A Decision and Order issued by the Hon. Stanley Green in Bronx County Supreme Court in March, 2014 denied defendants’ summary judgment motion as to negligence and violations of NY Public Health Law in a Bronx nursing home negligence action. Judge Green did grant summary judgment for the defendants as to an assault and battery cause of action.
The facts surrounding the complaint involved a nursing home fall and the subsequent development of pressure ulcers. Plaintiff had been admitted to the defendant nursing home as a resident with a high risk for both pressure ulcers and falls. One particular morning several months into the resident’s stay, a CNA entered her room on her care rounds. After raising the bed and removing a nearby floor mat, the CNA left to prepare a wash cloth in the bathroom. Upon re-entering the resident’s room, the CNA found her on the floor with several cuts to the face. In addition to the fall, the resident developed several pressure sores during her stay at the defendant facility.
The nursing home moved for summary judgment on grounds that the fall was unavoidable, and that it had exercised all reasonable care with respect to the resident’s treatment. In addition, the defendant moved for dismissal of the Public Health Law cause of action as duplicative of the negligence cause of action.
Judge Green’s Decision addresses and dismisses a cross claim by a co-defendant (the nurse staffing company) as to indemnification by the nursing home. Although an interesting contractual case study, the merits of this motion fall outside the realm of this blog. More relevant to our purposes is the short, yet important, discussion that Judge Green provides as to the defendant’s claim that plaintiff’s Public Health Law cause of action was duplicative.
In denying this aspect of the motion, Judge Green cites Zeides v. Hebrew Home for the Aged, 300 A.D.2d 178, 753 N.Y.S.2d, 450, a case well known by nursing home attorneys. Zeides notes that a cause of action under the Public Health Law is not duplicative of negligence. Per Judge Green’s opinion, “remedies under the Public Health Law are in addition to and cumulative with any other remedies available at law or in equity and a plaintiff need not choose between traditional tort causes of action and a PHL 2801-d cause of action, but may pursue both.” (citations removed).
With Zeides as precedent, Judge Green denied the defendant’s motion to dismiss the PHL cause of action. Having survived summary judgment, the plaintiff may now move forward with pursuing her case.