Public HealthLaw:

501728/1021 fage 1.o/7

FILED: KINGS COUNTY CLERK 06/30/2025 11:33 AM INDEX NO. 501728/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/30/2025

Footnotes

[1] of 7 [* 1] P.laintiffwas admitted tQ Lopg Island Jewish Valle.f.Stream/Northwell Health (LIJ) hospit~lfor 11 days before beingtransferred and adm.itted to defendant'sfacility on 1/11/2019. He was admitted to LIJ due to an episode of syncope, i.e., plaintiff felt lightheaded, passed ou~ and upon awakening, he felt confused. Plaintiff was classified as "High Risk of FalJing'' upon entering defendant's facility and was demonstrating difficulty rising from a chair unassisted by holding the chair's anns and could not walk unassisted (NYSCEF 41 ). Plaintiff testified that he experienced dizziness upon standing (NYSCEF 36 [p.118], Tr. p.117, 3-12). He also experienced dizziness and tremors.in his hand which prevented him from feeding himself without assistance (NYSCEF 36 (pp.144~ 14~]. Tr. pp. 143-144). Plaintiff also needed assistance with bed mobility, transfers; walking, dressing, bathing and personal hygiene (NYSCEF 41, pp.139-147). The defendant's "Hourly Resident Room Check'' records for the 11 :0.0 P~M. to 7:00 A.M. shift starting on 11/15/2019 docwnents that plaintiff was in bed at l :{lO A.M. on 1/16/2019. (NYSCEF 53, p.10) . .At l :10 a.m., plaihtiffwas found lying on the floor on his back next to his bed. Ac.cording to defendant's ac~jdent report, plai~tiffstated that "I don't know how I got on the,t}oor. I was sleeping'' (NYSCEF 53). As a res.tilt of the accident, plaintiff sustained a.fractured right humerus, traum~tic suhdural hematotna, seizures and. developed sepsis (NYSCEF 35, p.5). Plaintiff has no memory of the accident. His last memory before the.accident was receiving physical therapy and undergoing dialysis. Plaintiff learned about the accident wh~ he woke up in an emergency room with pain in bis sh.oulder. The doctor informed him that he .fell and S~J 72&/2fJ2 l Page2"f7

[2] of 7 [* 2] broke his shoulder. Later) plaintifflearned from other hospital personnei that b:e fell out ofbed. (NYSCEF 36 [pp.125-131], Tr; ppJ24-130). Expert Eviden~e: Defendant submits the expert affirmation of Lawrence Diamond,·M.D,; an attending physician at the, facility. A curriculum vitae was notprovided. The doctor states that he is Board Certified in Family and Geriatric Medicine. Based on his review of various documents, including the accid,ent report.and plaintifI's rnedical history and r~cord.s, the doctor states that during a visual check at I :00 A.M., plaintiff was observed in his bed. However, at 1:l0A.M. dui'ingtounds; plaintiff was found lying on the t1oor. The doctor opines with .reasonable degree of medical certainty that, ... throughout plaintiff's admission to Peninsula~ defendant properly acknowleciged and.fookinto consideration plaintiff's multiple co-morbid ce>nditions when developing and implementing the various care plans, which addressed him for falls. At no ,Pe>intdid the conduct of Peninsula vio1atethe Public Health Law §.2&01-"d or violate any other statute nor was there 11ny conduct that would amount to gross neglige1;1ce orwould warrant punitive damages Specifically, Peninsula properly assessed the plaintiff's cortditioh including his fall risk on admission as.well as his risk of altered endocrine/metabolic. status, .risk of hyperglycemia and hypoglycemia. (NYSCEF 32, i124-25). In opposition, plaintiff submits the affirmation; with a curdculum vitae, of Kenneth Steier; D.O. According to his curriculum vitae, the doctor holds multiple degrees, inch1ding .but not limited to Geriartrk Healthcare; and Healthcare Management. The doctor has also served as the Medical Director of hospital and nursing facilities. Based Qn his review of plaintiff's medical rec1:mjs, the doctofo_pih~$ with a reasonahl~ san21J12fJZJ Page3of7

[3] of 7 [* 3] degree of medical certainty that defondrmt failedto properly acknowledge and consider plaintiff's multiple medical conditions, and more-specifically, the reason he was admitted to the.hospital and defendant's facility; Therefore, the fall risk plan was not individualized with necessary interventions. Itis the doctor's opinion that plaintiff should have been provided with a low bed, bed alarm, bed rail and floor mats. The doctot also points out discrepancies anq missing information in plaintiffs medical records. (NYSCEF 49, 1131- Applicable.Law a) Summary Judgment When deciding a summary judginerit motion, the Court's role is solely to identify the existence ·of triable ..issues,.not to determine the merits of any such issues (Vt!ga ·v. Restani Construction Carp,; l8.NY3d 499, .- 5:05 [2012]) or the credibility ofthemovant's version of.events (see Xiang Fu He v. Troon Management, Jnc. 34 NY3d 167, 175 [2019] 1 [internal .citations omitt~d]). The C9urt views the evide11ce in the light most favorable to the nonmovfog party,. affording the norunoving party the benefit of ail reasonable infeterices that can be drawn from the evidence (See l'{egri v. Shop & Stop, Jnc., .(>5 NY2ci 625, 626 [1985]). The motion should be denied where the facts are in dispute, where <iifferent inferences rt1ay be .drawn from the evidence, or where the credibility of the \'iitnesses is in question (see Cameron v. CUy ofLong Beach, 297 AD2d 773, 774 [2d Dept. 2002]). Likewise, where tht: parties' experts disagree, the Court canl).ot resolve questi◊ns of fact or the 50172812(]2] Pag~I of?

[4] of 7 [* 4] experts' credibility upon a motion for summary judgment (Perl v; Meher, 18 NY3d 208, 217 [2011]; Rappaport v Sear Roe buck; 2& AD3d 449 [2d D~pt 1992]). b) Public Health Law Upona finding that-a patient was injured as the result of a deprivation of a right or benefit, compensatory damages shall be assessed (Public Health Law § 2801-d [2] [emphasis ~dde<l']). To avoid liability1 facility must demonstrate that it exercised 1~ an 'care reasonably necessary to prevent and limit the deprivation and injury fo.the patient" (id).. If the deprivation is found to be ''willful orin reckless gisregard ofthe lawful rights of the patient; punitive damages.may be assessed'' (Id.). tJrtder common law, the standard for imposing punitive damages in a medical malpractice action is whether defendant manifested evil or malicious con<!uct beyorid any breach of professional duty~ Such deviation ha~ also been ddirted as spite, malice, a fraudulent or evil motive , or a conscious and deliberate disregard of others constituting willful or wanton conduct (Ditpree v Giugliano, 20 NY3d 921, 924 [2012]). This iht~ntional standard does 11otapplyto claims•under Public HealthL&w ·§.2801-d [2]. Under Public Health Law § 2801-d, the.basis for imposing liability is '' neither deviation from accepted.standards <:>f medical practtce 11or breach of a duty of care. Rather, it contemplates injury to the.patient caused by the deprivation of a right conferred by contract, statute, regulation,. code orrul~ (Deitch v Sands Point Ctr. for Health & .Rehabilitcitio11, 23 7 AD3d I 043 .[2d Dept 2025] [italics added] [internal citations omitted]). Therefore; applying an intentional malicious and wanton standard of conduct for the basis ofliability is itiappropriate because the Court is bound by the plain wording S~l71W021 PazeS~/7

[5] of 7 [* 5] of Public Health Law§ 2801~d (2] thatimposes liability un:dera gross negligence standard of care, which is defined as "conduct that could be viewed as so reckless or want_o nly negligent as to be the equivalent of a conscious disregard of the rights of ___ ________________ _ others;'(Vissichel/i-v Glen-:Ha.venResidential Health -Care .Facili'ty, Inc., 136AD3d 102}, 1023 _[2d Dept 2016]). Analysis Applying the gross negligence sta,µdard; defenq.ant . established . aprimafaeie entitlement to $ummary judgment dismissing plaintift7s Public Health Law § 280 l~d [2] an<i [6] clairns. Dr. Diamond, basedon plaintiff's medicalrecqrds, established that an assessmet1t was perfo1111ed and care plan, that 1ncluded a failrisk plan, was created for plaintiff, Plaintifffailed to rebutthis pr/ma/acie showing and demonstrate the existence ofa trial .1ssue of fact as to the Public Health Law claims (VanDeVeerdonk vNorth Westchester Restorative·Therapy & Nursing Cir., 223 AD3d702, 705 [2d Dept 2024]). Tµe Court expresses no .opinion as to whetherdefendant was negligent in the assessment - and cr~adon of the care and fall risk plans as defendant'~ motion Wa$ limited solely to the Public Health Law claims; Th~refore, the deviations U1 car.e articuh:lted 1:,y plaintiff's .expert may constitute negligence and must be determined by a juzy. 1 Accordingly, i~ is hereby ORDERED that defendant's J116tiortfor an order pursuant to CPLR § 3212 granting swnmacy judgment and dismissing only plaintifrs claims under Public Health Law 1 C_ ontrary to d~f¢ndant1$ arguJTi~nt, plaintiff's expert bas. education and experience with mirsing homes (see Curriculum Viiae, NYSCEF 49, pp,15~24). The question of whether .this witness can be qualified as an expert witness at rrif!I is re(~rred to Uie trial court. · · · S01728/2~21 Page6 o/7

[6] of 7 [* 6] _§ 2801-d [2] ~d [6] are dismissed and the Clerk shall enterjudgment accordirtgly, and itis further ORDERED that defendant shall settleaJudgment on Notice, and ifisfurther ORDERED that this action shall proceed to trial on plaintiff's remaining claims. The Court has considered the parties' remaining_arguments and finds same to be without merit. This constitutes the .deci!>ion and order of the ·Court. For Cler~s use only: Anne.Jt Swern, J.S.c. MG _ _ .d: 6/2.6/2.024 MD.._ . __ Motion seq.# __ _ __ 501728/2011 .Page i,;,/7

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