

Miranda v Riverdale Manor Home for Adults (2016 NY Slip Op 05956)





Miranda v Riverdale Manor Home for Adults


2016 NY Slip Op 05956


Decided on September 8, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 8, 2016

Tom, J.P., Friedman, Richter, Gische, Gesmer, JJ.


736 17975/07

[*1]Francisca Miranda, etc., Plaintiff-Appellant,
vRiverdale Manor Home for Adults, et al., Defendants-Respondents, New York City, et al., Defendants.


Robert R. Arena, Astoria, for appellant.
O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains (Montgomery L. Effinger of counsel), for Riverdale Manor Home for Adults and Elener Associates, respondents.
Carroll McNulty & Kull LLC, New York (Frank J. Wenick of counsel) for Federation Employment and Guidance Services, Inc. and Susanne Choe, M.D., respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 21, 2013, which, insofar as appealed from as limited by the briefs, granted the motion of defendants Federation Employment and Guidance Services and Susanne Choe, M.D., and the motion of defendants Riverdale Manor Home for Adults, and Elener Associates, LLC (collectively Riverdale) for summary judgment dismissing the complaint as against them and denied plaintiff's cross motion for leave to amend the complaint
to add a new cause of action, unanimously affirmed, without costs.
The court properly granted defendants' respective motions for summary judgment in this action where Luis Miranda, a person with a serious mental disorder and cognitive impairment sustained injuries after leaving the premises of Riverdale, an "open door" residential facility for disabled adults.
The court correctly found, as plaintiff's attorney recognized at oral argument, that Riverdale was properly classified as an adult home under 18 NYCRR 487.2(a), not a residential health care facility or nursing home subject to article 28 of the Public Health Law (see 18 NYCRR 485.2[a]).
In addition, the record demonstrates that Miranda was evaluated by psychiatrists independent of Riverdale prior to admission to the facility and before each re-admission. These professionals found that Riverdale was a suitable residence for Miranda, despite its open-door policy and his tendency to leave the facility and not return for several days. Defendants met their prima facie burden to show that they did not deviate from the appropriate standard of care. As defendants noted, on several occasions, hospital doctors cleared Miranda for discharge and determined that the Riverdale facility was suitable for him.
The affirmation of plaintiff's expert did not raise any triable issue of fact. The motion court correctly noted plaintiff's expert did not point to any other viable alternatives and did not specifically opine that either a nursing home or a locked-door state psychiatric hospital was a viable option for Miranda, given his medical condition at the time. Moreover, plaintiff does not cite to any regulatory authority that refutes defendants' position that they fulfilled their responsibilities when the facility or the psychiatrist sent Miranda to the hospital for an evaluation.
The court exercised its discretion in a provident manner in denying plaintiff leave to amend the complaint to assert a negligence claim against Riverdale more than a year after the filing of the note of issue. Plaintiff failed to provide a reasonable excuse for the delay or cite material facts that were not known prior to the close of discovery (see e.g. Haddad v New York City Tr. Auth., 5 AD3d 255 [1st Dept 2004]).
We have considered plaintiff's remaining contentions, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 8, 2016
CLERK


