Preview
FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023
STATE OF NEW YORK :
SUPREME COURT : COUNTY OF ERIE
KATHLEEN M. HAEFNER, as Administratrix of
the Estate of BARBARA J. KLOPP
Plaintiff
vs. ATTORNEY'S AFFIRMATION
Index #801465/2023
SAFIRE REHABILITATION OF NORTHTOWNS;
SHERIDAN MANOR, LLC;
GOLDEN LIVING CENTERS, LLC;
SAFIRE REHABILITATION OF NORTHTOWNS, LLC;
SAFIRE CARE LLC;
SAPPHIRE HC MANAGEMENT CARE, LLC
d/b/a SAPPHIRE CARE GROUP;
SHERIDAN DR HC, LLC;
SOLOMON ABRAMCZYK;
JUDY LANDA;
ARYEH RICHARD PLATSCHEK;
ROBERT SCHUCK;
MOSHE STEINBERG;
BENJAMIN LANDA
Defendants
STATE OF NEW YORK)
COUNTY OF ERIE) ss.:
THERESA M. WALSH, ESQ. affirms the following to be true under penalty of perjury
pursuant to CPLR §2106:
1. I am an attorney duly licensed to practice law in the State of New York and a
member of the law firm of BROWN CHIARI LLP, 2470 Walden Avenue, Buffalo, New York
14225, attorneys for the Plaintiff in the above matter.
BROWN CHIARI us -
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Defendants'
2. That I submit this affirmation in opposition to the motion to dismiss
pursuant to CPLR §3211(a)(7) on various grounds.
3. This matter was commenced by the filing of a Summons and Complaint by the
Plaintiff on January 30, 2023, setting forth allegations that included negligence, wrongful death
and statutory violations of Public Health Law §§2801-d and 2803-c against the respective
Defendants. See Def Exhibit A.
4. On March 31, 2023, in response to the above Complaint, Defendants filed an
Answer as well as the within motion most pertinently seeking dismissal of Plaintiff's claims for
gross negligence and/or punitive damages, dismissal of all claims against the named corporate
Defendants with prejudice, as well as dismissal of all claims against Defendants named in their
individual capacity with prejudice.
ARGUMENT
L THE DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN
5. It is well settled that when a party moves to dismiss a complaint pursuant to CPLR
§ 3211(a)(7), the standard is "whether the pleading states a cause of action, not whether the
action."
proponent of the pleading has a cause of Vermont Mut. Ins. Co. v. McCabe & Mack, LLP,
(2nd
105 AD3d 837, 839, 946 NYS2d 160 Dept. 2013) (emphasis added). Pursuant to New York
law, "[pleadings] must survive a motion to dismiss so long as they give the court and the parties
action."
notice of what is intended to be proved and the material elements of each cause of
(401
Palmisano v. Modernismo Publications, Ltd, 98 AD2d 953, 954, 470 NYS2d 196 Dept. 1983)
(13t
(quoting Foley v. D'Agostino, 21 AD2d 60 Dept. 1964)).
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6. "Upon a 3211 (subd. [a], par. 7) motion to dismiss a cause of action, however, we
look to the substance rather than to the form. Such a motion is solely directed to the inquiry of
action.'
whether or not the pleading, considered as a whole, 'fails to state a cause of Looseness,
verbosity and excursiveness, must be overlooked on such a motion if any cause of action can be
spelled out from the four corners of the pleading. (See Siegel, 38 St. John's L. Rev., p. 205.)...It
was well settled and still is, of course, the rule that a pleading will not be dismissed for
insufficiency merely because it is inartistically drawn. Where a pleading is attacked for alleged
inadequacy in its statements, our inquiry should be limited to 'whether it states in some
recognizable form any cause of action known to our law'... 'However imperfectly, informally or
even illogically the facts may be stated, a complaint, attacked for insufficiency, is deemed to allege
'whatever can be implied from its statements by fair and reasonable intendment.'...The question
for us is whether the requisite allegations of any valid cause of action cognizable by the state courts
averments.'"
'can be fairly gathered from all the Foley v. D'Agostino, 21 AD2d 60, 65, 248 NYS2d
(1st
121 Dept. 1964)) (citations omitted).
7. Further under CPLR §3026, "Pleadings shall be liberally construed. Defects shall
prejudiced."
be ignored if a substantial right of a party is not In that regard it has long been held
prejudiced."
that any defects in pleadings "shall be ignored if a substantial right of a party is not
Foley, Id. (emphasis added). Thus, "the burden is expressly placed upon one who attacks a
prejudiced."
pleading for deficiencies in its allegations to show that he is Id. Antonetti v. City of
(4th
Syracuse, 52 AD2d 742, 382 NYS2d 189
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8. In this regard, Defendants utterly fail to make any showing, or even mention, of
prejudice, and it is clear they cannot legitimately do so. As such, this motion must be denied on
that basis alone.
9. Additionally, it is also well settled that the Plaintiff is to be given the benefit of
inference."
"every favorable Carlson v. American Int'l Group, Inc. et al., 30 NY3d 288, 297-298,
89 NE2d 490, 67 NYS3d 100 (2017). "Whether a plaintiff can ultimately establish its allegations
is not part of the calculus in determining a motion to dismiss. Carlson, IdL (citation omitted). See
(4th
also Gordon v. Murphy, 213 AD3d 1222, 182 NYS3d 454 Dept. 2023).
10. Therefore, on a motion to dismiss covered under CPLR § 3211(a)(7), "'the pleading
is afforded a liberal construction, and the court must give the plaintiff the benefit of every possible
favorable inference, accept the facts alleged in the complaint as true, and determine only whether
theory'."
the facts as alleged fit within any cognizable legal 25 Bay Terrace Assoc., LP. v. Public
(2nd
Serv. Mut. Ins. Co., 144 AD3d 665, 666, 40 NYS3d 469 Dept. 2016) (quoting Gutierrez v.
(2nd
Government Empls. Ins. Co., 136 AD3d 975, 976 Dept. 2016)) (emphasis added). See also
EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19, 832 NE2d 26, 799 NYS2d 170 (2005);
Goshen v. Mutual Life Ins. Co. of N.Y, 98 NY2d 314, 326, 774 NE2d 1190, 746 NYS2d 858
(2002). "The test on a motion to dismiss for insufficiency of the pleadings is not whether the
plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever
sustained."
can be reasonably implied from its statements, a cause of action can be Stendig v.
(1st
Thom Rock Realty, 163 AD2d 46, 558 NYS2d 917 Dept. 1990) (citations omitted).
11. As such, Plaintiff has no obligation to show evidentiary facts to support her
allegations on a motion to dismiss pursuant to CPLR § 3211(a)(7).
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12. Rather, a motion for dismissal under CPLR §3211(a)(7) will be denied where,
"from [the complaint's] four corners factual allegations are discerned which taken together
law."
manifest any cause of action cognizable at Polonetsky v. Better Homes Depot, Inc., 97 NY2d
46, 760 NE2d 1274, 735 NYS2d 479 (2001) (quoting Guggenheimer v. Ginzburg, 43 NY2d 268,
fail."
275 (1977)). If so, "a motion for dismissal will Guggenheimer v. Ginzburg, 43 NY2d 268,
(1st
275, 372 NE2d 17, 401 NYS2d 182 (1977) (citing Foley v. D'Agostino, 21 AD2d 60 Dept.
(4th
1964). (emphasis added). See also Schwaner v. Collins, 17 AD3d 1068, 794 NYS2d 233
2005). The above has also been reiterated by the Fourth Department in McCarthy v. Shah, 162
(4th
AD3d 1727, 80 NYS3d 778 Dept. 2018) and Thompson v. Peters, 197 AD3d 929, 153 NYS3d
(4th
311 Dept. 2021).
13. It is respectfully asserted that the Defendants have failed to meet their burden on
this motion to warrant dismissal of the Complaint on any of the grounds alleged as, not only has
no prejudice been shown, but the Complaint meets the notice requirements for pleadings under the
CPLR as the claims have been sufficiently asserted.
14. Looking to the Complaint, it provides sufficient allegations regarding the role of
each Defendant (See Exhibit A - paragraphs 4 - and the elements of all causes of
52) supporting
action and claims for damages against the Defendants as required by CPLR §3013. The Complaint
Defendants'
as a whole alleges that Plaintiff's decedent, Barbara J. Klopp, was initially admitted to
facility on October 2, 2019 and remained a resident through the date of her death, January 29,
2021. The Complaint alleges that Defendants were negligent and violated the New York State
Public Health Law as it pertained to the Plaintiff's decedent during her admission to their facility.
As a result, Plaintiff's decedent suffered painful bodily injury, including but not limited to,
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comminuted fracture of the left condyle of the mandible with extension into the left
temporomanidular joint, comminuted bilateral nasal bone fractures, lower lip avulsion injury,
head/facial injuries, mouth/tooth injuries, lacerations, contusions, other incident injuries, pressure
ulcers/skin breakdown including on her sacrum/coccyx, buttocks and feet/heels, infections, sepsis,
dehydration, malnutrition, and the sequelae from the aforementioned injuries; conscious pain and
suffering; emotional distress; embarrassment; deprivation of dignity and rights; and death. See Def
Exhibit A - paragraphs 55-74.
15. The allegations in the Complaint are also stated in a manner that permits defense
counsel to admit, deny or deny upon information and belief the allegations. In fact, as shown by
Defendants'
Answer in this case, dated March 31, 2023, Defendants were indeed able to do so.
See Exhibit A. Therefore, the Complaint is valid under CPLR §3026, which requires pleadings be
liberally construed and even if any defects are found to be present, they are to be ignored if a
substantial right of a party is not prejudiced. Again, not only are no actual defects present in the
Complaint as noted above, Defendants nevertheless failed to assert any prejudice resulting from
any purported defects they allege, nor court they reasonably do so not only given the mechanisms
of the CPLR that afford them discovery rights, but also as the information that forms the basis for
the Plaintiff's claims is within their control as Ms. Klopp was a resident of their facility.
16. Moreover, CPLR § 3043 serves as the mechanism for the Defendants to get an
amplification of the contentions set forth in the Complaint through a Bill of Particulars.
Accordingly, to specify further on the causes of action and the injuries and damages claimed is an
act reserved for Plaintiff's Bill of Particulars, which is designated for that very purpose. It has long
been held that the Courts "will look to the bill of particulars when determining the sufficiency of
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complaint." (4th
a Tuffley v. City of Syracuse, 82 AD2d 110, 442 NYS2d 326 Dept. 1981); Oddo
(4th
v. ALC of Williamsville, 133 AD3d 1952, 19 NYS3d 833 Dept. 2015). However, the Plaintiff
has not been afforded the opportunity to submit a Bill of Particulars which further prejudices him
Defendants'
at this procedural posture in being able to respond to the allegations in this motion.
Defendants'
17. As such, this further demonstrates that arguments in this motion, at a
minimum, are premature and inappropriate at this juncture as discovery as not been afforded in
this matter. See CPLR§3211(d). Plaintiff should be able to move forward with discovery to further
investigate the merits of certain claims and collect evidence.
II. THERE IS NO BASIS TO DISMISS CLAIMS FOR PUNITIVE DAMAGES
Defendants'
18. As an initial matter, contrary to convoluted arguments and contentions
in this motion concerning pleading sufficiency pertaining to the mentioning of punitive damages
and gross negligence, the punitive damages at issue here are a potential item of damage, among
several others, allowed by statute as part of Plaintiff's Public Health Law claims under the Second
Cause of Action.
19. New York Public Health Law 2801-d provides for punitive damages where the
disregard"
deprivation of a resident's rights or benefits is found to have been "willful or in reckless
of said rights or benefits. Public Health Law §2801-d(2). (emphasis added). It has long been held
that the showing for this type of punitive damages do not rise to the same level as common law
punitive damages.
20. In Butler v. Shorefront Jewish Geriatric Center, Inc., 33 Misc.3d 686 (N.Y. Sup.
Kings Cty. the plaintiff sought punitive damages pursuant to Public Health Law §2801-
Ct., 2011),
d. The defendant in that case, as the defendant in the present case, asserted that the standard for
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punitive damages under Public Health Law §2801-d should be that of a higher degree of moral
culpability as seen in general negligence and medical malpractice cases. The Butler Court, relying
on other trial court decisions, stated that the standard to recover punitive damages under Public
stringent"
Health Law §2801-d was "less than under the law governing medical malpractice.
Butler, 33 Misc.3d at 693 (citing Osborne v. Rivington House-The Nicholas A. Rango Health Care
Facility, 19 Misc.3d 1132[A] (N.Y. Sup. Ct., N.Y. Cty. 2008).
21. This standard for statutory punitive damages under Public Health Law §2801-d has
also been discussed in Demicoli v. Townhouse Operating Co., LLC, Individually and d/b/a
Townhouse Extended Care Facility, 2009 N.Y. Misc. LEXIS 6732 (N.Y. Sup. Ct., Nassau Cty.
2009). The defendant sought dismissal of common law punitive damages under the gross
negligence cause of action, as well as dismissal of the claim for punitive damages pursuant to
Public Health Law §2801-d. The court found that the "actual predicate for statutory punitive
damages is less than that imposed under common law". Demicoli, 2009 N.Y. Misc. LEXIS 6732.
Likewise, the court in Ragiel v. Park Avenue Extended Care Center Corp. d/b/a Park Avenue
Extended Care Center, 2008 N.Y. Misc. LEXIS 10835 (N.Y. Sup. Ct., Nassau Cty. 2008)
distinguished between the common law standard for punitive damages ("high degree of moral
culpability", "wanton") and those available under Public Health Law §2801-d. The court stated
that the punitive damages under the latter are available where the deprivation is found to have been
"willful or in reckless disregard of the lawful rights of the patient". Id. at *2.
22. In Mueller v. Elderwood Health Care at Oakwood, 929 NYS2d 201 (N.Y. Sup. Ct.,
Erie Cty. 2011), the defendant argued that the Court should set aside the jury's award of punitive
damages under the Public Health Law, enter a judgment as a matter of law dismissing the demand
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FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 STATE OF NEW YORK : SUPREME COURT : COUNTY OF ERIE KATHLEEN M. HAEFNER, as Administratrix of the Estate of BARBARA J. KLOPP Plaintiff vs. ATTORNEY'S AFFIRMATION Index #801465/2023 SAFIRE REHABILITATION OF NORTHTOWNS; SHERIDAN MANOR, LLC; GOLDEN LIVING CENTERS, LLC; SAFIRE REHABILITATION OF NORTHTOWNS, LLC; SAFIRE CARE LLC; SAPPHIRE HC MANAGEMENT CARE, LLC d/b/a SAPPHIRE CARE GROUP; SHERIDAN DR HC, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD PLATSCHEK; ROBERT SCHUCK; MOSHE STEINBERG; BENJAMIN LANDA Defendants STATE OF NEW YORK) COUNTY OF ERIE) ss.: THERESA M. WALSH, ESQ. affirms the following to be true under penalty of perjury pursuant to CPLR §2106: 1. I am an attorney duly licensed to practice law in the State of New York and a member of the law firm of BROWN CHIARI LLP, 2470 Walden Avenue, Buffalo, New York 14225, attorneys for the Plaintiff in the above matter. BROWN CHIARI us - 1 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 - Page 2 - Defendants' 2. That I submit this affirmation in opposition to the motion to dismiss pursuant to CPLR §3211(a)(7) on various grounds. 3. This matter was commenced by the filing of a Summons and Complaint by the Plaintiff on January 30, 2023, setting forth allegations that included negligence, wrongful death and statutory violations of Public Health Law §§2801-d and 2803-c against the respective Defendants. See Def Exhibit A. 4. On March 31, 2023, in response to the above Complaint, Defendants filed an Answer as well as the within motion most pertinently seeking dismissal of Plaintiff's claims for gross negligence and/or punitive damages, dismissal of all claims against the named corporate Defendants with prejudice, as well as dismissal of all claims against Defendants named in their individual capacity with prejudice. ARGUMENT L THE DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN 5. It is well settled that when a party moves to dismiss a complaint pursuant to CPLR § 3211(a)(7), the standard is "whether the pleading states a cause of action, not whether the action." proponent of the pleading has a cause of Vermont Mut. Ins. Co. v. McCabe & Mack, LLP, (2nd 105 AD3d 837, 839, 946 NYS2d 160 Dept. 2013) (emphasis added). Pursuant to New York law, "[pleadings] must survive a motion to dismiss so long as they give the court and the parties action." notice of what is intended to be proved and the material elements of each cause of (401 Palmisano v. Modernismo Publications, Ltd, 98 AD2d 953, 954, 470 NYS2d 196 Dept. 1983) (13t (quoting Foley v. D'Agostino, 21 AD2d 60 Dept. 1964)). - BROWN CHIARI ur - 2 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 - Page 3 - 6. "Upon a 3211 (subd. [a], par. 7) motion to dismiss a cause of action, however, we look to the substance rather than to the form. Such a motion is solely directed to the inquiry of action.' whether or not the pleading, considered as a whole, 'fails to state a cause of Looseness, verbosity and excursiveness, must be overlooked on such a motion if any cause of action can be spelled out from the four corners of the pleading. (See Siegel, 38 St. John's L. Rev., p. 205.)...It was well settled and still is, of course, the rule that a pleading will not be dismissed for insufficiency merely because it is inartistically drawn. Where a pleading is attacked for alleged inadequacy in its statements, our inquiry should be limited to 'whether it states in some recognizable form any cause of action known to our law'... 'However imperfectly, informally or even illogically the facts may be stated, a complaint, attacked for insufficiency, is deemed to allege 'whatever can be implied from its statements by fair and reasonable intendment.'...The question for us is whether the requisite allegations of any valid cause of action cognizable by the state courts averments.'" 'can be fairly gathered from all the Foley v. D'Agostino, 21 AD2d 60, 65, 248 NYS2d (1st 121 Dept. 1964)) (citations omitted). 7. Further under CPLR §3026, "Pleadings shall be liberally construed. Defects shall prejudiced." be ignored if a substantial right of a party is not In that regard it has long been held prejudiced." that any defects in pleadings "shall be ignored if a substantial right of a party is not Foley, Id. (emphasis added). Thus, "the burden is expressly placed upon one who attacks a prejudiced." pleading for deficiencies in its allegations to show that he is Id. Antonetti v. City of (4th Syracuse, 52 AD2d 742, 382 NYS2d 189 - BROWN CHIARI u.g - 3 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 - Page 4 - 8. In this regard, Defendants utterly fail to make any showing, or even mention, of prejudice, and it is clear they cannot legitimately do so. As such, this motion must be denied on that basis alone. 9. Additionally, it is also well settled that the Plaintiff is to be given the benefit of inference." "every favorable Carlson v. American Int'l Group, Inc. et al., 30 NY3d 288, 297-298, 89 NE2d 490, 67 NYS3d 100 (2017). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss. Carlson, IdL (citation omitted). See (4th also Gordon v. Murphy, 213 AD3d 1222, 182 NYS3d 454 Dept. 2023). 10. Therefore, on a motion to dismiss covered under CPLR § 3211(a)(7), "'the pleading is afforded a liberal construction, and the court must give the plaintiff the benefit of every possible favorable inference, accept the facts alleged in the complaint as true, and determine only whether theory'." the facts as alleged fit within any cognizable legal 25 Bay Terrace Assoc., LP. v. Public (2nd Serv. Mut. Ins. Co., 144 AD3d 665, 666, 40 NYS3d 469 Dept. 2016) (quoting Gutierrez v. (2nd Government Empls. Ins. Co., 136 AD3d 975, 976 Dept. 2016)) (emphasis added). See also EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19, 832 NE2d 26, 799 NYS2d 170 (2005); Goshen v. Mutual Life Ins. Co. of N.Y, 98 NY2d 314, 326, 774 NE2d 1190, 746 NYS2d 858 (2002). "The test on a motion to dismiss for insufficiency of the pleadings is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever sustained." can be reasonably implied from its statements, a cause of action can be Stendig v. (1st Thom Rock Realty, 163 AD2d 46, 558 NYS2d 917 Dept. 1990) (citations omitted). 11. As such, Plaintiff has no obligation to show evidentiary facts to support her allegations on a motion to dismiss pursuant to CPLR § 3211(a)(7). - BROWN CHIARI ILP - 4 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 - Page 5 - 12. Rather, a motion for dismissal under CPLR §3211(a)(7) will be denied where, "from [the complaint's] four corners factual allegations are discerned which taken together law." manifest any cause of action cognizable at Polonetsky v. Better Homes Depot, Inc., 97 NY2d 46, 760 NE2d 1274, 735 NYS2d 479 (2001) (quoting Guggenheimer v. Ginzburg, 43 NY2d 268, fail." 275 (1977)). If so, "a motion for dismissal will Guggenheimer v. Ginzburg, 43 NY2d 268, (1st 275, 372 NE2d 17, 401 NYS2d 182 (1977) (citing Foley v. D'Agostino, 21 AD2d 60 Dept. (4th 1964). (emphasis added). See also Schwaner v. Collins, 17 AD3d 1068, 794 NYS2d 233 2005). The above has also been reiterated by the Fourth Department in McCarthy v. Shah, 162 (4th AD3d 1727, 80 NYS3d 778 Dept. 2018) and Thompson v. Peters, 197 AD3d 929, 153 NYS3d (4th 311 Dept. 2021). 13. It is respectfully asserted that the Defendants have failed to meet their burden on this motion to warrant dismissal of the Complaint on any of the grounds alleged as, not only has no prejudice been shown, but the Complaint meets the notice requirements for pleadings under the CPLR as the claims have been sufficiently asserted. 14. Looking to the Complaint, it provides sufficient allegations regarding the role of each Defendant (See Exhibit A - paragraphs 4 - and the elements of all causes of 52) supporting action and claims for damages against the Defendants as required by CPLR §3013. The Complaint Defendants' as a whole alleges that Plaintiff's decedent, Barbara J. Klopp, was initially admitted to facility on October 2, 2019 and remained a resident through the date of her death, January 29, 2021. The Complaint alleges that Defendants were negligent and violated the New York State Public Health Law as it pertained to the Plaintiff's decedent during her admission to their facility. As a result, Plaintiff's decedent suffered painful bodily injury, including but not limited to, BROWN CHIARI ote - 5 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 - Page 6 - comminuted fracture of the left condyle of the mandible with extension into the left temporomanidular joint, comminuted bilateral nasal bone fractures, lower lip avulsion injury, head/facial injuries, mouth/tooth injuries, lacerations, contusions, other incident injuries, pressure ulcers/skin breakdown including on her sacrum/coccyx, buttocks and feet/heels, infections, sepsis, dehydration, malnutrition, and the sequelae from the aforementioned injuries; conscious pain and suffering; emotional distress; embarrassment; deprivation of dignity and rights; and death. See Def Exhibit A - paragraphs 55-74. 15. The allegations in the Complaint are also stated in a manner that permits defense counsel to admit, deny or deny upon information and belief the allegations. In fact, as shown by Defendants' Answer in this case, dated March 31, 2023, Defendants were indeed able to do so. See Exhibit A. Therefore, the Complaint is valid under CPLR §3026, which requires pleadings be liberally construed and even if any defects are found to be present, they are to be ignored if a substantial right of a party is not prejudiced. Again, not only are no actual defects present in the Complaint as noted above, Defendants nevertheless failed to assert any prejudice resulting from any purported defects they allege, nor court they reasonably do so not only given the mechanisms of the CPLR that afford them discovery rights, but also as the information that forms the basis for the Plaintiff's claims is within their control as Ms. Klopp was a resident of their facility. 16. Moreover, CPLR § 3043 serves as the mechanism for the Defendants to get an amplification of the contentions set forth in the Complaint through a Bill of Particulars. Accordingly, to specify further on the causes of action and the injuries and damages claimed is an act reserved for Plaintiff's Bill of Particulars, which is designated for that very purpose. It has long been held that the Courts "will look to the bill of particulars when determining the sufficiency of - BROWN CHIARI u, - 6 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 - Page 7 - complaint." (4th a Tuffley v. City of Syracuse, 82 AD2d 110, 442 NYS2d 326 Dept. 1981); Oddo (4th v. ALC of Williamsville, 133 AD3d 1952, 19 NYS3d 833 Dept. 2015). However, the Plaintiff has not been afforded the opportunity to submit a Bill of Particulars which further prejudices him Defendants' at this procedural posture in being able to respond to the allegations in this motion. Defendants' 17. As such, this further demonstrates that arguments in this motion, at a minimum, are premature and inappropriate at this juncture as discovery as not been afforded in this matter. See CPLR§3211(d). Plaintiff should be able to move forward with discovery to further investigate the merits of certain claims and collect evidence. II. THERE IS NO BASIS TO DISMISS CLAIMS FOR PUNITIVE DAMAGES Defendants' 18. As an initial matter, contrary to convoluted arguments and contentions in this motion concerning pleading sufficiency pertaining to the mentioning of punitive damages and gross negligence, the punitive damages at issue here are a potential item of damage, among several others, allowed by statute as part of Plaintiff's Public Health Law claims under the Second Cause of Action. 19. New York Public Health Law 2801-d provides for punitive damages where the disregard" deprivation of a resident's rights or benefits is found to have been "willful or in reckless of said rights or benefits. Public Health Law §2801-d(2). (emphasis added). It has long been held that the showing for this type of punitive damages do not rise to the same level as common law punitive damages. 20. In Butler v. Shorefront Jewish Geriatric Center, Inc., 33 Misc.3d 686 (N.Y. Sup. Kings Cty. the plaintiff sought punitive damages pursuant to Public Health Law §2801- Ct., 2011), d. The defendant in that case, as the defendant in the present case, asserted that the standard for - BROWN CHIARI us - 7 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 09/27/2023 - Page 8 - punitive damages under Public Health Law §2801-d should be that of a higher degree of moral culpability as seen in general negligence and medical malpractice cases. The Butler Court, relying on other trial court decisions, stated that the standard to recover punitive damages under Public stringent" Health Law §2801-d was "less than under the law governing medical malpractice. Butler, 33 Misc.3d at 693 (citing Osborne v. Rivington House-The Nicholas A. Rango Health Care Facility, 19 Misc.3d 1132[A] (N.Y. Sup. Ct., N.Y. Cty. 2008). 21. This standard for statutory punitive damages under Public Health Law §2801-d has also been discussed in Demicoli v. Townhouse Operating Co., LLC, Individually and d/b/a Townhouse Extended Care Facility, 2009 N.Y. Misc. LEXIS 6732 (N.Y. Sup. Ct., Nassau Cty. 2009). The defendant sought dismissal of common law punitive damages under the gross negligence cause of action, as well as dismissal of the claim for punitive damages pursuant to Public Health Law §2801-d. The court found that the "actual predicate for statutory punitive damages is less than that imposed under common law". Demicoli, 2009 N.Y. Misc. LEXIS 6732. Likewise, the court in Ragiel v. Park Avenue Extended Care Center Corp. d/b/a Park Avenue Extended Care Center, 2008 N.Y. Misc. LEXIS 10835 (N.Y. Sup. Ct., Nassau Cty. 2008) distinguished between the common law standard for punitive damages ("high degree of moral culpability", "wanton") and those available under Public Health Law §2801-d. The court stated that the punitive damages under the latter are available where the deprivation is found to have been "willful or in reckless disregard of the lawful rights of the patient". Id. at *2. 22. In Mueller v. Elderwood Health Care at Oakwood, 929 NYS2d 201 (N.Y. Sup. Ct., Erie Cty. 2011), the defendant argued that the Court should set aside the jury's award of punitive damages under the Public Health Law, enter a judgment as a matter of law dismissing the demand - BROWN CHIARI ur - 8 of 20 FILED: ERIE COUNTY CLERK 09/27/2023 08:07 PM INDEX NO. 801465/2023 NYSCEF DOC. NO. 25