Motion to Appoint Counsel 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 02/01/2023 06:17 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 02/01/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
-----------------------------------------------------------------------X
KEVIN LYNCH as Administrator of the Estate of ROSE Index No. 64205/2020
BOUKNIGHT,
Plaintiff(s),
AFFIRMATION IN
- against - OPPOSITION TO
DEFENDANT
MONTEFIORE MEDICAL CENTER and JOPAL BRONX WORKMEN’S CIRCLE
LLC d/b/a WORKMEN’S CIRCLE MULTICARE CENTER, MOTION FOR SUMMARY
Defendant(s). JUDGMENT
-----------------------------------------------------------------------X
TABLE OF CONTENTS
TABLE OF CONTENTS _______________________________________________________________________ 1
PROCEDURAL HISTORY _____________________________________________________________________ 2
STATEMENT OF FACTS _____________________________________________________________________ 2
A. Review of Records _____________________________________________________________________ 2
B. Plaintiff’s Expert’s Opinion _____________________________________________________________ 2
ARGUMENT ________________________________________________________________________________ 2
A. STANDARD OF REVIEW ______________________________________________________________ 2
B. SUMMARY JUDGMENT SHOULD PROPERLY BE DENIED _______________________________ 3
CONCLUSION _____________________________________________________________________________ 10

LUIS A. UMANA, Esq., an attorney duly admitted to practice law in the Courts of the State

of New York, affirms the following to be true under penalties of perjury:

1. I am an attorney in the firm of SINEL & OLESEN, PLLC, attorneys for Plaintiff,

and as such I am fully familiar with the facts of this case based upon my review of the documents

contained in the file maintained in my office.

2. This affirmation is respectfully submitted, together with an affidavit of an expert

physician, in opposition to the motion filed by Defendant Jopal Bronx LLC d/b/a Workmen’s

Circle Multicare Center. (hereinafter “Workmen’s Circle” or “Defendant”) seeking an Order

granting summary judgment to Defendant pursuant to CPLR § 3212.

3. For the reasons set forth herein, and the affirmation by Plaintiff’s expert medical

doctor, Plaintiff respectfully requests that Defendant’s motion be denied in its entirety, as the

Plaintiff has established the existence of material issues of fact with regard to the causes of action

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against Defendant for medical malpractice, negligence, and violations of the New York Public

Health Law in its care and treatment of the Plaintiff’s decedent, Rose Bouknight.

4. As there are fundamental questions of fact for a jury to decide at trial with regard

to the Defendant’s care and treatment of Plaintiff, Defendant’s motion must be denied.

5. Annexed hereto as Exhibit “A” is the affirmation of Plaintiff’s medical expert,

...……………………..1. This affirmation clearly establishes within a reasonable degree of

medical certainty that the severe injuries sustained by the Plaintiff’s decedent occurred as a result

of the medical malpractice, negligence, and Public Health Law violations of Defendant.

PROCEDURAL HISTORY

6. Plaintiff commenced this action against Defendant under the causes of action for

negligence, medical malpractice, and Public Health Law violations. For the sake of judicial

economy, Plaintiff incorporates by reference the procedural history set forth in Defendant’s

Affirmation in Support of its motion ¶¶4-8 as well as the exhibits attached thereto.

STATEMENT OF FACTS

A. Review of Records

7. For the sake of judicial economy, Plaintiff respectfully directs Court and counsel to

¶¶6-81 of Plaintiff’s Exhibit “A” with respect to Plaintiff’s expert’s review of records.

B. Plaintiff’s Expert’s Opinion

8. For the sake of judicial economy, Plaintiff respectfully directs Court and counsel to

¶¶82-110 of Plaintiff’s Exhibit “A” with respect to Plaintiff’s expert’s opinions.

ARGUMENT

A. STANDARD OF REVIEW

1
For purposes of this affirmation, the name of this physician has been redacted in the e-filed version. It is available
for an in camera inspection for this Honorable Court.

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9. Summary judgment is a drastic remedy because it deprives the litigant of his or her

day in court. See Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); see also Barclay v. Denckla, 582

N.Y.S.2d 252, 253 (2d Dept. 1992); Henderson v. City of N.Y., 576 N.Y.S.2d 562, 564 (1st Dept.

1991).

10. As such, summary judgment should only be employed when there is no doubt as to

the absence of triable issues. See Andre, 35 N.Y.2d at 364; Epstein v. Scally, 472 N.Y.S.2d 318, 319

(1st Dept. 1984). "Unresolved questions of fact require denial of a motion for summary judgment."

Jowce v. Puffbar Builders, 443 N.Y.S.2d 178, 179 (2d Dept. 1981).

11. On a motion for summary judgment, the facts and the evidence must be construed "in

a light most favorable to the non-moving party and should be denied where there is any significant

doubt whether a material issue of fact exists or if there is even arguably such an issue." Bulger v. Tri-

Town Agency, Inc., 543 N.Y.S.2d 217 (3d. Dept. 1989). Accordingly, the Court gives the non-moving

party the benefit of all reasonable inferences that can be drawn from the evidence. See Negri v. Stop

& Shop, Inc. 65 N.Y.2d 625, 626 (1985).

12. As indicated, there are clear material issues of fact with respect to the cause of

Plaintiff’s decedent’s injuries, and these issues cannot be resolved by summary judgment proceeding.

B. SUMMARY JUDGMENT SHOULD PROPERLY BE DENIED

13. Defendant’s motion for summary judgment must be denied because it has not met

its burden to demonstrate it is entitled to summary judgment as a matter of law. Defendant failed

to meet that burden as its expert’s opinions are without merit and inconsistent with the evidence

herein, as demonstrated by Plaintiff’s expert. See Plaintiff’s Expert Affirmation, annexed hereto

as Exhibit “A.”

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14. It is well settled that the party in favor of summary judgment must make a prima

facie showing of entitlement to judgment as a matter of law, offering sufficient evidence in

admissible form demonstrating the absence of material issues of fact. See Winegrad v. New York

Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). It is further settled that in a medical malpractice

action, “[o]n a motion for summary judgment, a Defendant…has the burden of establishing the

absence of any departure from good and accepted medical practice or that the Plaintiff was not

injured thereby.” See Rebozo v. Wilen, 41 A.D.3d 457, 458-59 (2d Dept. 2007); Johnson v. Queens-

Long Island Med. Group, 23 AD3d 525, 526-27 (2d Dept. 2005); Geller v. Walbaum, 33 AD3d

855, 855-56 (2d Dept. 2006).

15. Here, Defendant asks for this Court to dismiss Plaintiff’s complaint in its entirety,

by simply stating that Defendant met the applicable standard of care and because Plaintiff’s

decedent’s injuries were purportedly “unavoidable.” However, Defendant’s motion falls short of

making a prima facie case that this Defendant met the standards of care for the Plaintiff’s decedent.

Instead, Defendant’s expert relies simply on the theory that the deterioration of the Plaintiff’s

decedent’s pressure ulcers was “clinically unavoidable” due to his medical conditions, and that

they did no wrong. In essence, Defendant’s motion offers conclusory and speculative remarks to

this Court regarding the treatment of the Plaintiff’s decedent along with general remarks stating

that all pressure ulcer preventive measures were in place. As such, Defendant’s request for

summary judgment is unfounded, and should be denied.

16. Furthermore, it is worth noting that any argument of “unavoidability” by definition

is only valid in the event a defendant did everything they could to prevent the injury from

occurring. Here, as thoroughly demonstrated by the above-stated facts and as supported by

Plaintiff’s medical expert to a reasonable degree of medical certainty, that simply did not occur.

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As such, defendant’s theory fails and its application for the relief of summary judgment must be

denied.

17. When the submissions of the moving party are insufficient to demonstrate

entitlement to judgment as a matter of law, the motion for summary judgment should be denied,

without regard to the sufficiency of the opposing papers. See Rentz v. Modell, 262 AD2d 545 (2d

Dept. 1999), citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851. Here, no part of

Plaintiff’s causes of action should be dismissed as Defendant has failed to present the Court with

anything that would allow determination in a summary judgment setting as to what aspects of the

Plaintiff’s decedent’s care were adequately met.

18. In sharp contrast, there are multiple issues related to the treatment of the Plaintiff’s

decedent that were below the standard of care as accepted by the medical community and were

inconsistent with the level of care acceptable in this community. In opposition to Defendant’s

moving papers, Plaintiff’s attached expert affirmation attests to the Defendant’s many departures

from accepted practice, numerous violations under the Public Health Law, and which departures

were “competent producing causes of Plaintiff’s decedent’s injuries.” See Rebozo v. Wilen, 41

AD3d at 458-59; Rosenman v. Shrestha, 48 AD3d 781, 783 (2d Dept. 2008). Plaintiff’s expert

points to these specific unacceptable departures and violations in said Affirmation.

19. Importantly, Defendant’s records show that turning and positioning was not

properly done, and in most instances, not done at all. Defendant’s turning and positioning records

are incomplete or non-existent on some days. Plaintiff’s expert stated that it was crucial for

decedent to be kept on a strict turning and positioning regimen in light of her deteriorating skin

breakdown. Defendant herein failed in this respect as the Plaintiff’s decedent’s record shows no

indication that turning and positioning was actually done every two hours throughout Plaintiff’s

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decedent’s admission. Furthermore, the fact that the turning and positioning records were

incomplete or nonexistent, signifying no usable record to demonstrating that turning and

positioning was done, is in and of itself a violation of the Public Health Law.

20. As stated above, summary judgment must be denied where there are unresolved

questions of fact. See Jowce, 443 N.Y.S.2d at 179. Here, Defendant seeks dismissal of the claims by

attributing Plaintiff’s decedent’s injuries to a theory of clinical unavoidability but fails to address

the obligation of a nursing facility to modify its care and treatment of a resident in accordance with

that individual’s underlying medical conditions, not in spite of them. Moreover, Defendant ignores

the evidenced departures from good and accepted medical care regarding pressure relief and

treatment of Plaintiff’s decedent, an individual that was known to Defendant as a high risk for the

deterioration of pressure ulcers. Defendant cannot point to any standard, policy, or research that

indicates that pressure ulcers simply and unavoidably deteriorate. These major questions of fact

remain unresolved and therefore substantiate a denial of summary judgment.

21. Moreover, Plaintiff is entitled to all claims of statutory violations, and is also

entitled to punitive damages, and the Defendant has failed to meet its burden on both of these

arguments. The violation of both Federal and State regulations that govern the operation of a

nursing home and are established for the wellbeing of all nursing home patients, including Ms.

Bouknight, serves as the basis of the PHL §2801-d claim. Not only are the duties and obligations

set forth in the regulations non-delegable, but they also flow directly from the nursing home facility

to Ms. Bouknight. Public Health Law §2801-d provides a cause of action to any patient of a

residential health care facility who has been derived of certain rights or benefits as defined by the

statute.

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22. In Petralia v. Glenhaven Health Care, 143 AD3d 962 (2d Dept. 2016), the

Defendant failed to follow its own care plan, and the court found that the Defendant cannot

demonstrate prima facie entitlement to summary judgment, or in this case, that it complied with

§415.12(h)(2). Similarly, to this case, the Defendant cannot demonstrate in any manner, much

less as a matter of law, that it “exercised all care reasonably necessary to prevent and/or limit the

deprivation and injury…for which liability is asserted under PHL §2801-d.”

23. Public Health Law §2801-d provides a cause of action to any patient of a residential

health care facility who has been deprived of certain rights or benefits as defined by the statute.

Specifically, “any residential health care facility that deprives any patient of said facility of any

right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result

of said deprivation, except as hereinafter provided. For purposes of this section a “right or benefit”

of a patient of a residential health care facility shall mean any right or benefit created or established

for the well-being of the patient by the terms of any contract, by any state statute, code, rule, or

regulation.” Unless the Defendant can prove that it implemented all such care, then the facility is

liable as a matter of law under PHL §2810-d. Defendant has not met its burden and as such the

motion for summary judgment must be denied.

24. Further, as the plain language of the statute states, “the remedies provided in this

section are in addition to and cumulative with any other remedies available to a patient, at law of

in equity or by administrative proceedings, including tort causes of action, and may be granted

regardless of whether such other remedies are available or are sought.” PHL §2801-d(4); see

Sullivan v. Our Lady of Consolation Geriatric Care Ctr., 60 AD3d 663 (2d Dept. 2009)

(negligence and PHL §2801-d claims should both have been submitted to the jury, since causes of

action are separate, distinct and involved different consideration); Kash v. Jewish Home and

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Infirmary of Rochester; 61 AD3d 146 (4th Dept. 2009) (Plaintiff is entitled to assert both a cause

of action under Public Health Law 2801-d and traditional tort causes of action).

25. With regard to the elements underlying a cause of action pursuant to PHL §2801-

d, the First Department in Zeides v. Hebrew Home for the Aged at Riverdale stated, “the statutory

basis of liability is neither deviation from accepted standards of medical practice nor breach of a

duty of care. Rather, it contemplates injury to the patient caused by the deprivation of a right

conferred by contract, statute, regulation, code or rule, subject to the defense that the facility

exercised all care reasonably necessary to prevent and limit the deprivation and injury to the

patient.” Zeides v. Hebrew Home for the Aged at Riverdale, 300 AD2d 178, 178- 179 (1st Dep’t.,

2002); Kash v. Jewish Home and Infirmary of Rochester, 61 AD3d 146 (4th Dep’t. 2009).

26. Accordingly, these cases involve the deprivation of rights, not only of proper

oversight and supervision of the nursing home staff, but of basic custodial care, services, and

supervision by the nursing home to residents like Ms. Bouknight.

27. It is clear in its plain language, and also in the most recent legislative history related

to the statute, that Public Health Law §2801-d provides a very liberal meaning as to what is

considered to be a lawful “right or benefit” under the statute, beginning with the idea that anything

that is promised or provided to a patient for their well-being in regulatory agreement, a contract,

or other agreement is elevated to the status of a lawful right. The statute exhausts the list of

government action that could be considered to be a lawful benefit or right: “any” statute, code, rule

or regulation created or established for the wellbeing of a patient.

28. For the purpose of the subject regulations as they relate to the instant matter, it is

important to note the “basis and scope” of the New York State Code of Rules and Regulations,

Part 415, entitled “NURSING HOMES–MINIMUM STANDARDS.” In particular, and based

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upon the vulnerability of nursing home patients, whether they be “infants with multiple

impairments” or “the frail elderly with chronic disabilities,” Section 415.1(a) (statement of

purpose) states, “a license to operate a nursing home carries with it an obligation to the residents

who depend upon the facility to meet every basic human need.”

29. Among many other regulations, this is a violation of 10 NYCRR 415.12(c) and 42

CFR 483.25 (b), and if proven, liability under §2801-d exists as a matter of law. Assuming the

Defendant has pled the subject affirmative defense, the burden of proof is on Defendant to provide

that “the facility exercised all care reasonably necessary to prevent and limit the deprivation and

injury for which liability is asserted shall be liable under this section.” In the case at bar, it is the

facility’s burden to prove it has implemented all care reasonably necessary to ensure that a resident

with pressure sores receives necessary treatment and services to promote healing, prevent infection

and prevent new sores from developing. Unless the Defendant can prove that it implemented all

such care, then the facility is liable as a matter of law under §2801-d. As Defendant has not done

so, the motion for summary judgment must be denied.

30. Finally, summary judgment is improper because the expert affirmations

demonstrate distinctly different positions on a number of issues. It is well settled that where triable

issues of fact exist when the parties offer conflicting expert opinions, a credibility question is

presented that requires a jury's resolution. See Dandrea, v. Hertz, 23 A.D.3d 332 (2d Dept. 2005);

Shields v. Baktidy, 11 A.D.3d 671 (2d Dept. 2004). Here, the medical expert affirmations of the

parties clearly differ on the cause of the deterioration of Plaintiff’s decedent’s pressure ulcers. As

a result, summary judgment in favor of the Defendant dismissing Plaintiff’s causes of action would

be inappropriate.

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31. As indicated and demonstrated throughout this affirmation and the attached

affirmation of Plaintiff’s expert, there are multiple, significant material issues of triable fact with

respect to the negligence, medical malpractice, and Public Health Law violations of Defendant

with respect to the departures of the standard of care that were substantial factors contributing to

the progression of Plaintiff’s decedent’s severe pressure ulcers and pain and suffering.

32. Likewise, as indicated and demonstrated throughout this affirmation and the

attached affirmation of Plaintiff’s expert, Defendant failed to take all steps reasonable and

necessary to prevent and limit the deterioration of Plaintiff’s decedent’s pressure ulcers and

deprived her rights under the Public Health Law.

33. For the reasons set forth above, Defendant’s motion for summary judgment should

be denied in its entirety.

CONCLUSION

WHEREFORE, it is respectfully requested that the motion for summary judgment of

Defendant Workmen be denied in its entirety, together with such other, further, and different relief in

favor of Plaintiff as this Court deems just and proper, along with costs of litigating this motion.

Dated: New York, New York
February 1, 2023

SINEL & OLESEN, PLLC

By:
Luis Umana, Esq.
Attorneys for Plaintiff
330 7th Avenue, 10th Floor
New York, NY 10001
(212) 465-1000

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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(s),
AFFIRMATION OF
- against - SERVICE

MONTEFIORE MEDICAL CENTER and JOPAL BRONX
LLC d/b/a WORKMEN’S CIRCLE MULTICARE CENTER,
Defendant(s).
-----------------------------------------------------------------------X

I, Luis Umana, Esq., an attorney duly admitted to practice law in the courts of the State of
New York, affirms the following under penalty of perjury:

I am not a party to the action, am over the age of 18 years and reside in Kings County, New
York.

On February 1, 2023, I served the within AFFIRMATION IN OPPOSITION on the
following parties via electronic filing through the New York State Courts E-Filing system at their
respective email address provided for such service:

KAUFMAN BORGEEST & RYAN, LLP
1205 Franklin Avenue, Suite 200
Garden City, New York 11530
(516) 248-6000

TURKEN, HEATH & McCAULEY, LLP
84 Business Park Drive, Suite 307
Armonk, New York 10504
(914) 357-8600

_________________________
Luis Umana, Esq.

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Index No. 64205/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

KEVIN LYNCH as Administrator of the Estate of ROSE BOUKNIGHT,

Plaintiff,

- against -

MONTEFIORE MEDICAL CENTER and JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE
MULTICARE CENTER,

Defendants

AFFIRMATION IN OPPOSITION TO DEFENDANT WOEKMEN’S MOTION FOR
SUMMARY JUDGMENT

SINEL & OLESEN, PLLC
Attorneys for Plaintiffs
330 7th Avenue, 10th Floor
New York, New York 10001
212-465-1000

To: Signature (Pursuant to Rule 130-1.1a.)

_______________________________
Luis Umana, Esq.

Attorney(s) for Plaintiff Dated: February 1, 2023

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Case Info

Judge

Lewis Jay Lubell Track Judge’s New Case

Case No.

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Document Filed Date

February 01, 2023

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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