Preview
FILED: WESTCHESTER COUNTY CLERK 10/30/2022 08:25 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 10/30/2022
EXHIBIT L
FILED: WESTCHESTER COUNTY CLERK 08/30/2021
10/30/2022 03:58
08:25 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 55
103 RECEIVED NYSCEF: 08/30/2021
10/30/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER To commence the statutory time
period for appeals as of right
(CPLR 5513[a]), you are
advised to serve a copy of
this order, with notice of
entry, upon all parties.
P R E S E N T:
HON. MARY H. SMITH
JUSTICE OF THE SUPREME COURT
--------------------------------------------------------------------
KEVIN LYNCH as Administrator of the Estate of ROSE
BOUKNIGHT,
Plaintiff,
DECISION & ORDER
- against - Index No.: 64205/2020
MONTEFIORE MEDICAL CENTER, GLEN ISLAND
CENTER FOR NURSING AND REHABILITATION and
JOPAL BRONX LLC d/b/a WORKMAN’S CIRCLE
MULTICARE CENTER,
Defendants.
--------------------------------------------------------------------
Defendant Glen Island Center for Nursing and Rehabilitation (Glen Island) moves
(#3) to dismiss Plaintiff’s claim for punitive damages as failing to state a claim and to
dismiss Plaintiff’s Fifth Cause of Action as duplicative of Plaintiff’s Fourth Cause of
Action, and Defendant Montefiore Medical Center (Montefiore) moves (#4) to dismiss
Plaintiff’s Second Cause of Action as duplicative of Plaintiff’s First Cause of Action.
The following papers were read:
Notice of Motion (#3), Affirmation, and Exhibits (3) 1-5
Affirmation in Opposition, Exhibit 6-7
Affirmation in Reply 8
Notice of Cross-Motion, Affirmation, Exhibits (6) 9-16
Affirmation in Opposition, Exhibit 17-18
Upon the foregoing papers, as alleged in the Complaint filled on November 6, 2020,
Rose Bouknight (the Decedent) was admitted to Defendant Glen Island Nursing Home
where she resided and was treated from November 21, 2017 through February 2018 and
where her treatment willfully violated Public Health Law Sections 2801-D and 2803-C (the
Third Cause of Action), and was malpractice (the Fourth Cause of Action) and negligent
(the Fifth Cause of Action). Thereafter, she was admitted to Defendant Montefiore where
her treatment was malpractice (the First Cause of Action) and negligent (the Second Cause
of Action) and where she remained until her death on August 26, 2018. Plaintiff sought
punitive damages in connection with the Third Cause of Action.
1
1 of 2
FILED: WESTCHESTER COUNTY CLERK 08/30/2021
10/30/2022 03:58
08:25 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 55
103 RECEIVED NYSCEF: 08/30/2021
10/30/2022
Defendant Glen Island first moves to dismiss the prayer for punitive damages as
failing to state a claim for relief. As the Public Health Law sections sued under allow
punitive damages for the willful violation thereof, and such has been alleged, and the
allegations of the Complaint was be deemed true on a 3211 motion, the motion is denied.
Defendant Glen Island next moves to dismiss the Fifth Cause of Action (negligence) as
being duplicative of the Fourth Cause of Action (malpractice). As pleading in the
alternative is permitted (CPLR 3014), the motion is denied as premature without prejudice
to renewal after discovery: then the Plaintiff will have to pick one (Board of Education of
Farmingdale v Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397, 406
[1975]; Napoli v Bern, 60 Misc3d 1221[A][Sup Ct, NY Co 2018]). Accordingly, the
motion is denied.
Defendant Montefiore similarly moves to dismiss the Second Cause of Action
(negligence) as being duplicative of the First (malpractice.) The motion is denied for the
same reason, it being premature (id.), with leave to renew after the completion of discovery.
Dated: August 30, 2021
White Plains, New York
2
2 of 2
FILED: WESTCHESTER COUNTY CLERK 08/30/2021
10/30/2022 04:02
08:25 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 56
103 RECEIVED NYSCEF: 08/30/2021
10/30/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER To commence the statutory time
period for appeals as of right
(CPLR 5513[a]), you are
advised to serve a copy of
this order, with notice of
entry, upon all parties.
P R E S E N T:
HON. MARY H. SMITH
JUSTICE OF THE SUPREME COURT
--------------------------------------------------------------------
KEVIN LYNCH as Administrator of the Estate of ROSE
BOUKNIGHT,
Plaintiff,
DECISION & ORDER
- against - Index No.: 64205/2020
MONTEFIORE MEDICAL CENTER, GLEN ISLAND
CENTER FOR NURSING AND REHABILITATION and
JOPAL BRONX LLC d/b/a WORKMAN’S CIRCLE
MULTICARE CENTER,
Defendants.
--------------------------------------------------------------------
Defendant Glen Island Center for Nursing and Rehabilitation (Glen Island) moves
(#3) to dismiss Plaintiff’s claim for punitive damages as failing to state a claim and to
dismiss Plaintiff’s Fifth Cause of Action as duplicative of Plaintiff’s Fourth Cause of
Action, and Defendant Montefiore Medical Center (Montefiore) moves (#4) to dismiss
Plaintiff’s Second Cause of Action as duplicative of Plaintiff’s First Cause of Action.
The following papers were read:
Notice of Motion (#3), Affirmation, and Exhibits (3) 1-5
Affirmation in Opposition, Exhibit 6-7
Affirmation in Reply 8
Notice of Cross-Motion, Affirmation, Exhibits (6) 9-16
Affirmation in Opposition, Exhibit 17-18
Upon the foregoing papers, as alleged in the Complaint filled on November 6, 2020,
Rose Bouknight (the Decedent) was admitted to Defendant Glen Island Nursing Home
where she resided and was treated from November 21, 2017 through February 2018 and
where her treatment willfully violated Public Health Law Sections 2801-D and 2803-C (the
Third Cause of Action), and was malpractice (the Fourth Cause of Action) and negligent
(the Fifth Cause of Action). Thereafter, she was admitted to Defendant Montefiore where
her treatment was malpractice (the First Cause of Action) and negligent (the Second Cause
of Action) and where she remained until her death on August 26, 2018. Plaintiff sought
punitive damages in connection with the Third Cause of Action.
1
1 of 2
FILED: WESTCHESTER COUNTY CLERK 08/30/2021
10/30/2022 04:02
08:25 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 56
103 RECEIVED NYSCEF: 08/30/2021
10/30/2022
Defendant Glen Island first moves to dismiss the prayer for punitive damages as
failing to state a claim for relief. As the Public Health Law sections sued under allow
punitive damages for the willful violation thereof, and such has been alleged, and the
allegations of the Complaint was be deemed true on a 3211 motion, the motion is denied.
Defendant Glen Island next moves to dismiss the Fifth Cause of Action (negligence) as
being duplicative of the Fourth Cause of Action (malpractice). As pleading in the
alternative is permitted (CPLR 3014), the motion is denied as premature without prejudice
to renewal after discovery: then the Plaintiff will have to pick one (Board of Education of
Farmingdale v Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397, 406
[1975]; Napoli v Bern, 60 Misc3d 1221[A][Sup Ct, NY Co 2018]). Accordingly, the
motion is denied.
Defendant Montefiore similarly moves to dismiss the Second Cause of Action
(negligence) as being duplicative of the First (malpractice.) The motion is denied for the
same reason, it being premature (id.), with leave to renew after the completion of discovery.
Dated: August 30, 2021
White Plains, New York
2
2 of 2
Preview
FILED: WESTCHESTER COUNTY CLERK 10/30/2022 08:25 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 10/30/2022 EXHIBIT L FILED: WESTCHESTER COUNTY CLERK 08/30/2021 10/30/2022 03:58 08:25 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 55 103 RECEIVED NYSCEF: 08/30/2021 10/30/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. P R E S E N T: HON. MARY H. SMITH JUSTICE OF THE SUPREME COURT -------------------------------------------------------------------- KEVIN LYNCH as Administrator of the Estate of ROSE BOUKNIGHT, Plaintiff, DECISION & ORDER - against - Index No.: 64205/2020 MONTEFIORE MEDICAL CENTER, GLEN ISLAND CENTER FOR NURSING AND REHABILITATION and JOPAL BRONX LLC d/b/a WORKMAN’S CIRCLE MULTICARE CENTER, Defendants. -------------------------------------------------------------------- Defendant Glen Island Center for Nursing and Rehabilitation (Glen Island) moves (#3) to dismiss Plaintiff’s claim for punitive damages as failing to state a claim and to dismiss Plaintiff’s Fifth Cause of Action as duplicative of Plaintiff’s Fourth Cause of Action, and Defendant Montefiore Medical Center (Montefiore) moves (#4) to dismiss Plaintiff’s Second Cause of Action as duplicative of Plaintiff’s First Cause of Action. The following papers were read: Notice of Motion (#3), Affirmation, and Exhibits (3) 1-5 Affirmation in Opposition, Exhibit 6-7 Affirmation in Reply 8 Notice of Cross-Motion, Affirmation, Exhibits (6) 9-16 Affirmation in Opposition, Exhibit 17-18 Upon the foregoing papers, as alleged in the Complaint filled on November 6, 2020, Rose Bouknight (the Decedent) was admitted to Defendant Glen Island Nursing Home where she resided and was treated from November 21, 2017 through February 2018 and where her treatment willfully violated Public Health Law Sections 2801-D and 2803-C (the Third Cause of Action), and was malpractice (the Fourth Cause of Action) and negligent (the Fifth Cause of Action). Thereafter, she was admitted to Defendant Montefiore where her treatment was malpractice (the First Cause of Action) and negligent (the Second Cause of Action) and where she remained until her death on August 26, 2018. Plaintiff sought punitive damages in connection with the Third Cause of Action. 1 1 of 2 FILED: WESTCHESTER COUNTY CLERK 08/30/2021 10/30/2022 03:58 08:25 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 55 103 RECEIVED NYSCEF: 08/30/2021 10/30/2022 Defendant Glen Island first moves to dismiss the prayer for punitive damages as failing to state a claim for relief. As the Public Health Law sections sued under allow punitive damages for the willful violation thereof, and such has been alleged, and the allegations of the Complaint was be deemed true on a 3211 motion, the motion is denied. Defendant Glen Island next moves to dismiss the Fifth Cause of Action (negligence) as being duplicative of the Fourth Cause of Action (malpractice). As pleading in the alternative is permitted (CPLR 3014), the motion is denied as premature without prejudice to renewal after discovery: then the Plaintiff will have to pick one (Board of Education of Farmingdale v Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397, 406 [1975]; Napoli v Bern, 60 Misc3d 1221[A][Sup Ct, NY Co 2018]). Accordingly, the motion is denied. Defendant Montefiore similarly moves to dismiss the Second Cause of Action (negligence) as being duplicative of the First (malpractice.) The motion is denied for the same reason, it being premature (id.), with leave to renew after the completion of discovery. Dated: August 30, 2021 White Plains, New York 2 2 of 2 FILED: WESTCHESTER COUNTY CLERK 08/30/2021 10/30/2022 04:02 08:25 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 56 103 RECEIVED NYSCEF: 08/30/2021 10/30/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. P R E S E N T: HON. MARY H. SMITH JUSTICE OF THE SUPREME COURT -------------------------------------------------------------------- KEVIN LYNCH as Administrator of the Estate of ROSE BOUKNIGHT, Plaintiff, DECISION & ORDER - against - Index No.: 64205/2020 MONTEFIORE MEDICAL CENTER, GLEN ISLAND CENTER FOR NURSING AND REHABILITATION and JOPAL BRONX LLC d/b/a WORKMAN’S CIRCLE MULTICARE CENTER, Defendants. -------------------------------------------------------------------- Defendant Glen Island Center for Nursing and Rehabilitation (Glen Island) moves (#3) to dismiss Plaintiff’s claim for punitive damages as failing to state a claim and to dismiss Plaintiff’s Fifth Cause of Action as duplicative of Plaintiff’s Fourth Cause of Action, and Defendant Montefiore Medical Center (Montefiore) moves (#4) to dismiss Plaintiff’s Second Cause of Action as duplicative of Plaintiff’s First Cause of Action. The following papers were read: Notice of Motion (#3), Affirmation, and Exhibits (3) 1-5 Affirmation in Opposition, Exhibit 6-7 Affirmation in Reply 8 Notice of Cross-Motion, Affirmation, Exhibits (6) 9-16 Affirmation in Opposition, Exhibit 17-18 Upon the foregoing papers, as alleged in the Complaint filled on November 6, 2020, Rose Bouknight (the Decedent) was admitted to Defendant Glen Island Nursing Home where she resided and was treated from November 21, 2017 through February 2018 and where her treatment willfully violated Public Health Law Sections 2801-D and 2803-C (the Third Cause of Action), and was malpractice (the Fourth Cause of Action) and negligent (the Fifth Cause of Action). Thereafter, she was admitted to Defendant Montefiore where her treatment was malpractice (the First Cause of Action) and negligent (the Second Cause of Action) and where she remained until her death on August 26, 2018. Plaintiff sought punitive damages in connection with the Third Cause of Action. 1 1 of 2 FILED: WESTCHESTER COUNTY CLERK 08/30/2021 10/30/2022 04:02 08:25 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 56 103 RECEIVED NYSCEF: 08/30/2021 10/30/2022 Defendant Glen Island first moves to dismiss the prayer for punitive damages as failing to state a claim for relief. As the Public Health Law sections sued under allow punitive damages for the willful violation thereof, and such has been alleged, and the allegations of the Complaint was be deemed true on a 3211 motion, the motion is denied. Defendant Glen Island next moves to dismiss the Fifth Cause of Action (negligence) as being duplicative of the Fourth Cause of Action (malpractice). As pleading in the alternative is permitted (CPLR 3014), the motion is denied as premature without prejudice to renewal after discovery: then the Plaintiff will have to pick one (Board of Education of Farmingdale v Farmingdale Classroom Teachers Association, Inc., 38 NY2d 397, 406 [1975]; Napoli v Bern, 60 Misc3d 1221[A][Sup Ct, NY Co 2018]). Accordingly, the motion is denied. Defendant Montefiore similarly moves to dismiss the Second Cause of Action (negligence) as being duplicative of the First (malpractice.) The motion is denied for the same reason, it being premature (id.), with leave to renew after the completion of discovery. Dated: August 30, 2021 White Plains, New York 2 2 of 2