Preview
FILED: NEW YORK COUNTY CLERK 01/09/2020 03:33 PM INDEX NO. 805208/2019
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/09/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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BERNADETTE MITCHELL and DENISE MITCHELL
AS EXECUTORS OF THE ESTATE OF DENNIS
MITCHELL, DECEASED, ATTORNEY'S AFFIRMATION
Index No.: 805208/2019
Plaintiffs,
-against-
DEWITT REHABILITATION AND NURSING
CENTER, INC., d/b/a UPPER EAST SIDE
REHABILITATION AND NURSING CENTER,
CASSENA CARE LLC d/b/a UPPER EAST SIDE
REHABILITATION AND NURSING CENTER,
CASSENA CARE MANAGEMENT SERVICES, LLC
d/b/a UPPER EAST SIDE REHABILITATION
AND NURSING CENTER, CASSENA CARE IPA LLC
d/b/a UPPER EAST SIDE REHABILITATION
AND NURSING CENTER, DANIEL KLEIN, M.D.,
MARY MOLLOY, R.N., NELLEYE DANKOV, R.N.,
MARIA DIAZ, M.D. and THE MOUNT SINAI
HOSPITAL,
Defendants.
---------.....-------------------------------------------------------X
ROBERT D. MARTIN, an attorney duly admitted to practice law in the State of
New York, hereby affirms the following under the penalties of perjury:
1. I am associated with the firm of LAW OFFICES OF TROMELLO & FISHMAN,
attorneys for NELLYE DANKOV, and as such am fully familiar with all of the facts and
circumstances heretofore had herein. The source of my knowledge is from the information
contained in the file maintained by this office in the defense of the above captioned matter.
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2. The within affirmation is respectfully submitted in support of the within motion
for an for an Order:
plaintiffs'
(1) pursuant to N.Y. Civ. Prac. L&R § 3211(a)(7) striking and dismissing
complaint with regard to the Sixth Cause of Action -Punitive Damages;
(2) In the event that this Honorable Court grants the motion of defendants DEWITT
REHABILITATION AND NURSING CENTER, INC., d/b/a UPPER EAST SIDE
REHABILITATION AND NURSING CENTER, CASSENA CARE LLC d/b/a UPPER
EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE
MANAGEMENT SERVICES, LLC d/b/a UPPER EAST SIDE REHABILITATION
AND NURSING CENTER, CASSENA CARE IPA LLC d/b/a UPPER EAST SIDE
REHABILITATION AND NURSING CENTER to compel arbitration and that the action
be stayed pending the outcome of the arbitration;
(3) and for such other and further relief as to the Court may seem just and proper.
Proceedings Below
3. The within action was commenced by the filing of a summons and complaint dated July
1, 2019. (Exhibit "A")
4. Issue was joined on behalf of the answering defendant, NELLYE DANKOV, R.N., by
service of a verified Answer including affirmative defenses, dated December 9, 2019. (Exhibit
"B")
5. Plaintiff interposed a supplemental summons and amended complaint raising an
additional cause of action dated December 18, 2019. (Exhibit "C")
6. A verified Answer with affirmative defenses was interposed dated December 23, 2019.
(Exhibit "D")
7. Defendants DEWITT REHABILITATION AND NURSING CENTER, INC., d/b/a
UPPER EAST SIDE REHABILITATION AND NURSlNG CENTER, CASSENA CARE LLC
d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE
MANAGEMENT SERVICES, LLC d/b/a UPPER EAST SIDE REHABILITATION AND
NURSING CENTER, CASSENA CARE IPA LLC d/b/a UPPER EAST SIDE
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REHABILITATION AND NURSING CENTER interposed answers inclusive of the affirmative
defense related to the arbitration dated . (Exhibit "E")
8. By Notice of Motion dated September 12, 2019, the aforementioned defendants brought
on a motion to compel arbitration pursuant to CPLR § 7503(a) and the Federal Arbitration Act
and for a stay of the litigation pending the resolution of arbitration and for dismissal of the
statutory punitive damages cause of action;
Argument
plaintiffs'
9. In considering the contents within the four corners of complaint, it is evident
that, when giving plaintiffs the benefit of every possible inference, the facts as alleged do not fit
within any cognizable legal theory as against answering defendant NELLYE DANKOV, R.N.
plaintiffs' -
Therefore, Sixth Cause of Action Punitive Damages should be dismissed. See
Nonnon v. City of New York, NY3d 825, 827 (2007)
10. As the âüswering defendant is not an owner or operator of a nursing home, including the
defendant nursing home herein, plaintiffs appropriately do not bring a claim for punitive
damages pursuant to N.Y. Pub. Health L § 2801(d) and § 2803(c) in their Fifth Cause of Action
alleging violation of the Public Health Law.
1 l.Plaintiffs do cavalierly offer a one paragraph boilerplate assertion that each defendant
maliciously" "performed"
"knowingly, intentionally and various acts without articulating any
specific basis for allegations as against defendant DANKOV.
12. No specific allegation raised as articulated against DANKOV is claimed to demonstrate
the level of wanton disregard to imply a pattern aimed at the public at large sufficient to support
a cause of action for punitive damages Rocanova v. Equitable I ife,83 N.Y.2d 308 (1995)
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13. Plaintiffs did not demonstrate conduct evidencing a high degree of moral culpability or
conduct so flagrant as to transcend mere carelessness, or willful or wanton negligence or
recklessness necessary to support a punitive damages cause of action. See Rey v. Park View
(2"d
Nsg. Home, Inc., 262 A.D.2d 624, 627 Dept 1999) Indeed, the burden has been held to be
culpability."
very high in New York: a "very high threshold of moral See Giblin v. Mw·phy, 73
N.Y.2d 769, 772 (1988)
14. The DeWITT defendants have brought on a motion to compel arbitration pursuant to
their admissions agreement for decedent.
15. in the event that this Honorable Court grants their motion, then any such arbitration will
necessarily implicate involvement in one way or another of various defendants, including the
defendant herein.
16. Therefore, in the interests of justice, the answering defendant should be included in any
such arbitration to permit consistent fact finding and adjudication.
17. At a bare minimum, it isrespectfully submitted that a stay pending the outcome of such
mediation be permitted to avoid inconsistent fact finding, or adjudication.
18. It isrespectfully pointed out that should arbitration be permitted by this honorable court,
no prejudice would inure to the detriment of plaintiffs herein, however, significant prejudice
would inure to defendants, including DANKOV, by virtue of the possibility of inconsistent fact
finding or adjudications.
19. I hereby certify this affirmation is not frivolous as defined in NYCRR Section
130-1.1(c).
WHEREFORE, your affirmant respectfully requests that an Order be entered to strike
plaintiffs'
and dismiss six cause of action and inclusion of the answering defendant DANKOV in
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any arbitration of the DeWITT action if permitted, staying the action pending the outcome of any
such arbitration, and for such other and further relief as to this Court may seem just and proper.
Dated: Melville, NY
January 6, 2020
RO ERT D. MARTIN
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Preview
FILED: NEW YORK COUNTY CLERK 01/09/2020 03:33 PM INDEX NO. 805208/2019 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/09/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----...-------...--------------------------------- ----¬----------X BERNADETTE MITCHELL and DENISE MITCHELL AS EXECUTORS OF THE ESTATE OF DENNIS MITCHELL, DECEASED, ATTORNEY'S AFFIRMATION Index No.: 805208/2019 Plaintiffs, -against- DEWITT REHABILITATION AND NURSING CENTER, INC., d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE MANAGEMENT SERVICES, LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE IPA LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, DANIEL KLEIN, M.D., MARY MOLLOY, R.N., NELLEYE DANKOV, R.N., MARIA DIAZ, M.D. and THE MOUNT SINAI HOSPITAL, Defendants. ---------.....-------------------------------------------------------X ROBERT D. MARTIN, an attorney duly admitted to practice law in the State of New York, hereby affirms the following under the penalties of perjury: 1. I am associated with the firm of LAW OFFICES OF TROMELLO & FISHMAN, attorneys for NELLYE DANKOV, and as such am fully familiar with all of the facts and circumstances heretofore had herein. The source of my knowledge is from the information contained in the file maintained by this office in the defense of the above captioned matter. 1 of 5 FILED: NEW YORK COUNTY CLERK 01/09/2020 03:33 PM INDEX NO. 805208/2019 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/09/2020 2. The within affirmation is respectfully submitted in support of the within motion for an for an Order: plaintiffs' (1) pursuant to N.Y. Civ. Prac. L&R § 3211(a)(7) striking and dismissing complaint with regard to the Sixth Cause of Action -Punitive Damages; (2) In the event that this Honorable Court grants the motion of defendants DEWITT REHABILITATION AND NURSING CENTER, INC., d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE MANAGEMENT SERVICES, LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE IPA LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER to compel arbitration and that the action be stayed pending the outcome of the arbitration; (3) and for such other and further relief as to the Court may seem just and proper. Proceedings Below 3. The within action was commenced by the filing of a summons and complaint dated July 1, 2019. (Exhibit "A") 4. Issue was joined on behalf of the answering defendant, NELLYE DANKOV, R.N., by service of a verified Answer including affirmative defenses, dated December 9, 2019. (Exhibit "B") 5. Plaintiff interposed a supplemental summons and amended complaint raising an additional cause of action dated December 18, 2019. (Exhibit "C") 6. A verified Answer with affirmative defenses was interposed dated December 23, 2019. (Exhibit "D") 7. Defendants DEWITT REHABILITATION AND NURSING CENTER, INC., d/b/a UPPER EAST SIDE REHABILITATION AND NURSlNG CENTER, CASSENA CARE LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE MANAGEMENT SERVICES, LLC d/b/a UPPER EAST SIDE REHABILITATION AND NURSING CENTER, CASSENA CARE IPA LLC d/b/a UPPER EAST SIDE 2 of 5 FILED: NEW YORK COUNTY CLERK 01/09/2020 03:33 PM INDEX NO. 805208/2019 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/09/2020 REHABILITATION AND NURSING CENTER interposed answers inclusive of the affirmative defense related to the arbitration dated . (Exhibit "E") 8. By Notice of Motion dated September 12, 2019, the aforementioned defendants brought on a motion to compel arbitration pursuant to CPLR § 7503(a) and the Federal Arbitration Act and for a stay of the litigation pending the resolution of arbitration and for dismissal of the statutory punitive damages cause of action; Argument plaintiffs' 9. In considering the contents within the four corners of complaint, it is evident that, when giving plaintiffs the benefit of every possible inference, the facts as alleged do not fit within any cognizable legal theory as against answering defendant NELLYE DANKOV, R.N. plaintiffs' - Therefore, Sixth Cause of Action Punitive Damages should be dismissed. See Nonnon v. City of New York, NY3d 825, 827 (2007) 10. As the âüswering defendant is not an owner or operator of a nursing home, including the defendant nursing home herein, plaintiffs appropriately do not bring a claim for punitive damages pursuant to N.Y. Pub. Health L § 2801(d) and § 2803(c) in their Fifth Cause of Action alleging violation of the Public Health Law. 1 l.Plaintiffs do cavalierly offer a one paragraph boilerplate assertion that each defendant maliciously" "performed" "knowingly, intentionally and various acts without articulating any specific basis for allegations as against defendant DANKOV. 12. No specific allegation raised as articulated against DANKOV is claimed to demonstrate the level of wanton disregard to imply a pattern aimed at the public at large sufficient to support a cause of action for punitive damages Rocanova v. Equitable I ife,83 N.Y.2d 308 (1995) 3 of 5 FILED: NEW YORK COUNTY CLERK 01/09/2020 03:33 PM INDEX NO. 805208/2019 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/09/2020 13. Plaintiffs did not demonstrate conduct evidencing a high degree of moral culpability or conduct so flagrant as to transcend mere carelessness, or willful or wanton negligence or recklessness necessary to support a punitive damages cause of action. See Rey v. Park View (2"d Nsg. Home, Inc., 262 A.D.2d 624, 627 Dept 1999) Indeed, the burden has been held to be culpability." very high in New York: a "very high threshold of moral See Giblin v. Mw·phy, 73 N.Y.2d 769, 772 (1988) 14. The DeWITT defendants have brought on a motion to compel arbitration pursuant to their admissions agreement for decedent. 15. in the event that this Honorable Court grants their motion, then any such arbitration will necessarily implicate involvement in one way or another of various defendants, including the defendant herein. 16. Therefore, in the interests of justice, the answering defendant should be included in any such arbitration to permit consistent fact finding and adjudication. 17. At a bare minimum, it isrespectfully submitted that a stay pending the outcome of such mediation be permitted to avoid inconsistent fact finding, or adjudication. 18. It isrespectfully pointed out that should arbitration be permitted by this honorable court, no prejudice would inure to the detriment of plaintiffs herein, however, significant prejudice would inure to defendants, including DANKOV, by virtue of the possibility of inconsistent fact finding or adjudications. 19. I hereby certify this affirmation is not frivolous as defined in NYCRR Section 130-1.1(c). WHEREFORE, your affirmant respectfully requests that an Order be entered to strike plaintiffs' and dismiss six cause of action and inclusion of the answering defendant DANKOV in 4 of 5 FILED: NEW YORK COUNTY CLERK 01/09/2020 03:33 PM INDEX NO. 805208/2019 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/09/2020 any arbitration of the DeWITT action if permitted, staying the action pending the outcome of any such arbitration, and for such other and further relief as to this Court may seem just and proper. Dated: Melville, NY January 6, 2020 RO ERT D. MARTIN 5 of 5