| Petrella v Fairport Baptist Home |
| 2020 NY Slip Op 06624 |
| Decided on November 13, 2020 |
| Appellate Division, Fourth 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 November 13, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND BANNISTER, JJ.
764 CA 19-02270
v
FAIRPORT BAPTIST HOME, AS OPERATOR OF FAIRPORT BAPTIST HOMES, DEFENDANT-RESPONDENT.
LADUCA LAW FIRM, LLP, ROCHESTER (MICHAEL STEINBERG OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (V. CHRISTOPHER POTENZA OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (William K. Taylor, J.), entered May 21, 2019. The judgment awarded plaintiff money damages upon a jury verdict.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for pain and suffering arising from a bedsore she developed during a stay at defendant's nursing home. The amended complaint asserted causes of action for negligence and violation of Public Health Law § 2801-d. The matter proceeded to trial, where the jury awarded plaintiff damages of $50,000 for past pain and suffering on her negligence cause of action. The jury did not find that defendant violated Public Health Law § 2801-d. On appeal, plaintiff contends that Supreme Court abused its discretion in refusing to instruct the jury on 10 NYCRR 415.12 (c) as a basis to find defendant liable on the section 2801-d cause of action.
Even assuming, arguendo, that the court abused its discretion in denying plaintiff's request for that charge, we nevertheless affirm inasmuch as plaintiff stipulated that she sought only a "judgment as a matter of law" and the remedy for the alleged error would be a new trial on the Public Health Law cause of action, which is separate and distinct from the negligence cause of action (see Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179 [1st Dept 2002]), not a judgment on a claim that was never considered by the jury (see generally Peguero v 601 Realty Corp., 58 AD3d 556, 564 [1st Dept
2009]).
Entered: November 13, 2020
Mark W. Bennett
Clerk of the Court