         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1600
CA 10-01608
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


VINCENT B. BETETTE, JR., INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF VINCENT B.
BETETTE, SR., DECEASED, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF MONROE AND MONROE COMMUNITY HOSPITAL,
DEFENDANTS-APPELLANTS.


WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (JAMES L. GELORMINI OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

WOODS OVIATT GILMAN LLP, ROCHESTER (CHRISTIAN N. VALENTINO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered April 8, 2010 in an action for, inter alia, wrongful
death. The order granted the motion and cross motion of plaintiff for
leave to amend the complaint and denied the motion of defendants for
summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting those parts of defendants’ motion seeking to
dismiss the complaint insofar as it asserts the failure to provide
defendants’ employees with proper training and the failure to warn
plaintiff’s decedent of the allegedly dangerous condition of the door
handle and as modified the order is affirmed without costs.

     Memorandum: Plaintiff, individually and as administrator of
decedent’s estate, commenced this action seeking damages for, inter
alia, the conscious pain and suffering and wrongful death of decedent,
who died while he was a resident of defendant Monroe Community
Hospital (MCH), a skilled nursing facility. Decedent had been
discharged to the care of the facility upon leaving a hospital where
he had been treated after he had fallen in his home. Decedent had
previously been a patient of MCH a month earlier, again after being
discharged from a hospital after having fallen at his home. During
his first stay at MCH, decedent fell on two occasions and, during his
instant discharge there, MCH had installed bed and chair alarms to
alert staff in the event that decedent attempted to ambulate without
assistance, but it is undisputed that bed rails were not used. On the
day of the accident, plaintiff alleged that decedent activated the
call button to obtain assistance in getting to the bathroom. When the
call went unanswered, decedent left his bed in an effort to get to the
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                                                         CA 10-01608

bathroom, whereupon the alarm sounded. Decedent fell upon leaving his
bed, however, and he required 130 stitches to repair the laceration
that he sustained when he impaled his arm on the door handle.
Decedent died two days later of congestive heart failure, and the
death certificate noted that the laceration was a “significant
condition[] contributing to death but not related to cause given in
Part 1 (a),” i.e., congestive heart failure.

     Plaintiff served a timely notice of claim asserting negligence
claims, and the summons and complaint alleged two causes of action for
negligence, seeking damages for wrongful death and conscious pain and
suffering. Plaintiff alleged that defendants were negligent in, inter
alia, failing to supervise decedent, failing to use bed rails to
prevent decedent from getting out of bed, failing to provide MCH staff
with proper training, failing to install the door handle so that it
would not constitute a dangerous condition, and failing to warn
decedent of that dangerous condition.

     Plaintiff thereafter moved for leave to amend the complaint to
add a cause of action under Public Health Law § 2801-d, while
defendants moved for summary judgment dismissing the complaint
arguing, inter alia, that some of plaintiff’s claims sounded in
medical malpractice rather than negligence. Plaintiff then cross-
moved for leave to amend the complaint to add a cause of action for
medical malpractice and for an extension of time to file and serve the
requisite certificate of merit and notice of medical malpractice.
Supreme Court granted plaintiff’s motion and cross motion and denied
defendants’ motion.

     We note at the outset that, in opposition to defendants’ motion,
plaintiff abandoned his claims alleging the failure to provide proper
training for MCH employees and the failure to warn of an allegedly
dangerous condition (see Ciesinski v Town of Aurora, 202 AD2d 984).
We thus conclude that the court erred in denying defendants’ motion
with respect to those claims, and we therefore modify the order
accordingly.

     We reject defendants’ contention that the court erred in granting
the motion of plaintiff seeking leave to amend the complaint to add a
cause of action under Public Health Law § 2801-d. It is well settled
that “[l]eave to amend the pleadings ‘shall be freely given’ absent
prejudice or surprise resulting directly from the delay” (McCaskey,
Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755,
757; see Carro v Lyons Falls Pulp & Paper, Inc., 56 AD3d 1276, 1277).
Defendants contend, however, that the court erred in allowing
amendment of the complaint to add the Public Health Law § 2801-d cause
of action because that cause of action was not included in the notice
of claim. We conclude under the circumstances of this case that the
notice of claim may be corrected pursuant to General Municipal Law §
50-e (6) to include that new cause of action. Pursuant to section 50-
e (6), a court in its discretion may permit the correction of a notice
of claim where there has been a “mistake, omission, irregularity or
defect made in good faith . . ., provided it shall appear that the
other party was not prejudiced thereby.” Here, plaintiff asserted a
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                                                         CA 10-01608

good faith basis for his initial failure to include the Public Health
Law § 2801-d cause of action in the notice of claim. He contended
that he did not include that cause of action because, prior to our
decision in Kash v Jewish Home & Infirmary of Rochester N.Y., Inc. (61
AD3d 146), we did not allow a plaintiff to assert both a cause of
action for wrongful death and a cause of action under section 2801-d.
While defendants are correct that General Municipal Law § 50-e (6)
ordinarily “is not applicable in an attempt to state a new theory of
recovery” (Hines v City of Buffalo, 79 AD2d 218, 226), there are
exceptions to that general rule. For example, courts have granted
leave to serve a supplemental or amended notice of claim to add a
derivative cause of action for loss of consortium (see Lopes v
Metropolitan Tr. Auth., 66 AD3d 744, 745; Sciolto v New York City Tr.
Auth., 288 AD2d 144), and a claim for wrongful death where such claim
“results from the same facts as were alleged in a timely and otherwise
admittedly valid notice of claim for personal injuries” (Ramos v New
York City Tr. Auth., 60 AD3d 517, 519; see Matter of Scheel v City of
Syracuse, 97 AD2d 978). Likewise, the corrected notice of claim in
this case results from the same timely alleged facts. The
determinative factors are whether the plaintiff has shown a good faith
basis for the correction and an absence of prejudice to the
defendants, and plaintiff has made that showing here.

     We reject defendants’ further contention that the court erred in
denying that part of their motion with respect to the premises
liability claim. The door handle at issue was installed with the
handle facing up rather than facing down or horizontally, and
plaintiff alleged that the upward-facing door handle constituted a
dangerous condition. Assuming, arguendo, that defendants met their
initial burden of establishing that the door handle did not constitute
a dangerous condition, we conclude that plaintiff raised a triable
issue of fact with respect thereto by submitting the affidavit of his
expert, a registered architect and professional engineer (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). The expert
had experience in building and renovation projects and was in fact
familiar with the design and installation of the type of door handle
at issue. In his view, that type of door handle was more dangerous
than others because of its thin and open-ended handle, which was more
likely to cause injury to someone than other door handles that are
more blunt, rounded, or closed-ended. According to plaintiff’s
expert, the decision on how to install a door handle should be made
only after considering the type of facility, the location of the door
handle within that facility, and the individuals who will be using the
door handle. He opined that the upward-facing door handle was a
dangerous condition under the circumstances, where the facility
treated elderly patients who had difficulty with ambulation and
balance.

     Although we agree with defendants that plaintiff’s claims sound
in both negligence and medical malpractice (see Smee v Sisters of
Charity Hosp. of Buffalo, 210 AD2d 966, 967; see generally Bleiler v
Bodnar, 65 NY2d 65, 72-73), we reject defendants’ contention that the
court erred in granting plaintiff’s cross motion for leave to file and
serve a late certificate of merit (see CPLR 3012-a) and a notice of
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                                                         CA 10-01608

medical malpractice action (see CPLR 3406 [a]). A court in its
discretion may extend a plaintiff’s time to file and serve those items
“upon such terms as may be just and upon good cause shown” (CPLR 2004;
see Tewari v Tsoutsouras, 75 NY2d 1, 11-12; Dye v Leve, 181 AD2d 89).
We agree with plaintiff that he has shown good cause for the delay
(see generally Rice v Vandenebossche, 185 AD2d 336). We have
considered defendants’ remaining contention and conclude that it is
without merit.

     All concur except PERADOTTO, J., who dissents in part and votes to
modify in accordance with the following Memorandum: I respectfully
dissent in part. In my view, Supreme Court erred in granting
plaintiff’s motion for leave to amend the complaint to add a cause of
action under Public Health Law § 2801-d and also erred in denying that
part of defendants’ motion for summary judgment seeking dismissal of
the premises liability claim. I would therefore further modify the
order accordingly.

     As set forth by the majority, plaintiff’s decedent was a resident
of defendant Monroe Community Hospital (MCH), a skilled nursing
facility, at the time of his death. When no one responded to his call
to obtain assistance in getting to the bathroom, decedent got out of
bed and, in attempting to walk to the bathroom unassisted, he fell
onto the door handle to his room, piercing his right arm. Decedent
died two days later of congestive heart failure. The death
certificate listed the “[s]uperficial laceration of [his] right
forearm” as a “significant condition[] contributing to [his] death.”
Plaintiff served a timely notice of claim dated June 27, 2005,
asserting claims of negligence, and thereafter commenced this action
in February 2006. The complaint asserted two causes of action for
negligence and sought damages for wrongful death and decedent’s
conscious pain and suffering. Plaintiff alleged that defendants were
negligent in, inter alia, failing to “provide one-on-one supervision”
for decedent, failing to respond in a prompt manner to decedent’s
request for assistance, and “fail[ing] to install or cause to install
the door handle[] in a down-facing position so that [it] would not
create a dangerous condition.”

     In September 2009, plaintiff moved for leave to amend the
complaint to include a cause of action under Public Health Law § 2801-
d. Defendants then moved for summary judgment dismissing the
complaint contending, inter alia, that the premises liability claim
was without merit inasmuch as the door handle at issue was not
inherently dangerous and, indeed, was a “standard health care facility
fixture.”

     I agree with defendants that the court erred in granting
plaintiff’s motion for leave to amend the complaint. The majority
concludes that, under the circumstances of this case, “the notice of
claim may be corrected pursuant to General Municipal Law § 50-e (6) to
include that new cause of action” under Public Health Law § 2801-d.
Notably, plaintiff did not seek leave to serve a late notice of claim
under General Municipal Law § 50-e (5), nor did he seek to “correct[]”
the notice of claim pursuant to General Municipal Law § 50-e (6),
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                                                         CA 10-01608

which applies to a “mistake, omission, irregularity or defect made in
good faith in the notice of claim.” Indeed, General Municipal Law §
50-e (6) was raised for the first time by defendants in opposition to
plaintiff’s motion for leave to amend the complaint and, in reply,
plaintiff asserted only that no notice of claim was required with
respect to the proposed Public Health Law § 2801-d cause of action.
Plaintiff continues to make that same assertion on appeal.

     In any event, even assuming, arguendo, that plaintiff sought
relief under General Municipal Law § 50-e (6), I conclude that such
relief is unavailable here. It is well established that “[a]mendments
of a substantive nature are not within the purview of General
Municipal Law § 50-e (6)” (Herron v City of New York, 223 AD2d 676).
Rather, General Municipal Law § 50-e “merely authorizes the correction
of good faith, nonprejudicial, technical defects or omissions, not
substantive changes in the theory of liability” (Scott v City of New
York, 40 AD3d 408, 410; see Herron, 223 AD2d 676; Hines v City of
Buffalo, 79 AD2d 218, 226). Here, the proposed amendment to the
complaint does not correct a “mistake, omission, irregularity or
defect” in the notice of claim (General Municipal Law § 50-e [6]).
Instead, the proposed cause of action predicated upon Public Health
Law § 2801-d, seeking attorneys’ fees pursuant to Public Health Law §
2801-d (6) and punitive damages based on the alleged willful
deprivation and reckless disregard of decedent’s rights, “constituted
a new and separate time-barred claim against the defendants” (Young v
A. Holly Patterson Geriatric Ctr., 17 AD3d 667, 667; see § 50-e [5]).
Although the majority states that the “corrected” notice of claim
“results from the same timely alleged facts,” in my view the assertion
of a new cause of action, including a new theory of liability for
punitive damages, is sufficient to remove the proposed amendment from
the purview of General Municipal Law § 50-e (6) (see White v New York
City Hous. Auth., 288 AD2d 150; Hines, 79 AD2d at 226; Colena v City
of New York, 68 AD2d 898, 900).

     I further agree with defendants that the court erred in denying
that part of their motion seeking summary judgment dismissing the
premises liability claim. The majority assumes, arguendo, that
defendants met their initial burden, and then concludes that plaintiff
raised a triable issue of fact in any event. In my view, defendants
met their initial burden of establishing that the door handle did not
constitute an unreasonably dangerous condition, and plaintiff failed
to raise a triable issue of fact (see Palmer v Barnes & Noble
Booksellers, Inc., 34 AD3d 1287, 1288). Defendants submitted, inter
alia, an affidavit of MCH’s director of facilities service (hereafter,
director) whose duties include “supervising the engineering and non-
medical operational requirements” for the facility. In his affidavit,
the director explained that the “push-pull” handles on the door of
decedent’s room at MCH are a “standard type design for handles that
are commonly used in health care facilities.” Indeed, he averred that
such “push-pull” handles are “specifically designed to be used in
health care institutions on patient doors . . . [and] are specifically
marketed to hospitals and health care institutions as ‘Hospital
Push/Pulls.’ ” On the date of the incident, the handles of the door
to decedent’s room were mounted with one handle facing upward and the
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                                                         CA 10-01608

other handle facing downward, which the director described as “a
typical installation as authorized by the manufacturer and as commonly
installed in health care institutions.” The director noted that, when
decedent’s door was closed, the “up handle” faced the hallway while
the “down handle” faced the interior of decedent’s room. The director
further averred that he was unaware of any prior injuries resulting
from an upward facing door handle in his more than 10 years of
experience in the field, and that in his opinion “an upward facing
door handle such as was present in this case was not a dangerous
condition.”

     In addition, defendants submitted the manufacturer’s installation
instructions for the door handle at issue, which state that there are
six mounting positions for the door handle, including the one handle
up/one handle down position utilized in decedent’s room. Indeed, the
installation template provided by the manufacturer depicts an upward
facing pull handle and a downward facing push handle. Defendants also
submitted marketing materials for hospital push/pull handles, which
indicate that “[h]andles can be mounted up, down, horizontal or any
combination” thereof.

     As noted, I disagree with the majority that plaintiff raised a
triable issue of fact in opposition to the motion (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff submitted
an affidavit of his expert, a registered architect and professional
engineer, who averred that he was familiar with the design and
installation of the type of door handle at issue. Plaintiff’s expert
opined that the door handle at issue is more dangerous than other
types of door handles because of its “thin” handle and “dagger-like
tip,” which are more likely to cause injury than “other types of door
handles or door knobs, which are more blunt, rounded, and/or closed-
ended.” The expert’s repeated descriptions of the door handle as
“dagger-like,” however, are belied by the photograph attached to his
affidavit and other photographs of push/pull handles contained in the
record. Those photographs in fact depict a rounded, blunt handle.
Plaintiff’s expert further asserted that “[t]he installation and
maintenance of the door handle at MCH in an upward facing position was
not in accordance with good and accepted custom, practices and
standards with respect to the design and maintenance of a long term
care facility.” However, plaintiff’s expert failed to “ ‘identify any
specific industry standard upon which he relied in regard to the [door
handle], nor did [he] supply any specific statutory or building code
violations’ ” (Palmer, 34 AD3d at 1288; see Bax v Allstate Health
Care, Inc., 26 AD3d 861, 864). “The affidavit ‘was thus speculative
and not sufficiently probative to defeat [that part of] defendant[s’]
motion for summary judgment’ ” (Palmer, 34 AD3d at 1288; see Bax, 26
AD3d at 864). The mere fact that MCH could have installed the door
handle at issue with both handles facing downward does not warrant the
conclusion that it should have done so or that the failure to do so
created an unreasonably dangerous condition.

Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
