DECISION AND ORDER In this action to recover damages for the termination of outpatient hemodialysis, defendants New York Dialysis Services, Inc., doing business as City Dialysis Center, Inc. (CDC) and Dwarka Rathi, M.D. (Dr. Rathi) move separately for summary judgment pursuant to CPLR 3212. The motions are consolidated for disposition and the following documents were read: Dr. Rathi’s Motion Document 1 Notice of motion dated May 13, 2019 Documents 2-18 Denise Buda, Esq.’s affirmation in support, executed May 13, 2019, with exhibits A through P (Buda affirmation) Document 19 John Corcos Levy, Esq.’s affirmation in opposition to the motions of both Dr. Rathi and CDC, executed July 8, 2019 (Levy affirmation) Document 20 Affirmation of Rehana Zaman, M.D., executed July 16, 2019 (Dr. Zaman affirmation)1 Document 21 Reply affirmation of Denise Buda, Esq., executed July 24, 2019 (Buda reply affirmation) CDC’s Motion Document 22 Notice of Motion dated May 14, 2019 Documents 23 to 43 Christina Reinle, Esq.’s affirmation in support, executed May 14, 2019, with exhibits A through T (Reinle affirmation) Document 44 Levy affirmation Document 45 Dr. Zaman affirmation Document 46 Reply affirmation of Christina Reinle, Esq., executed July 25, 2019 (Reinle reply affirmation). BACKGROUND Plaintiff Eustace M. Mejias is the father of Eustace Michael Mejias (decedent), who died on March 2, 2012 (see Dr. Zaman affirmation 2).2 CDC is a dialysis facility located in the County, City and State of New York (Reinle affirmation exhibit B and Buda affirmation exhibit C [amended verified complaint] 5). Dr. Rathi, a board-certified nephrologist, is the Medical Director of CDC (see Dr. Rathi’s affidavit, sworn to May 13, 2019 [Dr. Rathi aff], 2, annexed to Reinle affirmation as exhibit A). Plaintiff asserts four causes of action against CDC and Dr. Rathi in the amended complaint: negligence, medical malpractice, libel per se and slander per se. Prior to his death, decedent had been seriously ill for over 10 years with end stage renal disease (ESRD), and also suffered from Type-II diabetes and hypertension, upper gastrointestinal bleeding, and had undergone a below-the-knee amputation of his right leg and a trans metatarsal amputation of his left foot (see Reinle affirmation 11 and exhibit A [affirmation of Alan Weinstein, M.D., executed May 19, 2019, 8] [Dr. Weinstein affirmation] and exhibit H thereto [CDC medical records]). Dr. Zaman, a board-certified nephrologist, was his primary care physician during that time (Dr. Zaman affirmation 2 and Reinle affirmation exhibit H [CDC medical records]). On October 22, 2010, when he was first admitted for outpatient treatment at CDC, decedent required hemodialysis for three and a half hours, three days a week, administered each Monday, Wednesday and Friday (see Reinle affirmation 11 and exhibit H). Decedent began receiving dialysis treatments at CDC on October 25, 2010 but these treatments were soon interrupted. During his visit on October 29, 2010, problems arose with his catheter, which made it necessary to end his treatment early (id.). When notified about the problem, Dr. Zaman recommended that decedent make an appointment at American Access Care (AAC), an outpatient clinic which specializes in treating vascular conditions relating to dialysis (Reinle affirmation 12). The appointment was scheduled for Monday November 1, 2010. Decedent was also advised to call his vascular surgeon regarding his use of the anticoagulant Coumadin (id.). Decedent’s dialysis treatments were scheduled to resume at CDC on November 1, 2010 (Reinle affirmation 13 and exhibit H). According to CDC, AAC telephoned CDC that morning and told Nalda Filpo, a CDC administrative secretary, that it had been unable to reach decedent to confirm his appointment at AAC that morning and asked that she contact him, to remind him of his appointment and to ask that he bring his insurance cards with him. Ms. Filpo informed CDC charge nurse Christina Collazo that she would be calling decedent. Ms. Collazo told Ms. Filpo that she had also been trying to contact decedent since Saturday, to inform him that he should stop taking his Coumadin prescription (Reinle affirmation exhibit P [Ms. Filpo statement regarding November 1, 2010 incident]). Ms. Filpo contends that she telephoned decedent about 7 o’clock in the morning and left a voicemail (Reinle affirmation exhibit P and exhibit K [Filpo deposition tr 7:15-8:25]). Shortly thereafter, decedent called back and asked Ms. Filpo if she had just called him. Ms. Filpo said that she had and explained the reasons for her call. Ms. Filpo alleges decedent became angry and asked how she dared to call him so early for “bullshit.” Decedent explained that he had been in the hospital until 5 a.m. and had only slept for an hour. Ms. Filpo alleges that she tried to apologize, stating that she had not known that he had been in the hospital, but decedent would not listen to her and again asked how she could call him about “fucking bullshit pills and some stupid fucking insurance cards” (Reinle affirmation exhibit P). Ms. Filpo alleges that decedent then threatened to come to CDC to reenact the “Columbine Massacre up in that bitch and shoot all you motherfuckers,” and repeated this threat twice. Ms. Filpo further alleges that she asked if decedent was threatening her and he replied, “You [sic] damn right I am.” Ms. Filpo immediately ended the call and told Ms. Collazo what had occurred. As soon as they finished speaking the telephone rang. Ms. Filpo answered and heard decedent ask for a “goddamn” supervisor. She told decedent that no administrators were present and that he should call back around 10 o’clock. Decedent then allegedly shouted “watch and see when I come in this fucking evening [sic] I’m going to shoot you mother fuckers at City Dialysis Center.” Ms. Filpo contends that these calls frightened her and that she immediately reported these incidents to CDC Clinical Manager Karen Evans, who instructed her to inform the Medical Director, Dr. Rathi, and CDC’s Director of Operations, Libby Chiapperino as well (id.). Ms. Filpo indicates that she then spoke directly with Ms. Chiapperino (Reinle affirmation exhibit K [Filpo deposition tr] 26:14 to 27:16), and telephoned Dr. Rathi, to inform them of these incidents (Reinle affirmation exhibit L [Dr. Rathi deposition tr 7:21 to 8:16]). CDC asserts that, when Dr. Rathi arrived at CDC on the morning of November 1st, he met with Ms. Filpo and spoke further with her about the telephone conversations she had with decedent (Reinle affirmation 15). In deposition testimony, Dr. Rathi could not recall whether he held this meeting with Ms. Filpo on or after November 1st (Reinle affirmation exhibit L, 11:4 to 12:23), but Ms. Filpo was certain they met on November 1st (Reinle affirmation exhibit K, 15:3 to 7). Dr Rathi testified that he, Ms. Evans and Ms. Chiapperino convened a meeting of CDC’s governing body, to discuss the incidents (Reinle affirmation exhibit L, 23:15 to 24:15), which led to their issuance of a written notice to decedent, discharging him from CDC (id. 24:4-15). Dr. Rathi also testified that he spoke with Dr. Zaman by telephone on November 1, 2010, to inform her of the incidents and CDC’s discharge of decedent, and to advise her to contact decedent to discuss his options in choosing a new dialysis clinic (id. 43:19 to 44:14). CDC’s discharge notice, dated November 1, 2010 and signed by Ms. Evans, Dr. Rathi and Ms. Chiapperino (Reinle affirmation exhibit S), states that their determination to discharge decedent was based on his threats to harm CDC staff, including his threat to reenact “a Columbine Massacre.” It further states that CDC notified the New York City Police Department (NYPD) and made a complaint against decedent for the threats. The notice also states that it attaches a list of the names, addresses and telephone numbers of other dialysis facilities in the area, and also provides contact information for St. Luke’s-Roosevelt Hospital (St. Luke’s) and the ESRD Network, to help decedent’s search for alternate dialysis service providers (id.).3 After his discharge from CDC, decedent was admitted to St. Luke’s, to receive his dialysis treatments there (Reinle affirmation exhibit I [decedent's St. Luke's-Roosevelt Hospital records]). While decedent was an inpatient at St. Luke’s, social workers sought to identify an outpatient dialysis clinic that would accept decedent as a patient. Decedent was ultimately discharged from St. Luke’s in August 2011, to receive outpatient treatment at Upper Manhattan Dialysis Center (id.) On January 25, 2012, decedent was admitted to New York-Presbyterian Hospital for gastrointestinal bleeding and pericardial effusion. He died on March 2, 2012; the cause of death was cardiopulmonary arrest because of multiple complications of ESRD (Reinle affirmation exhibit T [Columbia-Presbyterian death notice]). In his amended verified complaint, decedent denies that he ever threatened Ms. Filpo or anyone else at CDC, and specifically denies that he ever used the words “Columbine Massacre” in their conversations. He asserts that, on the morning of November 1, 2010, he had been ill the day and night before, and had only had an hour’s sleep, so the early call “put him in a bad humor and he expressed his displeasure and annoyance by raising his voice” (id. 25). Plaintiff also asserts that he telephoned back shortly afterwards to apologize for raising his voice during the prior call but that Ms. Filpo dismissed his apology (id. 26). The first and second causes of action in the amended complaint allege that he received the discharge notice on November 1, 2010, by hand delivery and by certified mail return receipt requested, but denies that the copies of the dismissal notices he received enclosed or attached a list of the names, addresses and telephone numbers of other dialysis clinics in the area (id.
31-32 and 35). The amended complaint alleges that defendants’ termination of his outpatient dialysis treatment, without notice and without having made prior arrangements for his treatment at another outpatient facility, constituted an abandonment actionable as negligence (id.
