Motion for Summary Judgment in Kevin Lynch as Administrator of the Estate of Rose Bouknight v. Montefiore Medical Center, Glen Island Center For Nursing And Rehabilitation And, Jopal Bronx Llc d/b/a Workmen's Circle Multicare Center| Trellis.Law

On November 06, 2020 a Motion-Secondary was filed involving a dispute between Kevin Lynch As Administrator Of The Estate Of Rose Bouknight, and Glen Island Center For Nursing And Rehabilitation And, Jopal Bronx Llc D B A Workmen'S Circle Multicare Center, Montefiore Medical Center, for Torts - Medical, Dental, or Podiatrist Malpractice in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 10/28/2022 01:55 PM INDEX NO. 64205/2020
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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KEVIN LYNCH as Administrator of the Estate of ROSE
BOUKNIGHT,

Plaintiff, Index No.: 64205/2020

-against- AFFIRMATION
IN SUPPORT
MONTEFIORE MEDICAL CENTER, GLEN ISLAND
CENTER FOR NURSING AND REHABILITATION and
JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE
MULTICARE CENTER,

Defendants.
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GONZALO G. SUAREZ, an attorney duly admitted to practice law in courts of the State of

New York, hereby affirms the following pursuant to the penalties of perjury:

1. Your Affirmant is an attorney at law, associated with KAUFMAN BORGEEST &

RYAN LLP, attorneys for Defendant JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE

MULTICARE CENTER (hereinafter “WORKMEN”), and as such, is fully familiar with all of

facts and circumstances as hereinafter set forth.

2. This Affirmation is submitted upon information and belief, the sources of which are

the files and records maintained by the law offices of KAUFMAN BORGEEST & RYAN LLP

pertaining to this matter.

3. This Affirmation is submitted in support of WORKMEN’s motion for summary

judgment pursuant to CPLR § 3212, dismissing plaintiff’s complaint in its entirety and directing the

Clerk to enter judgment in WORKMEN’s favor; or alternatively, in the event summary judgment is

not granted in its entirety, granting partial summary judgment dismissing plaintiff’s claims for punitive

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damages pursuant to CPLR § 3212; and for such other and further relief that this Court deems just and

proper.

PROCEDURAL HISTORY

4. KEVIN LYNCH, as Administrator of the Estate of ROSE BOUKNIGHT,

commenced this personal injury action by the filing of a Summons and Complaint in the Office of

the Bronx County Clerk on July 1, 2020 (Exhibit “A”). Thereafter, a motion was made to transfer

venues to Westchester County which was granted (See Notice of Motion and Order with Notice of

Entry of 1/25/21 annexed hereto as Exhibit “B”). Issue was joined on WORKMEN’s behalf on or

about October 22, 2020, by the service of a Verified Answer. Thereafter, codefendant GLEN

ISLAND CENTER FOR NURSING AND REHABILITATION joined issue by service of a

Verified Answer on November 3, 2020, and codefendant MONTEFIORE MEDICAL CENTER

joined issued by service of a Verified Answer on November 12, 2020 (Answers collectively

annexed as Exhibit “C”).

5. The Complaint contains three causes of action against WORKMEN, including

causes of action for Negligence, violation of the Public Health Law, and Medical Malpractice

(Exhibit “A”). The dates of negligence asserted against WORKMEN are noted as February 7,

2018, through July 28, 2018. In their initial Verified Bill of Particulars (Exhibit “D”), plaintiff

alleges decedent sustained a sacral pressure ulcer, coccyx pressure ulcer, right buttock pressure

ulcer, pressure ulcer of the perineal area, pressure ulcer over the right leg, pressure ulcer over the

left lateral lag as a result of the care and treatment rendered at WORKMEN.

6. As set forth in Plaintiff’s Bill of Particulars (Exhibit “D”), plaintiff claims that the

76-year-old female decedent, ROSE BOUKNIGHT, sustained personal injuries while admitted to

WORKMEN’s nursing and rehabilitation facility February 7, 2018, through July 22, 2018.

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Plaintiff’s Verified Bill of Particulars in boilerplate fashion claims that defendant WORKMEN

failed to perform a proper risk assessment for development of pressure ulcers, failing to turn and

position, causing and creating serious and irreversible complications from pressure ulcers, failing to

properly monitor and treat pressure ulcers, failing to provide proper nutrition and hydration, failing

to provide proper pressure relieving devices and equipment, failing to keep accurate records, failing

to adhere to the plan of care, failing to modify the plan of care according to decedent’s medical

condition; failing to hire efficient and skilled personnel, and failing to train personnel, and failing to

transfer decedent to hospitals in a timely manner. Additionally, plaintiff predicates his PHL §§

2801-d and 2803-c claims upon purported violations of the following regulations: 10 NYCRR 415.3

which mandates that a resident has a right to a dignified existence with respect, consideration and

privacy in treatment and care for personal needs and communication with and access to persons and

services inside and outside the facility; 10 NYCRR 415.4 and 42 CFR 483.13 regarding resident

behavior and facility practices; 10 NYCRR 415.5 and 42 CFR 483.25 and 483.15 regarding general

quality of resident’s life;10 NYCRR 415.11 and 42 CFR 483.20 which mandates comprehensive,

accurate, standardized, and reproducible admission and periodic assessments; 10 NYCRR 415.12

which states that each resident shall receive and the facility shall provide the necessary care and

service to attain or maintain the highest practicable physical, mental, and psycho social well-being,

in accordance with the comprehensive assessment and plan of care subject to the resident’s right of

self-determination; 10 NYCRR 415.13 which maintains the facility shall have sufficient nursing

staff to provide said care; 10 NYCRR 415.14 maintaining that the facility shall provide each

resident with nourishing, palatable well-balanced diets that meet nutritional needs; 10 NYCRR

415.15 and 42 CFR 483.30 regarding medical services; 10 NYCRR 415.16 regarding rehabilitative

services; 10 NYCRR 415.17 regarding dental services; 10 NYCRR 415.18 regarding pharmacy

services; 10 NYCRR 415.19 and 42 CFR 483.65 regarding infection control; 10 NYCRR 415.20

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regarding laboratory and blood bank; 10 NYCRR 415.21 regarding radiology and other diagnostic

services; 10 NYCRR 415.22 regarding maintaining clinical records; 42 CFR 483.10 regarding a

dignified existence; and 42 CFR 483.75 regarding administration; and OBRA 1987, and New York

Public Health Law §2801 and § 2803.

7. At the Compliance Conference of May 17, 2022, plaintiff’s counsel advised that they

had settled the matter as against co-defendant GLEN ISLAND CENTER FOR NURSING AND

REHABILITATION. To date, no stipulation of discontinuance has been filed.

8. On August 23, 2022, on consent of all parties, this Court by Hon. William J.

Giacomo certified this matter for trial, directing plaintiff to file their Note of Issue within 20 days of

said order, and providing all parties 60 days pursuant to the CPLR to file motions for summary

judgment. Thereafter, plaintiff filed their Note of Issue on August 31, 2022, noting discovery had

been completed (collectively annexed hereto as Exhibit “E”). As such, the instant motion is

timely.

9. The remaining exhibits are as follows:

a. Defendant’s Exhibit F – Complete WORKMEN Record;

b. Defendant’s Exhibit G – codefendant MONTEFIORE record excerpts;

c. Defendant’s Exhibit H – Jacobi Medical Center record excerpts;

d. Defendant’s Exhibit I – North Central Bronx record excerpts.

STATEMENT OF FACTS

10. The Court is respectfully referred to Defendant’s Statement of Material Facts

pursuant to 22 NYCRR 202.8-g for a statement of the material undisputed facts of this case

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DEFENDANT’S POSITION
POINT I

WORKMEN IS ENTITLED TO THE AWARDING OF SUMMARY JUDGMENT AS TO
NEGLIGENCE, VIOLATIONS OF PHL §§ 2801-D AND 2803-C, AND MEDICAL
MALPRACTICE CAUSES OF ACTION

11. CPLR § 3212 provides that a motion for summary judgment, “shall be granted if

upon all papers and proof submitted, the cause of action or defense shall be established sufficiently

to warrant the court as a matter of law in directing judgment in favor of any party.”

12. Summary Judgment should be granted where there is no genuine, triable issue of fact

and no legal merit to a cause of action. Andre v. Pomeroy, 35 N.Y.2d. 361, 320 N.E.2d 853, 362

N.Y.S.2d 131 (1974). Summary Judgment is intended to "expedite all civil cases by eliminating

from the trial calendar claims which can be properly resolved as a matter of law." Id. at 133.

13. For a Court to grant a motion for summary judgment, the movant must establish by

tender of evidentiary proof that the Court is warranted in directing judgment as a matter of law in

their favor. Borchart v. New York Life Insurance, 102 A.D.2d 465, 466, 477 N.Y.S.2d 167 (1st

Dept., 1984).

14. The proponent of a summary judgment motion must make a prima facie showing of

entitlement to judgment as a matter of law, rendering sufficient evidence to eliminate any material

issues of fact from the case. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923

(1986). Once a prima facie showing has been made, the burden shifts to the plaintiff who must

produce evidentiary proof, in admissible form, sufficient to establish the existence of a material

issue of fact which would require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d

557, 562, 427 N.Y.S.2d 595 (1980), LoBreglio v. Marks, 105 A.D.2d 621, 622, 481 N.Y.S.2d 352

(1st Dept., 1984) Aff’d. 65 N.Y.2d 620. A shadowy semblance of an issue is not enough to defeat a

motion for summary judgment. Instead, where the moving party sets forth evidentiary facts

sufficient to mandate judgment as a matter of law, the burden is shifted to the other side to come
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forward with admissible evidence supportive of the existence of that triable issue of fact. Weingrad

v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985).

15. The law in New York is clear that a cause of action sounding in medical malpractice

must be dismissed in the absence of competent proof showing that the defendants departed from the

standard of care. See Matos v. Schwartz, 104 A.D.3d 650, 960 N.Y.S.2d 209 (2nd Dept. 2013);

Bendel v. Rajpal, 101 A.D.3d 662, 955 N.Y.S.2d 187 (2nd Dept. 2012); Heller v. Weinberg, 77

A.D.3d 622, 909 N.Y.S.2d 477 (2nd Dept. 2010). The law is equally clear that a defendant is entitled

to summary judgment in the absence of a causal connection between the defendant’s alleged

malpractice and the plaintiffs’ injuries. See Bezerman v. Bailine, 95 A.D.3d 1153, 945 N.Y.S.2d

166 (2nd Dept. 2012); Swanson v. Faju, 95 A.D.3d 1105, 945 N.Y.S.2d 101 (2nd Dept. 2012);

Goldsmith v. Taverni, 90 A.D.3d 704, 935 N.Y.S.2d 39 (2nd Dept. 2011); Salvia v. St. Catherine of

Sienna Medical Center, 84 A.D.3d 1053, 923 N.Y.S.2d 856 (2nd Dept. 2011).

16. In searching the record for an issue of fact, the Court is not obligated to “ferret” out

speculative issues in order to force the matter to trial in hopes that a trial may disclose something

the pretrial proceedings did not. Andre, 35 N.Y.2d at 364, 362 N.Y.S.2d at 133. The Court must not

embark upon a “fishing expedition” in an attempt to fashion a viable cause of action against the

defendant, where such is clearly unfounded,” Oates v. Marino, 106 A.D.2d 289, 292, 428 N.Y.S.2d

739 (1st Dept. 1984). A Court must be cognizant that to defeat a motion for summary judgment, a

triable issue of fact must be shown to be “real not feigned, since a sham or frivolous issue will not

preclude summary relief.” Fender v. Prescott, 101 A.D.2d 418, 476 N.Y.S.2d 128 (1st Dept. 1984),

aff’d, 64 N.Y.2d 1077 (1985).

17. WORKMEN has come forward with a prima facie showing of entitlement to

summary judgment through the detailed and factually supported Expert Affirmation of Vincent

Marchello, MD, as well as the pertinent medical records and exhibits annexed hereto, establishing

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that the care provided to decedent conformed to accepted standards of care, was reasonable (to the

extent that plaintiff’s claims sound in common law negligence) and that with respect to the Public

Health Law § 2801-d and 2803-c cause of action, WORKMEN did not deprive decedent of any

“rights or benefits” to which he may have been entitled as a patient of a residential health care

facility (Marchello Affirmation at ¶ 10-41). With respect to the medical malpractice cause of

action, Dr. Marchello further opines that there were no deviations from the accepted standards of

medical care. Additionally, Dr. Marchello opines that none of the alleged wrongdoing proximately

caused or contributed to decedent’s claimed injuries (Marchello Affirmation at ¶ 10-41). Finally,

Dr. Marchello opines that since there is no evidence of intentional or reckless conduct by

WORKMEN in its care of decedent, as well no evidence of intentional or reckless disregard of his

rights as a nursing home resident, plaintiff’s claims for punitive damages under PHL § 2801-d(2)

must be dismissed (Marchello Affirmation at ¶ 42).

18. Clearly, Dr. Marchello’s highly detailed Expert Affirmation in combination with the

Statement of Material Facts sets forth the facts in the record herein, discussing in great detail,

decedent’s medical history, her treatment course at WORKMEN, and the care provided during the

brief stay during which she was admitted to the facility. He addresses plaintiff’s claims as to the

care and treatment rendered to decedent’s ulcers, most significantly, her sacral pressure ulcer,

coccyx pressure ulcer, right buttock pressure ulcer, pressure ulcer of the perineal area, pressure

ulcer over the right leg, and pressure ulcer over the left lateral lag, opining that his allegations as to

medical malpractice, common law negligence, and violations of Public Health Law §2801-d and

2803-c must be dismissed (Marchello Affirmation at ¶ 10-41).

19. Dr. Marchello clearly states that the care and treatment rendered to decedent’s ulcers,

most significantly, her sacral pressure ulcer, coccyx pressure ulcer, right buttock pressure ulcer,

pressure ulcer of the perineal area, pressure ulcer over the right leg, and pressure ulcer over the left

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lateral lag, conformed to accepted standards of medical care, was reasonable (to the extent that any

of plaintiff’s claims sound in common law negligence), adequate, and appropriate (Marchello

Affirmation at ¶ 10-41), were properly implemented, and that the alleged failure to devise and

implement such measures did not proximately cause decedent’s injuries (Marchello Affirmation at

¶ 10-41).

20. Specifically in regards to skin integrity issues, WORKMEN recognized the

decedent’s risk for skin breakdown and pressure ulcer development and devised an appropriate plan

of care for prevention. As documented throughout the medical record, all appropriate and necessary

assessments were completed, care plans were devised, and care provided by the interdisciplinary

staff at WORKMEN. This included assessments and care by medical staff, nursing, physical

therapy, occupational therapy, speech therapy, dietitians, social workers and recreation therapy

staff. Appropriate care plans to address all care needs, potential for skin breakdown, and potential

for pressure ulcer development were created and implemented. Appropriate medications and

treatments were ordered by the medical staff and administered. Local treatments addressed multiple

areas of skin impairment. Nutritional care was provided by the dietician. Restorative programs of

physical, occupational and speech (dysphagia and cognitive) therapy were provided. Nursing staff

provided support for all activities of daily living, monitored vital signs and glucose levels and

administered medications and local treatments as per physician orders. As documented in the care

plan, skin care interventions included: a pressure reduction mattress, offloading both heels with

pillows when in bed, informing resident/family/caregivers of any new areas of skin breakdown,

assess for changes in skin condition every shift, avoid skin to skin contact, keep skin clean and dry;

turn and position resident every 2 hours and as needed; follow skin integrity protocol, use skin

barrier, offload pressure areas, report any changes or signs of discomfort, treatment per MD orders

– monitor response, monitor signs and symptoms of infection and wound changes and notify MD

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and initiate interventions per MD order, and order consults as needed. Furthermore, decedent was

being followed by the wound care team on a weekly basis.

21. Notwithstanding decedent’s co-morbidities, the WORKMEN record reflects that

decedent’s skin condition and risk factors for pressure ulcer development/worsening were assessed,

a proper Care Plan was devised and implemented in response thereto, the progress of the wounds

and effectiveness of the Plan of Care was monitored at appropriate intervals, and changes to the

plan of care were made when needed. In view of decedent’s multiple medical comorbidities, and the

interventions that were provided, WORKMEN was able to resolve many of decedent’s outside

acquired pressure ulcers, and stabilize/improve the sacral ulcer.

22. Here, the record clearly reflects that appropriate and proper care was provided to

decedent at WORKMEN, that WORKMEN was not the proximate cause for decedent’s injuries,

and establishes WORKMEN’s entitlement to summary judgment, warranting the dismissal of

plaintiff’s claims in their entirety.

POINT II

PLAINTIFF’S CAUSE OF ACTION FOR VIOLATIONS OF PUBLIC HEALTH LAW §
2801-d AND 2803-c SHOULD BE DISMISSED, AS THE RECORD IS DEVOID OF
EVIDENCE OF ANY DEPRIVATIONS OF DECEDENT’S “RIGHTS OR BENEFITS” AS A
NURSING HOME RESIDENT THAT PROXIMATELY CAUSED ANY INJURY

23. New York Courts require proof that the defendant’s alleged departures in care must

be a substantial factor in causing the alleged injury. Koster v. Zajac, 120 A.D.2d 644, 502 N.Y.S.2d

395 (2nd Dept. 1986). Proof of a mere departure without a showing of proximate cause is

insufficient to defeat a prima facie showing of entitlement to summary judgment. Petersen v.

Victory Memorial Hospital, 178 A.D.2d 520, 577 N.Y.S.2d 318 (2nd Dept. 1991). To successfully

oppose a defendant’s Motion for Summary Judgment in a professional malpractice action, the

essential element of proximate cause must be demonstrated. Amsler, supra. A verdict defining

liability can be sustained only if the proof adequately demonstrates that the negligence claimed was
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the proximate cause of the injuries sustained. Foley v. Gillick, 39 A.D.2d 546, 331 N.Y.S.2d 582

(2nd Dept. 1972). The Appellate Division, Second Department has held that where a plaintiff cannot

establish proximate cause by legally sufficient evidence, as a matter of law the Complaint must be

dismissed. Broadie v. St. Francis Hospital, 25 A.D.3d 745, 807 N.Y.S.2d 656 (2nd Dept. 2006). It is

Dr. Marchello’s expert opinion that no act or omission on behalf of WORKMEN proximately

caused any of decedent’s alleged injuries.

24. Plaintiff’s PHL § 2801-d claims must be dismissed. Dr. Marchello’s Expert

Affirmation establishes there were no deprivations of any nursing home resident “rights or benefits”

or the failure to provide adequate and appropriate medical care which proximately caused and/or

contributed to decedent’s alleged injuries and death (Marchello Affirmation at ¶ 10-41). See Pub.

Health L. § 2801-d; Gold v. Park Avenue Extended Care Ctr. Corp., 90 A.D.3d 833, 834, 935

N.Y.S.2d 597, 599 (2nd Dept. 2011)[“The defendant established its prima facie entitlement to

summary judgment as a matter of law on that branch of its motion which was for summary

judgment dismissing the first cause of action, which is based on Public Health Law § 2801-d. The

defendant submitted the affirmation of its expert physician, who opined that the defendant did not

violate the various federal and state regulations set forth in the plaintiff’s bill of particulars as the

basis for this cause of action, and that even if any regulations were violated, none of the alleged

injuries were proximately caused by these violations (see Public Health Law § 2801-d(1))]; Novick

v. South Nassau Comm. Hosp., 136 A.D.3d 999, 26 N.Y.S.3d 182, 185 (2nd Dept. 2016).

25. Dr. Marchello has established that the treatment provided to decedent conformed to

the standard of care and that there was no malpractice on their part that was a proximate cause of

the decedent’s injuries. Thus, WORKMEN has demonstrated prima facie entitlement to judgment

as a matter of law. The burden now shifts to the plaintiff to come forward with proof in admissible

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form to demonstrate the existence of a triable question of fact. As the Court of Appeals held in

Alvarez v. Prospect Hospital:

In a medical malpractice action, a plaintiff, in opposition to a
defendant physician’s summary judgment motion, must submit
evidentiary facts or materials to rebut the prima facie showing by the
defendant physician that he was not negligent in treating plaintiff so
as to demonstrate the existence of a triable issue of fact. General
allegations of medical malpractice merely conclusory and
unsupported by competent evidence tending to establish the essential
elements of medical malpractice are insufficient to defeat defendant
physician’s summary judgment motion.

N.Y.2d 322 at 325, 508 N.Y.S.2d 923 at 925 (1986).

26. Dr. Marchello opines, within a reasonable degree of medical certainty, that

WORKMEN’s treatment of decedent conformed to good and accepted practice, and no malpractice

or omission on their part caused or contributed to decedent’s injuries. Plaintiff is unable to

demonstrate the existence of a triable question of fact. Accordingly, WORKMEN is entitled to

Summary Judgment and plaintiff’s complaint should be dismissed in its entirety.

POINT III

PUNITIVE DAMAGES MAY NOT BE RECOVERED HEREIN, AS THE RECORD IS
DEVOID OF ANY EVIDENCE THAT WORKMEN’S ALLEGED MISCONDUCT IN
RENDERING CARE TO DECEDENT WAS INTENTIONAL, OR
RESULTED FROM WILLFUL OR WANTON NEGLIGENCE

27. Plaintiff’s claim for punitive damages (under PHL §2801-d(2)) should be dismissed,

as such damages are clearly unwarranted. As noted by Dr. Marchello, the care provided to

plaintiff’s decedent conformed to accepted standards of care and all applicable regulations

governing nursing homes, was reasonable, adequate and appropriate, and that he did not sustain any

injuries or damages as a result of the alleged wrongdoing (Marchello Affirmation at ¶ 42). Dr.

Marchello further notes that since there is no evidence of intentional or reckless conduct by

WORKMEN with respect to its care of decedent, there was likewise no intentional or reckless

disregard of his rights as a nursing home resident (Marchello Affirmation at ¶ 42).
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28. It is well settled under New York law that “punitive damages are warranted where

the conduct of the party being held liable evidences a high degree of moral culpability (citations

omitted) or where the conduct is so flagrant as to transcend mere carelessness (citations omitted), or

where the conduct constitutes willful or wanton negligence or recklessness (citations omitted).”

Rey v. Park View Nsg. Home, Inc., 262 A.D.2d 624, 627, 692 N.Y.S.2d 686, 689 (2nd Dept. 1999);

see also, Hill v. 2016 Realty Assocs., 42 A.D.3d 432, 839 N.Y.S.2d 801 (2nd Dept. 2007); Morton v.

Brookhaven Mem. Hosp., 32 A.D.3d 381, 820 N.Y.S.2d 294, 295 (2nd Dept. 2006; Lee v. Health

Force, Inc., 268 A.D.2d 564, 565, 702 N.Y.S.2d 108, 109 (2nd Dept. 200); Zabas v. Kard, 194

A.D.2d 784, 599 N.Y.S.2d 832, 833 (2nd Dept. 1993); Gravitt v. Newman, 114 A.D.2d 1000, 495

N.Y.S.2d 439 (2nd Dept. 1985).

29. The New York Court of Appeals has held that punitive damages are permissible in

personal injury cases under very limited circumstances, where a “very high threshold of moral

culpability is satisfied.” Giblin v. Murphy, 73 N.Y.2d 769, 772, 536 N.Y.S.2d 54, 55, 532 N.E.2d

1282, 1284 (1988). See also, Gruber v. Craig, 208 A.D.2d 900, 901, 618 N.Y.S.2d 84, 85 (2nd

Dept. 1994).

30. In Rey, supra, the Appellate Division, Second Department, affirmed the dismissal of

the plaintiff’s causes of action for punitive damages against the defendant nursing home. In that

case, the plaintiff alleged that her decedent, a 76 year old resident of the defendant’s nursing home,

fell out of a recliner, fracturing her hip, after being involved in several prior falls at the nursing

home. Rey, 262 A.D.2d at 625, 692 N.Y.S.2d at 688. The Rey Court’s decision was based upon the

Court’s determination that “it cannot be reasonably concluded that the nursing home’s conduct was

such as would warrant the award of punitive damages to the plaintiff.” Rey, 262 A.D.2d at 626, 692

N.Y.S.2d at 689.

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31. The instant matter is analogous to Rey, supra, as it is clearly not one of the rare

personal injury cases in which punitive damages may be permissible. The record is devoid of

evidence of a “very high threshold of moral culpability” by WORKMEN in connection with its

treatment of plaintiff during his residency at its facility.

32. Public Health Law §2801-d permits the awarding of damages against nursing homes

by their residents for damages caused by deprivations of “right[s] or benefit[s]” conferred by

contract, or Federal and/or State statute, code, rule or regulation. See, Pub. Health L. §2801-d(1).

The statute also states 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” (emphasis added). Pub. Health L. §2801-d(2); see Valensi v. Park Ave. Operating Co.,

LLC, 169 A.D.3d 960, 961-962, 94 N.Y.S.3d 311, 313 (2nd Dep’t 2019); see also Butler v.

Shorefront Jewish Geriatric Ctr., 33 Misc.3d 686, 695, 932 N.Y.S.2d 672, 679 (Sup. Ct. Kings Co.

2011), wherein this Honorable Court 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.”

33. At bar, WORKMEN has established its entitlement to summary judgment,

dismissing any claim for punitive damages under Public Health Law §2801-d(2), setting forth, via

Dr. Marchello’s Expert Affirmation, the lack of any legal basis for such damages. Clearly, the

record is devoid of any evidence that WORKMEN’s staff intended to harm plaintiff’s decedent, or

that they were “reckless” in their care of him. As such, dismissal of plaintiff’s claim for punitive

damages is warranted.

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CONCLUSION

34. WORKMEN has come forward with prima facie evidence establishing its

entitlement to summary judgment pursuant to CPLR § 3212, dismissing plaintiff’s complaint in its

entirety and directing the Clerk to enter Judgment in its favor, or alternatively, in the event summary

judgment is not granted in its entirety, granting partial summary judgment, dismissing plaintiff’s claims

for punitive damages pursuant to CPLR § 3212, together with such other and further relief as the

Court deems just and proper.

35. No prior application for the relief requested has been made to this or any other Court.

WHEREFORE, based upon the foregoing, it is respectfully requested that the Court issue

an Order pursuant to CPLR § 3212, granting summary judgment to defendant, WORKMEN

dismissing plaintiff’s complaint in its entirety and directing the Clerk to enter Judgment in

defendant’s favor; alternatively, in the event summary judgment is not granted in its entirety, granting

partial summary judgment, dismissing plaintiff’s claims for punitive damages pursuant to CPLR §

3212, together with such other and further relief as the Court deems just and proper.

To the best of my knowledge, information and belief, formed after an inquiry reasonable under the
circumstances, the presentation of the paper or the contentions herein are not frivolous, as that term
is defined in Part 130 of the Court Rules.

Dated: Garden City, New York
October 28, 2022

_________________________________
GONZALO G. SUAREZ, ESQ.

14
4655751

14 of 15
FILED: WESTCHESTER COUNTY CLERK 10/28/2022 01:55 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 10/28/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
--------------------------------------------------------------------------X
KEVIN LYNCH as Administrator of the Estate of ROSE
BOUKNIGHT,
Index No.: 64205/2020
Plaintiff,
WORD COUNT
-against- CERTIFICATION
PURSUANT
MONTEFIORE MEDICAL CENTER, GLEN ISLAND TO RULE 202.8-B
CENTER FOR NURSING AND REHABILITATION and
JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE
MULTICARE CENTER,

Defendants.
--------------------------------------------------------------------------X

GONZALO G. SUAREZ, an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following pursuant to the penalties of perjury pursuant to
CPLR § 2106, that the above Affirmation in Support complies with the word count limitation set
forth in Rule 202.8-B of the Unified Court Systems of New York, as it contains 4,210 words. In
preparation of this certification I have relied upon the word count of the word processing system
used in preparation of this Affirmation in Support.

GONZALO G. SUAREZ, ESQ.

15
4655751

15 of 15

Case Info

Judge

Lewis Jay Lubell Track Judge’s New Case

Case No.

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Document Filed Date

October 28, 2022

Case Filing Date

November 06, 2020

County

Parties

ATLAS, NICOLE MARIE Attorney for the Defendant
CHAMPEY, CHRISTINE ANNE Attorney for the Defendant
FERNANDEZ ROCKWELL, CHRISTINE ELIZA Attorney for the Defendant
Glen Island Center for Nursing and Rehabilitation and Defendant
Jopal Bronx LLC d/b/a Workmen's Circle Multicare Center Defendant
Kevin Lynch as Administrator of the Estate of Rose Bouknight Plaintiff
KOLAWOLE, OLUWATOSIN GLADYS Attorney for the Defendant
Montefiore Medical Center Defendant
SINEL, ELLIOT B Attorney for the Plaintiff
SUAREZ, GONZALO GASTON Attorney for the Defendant
TURKEN, JASON DANIEL Attorney for the Defendant
LUIS UMANA Attorneys for Plaintiffs
JANICE CASTRO Attorney
DANIEL NAEDER Attorney
GONZALO GUTIERREZ-ALVAREZ Attorneys for Defendants
JEFFREY BONDOC Attorneys for Defendants
KYLE EPSTEIN Attorneys for Defendants
AUSTIN O'BRIEN Attorneys for Plaintiffs
AMANDA OLESEN Attorneys for Plaintiffs

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Motion-Secondary: Kevin Lynch as Administrator of the Estate of Rose Bouknight v. Montefiore Medical Center, Glen Island Center For Nursing And Rehabilitation And, Jopal Bronx Llc d/b/a Workmen's Circle Multicare Center

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