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FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
----------------------------------------X
KEVIN LYNCH, AS ADMINISTRATOR OF THE : INDEX NO: 64205/2020
ESTATE OF ROSE BOUKNIGHT, :
:
:
PLAINTIFF, :
:
- AGAINST - :
AFFIRMATION IN SUPPORT
:
MONTEFIORE MEDICAL CENTER, GLEN :
ISLAND CENTER FOR NURSING AND :
REHABILITATION AND JOPAL BRONX D/B/A :
WORKMEN’S CIRCLE MULTICARE CENTER, :
:
DEFENDANTS.
----------------------------------------X
Nicole M. Atlas, Esq., an attorney duly admitted to the practice before the Courts of the State of
New York, being duly sworn, deposes and says:
1. I am an attorney duly admitted to practice law in the Courts of the State of New York
and a partner with SHEELEY LLP, attorneys for defendant GLEN ISLAND CENTER FOR
NURSING AND REHABILITATION, (hereinafter “Glen Island” or “Defendant”). As such, I am
familiar with the facts and circumstances herein based on my review of the file maintained by this firm.
RELIEF REQUESTED
2. This Affirmation is submitted in support of Defendant’s motion seeking an Order: (1)
dismissing and striking plaintiff’s claim for punitive damages as plaintiff’s Complaint fails to allege
facts and conduct to support such a claim; (2) dismissing plaintiff’s fourth cause of action for medical
malpractice; and for such other further and different relief as this Court may deem just and proper.
PROCEDURAL HISTORY
3. Plaintiff commenced this action by the filing of the Summons and Complaint on July
6, 2020. (Exhibit A). As against Glen Island, plaintiff asserts claims grounded in negligence, medical
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malpractice and violation of the New York State Public Health Law (PHL). In addition to these
claims, plaintiff seeks punitive damages pursuant to PHL §2810-d (2).
4. Issue was joined by Glen Island on November 3, 2020 with the serving of a Verified
Answer. (Exhibit B).
5. By motion, this matter was moved from Bronx County to Westchester County on
January 25, 2021. (Exhibit C).
6. To date, no preliminary conference has been held.
LEGAL ARGUMENT
PLAINTIFF’S CLAIMS FOR PUNITIVE DAMAGES SHOULD BE DISMISSED
AS PLAINTIFF FAILED TO MEET THE PLEADING STANDARD
7. Plaintiff has failed to meet the pleading standard as to her punitive damages claim, and
her claim should therefore be dismissed.
8. Where a Complaint fails to plead conduct on the part of the defendant that would justify
an award of punitive damages, the punitive damages claim should be dismissed. Bennett v. State
Farm Fire & Cas. Co. 137 A.D.3d 731 (2nd Dept. 2016); Jones v. LeFrance Leasing Ltf. Partnership,
127 A.D.3d 819 (2nd Dept. 2015).
9. The Supreme Court of the State of New York has held that a plaintiff cannot merely
claim punitive damages without making specific factual allegations as to such a breach. Porter v.
Forest Hills Care Center LLC, 2018 WL 6976728 (Sup. Ct., Queens County, 2018). In Porter, a case
arising out of the nursing care and treatment received by plaintiff, a resident at defendant’s nursing
and rehabilitation facility, the Court granted the branch of defendant’s motion to dismiss and strike
plaintiffs claim for punitive damages, as plaintiff's Complaint and Bill of Particulars failed to allege
facts and conduct sufficient to support such a claim. Id.
10. As noted in Porter, the standard for an award of punitive damages requires a defendant
“manifest evil or malicious conduct beyond any breach of professional duty.” Id.
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11. The Court, found that there must be “aggravation or outrage, such as spite or ‘malice’
or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard
of the interests of others that the conduct may be called willful or wanton.” See also Prozeralik v
Capital Cities Communications, 82 N.Y.2d 466, 479, 626 N.E.2d 34, 42 (1993).
12. Further required are factual allegations that any breach not only rose to the level of such
wanton dishonesty as to imply “a criminal indifference to civil obligations” but was apart of a pattern
aimed at the public. See Rocanova v Equitable Life Insurance Soc. Of U.S., 83 N.Y.2d 603, 613, 634
N.E.2d 940, 944 (1994); see also, New York University v Continental Ins. Co., 87 N.Y.2d 308, 316,
662 N.E.2d 763, 766 (1995).
13. Here, the plaintiff’s Complaint fails to plead conduct on the part of the defendant that
would justify an award of punitive damages. Instead, the Complaint merely broadly states that the
“decedent suffered as a result of the defendant’s deprivation of her rights and is entitled to punitive
damages” (Exhibit “A”, para. 43). As such, the punitive damages claim should be dismissed. Bennett
v. State Farm Fire & Cas. Co., 137 A.D.3d 731, 26 N.Y.S.3d 554 (2d Dept. 2016); Jones v. LeFrance
Leasing Ltd. Partnership, 127 A.D.3d 819, 7 N.Y.S.3d 352 (2d Dept. 2015).
14. Similarly, in Koutros v. DeWitt Rehabilitation and Nursing Center, et al., unpublished
court order (February 14, 2019, Balter, J., 717349/2018), the Queens Supreme Court dismissed, with
prejudice, plaintiff’s claim for punitive damages under the public health law as the Complaint failed
to allege conduct to support a claim for punitive damages. Similarly, in Hoque v. Boro Park Center
for Rehabiliation, et al., unpublished court order (November 20, 2017, Spodek, J., 502663/2016), the
Kings County Supreme Court dismissed plaintiff’s punitive damages claims upon moving
Defendants’ contentions that plaintiff failed to properly plead such a claim.
15. In this case, plaintiff has alleged violations of Public Health Law §2801-d.
Public Health Law §2801-d provides a private statutory cause of action for nursing home residents
against nursing homes for damages caused by a deprivation of a “right or benefit” conferred by
contract, Federal and State statute, code, rule or regulation. N.Y. Pub. Health L. §2801-d.
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16. The statute also provides that “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.” N.Y. Pub. Health L. §2801-d (1).
17. Public Health Law §2801-d(2) mandates that a claimant establish “willful deprivations”
of the plaintiff's rights and benefits or deprivations committed in “reckless disregard” of those rights
and benefits before a claim for punitive damages could be considered. It is simply not enough to state
a claimant has been deprived a benefit or a right, the claimant must show that the deprivation of such
right or benefit was found to have been willful or in reckless disregard of the patient, punitive
damages may be assessed.” N.Y. Pub. Health L. §2801-d (1).
18. For example, in Williams v. Manor, 2006 WL 6901808 (Sup. Ct., New York County,
2006), plaintiff alleged she was left alone in a bathroom despite her diminished physical and mental
condition, and in contradiction of a care plan which required her to be supervised in the bathroom at
all times, and that her x-rays were improperly taken and read. The Court noted that, while these
alleged failures by defendants, “although serious, did not in themselves evidence such reckless
indifference that would transcend normal negligence or malpractice and justify punitive damages.”
Id.
19. Furthermore, in Butler v. Shorefront Jewish Geriatric Ctr. 33 Misc. 3d 686, 688, 932
N.Y.S.2d 672, 674 (Sup. Ct., Kings County, 2011), the Court analyzed Public Health Law §2801-d
and determined that to impose punitive damages, the wrongdoing “must be voluntary and intentional
or must have created a substantial and unjustifiable risk of harm with a conscious disregard of, or
indifference to, that risk.” Id. This standard is essentially identical to the common law standard
governing the imposition of punitive damages. Applying this standard, the Court held the evidence
did not reveal a “willful deprivation of a right or benefit or a reckless disregard of a lawful right or
benefit” and dismissed the punitive damages claim. Id.
20. Failure to plead conduct in the Complaint that rises to the level of willful deprivation
of a right or benefit or a reckless disregard of a lawful right or benefit warrants dismissal of punitive
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damages claims. Passet v. Menorah Nursing Home, Inc., 16 Misc. 3d 1117(A), 847 N.Y.S.2d 897
(Sup. Ct., Kings County, 2009) (all punitive damages claims dismissed because Plaintiff presented
no evidence of reckless or wanton conduct); Frenya v. Champlain Val. Physicians' Hosp. Med.
Ctr., 133 A.D.2d 1000, 521 N.Y.S.2d 150 (3d Dept. 1987) (punitive damages were properly stricken
from the Complaint where the Court held that “although the allegations against defendant contained
in the complaint are indeed serious, none of the allegations rises to a level as to permit a claim for
punitive damages”); and Maloney v. Meadowbrook Care Center, Inc., 2009 WL 1574113, 2009 N.Y.
Slip Op. 31176(U) (Sup Ct., New York County, 2009) (the Court granted defendant’s motion to
dismiss plaintiff’s claim for punitive damages pursuant to CPLR §3211, holding that the Plaintiff had
“not alleged conduct that meets the burden under medical malpractice or Public Health Law
principles.”).
21. As plaintiff has not alleged a single fact in the Complaint or bill of particulars that
evinces reckless conduct, gross negligence, or reprehensible motivation by any individual employee
or staff member of the Defendants, and as plaintiff has not, and cannot, plead conduct to support the
allegation that defendant’s conduct was in “willful or in reckless disregard of the lawful rights of the
patient,” as required by §2801-d of the Public Health Law and the above legal precedents, the claims
for punitive damages and gross negligence must be dismissed.
PLAINTIFF’S FIFTH CAUSE OF ACTION FOR NEGLIGENCE SHOULD BE
DISMISSED AS IT IS DUPLICATIVE OF THE FOURTH CAUSE OF ACTION FOR
MEDICAL MALPRACTICE
22. A negligence cause of action must be dismissed when it is duplicative of medical
malpractice. See Baker v. Inamdar, 99 A.D.3d 742, 952 N.Y.S.2d 208 (2d Dep’t 2012); Freely v.
Donnenfeld, 150 A.D.3d 695, 54 N.Y.S.3d 63 (2d Dep’t 2017). The Court of Appeals has
held that the Supreme Court correctly granted Defendant’s motion to dismiss the negligence cause
of action since the negligence claim was based upon the same alleged conduct and same expert
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evidence as claimed in the medical malpractice cause of action. B.F. v. Reprod. Med. Assocs. of
N.Y., LLP, 30 N.Y.3d 608, 69 N.Y.S.3d 543 (2017).
23. Whether an action sounds in medical malpractice or simple negligence is
determined by “the duty to the plaintiff which the defendant is alleged to have breached.” Stanley
v. Lebetkin, 123 A.D.2d 854, 854 (2d Dep’t 1986). The Second Department has held that “[t]he
distinction between ordinary negligence and malpractice turns on whether the acts or omissions
complained of involve a matter of medical science or art requiring special skills not ordinarily
possessed by lay persons or whether the conduct complained of can instead be assessed on the
basis of the common everyday experience of the trier of the facts.” Halas v. Parkway Hospital,
Inc., 158 A.D.2d 516, 551 N.Y.S.2d 279 (2d Dep’t 1990).
24. Further, a negligent act or omission “that constitutes medical treatment or bears a
substantial relationship to the rendition of medical treatment by a licensed physician constitutes
malpractice.” Bleiler v. Bodnar, 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885 (1985); Spiegel v. Goldfarb,
66 A.D.3d 873, 874, 889 N.Y.S.2d 45 (2d Dep’t 2009). Thus, when the complaint challenges a
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facility’s performance of functions that are “an integral part of the process of rendering medical
treatment”, it sounds in medical malpractice. Scott v Uljanov,74 N.Y.2d at 675, 543 N.Y.S.2d
369(1989); see also Caso v St. Francis Hosp., 34 A.D.3d 714, 714-715, 825 N.Y.S. 2d 127 (2d
Dep’t 2006); Fox v White Plains Med. Ctr., 125 AD 2d 538, 539 (2d Dep’t 1986).
25. In the instant matter, the plaintiff’s own complaint evinces the fact this conduct
revolved around rendering medical treatment. (See Exhibit A). Plaintiff himself stated
Defendant “departed from the standard of care in the medical community” and “failed to
prevent decubitus ulcers”. (Exhibit A, para. 55). This alone showcases the allegations concern
the rendition of medical treatment. Plaintiff also alleges the Defendant failed to “monitor and
supervise the decedent in accordance with good and accepted medical customs, practices and
standards” and allowing her “medical condition to deteriorate and worsen”. (Exhibit A, para.
56). Surely, providing services in connection with a persons medical condition bears a
substantial relationship to rendition of medical treatment.
26. Whether the Defendant provided inappropriate care to plaintiff requires a
determination of whether the physicians, nurses and aides exercised reasonable care within the
standard of care customarily exercised by these medical professionals. To prove his case,
plaintiff will need medical expert testimony to show Defendant departed from this standard.
Because of this, the claim is not grounded in ordinary negligence but rather medical
malpractice. Toledo v. Mercy Hosp. of Buffalo, 45 Misc.3d 973 (Erie Cnty. Ct. 2014).
27. Thus, plaintiff’s claims of negligence alleged in the fifth cause of action must
be dismissed as the claims are substantially related to the medical treatment sounding in
medical malpractice.
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WHEREFORE, the moving defendant Glen Island, respectfully requests that this Court
grant its motion and enter an Order: (1) dismissing and striking plaintiff’s claim for punitive
damages as plaintiff’s Complaint fails to allege facts and conduct to support such a claim; (2)
dismissing plaintiff’s fifth cause of action for medical malpractice as it is duplicative of the fourth
cause of action for negligence; and for such other further and different relief as this Court may
deem just and proper.
SHEELEY, LLP
Nicole M. Atlas, ESQ.
Attorneys for Defendant
GLEN ISLAND CENTER FOR NURSING
AND REHABILITATION
100 Wall Street, 19th Floor
New York, NY 10005
(646) 887-3442
To: SINEL & OLESEN PLLC
Attorneys for Plaintiff
7 Penn Plaza, 8th Floor
New York, NY 10001
(212) 465-1000
KAUFMAN, BORGEEST & RYAN, LLP
Attorneys for Defendant
JOPAL BRONX LLC d/b/a WORKMEN’S
CIRCLE MULTICARE CENTER
120 Broadway, 14 Floor
New York, NY 10271
(212) 980-9600
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Jodiann Mattis, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18
years of age and resides in Queens, New York.
That on June 10, 2021, deponent served the within NOTICE OF MOTION, AFFIRMATION IN
SUPPORT and ACCOMPANYING EXHIBITS upon:
SINEL & OLESEN PLLC
Attorneys for Plaintiff
7 Penn Plaza, 8th Floor
New York, NY 10001
(212) 465-1000
KAUFMAN, BORGEEST & RYAN, LLP
Attorneys for Defendant
JOPAL BRONX LLC d/b/a WORKMEN’S
CIRCLE MULTICARE CENTER
120 Broadway, 14 Floor
New York, NY 10271
(212) 980-9600
via electronic mail at their respective email address(es) provided for such service.
Jodiann Mattis
Sworn to before me this
10th day of June, 2021
Notary Public
Yvette La Madrid
Notary Public, State of New York
No.: 01LA6382396
Qualified in New York County
Commission Expires October 22, 2022
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
KEVIN LYNCH, AS ADMINISTRATOR OF THE
ESTATE OF ROSE BOUKNIGHT, Index No: 64205/2020
PLAINTIFF,
- AGAINST -
MONTEFIORE MEDICAL CENTER, GLEN
ISLAND CENTER FOR NURSING AND
REHABILITATION AND JOPAL BRONX D/B/A
WORKMEN’S CIRCLE MULTICARE CENTER,
DEFENDANTS.
NOTICE OF MOTION
SHEELEY LLP
Attorneys for Defendant
GLEN ISLAND CENTER FOR NURSING AND REHABILITATION
Office and Post Office Address
100 Wall Street, 19th Floor
New York, New York, 10005
Telephone (646) 650-5952
TO: ALL PARTIES
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Preview
FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------X KEVIN LYNCH, AS ADMINISTRATOR OF THE : INDEX NO: 64205/2020 ESTATE OF ROSE BOUKNIGHT, : : : PLAINTIFF, : : - AGAINST - : AFFIRMATION IN SUPPORT : MONTEFIORE MEDICAL CENTER, GLEN : ISLAND CENTER FOR NURSING AND : REHABILITATION AND JOPAL BRONX D/B/A : WORKMEN’S CIRCLE MULTICARE CENTER, : : DEFENDANTS. ----------------------------------------X Nicole M. Atlas, Esq., an attorney duly admitted to the practice before the Courts of the State of New York, being duly sworn, deposes and says: 1. I am an attorney duly admitted to practice law in the Courts of the State of New York and a partner with SHEELEY LLP, attorneys for defendant GLEN ISLAND CENTER FOR NURSING AND REHABILITATION, (hereinafter “Glen Island” or “Defendant”). As such, I am familiar with the facts and circumstances herein based on my review of the file maintained by this firm. RELIEF REQUESTED 2. This Affirmation is submitted in support of Defendant’s motion seeking an Order: (1) dismissing and striking plaintiff’s claim for punitive damages as plaintiff’s Complaint fails to allege facts and conduct to support such a claim; (2) dismissing plaintiff’s fourth cause of action for medical malpractice; and for such other further and different relief as this Court may deem just and proper. PROCEDURAL HISTORY 3. Plaintiff commenced this action by the filing of the Summons and Complaint on July 6, 2020. (Exhibit A). As against Glen Island, plaintiff asserts claims grounded in negligence, medical 1 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 malpractice and violation of the New York State Public Health Law (PHL). In addition to these claims, plaintiff seeks punitive damages pursuant to PHL §2810-d (2). 4. Issue was joined by Glen Island on November 3, 2020 with the serving of a Verified Answer. (Exhibit B). 5. By motion, this matter was moved from Bronx County to Westchester County on January 25, 2021. (Exhibit C). 6. To date, no preliminary conference has been held. LEGAL ARGUMENT PLAINTIFF’S CLAIMS FOR PUNITIVE DAMAGES SHOULD BE DISMISSED AS PLAINTIFF FAILED TO MEET THE PLEADING STANDARD 7. Plaintiff has failed to meet the pleading standard as to her punitive damages claim, and her claim should therefore be dismissed. 8. Where a Complaint fails to plead conduct on the part of the defendant that would justify an award of punitive damages, the punitive damages claim should be dismissed. Bennett v. State Farm Fire & Cas. Co. 137 A.D.3d 731 (2nd Dept. 2016); Jones v. LeFrance Leasing Ltf. Partnership, 127 A.D.3d 819 (2nd Dept. 2015). 9. The Supreme Court of the State of New York has held that a plaintiff cannot merely claim punitive damages without making specific factual allegations as to such a breach. Porter v. Forest Hills Care Center LLC, 2018 WL 6976728 (Sup. Ct., Queens County, 2018). In Porter, a case arising out of the nursing care and treatment received by plaintiff, a resident at defendant’s nursing and rehabilitation facility, the Court granted the branch of defendant’s motion to dismiss and strike plaintiffs claim for punitive damages, as plaintiff's Complaint and Bill of Particulars failed to allege facts and conduct sufficient to support such a claim. Id. 10. As noted in Porter, the standard for an award of punitive damages requires a defendant “manifest evil or malicious conduct beyond any breach of professional duty.” Id. 2 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 11. The Court, found that there must be “aggravation or outrage, such as spite or ‘malice’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.” See also Prozeralik v Capital Cities Communications, 82 N.Y.2d 466, 479, 626 N.E.2d 34, 42 (1993). 12. Further required are factual allegations that any breach not only rose to the level of such wanton dishonesty as to imply “a criminal indifference to civil obligations” but was apart of a pattern aimed at the public. See Rocanova v Equitable Life Insurance Soc. Of U.S., 83 N.Y.2d 603, 613, 634 N.E.2d 940, 944 (1994); see also, New York University v Continental Ins. Co., 87 N.Y.2d 308, 316, 662 N.E.2d 763, 766 (1995). 13. Here, the plaintiff’s Complaint fails to plead conduct on the part of the defendant that would justify an award of punitive damages. Instead, the Complaint merely broadly states that the “decedent suffered as a result of the defendant’s deprivation of her rights and is entitled to punitive damages” (Exhibit “A”, para. 43). As such, the punitive damages claim should be dismissed. Bennett v. State Farm Fire & Cas. Co., 137 A.D.3d 731, 26 N.Y.S.3d 554 (2d Dept. 2016); Jones v. LeFrance Leasing Ltd. Partnership, 127 A.D.3d 819, 7 N.Y.S.3d 352 (2d Dept. 2015). 14. Similarly, in Koutros v. DeWitt Rehabilitation and Nursing Center, et al., unpublished court order (February 14, 2019, Balter, J., 717349/2018), the Queens Supreme Court dismissed, with prejudice, plaintiff’s claim for punitive damages under the public health law as the Complaint failed to allege conduct to support a claim for punitive damages. Similarly, in Hoque v. Boro Park Center for Rehabiliation, et al., unpublished court order (November 20, 2017, Spodek, J., 502663/2016), the Kings County Supreme Court dismissed plaintiff’s punitive damages claims upon moving Defendants’ contentions that plaintiff failed to properly plead such a claim. 15. In this case, plaintiff has alleged violations of Public Health Law §2801-d. Public Health Law §2801-d provides a private statutory cause of action for nursing home residents against nursing homes for damages caused by a deprivation of a “right or benefit” conferred by contract, Federal and State statute, code, rule or regulation. N.Y. Pub. Health L. §2801-d. 3 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 16. The statute also provides that “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.” N.Y. Pub. Health L. §2801-d (1). 17. Public Health Law §2801-d(2) mandates that a claimant establish “willful deprivations” of the plaintiff's rights and benefits or deprivations committed in “reckless disregard” of those rights and benefits before a claim for punitive damages could be considered. It is simply not enough to state a claimant has been deprived a benefit or a right, the claimant must show that the deprivation of such right or benefit was found to have been willful or in reckless disregard of the patient, punitive damages may be assessed.” N.Y. Pub. Health L. §2801-d (1). 18. For example, in Williams v. Manor, 2006 WL 6901808 (Sup. Ct., New York County, 2006), plaintiff alleged she was left alone in a bathroom despite her diminished physical and mental condition, and in contradiction of a care plan which required her to be supervised in the bathroom at all times, and that her x-rays were improperly taken and read. The Court noted that, while these alleged failures by defendants, “although serious, did not in themselves evidence such reckless indifference that would transcend normal negligence or malpractice and justify punitive damages.” Id. 19. Furthermore, in Butler v. Shorefront Jewish Geriatric Ctr. 33 Misc. 3d 686, 688, 932 N.Y.S.2d 672, 674 (Sup. Ct., Kings County, 2011), the Court analyzed Public Health Law §2801-d and determined that to impose punitive damages, the wrongdoing “must be voluntary and intentional or must have created a substantial and unjustifiable risk of harm with a conscious disregard of, or indifference to, that risk.” Id. This standard is essentially identical to the common law standard governing the imposition of punitive damages. Applying this standard, the Court held the evidence did not reveal a “willful deprivation of a right or benefit or a reckless disregard of a lawful right or benefit” and dismissed the punitive damages claim. Id. 20. Failure to plead conduct in the Complaint that rises to the level of willful deprivation of a right or benefit or a reckless disregard of a lawful right or benefit warrants dismissal of punitive 4 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 damages claims. Passet v. Menorah Nursing Home, Inc., 16 Misc. 3d 1117(A), 847 N.Y.S.2d 897 (Sup. Ct., Kings County, 2009) (all punitive damages claims dismissed because Plaintiff presented no evidence of reckless or wanton conduct); Frenya v. Champlain Val. Physicians' Hosp. Med. Ctr., 133 A.D.2d 1000, 521 N.Y.S.2d 150 (3d Dept. 1987) (punitive damages were properly stricken from the Complaint where the Court held that “although the allegations against defendant contained in the complaint are indeed serious, none of the allegations rises to a level as to permit a claim for punitive damages”); and Maloney v. Meadowbrook Care Center, Inc., 2009 WL 1574113, 2009 N.Y. Slip Op. 31176(U) (Sup Ct., New York County, 2009) (the Court granted defendant’s motion to dismiss plaintiff’s claim for punitive damages pursuant to CPLR §3211, holding that the Plaintiff had “not alleged conduct that meets the burden under medical malpractice or Public Health Law principles.”). 21. As plaintiff has not alleged a single fact in the Complaint or bill of particulars that evinces reckless conduct, gross negligence, or reprehensible motivation by any individual employee or staff member of the Defendants, and as plaintiff has not, and cannot, plead conduct to support the allegation that defendant’s conduct was in “willful or in reckless disregard of the lawful rights of the patient,” as required by §2801-d of the Public Health Law and the above legal precedents, the claims for punitive damages and gross negligence must be dismissed. PLAINTIFF’S FIFTH CAUSE OF ACTION FOR NEGLIGENCE SHOULD BE DISMISSED AS IT IS DUPLICATIVE OF THE FOURTH CAUSE OF ACTION FOR MEDICAL MALPRACTICE 22. A negligence cause of action must be dismissed when it is duplicative of medical malpractice. See Baker v. Inamdar, 99 A.D.3d 742, 952 N.Y.S.2d 208 (2d Dep’t 2012); Freely v. Donnenfeld, 150 A.D.3d 695, 54 N.Y.S.3d 63 (2d Dep’t 2017). The Court of Appeals has held that the Supreme Court correctly granted Defendant’s motion to dismiss the negligence cause of action since the negligence claim was based upon the same alleged conduct and same expert 5 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 evidence as claimed in the medical malpractice cause of action. B.F. v. Reprod. Med. Assocs. of N.Y., LLP, 30 N.Y.3d 608, 69 N.Y.S.3d 543 (2017). 23. Whether an action sounds in medical malpractice or simple negligence is determined by “the duty to the plaintiff which the defendant is alleged to have breached.” Stanley v. Lebetkin, 123 A.D.2d 854, 854 (2d Dep’t 1986). The Second Department has held that “[t]he distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts.” Halas v. Parkway Hospital, Inc., 158 A.D.2d 516, 551 N.Y.S.2d 279 (2d Dep’t 1990). 24. Further, a negligent act or omission “that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice.” Bleiler v. Bodnar, 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885 (1985); Spiegel v. Goldfarb, 66 A.D.3d 873, 874, 889 N.Y.S.2d 45 (2d Dep’t 2009). Thus, when the complaint challenges a 6 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 facility’s performance of functions that are “an integral part of the process of rendering medical treatment”, it sounds in medical malpractice. Scott v Uljanov,74 N.Y.2d at 675, 543 N.Y.S.2d 369(1989); see also Caso v St. Francis Hosp., 34 A.D.3d 714, 714-715, 825 N.Y.S. 2d 127 (2d Dep’t 2006); Fox v White Plains Med. Ctr., 125 AD 2d 538, 539 (2d Dep’t 1986). 25. In the instant matter, the plaintiff’s own complaint evinces the fact this conduct revolved around rendering medical treatment. (See Exhibit A). Plaintiff himself stated Defendant “departed from the standard of care in the medical community” and “failed to prevent decubitus ulcers”. (Exhibit A, para. 55). This alone showcases the allegations concern the rendition of medical treatment. Plaintiff also alleges the Defendant failed to “monitor and supervise the decedent in accordance with good and accepted medical customs, practices and standards” and allowing her “medical condition to deteriorate and worsen”. (Exhibit A, para. 56). Surely, providing services in connection with a persons medical condition bears a substantial relationship to rendition of medical treatment. 26. Whether the Defendant provided inappropriate care to plaintiff requires a determination of whether the physicians, nurses and aides exercised reasonable care within the standard of care customarily exercised by these medical professionals. To prove his case, plaintiff will need medical expert testimony to show Defendant departed from this standard. Because of this, the claim is not grounded in ordinary negligence but rather medical malpractice. Toledo v. Mercy Hosp. of Buffalo, 45 Misc.3d 973 (Erie Cnty. Ct. 2014). 27. Thus, plaintiff’s claims of negligence alleged in the fifth cause of action must be dismissed as the claims are substantially related to the medical treatment sounding in medical malpractice. 7 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 WHEREFORE, the moving defendant Glen Island, respectfully requests that this Court grant its motion and enter an Order: (1) dismissing and striking plaintiff’s claim for punitive damages as plaintiff’s Complaint fails to allege facts and conduct to support such a claim; (2) dismissing plaintiff’s fifth cause of action for medical malpractice as it is duplicative of the fourth cause of action for negligence; and for such other further and different relief as this Court may deem just and proper. SHEELEY, LLP Nicole M. Atlas, ESQ. Attorneys for Defendant GLEN ISLAND CENTER FOR NURSING AND REHABILITATION 100 Wall Street, 19th Floor New York, NY 10005 (646) 887-3442 To: SINEL & OLESEN PLLC Attorneys for Plaintiff 7 Penn Plaza, 8th Floor New York, NY 10001 (212) 465-1000 KAUFMAN, BORGEEST & RYAN, LLP Attorneys for Defendant JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE MULTICARE CENTER 120 Broadway, 14 Floor New York, NY 10271 (212) 980-9600 8 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Jodiann Mattis, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of age and resides in Queens, New York. That on June 10, 2021, deponent served the within NOTICE OF MOTION, AFFIRMATION IN SUPPORT and ACCOMPANYING EXHIBITS upon: SINEL & OLESEN PLLC Attorneys for Plaintiff 7 Penn Plaza, 8th Floor New York, NY 10001 (212) 465-1000 KAUFMAN, BORGEEST & RYAN, LLP Attorneys for Defendant JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE MULTICARE CENTER 120 Broadway, 14 Floor New York, NY 10271 (212) 980-9600 via electronic mail at their respective email address(es) provided for such service. Jodiann Mattis Sworn to before me this 10th day of June, 2021 Notary Public Yvette La Madrid Notary Public, State of New York No.: 01LA6382396 Qualified in New York County Commission Expires October 22, 2022 9 of 10 FILED: WESTCHESTER COUNTY CLERK 06/10/2021 04:34 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/10/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER KEVIN LYNCH, AS ADMINISTRATOR OF THE ESTATE OF ROSE BOUKNIGHT, Index No: 64205/2020 PLAINTIFF, - AGAINST - MONTEFIORE MEDICAL CENTER, GLEN ISLAND CENTER FOR NURSING AND REHABILITATION AND JOPAL BRONX D/B/A WORKMEN’S CIRCLE MULTICARE CENTER, DEFENDANTS. NOTICE OF MOTION SHEELEY LLP Attorneys for Defendant GLEN ISLAND CENTER FOR NURSING AND REHABILITATION Office and Post Office Address 100 Wall Street, 19th Floor New York, New York, 10005 Telephone (646) 650-5952 TO: ALL PARTIES 10 of 10