Dunn v. Northern Manhattan Rehabilitation & Nursing Ctr.

Dunn v Northern Manhattan Rehabilitation & Nursing Ctr. 2025 NY Slip Op 30071(U) January 9, 2025 Supreme Court, New York County Docket Number: Index No. 152487/2021 Judge: Lisa S. Headley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 01/10/2025 11:45 AM INDEX NO. 152487/2021 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 01/10/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUN'TY PRESENT: HON .. USA S. HEADLEY PART 28M Justic•e ----------------------------------------------.-----..---------~~--------X INiDEX NO. 152487/202 1 ANN IE DUNI NI MOTl,ON !DA TE 10/1512024 Plaintiff, MOTION SEQ. NO, 002 -v - NORTHER N MANHATTAN RE HAB!LITATl ON AND DECISION + O:RID!ER ON NURSING CENTER, MOTIION Defendant. ---------------------- ---------------- -------------- .. --•X The following e-filed documen ts, listed by NYSCEF document number (:M otion 002) 31, 32, 33, 34, 3.5, 36, 37 , 38, 39, 48 , 49 were read on this m otio n to/for J,UOGMENT - SUMMARY n: The phiinli Annie Dunn, is the spoLtse of Tomas Dunn ("dec,cdenC) and \Vas appointed administralor orthe <lece<len Cs Estate. ]11 the ame11 ded complaint, the plaintiff alleges that the dec•edent v,,·as under the defendant, Northern :t,..fanhaUan Rehabilitation and ursing Center's ("defendanf') care during a continuous course of treatment from May 20 18 to September 2019. (See, NYSCii,J• Doc. No. 3,6) .

The amended. complaint as serts the first cause of action for negligence, and claims that the defendant lacked sufficient staff to care for the. dccc.dcnt, and acted negligently and r1;ck]essly in a manner that allowed the decedent to develop ulcers, infection and sepsis, the defendant failed to nouri sh and hydrate the decedent, failed to move him on a regular basis and fai ]ed to take steps lo a.void lhe reduction or b]ood suppl _ to pr ssure areas. of dcccdcnf s skin. As a resu lt of thi; defendant 's acts and/or faH urn to ad; the dece dent~ inter alia, \Vas forced to undergo m edical treatment, incur ir1edk al expense s, suffer disfigurement, disability; pain, mental aguish and loss •o f enjoyment of life. The c.ornplaint usserls the second c:ause of ad inn for fai]urc to comply with their obhgations under Ne-w York Public Heallh lcrw §280/and is vicariously Eab le for the violations and lack of responsibil1 ty and obligation.'::i of persons and entilies under defondant's contro l i11duding its employees and agents, The complaint asserts that the decedent's injuri es were preventable with adequate care, nourishment and hydration. The complaint ass,crts the decedent \.vas denied his rights under New York Public Health Law §2801 . lastly, the complaint asserts the third cause of uc.:.t1(m for gross negligence, and daims the defendant lacked staff to care for dc.ccdcnt , failed to act kno\vi ng that SL.ich c:om.lucl v,,•ouM resuh in injury , and that such conduct was wiJlfol and in reckless di sregard. Id. The defendant filed a motion for summary judgment~pursuant to CPLR §3212, di smfasing the Plaintiffs CompfoJ.nt; dismissing Pfaintiffs causes of action against defendant for common 152487f2i02:1 DUNN, ANNIIE. vs. NORTHERN MANHA HAN: N:lJRSING Page 1 of4 Motion No. 002

[* 1] 1 of 4 FILED: NEW YORK COUNTY CLERK 01/10/2025 11:45 AM INDEX NO. 152487/2021 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 01/10/2025 lmv negligence~ and/or dismissing the Pla.i ntiff s cause of ac.tion against the defendant for vioiations of §2801-d of the Mrw York Public Health Law. (See, 1\iYL~CEF Doc. Nos. 31 -47).

Discussicn1 ''rT]lle proponent of a summary judgment mo li on must make a prima __ ftwie showing of entid.ement to judgment as a matter of law, tendering sufficient evi denoc to demonstrate the absence of any material issues of fact. .Failure to make such prima Jade showing requires denial of the motion, re.g ardless oftbe sufficiency of the opposing papers.' Alvarez v. Prospect Hosp., 68 N.Y,2d 320, 324 ( 1986). Unde:r CPLR §3212, ·'[o]n a motion for summary judgment, facts must be vie"ved in the light most favorable to the non-moving party. CPLR ".'321 2. A[ler oral argument held on October 15, 2024, and upon the affidavits, arguments and evidence sub111itled, th is Court finds that summary judgmen t must be denied because the defendant has failed to demon strate that tbere are no material issues of fact.

In suppo1tofthe motion, defendant subm its, inter alia, a Statement of Material Facts (Doc.

N o. 33) and the expert. affidavit of Dr. La~Tence Diamond (Doc. 1\10. 34). Defendant asserts that upon admission on May 22, 2018, the decedent underwent a phy~kal assessment of his general skin oondi tion, and redness v,•as noted in his groin and sacral areas, 1n addition ) based on intake assessments_ a comprehensive "Basel ine Care Plan)) \Vas develope-d and induded assistance with daily living and skin breakdov,m intervention. Defendant submits that in a progress. no~e dated May 22, 2018, the condition of the decedenl's skin was further assessed to be fragHe vvilh potenti a] for unavoidable breakdown. (See, NYSCEF Doc. J?\/os. 33, 40 -47 "Exhibit B '' ). The defendant submits a nursing note dated August 23, 2018, that identifies an abscess of the. dece.deue s left groin and order: for ointment dressing for se:v en days, Id, Defendant asserts there were follow-up assessments of the dece,dent conducted, including on November 7, 20l8: November 13, 2018, November 30: 2018, and December W, 2018, which ordered continued treatments, including testi ng decedent's blood for lipids and orders of "not by mouth restriction'' as a preventative measure for aspirational pneumonia . .id. Defendant also asserts that the decedent rec.cived physical the.rnp} consultation on December 20, 2018, and follow-up wound care physic1an consultation on January 5~20l 9. The decedent received numerous assessments, inc.luding betwe,en May 29~ 20 18, and July 9, 2019, and the notes indicate the dece dent is at risk fm skin break.down but does not pre.'.ent any skin wounds. JJ. Defendant asserts that the dcccdenf s final wound care took place on Sep1embe.r 3, 20] 9, and he wa,;; suffering frorn one dosed bliste:r from his right heel to hi s right ankle and a stage n sacral pressure ulcer. (Id. See, Exhibit B). In addition, defendanl asserts that on September I 1, 2019: an arthmphlsty of dec1.::dent' s rutery was performed successfuUy, and he was transferred to the emergency depar1tment of Beth Israel Hospita.J. id. Defendant submits the expe.tt affidavit. of Dr. Lav,,.Tence Diamond, who is no t a party to the action or employed by any purty, an d ,i;,•l,o reviewed pleadings, deposition testimony , discovery documents and the deceden t' s mt::dica1 re~ords . Dr. Diamond opined that within a reasonable degree or medical certainty that no acts or omissions of defendant or the defendanes s-taff demonstrates intentional or reckless wrnngdoing and ind ifference to the decedent's rights . (See, FILED: NEW YORK COUNTY CLERK 01/10/2025 11:45 AM INDEX NO. 152487/2021 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 01/10/2025

Diamond ignores that defendant did not comply \vith tile decedent's own care pl.an curated by defendant, since the daily entries of the dec,edent's turn and positioning schedule ind icated h:e \vas not moved for 12 hours at. a time rather than every 2 hours per the treatment. plan. (}VYSCEF Doc.

No. 53) .

In opposition, the plaintiff submits: inter afia, an attorney affirmation (Doc. No. 50), a Counterstatcme.nt of Materfal facts (Doc . .No. 5nthe. deposition testjmony of defendanfs Director of Nursing:, Ngozi. Ng,.:vu~Nwahvu (Doc. /'lo. 55) .. Plaintiff argues that as to the claim asserting Public Health Law §2801-d(!) , the delendant's own records; that being the "' Resident CNA Documentation History Delllil" (Tumjng an d Pos itioning Record (NYSCEF Doc. t•lo. 53); demonstrates that defendant fail,ed to properly impfoment lhe tum and position schedule. Plaintiff argues that the defendant's physic.al assessment of the decedent indicated that he did not suffer fi.um any unhealed ulcer, however due in part to the irnmobihty and existe.nce of some redness lo the sacral and groin area, the decedent was at a heightened risk for the breakdmvn in his sk in' s condition.

Furthermore, the plaint iff references the deposition testimony of defendant's Dire,ctor of Nursi.ng, Ngozi Ngwu-Nwaiwu, wherein she attests that the decedent wa'> pfaeed on his back for three cons,ecufrve two-hour.-:; periods, when he was ordered to be turne<l and positioned. every two hours, and in violation of federal and state regulations . (See, NY,.SCRF Doc. No. 55 at pages 20 - 23). In addition, plaintiff references the CNA ac,countability record (see, NYSCEF Doc.. No. 53) and asserts that the defendanfs facility violated its own procedures, state and federal regu.l ations and the dece.denf s rights under Public Health La;,v. The plaimtiff delineates at least 13 examples of vioJations, including when the decedent was foft in a seated position for 12 hours; and the decedent was on his back without being repositioned for 6 hours .. (Jd). More poignantly, the plaintiff submits the medicai records from Beth Israel Hospital, \Vhere the decedenf s leg was subsequently amputated; an d photographs o!' the decedent's leg wound before amputation. (See, .NYSCEF Doc. l 1lo. 59 - 61). "Summary j udgment is a dra<;.tic remedy, lo be granted only where the mov ing party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then on]y if, upon the moving part_.-'s meeting of thi8 burden , the non-moving party fails to establish the existence of material issues of fact ,vhich require a trial ofthe action." Vega,. Restani Con.-.·tr.

Corp., 18 N. Y.3 d 499, 503(20 12) [internal ci tations and q(.lo la tion marks omitted]. Here, there are issues of fact presented, including bul not limited to \vhethe:r the, decedent received adequate care pursuant to the care plan prescribed by the defendant, whetb:er the dec edent's inj uries were cause{! as a result of the defendant's action or inaction to tum over and move the, decedent every 2 hours.

Therefi:ne, the defendant's motion for summary judgment to dismiss. the plaintiff's amended complaint must be denied.

Accordingly ; it is hereby ORDE-RED that the d~.fendant orlhem Manhattan Rehabilitation ~md urs ing Center's rnotion for summary judgment is DENIED; and it is further

1524137'~021 DUNN, ANINIE vs. !N ORTHERN MANHATiANI NtJR.S ING Pag;e 3 of4 Motion No. 002

[* 3] 3 of 4 FILED: NEW YORK COUNTY CLERK 01/10/2025 11:45 AM INDEX NO. 152487/2021 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 01/10/2025

ORDERED that any reques ted relief sought not expressly addressed herein has nonetheless been considered; and it is further ORDERED that within 30 days of entry, the movant~defendant shall serve a copy of this decisio11lorder upon the plaintiff with notice of entry.

This consli tute s the Decision and Order of the CourtJ ,

119no2s DATE ~ Cl, j' ~.tJJ j j fA LISA S. HEADLEY, J.S.C .

~ NON•Flt>JA,L OISPOSRl lON ~ CHECK ONE.; CASE Dl:SPOSl:O GRA~Teo 0 DENI EO GRANTIEO IN PA:RT □ OTHER APPLICATION: s ,eTTLE OR:Oi:R SUBMIT ORDER CHECK IF APP FWPR:IA iE: IN:CL.UDE:$ ilRANSl'l:RIRl:ASSIGN FIDUCIARY APPOIINITMENT □ REFERENCE

152487/2021 DUNN, A1 NNIE v~. NORTHERN MANHATTAN NURS ING Page4 of 4 !M otion No. 002

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