DECISION AND ORDER The facts of this case are fully set forth in the Court’s earlier decision and will not be repeated at length. Briefly, Bert Dwain Butler, Sr. (hereinafter decedent) was admitted to defendant Fort Hudson Nursing Center, Inc. (hereinafter the Nursing Home) in September 2013 at the age of 74. On the evening of March 14, 2014 he vomited twice and was then noted to have cyanosis of the lips and nailbeds, as well as an oxygen saturation level of 55 percent. He was transferred to the hospital in the early morning hours of March 15, 2014 and later died on March 17, 2014. Plaintiff — in her capacity as administratrix of decedent’s estate — commenced this action against both the Nursing Home and defendant Fort Hudson Health Systems, Inc. in February 2016, with the complaint alleging four causes of action: (1) violations of Public Health Law §§2801-d and 2803-c, with a claim for punitive damages under Public Health Law §2801-d; (2) negligence and gross negligence; (3) conscious pain and suffering; and (4) wrongful death. Discovery was completed and the trial was scheduled to begin on August 3, 2020. Plaintiff and defendants each submitted a proposed verdict sheet, with plaintiff’s proposed verdict sheet reading as follows: “1. Did [defendants] deprive [decedent] of a right or benefit in violation of the Public Health Law, as a nursing home resident?1 Yes ____ No ____ (At least five jurors must agree on the answer to this question. If you answer ‘yes’ then go to #2. If you answer ‘no’ then go to #4.) “2. Was the deprivation of [decedent's] rights or benefits a substantial factor in causing [decedent's] injuries? Yes ____ No ____ (At least five jurors must agree on the answer to this question. If you answer ‘yes’ then go to #3. If you answer ‘no’ then go to #4.) “3. If your verdict is in favor of [p]laintiff, state the amount awarded for [decedent's] physical harm, emotional harm and/or death. (At least five jurors must agree on the answer to this question. Go to question #4.) “4. Did [defendants] willfully or recklessly deprive [decedent] of a right or benefit in violation of the Public Health Law, as a nursing home resident? Yes ____ No ____ (At least five jurors must agree on the answer to this question. If you answer ‘yes’ then go to #5. If you answer ‘no’ then go to #6.) “5. State an amount awarded for punitive damages. $ _______ (At least five jurors must agree on the answer to this question. Go to question #6.) “6. [Were defendants] negligent? Yes ____ No ____ (At least five jurors must agree on the answer to this question. If you answer ‘yes’ then go to #7. If you answered ‘no’ then report back to the Court.) “7. Was [defendants'] negligence a substantial factor in causing [decedent's] injuries? Yes ____ No ____ (At least five jurors must agree on the answer to this question. If you answer ‘yes’ then go to #89. If you answered ‘no’ then report back to the Court.) “8. If your verdict is in favor of [p]laintiff, state the amount awarded for conscious pain and suffering damages suffered by [decedent.] $ _______ (At least five jurors must agree on the answer to this question.)” In November 2019, defendants filed a motion in limine for an Order rejecting plaintiff’s proposed verdict sheet to the extent that (1) it seeks damages for “physical harm, emotional harm and/or death” under Public Health Law §2801-d; (2) it seeks damages for both “physical harm, emotional harm and/or death” under Public Health Law §2801-d and “conscious pain and suffering” under EPTL 11-3.3 (a); (3) it seeks punitive damages under Public Health Law §2801-d; and (4) it asserts a negligence cause of action, as defendants contend that plaintiff’s expert has set forth a case for medical malpractice. By Decision and Order dated March 2, 2020, this motion was denied in its entirety (67 Misc 3d 1204[A], 2020 NY Slip Op 50382[U] [Sup Ct, Warren County 2020]). In considering the relief requested in item No. (1), the Court began its analysis with the plain language of Public Health Law §2801-d, which provides in pertinent part: “1. 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 or by any applicable federal statute, code, rule or regulation, where noncompliance by said facility with such statute, code, rule or regulation has not been expressly authorized by the appropriate governmental authority. No person who pleads and proves, as an affirmative defense, 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. For the purposes of this section, ‘injury’ shall include, but not be limited to, physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient. “2. Upon a finding that a patient has been deprived of a right or benefit and that said patient has been injured as a result of said deprivation, and unless there is a finding that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient, compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury, but in no event less than [25 percent ] of the daily per-patient rate of payment established for the residential health care facility under [Public Health Law §2807] or, in the case of a residential health care facility not having such an established rate, the average daily total charges per patient for said facility, for each day that such injury exists. In addition, where the deprivation of any such right or benefit is found to have been willful or in reckless disregard of the lawful rights of the patient, punitive damages may be assessed.” In view of this plain language, the Court found that “Public Health Law §2801-d creates a separate right of recovery for decedent — a patient at the Nursing Home — with respect to the injuries he suffered, including death, as a result of the Nursing Home’s violation of any State or Federal statute, code, rule or regulation” (2020 NY Slip Op 50382[U], at *2). The Court further found that “damages may be awarded in accordance with the language of the statute for those days decedent was alive and suffering from aspiration pneumonia and sepsis. Insofar as his death is concerned, however, damages may simply be awarded ‘in an amount sufficient to compensate [decedent] for [his] injur[ies]‘” (id., at *6, quoting Public Health Law §2801-d [2]). The Court thus declined to reject plaintiff’s proposed verdict sheet to the extent that it seeks damages for “physical harm, emotional harm and/or death” under Public Health Law §2801-d. With respect to the relief requested in item No. (2), the Court considered the plain language of Public Health Law §2801-d (4), which provides that “the remedies…in this section are in addition to and cumulative with any other remedies available to a patient, at law or 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.” The Court then interpreted this language to mean that “any damages awarded under Public Health Law §2801-d may be in addition to and cumulative with any [other] damages awarded” (2020 NY Slip Op 50382[U], at *2), and declined to reject plaintiff’s proposed verdict sheet to the extent that it seeks damages for both “physical harm, emotional harm and/or death” under Public Health Law §2801-d and “conscious pain and suffering” under EPTL 11-3.3 (a). The relief requested in item Nos. (3) and (4) was denied as premature. Defendants now move for leave to reargue, which motion is directed to the Court’s findings with respect to item Nos. (1) and (2). To succeed on a motion for leave to reargue, a party must demonstrate that the Court “overlooked significant facts or misapplied the law in its original decision” (Matter of Town of Poestenkill v. New York State Dept. of Envtl. Conservation, 229 AD2d 650, 650 [1996]; see CPLR 2221 [d]; Greene Major Holdings, LLC v. Trailside at Hunter, LLC, 148 AD3d 1317, 1318-1319 [2017]; Matter of Ellsworth v. Town of Malta, 16 AD3d 948, 949 [2005]). Here, defendants first contend that the Court overlooked significant facts by stating that decedent suffered from aspiration pneumonia and sepsis immediately prior to his death. Specifically, defendants contend that “[a] major reason for a jury trial in this case is the factual dispute as to the cause of…decedent’s illness and death,” and “[w]hile [p]laintiff’s expert claims death was due to aspiration pneumonia and sepsis, [d]efendants’ expert and the medical records will show there was no sepsis and aspiration pneumonia was not established.” In support of this contention, defendants have submitted a copy of their expert disclosure. Under the circumstances, the Court finds that its statements do overlook the apparent dispute as to whether decedent in fact suffered from aspiration pneumonia and sepsis immediately prior to his death. All such statements are therefore rescinded from the decision with an assurance that the Court did not intend to make any findings of fact with respect to causation. In this regard, the Court likewise rescinds its finding that “damages may be awarded in accordance with the language of the statute for those days decedent was alive and suffering from aspiration pneumonia and sepsis” (2020 NY Slip Op 50382[U], at *6), with damages to instead be awarded in accordance with the language of the statute and the findings of the jury. Defendants next contend that the Court misapplied the law in declining to preclude plaintiff from seeking damages for “death” under Public Health Law §2801-d because there is no statutory right to recover for one’s own death under EPTL 5-4.3 or 11-3.3(a) — nor is there a common law right to any such recovery. In support of this contention, defendants have submitted, inter alia, an affidavit from Daniel J. Heim, Executive Vice President of LeadingAge New York (hereinafter LeadingAge), and a copy of a failed bill which sought to amend Public Health Law §2801-d. At the outset, a motion for leave to reargue must be based on the original motion papers (see CPLR 2221 [d] [2]) and, here, Heim’s affidavit was not submitted in support of the motion in limine. The Court thus declines to consider it.2 Briefly, even if the affidavit were considered, the Court would find it to be unavailing. While Heim opines that “the Court’s conclusion that plaintiff may recover compensatory damages for…decedent’s death under [Public Health Law] §2801-d is not supported by the legislative history of [the statute] or general rules of statutory construction,” he is not an attorney nor does he otherwise claim to be an expert on statutory construction. Further, as the Executive Vice President of LeadingAge — a trade association “of over 400 [not-for-profit] and government-sponsored long term care providers and managed care plans” — he has a substantial interest in the outcome of this case, or at least the outcome of this particular issue. Indeed, he expressly states that “[a]n expansion of the damages that can be awarded under [Public Health Law] §2801-d will directly threaten the financial viability of many of LeadingAge’s [not-for-profit] and government-sponsored nursing homes.” Turning now to the failed bill, on May 15, 2007 a bill was introduced to the Assembly which sought to amend Public Health Law §2801 (d) (4) by adding the following underlined language: “The remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, the patient’s legal representative, or the patient’s estate at law or in equity or by administrative proceedings…. ” The bill further sought to add Public Health Law §2801 (d) (4-a), a new section readings as follows: “ Under this section, any action that may be brought, and any relief that may be sought or received, may be brought, sought or received in an appropriate case by the patient’s legal representative or the patient’s estate.” Although this bill passed in the Assembly, it subsequently died in the Senate. The bill was then reintroduced in the Assembly on January 5, 2011, January 17, 2013 and January 7, 2015, each time passing and — again — dying in the Senate. Defendants contend that the repeated failure of the bill demonstrates the Legislature’s unwillingness to expand Public Health Law §2801-d (2) to permit the estate or heirs of a patient to recover for the patient’s death. In this regard, defendants note that there exist statutes wherein the Legislature did provide a right of recovery to a decedent’s heirs. Specifically, defendants point to General Municipal Law §205-a (1), which provides as follows: “In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department, or to pay to the wife and children, or to pay to the parents, or to pay to the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than [$10,000.00], and in case of death not less than [$40,000.00], such liability to be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid.” Defendants also reference General Municipal Law §205-e (1), which sets forth a similar right to recovery for the heirs of police officers who are injured or killed “as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus….” In opposition, plaintiff contends that there is no need for the Legislature to pass the proposed bill, as the language sought to be added is superfluous. In this regard, plaintiff contends that a patient does not lose the right to sue under Public Health Law §2801-d upon incapacitation or death — noting that defendants have never previously objected to her assertion of this cause of action on decedent’s behalf. Plaintiff further contends that the passage of General Municipal Law §§205-a and 205-e in fact demonstrates that the Legislature imposes no supremacy to EPTL 5-4.3 (a) and 11-3.3 (a), thus supporting the proposition that Public Health Law §2801-d permits recovery for death. At the outset, defendants again fail to proffer any explanation as to why this failed bill was not submitted with their original motion papers. That being said, to the extent that it constitutes legislative history, the Court will consider it. As observed by the Court of Appeals on several occasions, “[l]egislative inaction, because of its inherent ambiguity, affords the most dubious foundation for drawing positive inferences” (Matter of Oswald N., 87 NY2d 98, 103 n 1 [1995], quoting Clark v. Cuomo, 66 NY2d 185, 190-191 [1985]; accord Matter of LeadingAge N.Y., Inc. v. Shah, 32 NY3d 249, 284 n 7 [2018, Wilson, J., dissenting]; Matter of Acevedo v. New York State Dept. of Motor Vehs., 29 NY3d 202, 225 [2017]). Indeed, there can be nothing but pure conjecture as to why the bill repeatedly passed in the Assembly and died in the Senate. As plaintiff notes, this additional language is not necessary to preserve a patient’s right to sue under Public Health Law §2801-d following his or her death. In this regard, EPTL 11-3.2 (b) provides as follows: “No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought…by the personal representative of the decedent[.]“ Here, Public Health Law §2801-d (1) expressly defines “injury” as including the “death of a patient.” EPTL 11-3.2 (b) thus protects the cause of action from being extinguished upon “the death of the person in whose favor the cause of action existed.” As noted hereinabove, Public Health Law §2801-d (2) then provides that “damages shall be assessed in an amount sufficient to compensate such patient for such injury.”3 Defendants’ contentions notwithstanding, there is no need to rely on the common law nor on the statutory rights created under EPTL 5-4.3 or 11-3.3(a). Public Health Law §2801-d creates a statutory right to recover for one’s own death. In this regard, the Court is not expanding the damages that can be awarded under Public Health Law §2801-d — it is applying the language of the statute. Defendants next contend that the Court misapplied the law in declining to preclude plaintiff from seeking damages for “death” under Public Health Law §2801-d because such finding violates the principles of statutory construction. Specifically, defendants contend that if Public Health Law §2801-d is interpreted to create a statutory right of recovery for one’s own death, then the statute is not being read “as a harmonious whole.” According to defendants, “the clauses of [Public Health Law] §2801-d are read harmoniously only when it is recognized that §2801-d (1) provides that a facility may be liable for injuries to a patient including liability for death[, with the] section stat[ing] nothing about damages[, and] §2801-d (2) set[ting] forth that at a minimum [p]laintiff can recover as damages a per diem rate for every date of injury.” In other words, defendants contend that a nursing home may be liable for the death of a patient under Public Health Law §2801-d (1), but no damages are available under Public Health Law §2801-d (2). The Court finds this contention to be without merit. It simply stretches credulity to accept the proposition that the Legislature included “death of patient” as an injury under Public Health Law §2801-d (1) but purposely declined to establish any damages for such death under Public Health Law §2801-d (2). Notably, the case cited by defendants in support of this contention — namely, Rocovich v. Consolidated Edison Co. (78 NY2d 509 [1991]) (hereinafter Rocovich) — in fact refutes their argument. Rocovich states that “all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided” (id. at 515). If, as defendants suggest, Public Health Law §2801-d (1) provides for liability upon death but Public Health Law §2801-d (2) does not provide for damages upon death, then Public Health Law §2801-d (1) is rendered meaningless. Defendants also contend that the Court misapplied the law in declining to preclude plaintiff from seeking damages for “death” under Public Health Law §2801-d, as this finding “fail[s] to accord the statute the strong presumption of constitutionality to which it is entitled” (People v. Couser, 258 AD2d 74, 80 [1999], affd 94 NY2d 631 [2000]). Specifically, defendants contend that, if a patient in a nursing home is permitted to recover for his or her own death under Public Health Law §2801-d, this violates the constitutional right to equal protection — as an elderly patient who dies in a hospital does not have the benefit of any such recovery. The Court finds, however, that this contention is without merit. As aptly noted by plaintiff in her opposition papers, the Court’s interpretation of the statute treats all nursing home residents equally — which is all that is required for purposes of equal protection (see Bower Assoc. v. Town of Pleasant Val., 2 NY3d 617, 631 [2004]; People v. Young, ___ AD3d ___, ___, 2020 NY Slip Op 00206, *5 [2020]). Under the circumstances, the Court adheres to its original determination that plaintiff may seek damages for “death” under Public Health Law §2801-d (1), with such damages defined as set forth in Public Health Law §2801-d (2). Finally, defendants contend that the Court misapplied the law in finding that the damages awarded under Public Health Law §2801-d may be in addition to and cumulative with those damages awarded with respect to plaintiff’s other causes of action. Again, the Court adheres to its original determination. The statute plainly states that “[t]he remedies provided [therein] are in addition to and cumulative with any other remedies available to a patient, at law or 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.” Defendants beseech this Court to find that the term “remedy” — as used in the statute — means “cause of action,” such that the statute permits a cause of action under Public Health Law §2801-d to be asserted cumulatively with other causes of action but precludes an award of cumulative damages. Black’s Law Dictionary, however, defines remedy as “[t]he means of enforcing a right or preventing or redressing a wrong; legal or equitable relief” (Black’s Law Dictionary [7th ed 1999], remedy). It further states as follows: “A remedy is anything a court can do for a litigant who has been wronged…. The two most common remedies are judgments that plaintiffs are entitled to collect sums of money from defendants and orders to defendants to refrain from their wrongful conduct…” (id. [internal quotation marks and citation omitted]). Black’s Law Dictionary then defines cumulative remedy as “[a] remedy available to a party in addition to another remedy that still remains in force” (id., cumulative remedy). To that end, the plain language of the statute provides that damages may be awarded “in addition to and cumulative with” any other damages awarded to a patient. Incidentally, this very issue was addressed in Smith v. N. Manhattan Nursing Home, Inc. (___ Misc 3d ___, 2020 NY Slip Op 20334 [Sup Ct, NY County 2020]), a decision dated September 3, 2020 which denied defendant’s motion to set aside a jury verdict awarding $2,500,000.00 to a patient’s estate under Public Health Law §2801-d for “physical and mental harms and losses, including lost enjoyment of life” (id., at *5). There, the Court reasoned as follows: “Actionable injuries caused by a violation of the Public Health Law or the regulations under it include, but are not limited to, ‘physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient’ (Public Health Law §2801-d [1]). This definition of injuries does not require a conscious awareness of the harm. The damages recoverable for these injuries ‘are in addition to’ damages recoverable for pain and suffering due to nursing home malpractice (Public Health Law §2801-d [4]; see Zeides v. Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179 [2002]; Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc., 61 AD3d 146, 149 [2009]; Pichardo v. St. Barnabas Nursing Home, Inc., 134 AD3d 421, 425 [2015]). Defendant does not challenge the directed verdict on defendant’s liability for both nursing home malpractice and violation of the Public Health Law and the regulations under it. “Although a level of cognitive awareness is a prerequisite to recovery for pain and suffering, including lost enjoyment of life, sometimes resulting ‘in the paradoxical situation that the greater the degree of brain injury inflicted by a negligent defendant, the smaller the award the plaintiff can recover,’ this rule applies ‘in the absence of culpability beyond mere negligence’ (McDougald v. Garber, 73 NY2d 246, 255 [1989]). Here, defendant’s culpability that extended beyond mere negligence, to a violation of the Public Health Law and regulations, allowed plaintiff’s recovery ‘to achieve a balance between injury and damages’ (id.), which is precisely the objective of Public Health Law §2801-d (1) and (4)” (Smith v. N. Manhattan Nursing Home, Inc., 2020 NY Slip Op 20334 at *1). While this Court is certainly not bound by the reasoning in Smith v. N. Manhattan Nursing Home, Inc., it nonetheless finds it persuasive. Based upon the foregoing, defendants motion for leave to reargue is granted and, upon reargument, the Court rescinds its statements that decedent suffered from aspiration pneumonia and sepsis immediately prior to his death from the decision and likewise rescinds its finding that “damages may be awarded in accordance with the language of the statute for those days decedent was alive and suffering from aspiration pneumonia and sepsis” (2020 NY Slip Op 50382[U], at *6), with damages to instead be awarded in accordance with the language of the statute and the findings of the jury. The Court otherwise adheres to its original determination in all respects. Unified Rules for Trial Courts (22 NYCRR) §202.42 (a) provides that “Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in clarification or simplification of the issues and a fair and more expeditious resolution of the action” (see also CPLR 603). Unified Rules for Trial Courts (22 NYCRR) §202.42 (b) then provides that “[w]here a bifurcated trial is ordered, the issues of liability and damages shall be severed and the issue of liability shall be tried first.” Here, there is no question that bifurcation will assist in the clarification and simplification of the issues under consideration. Indeed, if the jury finds in favor of defendants on liability, then these issues as to damages will be rendered entirely moot.4 The Court thus directs that a bifurcated trial be held in this matter before the same jury (see Uniform Rules for Trial Courts [22 NYCRR] §202.42 [e]), with the issue of liability tried first. Counsel are hereby directed to appear for a conference on February 24, 2021 at 10:30 A.M. at the Warren County Courthouse for the purpose of establishing a trial date, with this conference to be conducted remotely using Microsoft Teams. Therefore, having considered NYSCEF documents 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 16, and oral argument having been heard on January 21, 2021 with Kenneth B. Fromson, Esq. appearing on behalf of plaintiff and Michael Shalhoub, Esq. appearing on behalf of defendants, it is hereby ORDERED that defendants motion for leave to reargue is granted and, upon reargument, the Court rescinds its statements that decedent suffered from aspiration pneumonia and sepsis immediately prior to his death from the decision and likewise rescinds its finding that “damages may be awarded in accordance with the language of the statute for those days decedent was alive and suffering from aspiration pneumonia and sepsis” (2020 NY Slip Op 50382[U], at *6), with damages to instead be awarded in accordance with the language of the statute and the findings of the jury; and it is further ORDERED that the Court otherwise adheres to its original decision in all respects; and it is further ORDERED that the trial in this matter shall be bifurcated on the issues of liability and damages, with the same jury to hear both issues and the issue of liability to be heard first; and it is further ORDERED that counsel shall appear for a conference on February 24, 2021 at 10:30 A.M. at the Warren County Courthouse for the purpose of establishing a trial date, with this conference to be conducted remotely using Microsoft Teams. The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513. Dated: February 5, 2021
