#### Lilian Hairston, Respondent, v Liberty Behavioral Management Corporation et al., Appellants.

[68 NYS3d 439]

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 16, 2016, which, to the extent appealed from, denied defendants’ motion for summary judgment dismissing the amended complaint, unanimously modified, on the law, to grant the motion with respect to the Public Health Law § 2801-d causes of action, and otherwise affirmed, without costs.

On September 9, 2009, plaintiff’s decedent, Guillermo DeJesus, who suffered from schizophrenia and bipolar disorder, voluntarily entered defendants’ substance abuse rehabilitation facility, Arms Acres, for treatment of his long-term alcoholism.

DeJesus was admitted to Arms Acres’s detoxification program, and was administered medications for his psychiatric conditions. Arms Acres’s records indicate that DeJesus made no progress in treatment. Over the course of several days, he exhibited behavioral problems, suffered from hallucinations, and was disoriented. Three days after he entered Arms Acres, DeJesus walked outside the facility, but was brought back in a confused state. Sometime thereafter, he left the facility again and could not be located. On October 18, 2009, Dejesus’s body was discovered in the woods about a mile from the facility’s *405grounds. According to the death certificate, the cause and manner of DeJesus’s death were undetermined.

Plaintiff brought this action against defendants alleging, inter alia, negligence, wrongful death and violation of Public Health Law § 2801-d. Defendants moved for summary judgment dismissing the amended complaint on the grounds that they owed no duty of care to DeJesus, that plaintiff could not show causation, and that Arms Acres could not be held liable under Public Health Law § 2801-d. In a decision entered September 16, 2016, the motion court sustained the negligence and wrongful death claims, concluding that defendants owed a duty of care to DeJesus, and that triable issues of fact exist on causation. The court also declined to dismiss the statutory claim.

On appeal, defendants contend that they are entitled to summary judgment because plaintiff cannot prove causation.1 It is well settled that a movant for summary judgment bears the initial burden of presenting affirmative evidence of its entitlement to summary judgment *(Cole v Homes for the Homeless Inst., Inc.,*93 AD3d 593, 594 [1st Dept 2012]). Merely pointing to gaps in an opponent’s evidence is insufficient to satisfy the movant’s burden *(Koulermos v A.O. Smith Water Prods.,*137 AD3d 575, 576 [1st Dept 2016]; *Alvarez v 21st Century Renovations Ltd.,*66 AD3d 524, 525 [1st Dept 2009]).

We conclude that defendants did not meet their initial burden of establishing their entitlement to summary judgment on the negligence and wrongful death claims. In their motion papers, defendants argued that the record was devoid of evidence as to what happened after DeJesus left Arms Acres, and what caused his death. Defendants, however, failed to submit affirmative evidence establishing that their alleged negligence did not, as a matter of law, proximately cause DeJesus’s death. The fact that DeJesus’s body was discovered a month after he disappeared is not sufficient, in itself, to warrant summary judgment in defendants’ favor. Although defendants submitted DeJesus’s death certificate, that document states only that the manner and cause of death were undetermined, and does not definitively rule out the requisite causal connection. Further, the autopsy report submitted with defendants’ motion papers is incomplete, and does not identify the cause of death.

Because defendants merely pointed to perceived gaps in plaintiff’s proof, they are not entitled to summary judgment on *406the negligence and wrongful death claims *(see Torres v Merrill Lynch Purch.,*95 AD3d 741, 742 [1st Dept 2012] [summary judgment denied because the movants merely pointed to gaps in the plaintiff’s proof instead of carrying their burdens on their motions]; *Artalyan, Inc. v Kitridge Realty Co., Inc.,*79 AD3d 546, 547 [1st Dept 2010] [the defendants’ “contention that they should have been granted summary judgment because plaintiffs could not establish as a matter of law that they were negligent misapprehends their burden on their own motion”]).2

However, the motion court should have dismissed plaintiff’s Public Health Law § 2801-d causes of action.3 Arms Acres is a detoxification and rehabilitation facility governed by the Mental Hygiene Law, and regulated by the Office for Alcoholism and Substance Abuse Services pursuant to certificates issued by that Office. It is not a nursing home or similar facility under the Department of Health, and thus is not governed by the Public Health Law, and not subject to the private right of action available under Public Health Law § 2801-d (1) *(see Burkhart v People, Inc.,*129 AD3d 1475, 1477 [4th Dept 2015]; Public Health Law § 2800). As such, plaintiff may not maintain a private cause of action pursuant to Public Health Law § 2801-d against defendants *(see Burkhart,*129 AD3d at 1478; *Randone v State of New York,*30 Misc 3d 335 [Ct Cl 2010]; *see also Novick v South Nassau Communities Hosp.,*136 AD3d 999, 1001 [2d Dept 2016]).

Concur—Richter, J.P., Webber, Kern and Moulton, JJ.

1

. Defendants do not challenge the motion court’s conclusion that they owed a duty of care to DeJesus.

2

. In light of our conclusion that defendants did not meet their prima facie burden, the burden never shifted to plaintiff to raise a triable issue of fact *(see Alvarez,*66 AD3d at 525). Thus, we need not address whether the expert affidavit submitted by plaintiff is sufficient to raise an issue of fact as to causation. We also note that, in reply, defendants presented no expert affidavit calling into question any of the conclusions reached by plaintiff’s expert, and only attacked the expert by way of an attorney’s affirmation.

3

. This Court’s prior order permitting plaintiff to assert a statutory claim for punitive damages was not a determination on the merits and thus is not “law of the case’’ (see *McCoy v Metropolitan Transp. Auth.,*53 AD3d 457, 458 [1st Dept 2008]; *James v R & G Hacking Corp.,*39 AD3d 385, 386 [1st Dept 2007], *lv denied*9 NY3d 814 [2007]).