Henry v. Sunrise Manor Center for Nursing & Rehabilitation

In an action, inter alia, to recover damages for medical malpractice, the defendant Sunrise Manor Center for Nursing and Rehabilitation, also known as Sunrise Manor Nursing Home, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Tarantino, Jr., J.), dated September 5, 2014, as denied those branches of its motion which were for summary judgment dismissing the first, third, and fourth causes of action insofar as asserted against it.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Sunrise Manor Center for Nursing and Rehabilitation, also known as Sunrise Manor Nursing Home, Inc., which was for summary judgment dismissing the fourth cause of action insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff.

The plaintiff’s decedent was a resident of the defendant Sunrise Manor Center for Nursing and Rehabilitation, also known as Sunrise Manor Nursing Home, Inc. (hereinafter Sunrise Manor), a nursing home and rehabilitation facility, from February 19, 2008, until his death on February 27, 2008. The death certificate listed the immediate cause of the decedent’s death as septic shock. In 2010, the plaintiff commenced this action against Sunrise Manor, among others, to recover damages for, inter alia, medical malpractice, wrongful death, in effect, violation of the Public Health Law, and negligent hiring and retention. In the bill of particulars, the plaintiff alleged, among other things, that Sunrise Manor was negligent “in causing, allowing and permitting the decedent to suffer sepsis and septic shock,” “in failing to recognize the

Sunrise Manor moved for summary judgment dismissing the complaint insofar as asserted against it. In an order dated September 5, 2014, the Supreme Court, inter alia, granted those branches of Sunrise Manor’s motion which were for summary judgment dismissing the second cause of action, which was to recover damages for lack of informed consent, and the fifth cause of action, which sought punitive damages, insofar as asserted against it. The court denied those branches of Sunrise Manor’s motion which were for summary judgment dismissing the first cause of action, which was to recover damages for medical malpractice and wrongful death, the third cause of action, which was, in effect, to recover damages for violation of the Public Health Law, and the fourth cause of action, which was to recover damages for negligent hiring and retention insofar as asserted against it.

In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, either that there was no departure from accepted medical practice or that any departure was not a proximate cause of the plaintiff’s injuries (see Whitnum v Plastic & Reconstructive Surgery, P.C., 142 AD3d 495 , 497 [2016]; Matos v Khan, 119 AD3d 909 , 910 [2014]; Stukas v Streiter, 83 AD3d 18 , 24 [2011]). “Once the defendant has made such a showing, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant’s prima facie showing, but only as to those elements on which the defendant met the prima facie burden” (Elmes v Yelon, 140 AD3d 1009 , 1010 [2016]; see Stukas v Streiter, 83 AD3d at 23-25 ).

Here, Sunrise Manor established its prima facie entitlement to judgment as a matter of law dismissing the medical malpractice and wrongful death cause of action insofar as asserted against it by submitting the affirmation of its expert, which addressed the alleged departures set forth in the bill of particulars, demonstrating that Sunrise Manor did not depart from the accepted standard of care in its treatment of the decedent and, in any event, that any departure was not a proximate cause of the decedent’s death (see Schuck v Stony Brook Surgical Assoc., 140 AD3d 725 , 726-727 [2016]; Hofsiss v Goodman, 128 AD3d 898 , 900 [2015]). In opposition, however, the plaintiff raised a triable issue of fact through the affirmation of her expert (see Keesler v Small, 140 AD3d 1021 , 1023 [2016]). The plaintiff’s expert opined that Sunrise Manor devi

“The basis for liability under the [Public Health Law] ‘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’ ” (Novick v South Nassau Communities Hosp., 136 AD3d 999 , 1001 [2016], quoting Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178 , 179 [2002]; see Moore v St. James Health Care Ctr., LLC, 141 AD3d 701 , 703 [2016]). Here, Sunrise Manor failed to establish its prima facie entitlement to judgment as a matter of law dismissing the third cause of action alleging, in effect, a violation of Public Health Law § 2801-d, insofar as asserted against it based on alleged violations of regulations pertaining to nursing homes (cf. Novick v South Nassau Communities Hosp., 136 AD3d at 1001 ). Since Sunrise Manor failed to meet its prima facie burden, that branch of its motion which was for summary judgment dismissing the third cause of action insofar as asserted against it was properly denied, regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]).

However, the Supreme Court should have granted that branch of Sunrise Manor’s motion which was for summary judgment dismissing the fourth cause of action, which was to recover damages for negligent hiring and retention, insofar as asserted against it. “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for

Sunrise Manor’s remaining contentions are without merit.

Rivera, J.P., Roman, Duffy and Brathwaite Nelson, JJ., concur.