The following e-filed documents, listed by NYSCEF document number (Motion 003) 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212 were read on this motion to/for AMEND PLEADINGS/X-MOTION DISMISS. DECISION + ORDER ON MOTION In this action to recover damages, inter alia, for nursing home negligence and medical malpractice, the plaintiff moves pursuant to CPLR 3025(b) and (c) for leave to serve and file an amended complaint conforming the pleading to the proof so as to withdraw the causes of action sounding in gross negligence, medical malpractice, and lack of informed consent, those negligence claims related to falls and pressure ulcers suffered by Dorothy Kuchtyak-Herrera (the patient), and all claims to recover punitive damages. The plaintiff seeks to add claims sounding in negligence based on the failure of the defendant The Riverside Premier Rehabilitation and Healing Center (Riverside) to prevent indoor air pollution emanating from ongoing construction activities at its facility from harming the patient, as well as claims alleging negligence per se and a claim arising under Public Health Law §2801-d. Riverside opposes the motion, and cross-moves pursuant to CPLR 3211(a)(7) to dismiss the initial complaint. The plaintiff’s motion is granted to the extent that he is granted leave to serve and file an amended complaint adding causes of action asserting negligence and violation of Public Health Law §2801-d in the form annexed to his motion papers as Exhibit A, and the motion is otherwise denied. Riverside’s cross motion is denied. By order dated July 17, 2018 (MOT SEQ 001, 002), the court (Madden, J.), among other things, dismissed an amended complaint that the plaintiff had served and filed in an untimely fashion without leave of court, and expressly stated that the initial complaint remained as the operative pleading in the action. That order also joined for trial an action that had been commenced by the defendant Dewitt Rehabilitation and Nursing Center, Inc., doing business as Upper East Side Rehabilitation and Nursing Center (Dewitt), against the patient under Index No. 157867/2017 with the instant action, which had been commenced under Index No. 805231/2017. By stipulation dated May 26, 2020, and entered June 2, 2020, the plaintiff and Dewitt agreed to discontinue all claims and cross claims asserted against each other, leaving Riverside as the only remaining defendant in this action. In his proposed amended complaint, the plaintiff seeks to allege that the patient, while a resident at Riverside from December 4, 2014 through December 24, 2014, was exposed to indoor air pollution that was generated during the renovation of Riverside’s facility, thus “resulting in respiratory problems and conditions.” In this regard, the plaintiff seeks to assert, in his first cause of action, that Riverside was negligent because it “failed to ensure that established policies of the nursing home were implemented during construction/renovation/ repair work in the facility,” in violation of rules and regulations of the New York State Department of Health (NYS DOH) and the Human Services Centers for Medicare & Medicaid Services (MMS). He further requests that he be permitted to assert that Riverside was negligent in failing to implement its own written safety plan for “interior alterations to existing skilled nursing facility projects, regarding safety signs, safety barriers and means of egress access,” also in violation of NYS DOH and MMS rules and regulations, and in failing properly and adequately to separate the patient’s room and the surrounding corridors from the construction site during the construction, renovation, and repair work, in violation of those same rules and regulations. Although the plaintiff alleged that he wishes to withdraw his medical malpractice cause of action, he nonetheless seeks to assert, in his first cause of action, that Riverside negligently staffed, trained, and supervised its employees. While these allegations may constitute a species of professional malpractice, rather than garden-variety negligence, the Public Health Law created a private right of action to recover for the violation of state and federal regulations that fix standards of care in that regard, and the plaintiff cites to numerous sections of the Code of Federal Regulations (CFR) that are referable to the standards of care applicable to the operation of nursing homes. In his proposed second cause of action, the plaintiff seeks to assert a claim sounding in negligence per se, based on Riverside’s alleged violations of Public Health Law §§2801-d and 2803-c, as well as several state and federal regulations. “[V]iolation of a State statute that imposes a specific duty constitutes negligence per se” (Elliott v. City of New York, 95 NY2d 730, 734 [2001] [emphasis added]). Conversely, the violation of a statute that imposes only a general duty will not constitute negligence per se (see Carcana v. New York City Hous. Auth., 26 Misc 3d 1238[A], 2010 NY Slip Op 50460[U], *4, 2010 NY Misc LEXIS 554, *9 [Sup Ct, N.Y. County, Feb. 8, 2010] [Shulman, J.]). Although the alleged violation of a regulation is not negligence per se, but constitutes only “some evidence” of negligence (see Conte v. Large Scale Development Corp., 10 NY2d 20, 29 [1961]; Verizon N.Y., Inc. v. New York State Elec. & Gas Corp., 151 AD3d 614, 616 [1st Dept 2017]), the plaintiff here alleges violation of the CFR and the New York Code Rules and Regulations as a necessary predicate to recovery under Public Health Law §2801-d, which creates a cause of action to recover for a nursing home’s violation of a code provision protective of a nursing home patient’s health or safety, where that violation proximately caused physical injury. Nonetheless, although the negligence per se cause of action asserted here might not be duplicative of the proposed third cause of action, which directly asserts the private right of action created by Public Health Law §2801-d (see Cameron v. 150 Riverside Op., LLC, 2020 NY Slip Op 30921[U], *1, 2020 NY Misc LEXIS 1438, *1-2] [Sup Ct, N.Y. County, Apr. 10, 2020]), “the cited sections of the Public Health Law do not impose a ‘specific duty’ of care or standard of conduct, and do not support a claim of negligence per se” (Whitehead v. Pine Haven Operating LLC, 75 Misc 3d 985, 993 [Sup Ct, Columbia County 2022]; see generally Elliott v. City of New York, 95 NY2d at 736). Rather, those sections respectively created a private right of action to recover for the violation of other statutes, codes, rules, and regulations, and articulated general, rather than specific, duties and standards of care applicable to nursing home operators. The plaintiff’s proposed third cause of action expressly seeks to assert the private right of action created by Public Health Law §2801-d(1). That statute provides, in relevant part, that “[a]ny 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.” That subsection defines “right or benefit” as a “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” (id. [emphasis added]). Where a plaintiff alleges a deprivation of such right or benefit, the subsection further makes the nursing home’s compliance with the relevant contract, statute, code, rule, or regulation an affirmative defense, so that the burden of proof is on the nursing home to prove compliance. The statute goes on to provide that “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 twenty-five percent of the daily per-patient rate of payment established for the residential health care facility under section twenty-eight hundred seven of this article 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.” (Public Health Law §2801-d[2]). The statute also permits a patient’s legal representative to prosecute such an action to recover damages (see Public Health Law §2801-d[4-a]). Public Health Law §2803-c is a state statute that defines numerous rights of nursing home patients and articulates general duties and standards of care applicable to nursing home operators. As relevant here, it includes the “the right to receive adequate and appropriate medical care” (Public Health Law §2803-c[3][e]). 42 CFR Part 483.25 is a set of federal regulations that govern nursing home operations As relevant here, those regulations require a nursing home to “[e]nsure that a resident’s environment remains free of accident hazards” (42 CFR. 483.25[h][1]) and to “[c]are for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life” (42 CFR 483.15). A party may move for leave to amend a complaint to add a new legal theory where the defendant would not be prejudiced thereby (see Jacobson v. McNeil Consumer & Specialty Pharms., 68 AD3d 652, 653 [1st Dept 2009]), as leave to amend a pleading is to be freely given absent prejudice or surprise resulting from the amendment, provided that the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]; McCaskey, Davies and Assocs., Inc v. New York City Health & Hospitals Corp., 59 NY2d 755 [1983]; 360 West 11th LLC v. ACG Credit Co. II, LLC, 90 AD3d 552 [1st Dept 2011]; Smith-Hoy v. AMC Prop. Evaluations, Inc., 52 AD3d 809 [1st Dept 2008]). The court must examine the sufficiency of the proposed amendment only to determine whether the proposed amended pleading is “palpably insufficient or clearly devoid of merit” (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]; see Greene v. Esplanade Venture Partnership, 36 NY3d 513, 526 [2021]; Hill v. 2016 Realty Assoc., 42 AD3d 432 [2d Dept 2007]). The court also “should consider how long the amending party was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered” (Haller v. Lopane, 305 AD2d 370, 371 [2d Dept 2003]). Moreover, CPLR 3025(c) authorizes the court to permit pleadings to be amended, before or after judgment, to conform them to the evidence. Contrary to Riverside’s contention, there is no requirement that the plaintiff submit an affidavit of merit in support of his motion for leave to amend. “Given the Legislature’s 2005 amendment of CPLR 3211(e) (see Lucido v. Mancuso, 49 AD3d 220, 228-229 [2d Dept 2008], appeal withdrawn 12 NY3d 813 [2009]), plaintiff was not required to support his motion to amend the complaint with an affidavit of merit (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010])” (Hickey v. Steven E. Kaufman, P.C., 156 AD3d 436, 436 [1st Dept 2017]). Also contrary to Riverside’s contention, the fact that Justice Madden had dismissed a prior amended complaint is not a basis for denying the proposed amendment here. In her July 17, 2018 order, Justice Madden did not dismiss the amended complaint for legal or factual insufficiency or lack of merit, but only because it had been served and filed without leave of court after the time for amendment as of right had lapsed. That order did not dismiss the initial complaint and, in fact, expressly indicated that the initial complaint remained the operative pleading in the action. Consequently, it is perfectly proper for the plaintiff now to seek leave to serve and file an amended complaint, as CPLR 3025(b), by its terms, permits a motion for such relief “at any time” (see Jacobson v. McNeil Consumer & Specialty Pharms., 68 AD3d at 653). Although the plaintiff may not amend his complaint to add a proposed cause of action sounding in negligence per se, since, as explained above, such a cause of action does not lie here, the court rejects Riverside’s argument that the negligence and Public Health Law §2801-d causes of action are palpably insufficient or patently devoid of merit. To establish common-law negligence, a plaintiff must prove that the defendant owed him or her a duty of care and breached that duty, and that the breach proximately caused his or her injuries (see Solomon v. City of New York, 66 NY2d 1026, 1027 [1985]). New York courts have long held that “‘landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition’” (Maheshwari v. City of New York, 2 NY3d 288, 294 [2004] quoting Tagle v. Jakob, 97 NY2d 165, 168 [2001]; see Basso v. Miller, 40 NY2d 233, 241 [1976]; Beck v. J.J.A. Holding Corp., 12 AD3d 238, 240 [1st Dept 2004]; see generally 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 NY2d 280. 290 [2001]). New York has also long recognized the right to commence a negligence action to recover for exposure to toxic and hazardous substances that cause physical injury, whether emitted into the air or discharged into the water (see Davies v. S.A. Dunn & Co., LLC, 200 AD3d 8, 16 [3d Dept 2021] [rejecting claim alleging only economic loss arising from emission of noxious fumes into the air, but explaining that claim would have been viable if plaintiff alleged personal injury or property damage]; Burdick v. Tonoga, Inc, 191 AD3d 1220, 1222 [3d Dept 2021] [defendant may be liable if it failed to exercise due care in conducting the allegedly polluting activity and that it knew or should have known that such conduct could result in contamination]; Baity v. General Elec. Co., 86 AD3d 948, 950-951 [4th Dept 2011] [contamination of water with trichloroethylene]; Osarczuk v. Associated Univs., Inc., 36 AD3d 872, 877 [2d Dept 2007] [recognizing right to recover for exposure to non-nuclear toxic substances discharged into water, thus causing personal injury and property damage]). The recognition of a right of recovery for toxic torts has been expressly applied to dust emanating from construction activities (see Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762 [2014] [recognizing tenant's cause of action to recover from landlord for causing exposure to toxic dust emanating from construction activities, but awarding summary judgment to landlord on the issue of whether exposure proximately caused the specific injuries claimed]; Chapman v. Silber, 97 NY2d 9 [2001] [landlord caused tenants' children to be exposed to lead-based paint]; Flynn v. Turner Constr. Co., 156 AD3d 415, 415-416 [1st Dept 2017] [claim of respiratory illness caused by exposure to toxic air at construction site]; Norman v. City of New York, 32 AD3d 91, 93 [1st Dept 2006] [city landfill could be held liable for permitting plaintiffs to be exposed to hazardous materials, odor emanating from the site, and a yellow mist floating through the air]; Dangler v. Town of Whitestown, 241 AD2d 290 [4th Dept 1998] [exposure to contaminants emanating from nearby landfill]; Rendelstein v. United Enters., 2010 NY Slip Op 31670[U], *13, 2010 NY Misc LEXIS 3042, *18 [Sup Ct, N.Y. County, Jun. 30, 2010] [landlord had a duty to take reasonable precautions to prevent injuries from the elevated levels of dust and debris in its building, even where the contaminants wholly originated from the adjacent premises]; cf. Krasnow v. JRBG Mgt. Corp., 25 AD3d 479, 480 [1st Dept 2006] [awarding defendant landowner summary judgment upon its showing that it did not create toxic mold condition at its premises]). The plaintiff’s contention that Riverside was negligent in causing the patient to be exposed to deleterious, unhealthful, hazardous, or toxic fugitive dust from construction activities states a cause of action because Riverside owed the patient a duty of care to prevent that dust from infiltrating into her room and because the allegations sufficiently described the elements of a negligence cause of action arising from negligent maintenance of Riverside’s premises. Hence, the proposed first cause of action is not palpably insufficient or patently devoid of merit. To establish the right to recover pursuant to the cause of action created by Public Health Law §2801-d, a patient must allege and prove that a nursing home deprived him or her of a right or benefit established for his or her well-being, as set forth in the terms of any contract or in any state or federal statute, code, rule or regulation (see Cortez v. Terrence Cardinal Cooke Health Ctr., 199 AD3d 450, 451 [1st Dept 2021]). The plaintiff’s allegations here state a cause of action to recover under that statute, as he has alleged that Riverside’s failure to prevent the infiltration of toxic fugitive dust into the patient’s room violated several provisions of Public Health Law §2803 and 42 CFR Part 483.25 that obligated it to provide a safe environment for patients. Riverside has not cited, and research has not revealed, any authority for its contention that those provisions were meant to exclude, from their coverage, a nursing home’s failure to protect a patient from exposure to airborne hazardous and toxic materials that it had the ability to prevent. Hence, the plaintiff’s proposed third cause of action is not palpably insufficient or patently devoid of merit. In light of the court’s determination that the plaintiff may amend his complaint so as to assert the proposed first and third causes of action, in the form set forth in Exhibit A to his motion papers, there is no basis upon which the court can grant Riverside’s cross motion to dismiss the initial complaint. Rather, the initial complaint will be superseded by the amended complaint (see Taub v. Schon, 148 AD3d 1200, 1201 [2d Dept 2017]). The court notes that, although the parties stipulated to amend the caption under nowdisposed Index No. 157867/2017, they never entered into a stipulation to amend the caption under the index number in this action. Nor have the parties apprised the appropriate clerk’s offices of the amended caption. The court thus directs the amendment of the caption in this action, and directs the plaintiff to serve the proper notices upon relevant clerks’ offices. In light of the foregoing, it is ORDERED that the plaintiff’s motion is granted to the extent that he is granted leave to serve and file and amended complaint, in the form set forth in the first and third causes of action that are included in the proposed pleading annexed as Exhibit A to his motion papers, and the motion is otherwise denied; and it is further, ORDERED that the amended complaint shall be deemed served upon the defendant The Riverside Premier Rehabilitation and Healing Center as of the date of entry of this order; and it is further, ORDERED that the cross motion of The Riverside Premier Rehabilitation and Healing Center to dismiss the complaint is denied; and it is further, ORDERED that the caption of this action shall read as follows: ALBERTO J. HOYOS, as attorney-in-fact for DOROTHY KUCHTYAK-HERRERA, Plaintiff v. RIVERSIDE PREMIER REHABILITATION AND HEALING, Defendant and it is further, ORDERED that, on the court’s own motion, within 15 days of the entry of this order, the plaintiff shall serve a copy of this order upon the Trial Support Office (60 Centre Street, Room 148, New York, NY 10007), and shall separately file and upload the notice required by CPLR 8019(c) in a completed Form EF-22, and the Trial Support Office shall thereupon amend the court records accordingly. This constitutes the Decision and Order of the court. MOTION: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE CRODD MOTION: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 9, 2023
