Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc.

61 A.D.3d 146, 873 N.Y.S.2d 819
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 11, 2009
StatusPublished
Cited by13 cases

This text of 61 A.D.3d 146 (Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kash v. Jewish Home & Infirmary of Rochester, N.Y., Inc., 61 A.D.3d 146, 873 N.Y.S.2d 819 (N.Y. Ct. App. 2009).

Opinions

OPINION OF THE COURT

Pine, J.

I

Plaintiff commenced this action seeking damages for injuries she sustained as the result of defendants’ alleged medical malpractice. Several months after commencing the action, plaintiff moved for leave to amend the complaint by adding a separate cause of action under Public Health Law § 2801-d. For the reasons that follow, we conclude that Supreme Court erred in denying the motion.

II

Public Health Law § 2801-d was enacted in 1975 and provides in pertinent part:

“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 . . .
“The remedies provided 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” (§ 2801-d [1], [4] [emphasis added]).

The statute further provides that any damages recovered by a patient “shall be exempt for purposes of determining initial or continuing eligibility for [Medicaid]” (§ 2801-d [5]). Such significant relief is not available in a traditional tort cause of action. Furthermore, both punitive damages and attorneys’ fees may be [148]*148awarded in a section 2801-d cause of action (see § 2801-d [2], [6]).

Ill

This Court first addressed Public Health Law § 2801-d in 1995 in Goldberg v Plaza Nursing Home Comp. (222 AD2d 1082 [1995]), a case in which the plaintiff asserted traditional tort causes of action including wrongful death, as well as a cause of action under section 2801-d. Relying exclusively on the legislative history of the statute, we concluded that “it is unlikely that the Legislature envisioned extension of the principle of strict liability to residential health care facilities for injuries and damages that are traditionally the subject of tort liability” (id. at 1084; see also Begandy v Richardson, 134 Misc 2d 357, 360-361 [1987]). We further stated that “the purpose [of the statute] was not to create a new personal injury cause of action based on negligence when that remedy already existed” (Goldberg, 222 AD2d at 1084). Thus, because the plaintiff “possessed the right to bring a[n] . . . action predicated upon [the] defendant’s negligence” (id.), we granted the defendant nursing home’s motion seeking summary judgment dismissing the section 2801-d cause of action (see id. at 1083-1084).

We next addressed Public Health Law § 2801-d in 2002, when we “decline[d] to apply the reasoning set forth in Goldberg” (Doe v Westfall Health Care Ctr., 303 AD2d 102, 109 [2002]). We permitted the plaintiff to assert a section 2801-d cause of action despite the fact that the plaintiff also asserted traditional tort causes of action (see id. at 109-112). In Doe, the plaintiff’s decedent had been raped by an employee of the defendant nursing home (see id. at 104). As a result of the rape, she became pregnant and gave birth to a baby boy (see id.). The decedent later died from unrelated causes, and her mother, individually and as administratrix of her estate, commenced the action asserting, inter alia, traditional tort causes of action and a cause of action under section 2801-d (see id. at 104-105). Relying on the clear language of section 2801-d (4), we concluded that the plaintiff in Doe was entitled to assert both the section 2801-d cause of action and the traditional tort causes of action because “the Legislature ha[d] explicitly expressed its intent to add to the available tort remedies” (id. at 112). We noted, however, that the rape of the decedent was “precisely the sort of conduct that [section 2801-d] was designed to target[ ] but [that] recovery for such conduct [was] often barred for plaintiffs who [149]*149sue at common law” (id. at 110). Thus, our determination was based in part on the fact that, although the tort causes of action asserted by the plaintiff had survived a motion to dismiss, they “ultimately [might] not survive a motion for summary judgment” (id. at 112).

As our dissenting colleagues note, there is no difficulty with the sufficiency of plaintiffs evidence in this action and no bar to recovery if negligence is found. Thus, we are not faced with the same concerns as in Doe. We nevertheless conclude that, pursuant to the express terms of the statute, plaintiff is entitled to assert a cause of action under Public Health Law § 2801-d, regardless of the possible merit of the medical malpractice cause of action.

IV

“As a general rule of statutory interpretation, application of a statute’s clear language should not be ignored in favor of more equivocal evidence of legislative intent . . . [, and] the most direct way to effectuate the will of the Legislature is to give meaning and force to the words of its statutes” (Desiderio v Ochs, 100 NY2d 159, 169 [2003]).

Thus, “ ‘where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning’ ” (Pultz v Economakis, 10 NY3d 542, 547 [2008]). The Court of Appeals has stated that

“[a]bsent ambiguity[,] the courts may not resort to rules of construction to broaden the scope and application of a statute[ ] because no rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal . . . Lastly, [t]he courts are not free to legislate and if any unsought consequences result, the Legislature is best suited to evaluate and resolve them” (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 107 [1997] [internal quotation marks omitted]).

Because we conclude that the language of Public Health Law § 2801-d is clear and unambiguous, we are required to give effect to its plain meaning. The remedies set forth in section 2801-d “are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings” (§ 2801-d [4] [emphasis added]). Therefore, although “plaintiff possessed the right to bring a[n] . . . action [150]*150predicated upon defendant^’] negligence” (Goldberg, 222 AD2d at 1084), we conclude that she is not precluded from asserting a separate cause of action under section 2801-d.

The dissenting opinion states that Public Health Law § 2801-d (4) “makes it clear that a plaintiff is not limited to a cause of action pursuant to that section,” and thus he or she may elect whether to pursue traditional tort causes of action or a section 2801-d cause of action. In our view, the dissenters fail to consider the clear language of the statute that the remedies of section 2801-d “are in addition to and cumulative with any other” right or remedy (§ 2801-d [4]). A plaintiff need not choose between traditional tort causes of action and a section 2801-d cause of action but, rather, may pursue both.

V

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Philip v. New York Foundling
2026 NY Slip Op 30958(U) (New York Supreme Court, New York County, 2026)
Kingston v. Tennyson Ct.
2025 NY Slip Op 01522 (Appellate Division of the Supreme Court of New York, 2025)
Hauser v. Fort Hudson Nursing Ctr., Inc.
2021 NY Slip Op 07325 (Appellate Division of the Supreme Court of New York, 2021)
Wiggins v. City of New York
2021 NY Slip Op 06335 (Appellate Division of the Supreme Court of New York, 2021)
Smith v. Northern Manhattan Nursing Home, Inc.
2021 NY Slip Op 03818 (Appellate Division of the Supreme Court of New York, 2021)
GOODWIN, ROBETTE v. PRETORIUS, M.D., RICHARD
105 A.D.3d 207 (Appellate Division of the Supreme Court of New York, 2013)
DAVIS, JR., CORNELL v. STATE OF NEW YORK
Appellate Division of the Supreme Court of New York, 2012
Davis v. State
91 A.D.3d 1356 (Appellate Division of the Supreme Court of New York, 2012)
Butler v. Shorefront Jewish Geriatric Center, Inc.
33 Misc. 3d 686 (New York Supreme Court, 2011)
BETETTE, JR., VINCENT B. v. COUNTY OF MONROE
Appellate Division of the Supreme Court of New York, 2011
Betette v. County of Monroe
82 A.D.3d 1708 (Appellate Division of the Supreme Court of New York, 2011)
Randone v. State
30 Misc. 3d 335 (New York State Court of Claims, 2010)
State v. Zimmer
63 A.D.3d 1563 (Appellate Division of the Supreme Court of New York, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
61 A.D.3d 146, 873 N.Y.S.2d 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kash-v-jewish-home-infirmary-of-rochester-ny-inc-nyappdiv-2009.