Clark v Bishop Francis J. Mugavero Ctr. for Geriatric Care, Inc.

[*1] Clark v Bishop Francis J. Mugavero Ctr. for Geriatric Care, Inc. 2010 NY Slip Op 51889(U) [29 Misc 3d 1219(A)] Decided on November 5, 2010 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 5, 2010
Supreme Court, Kings County

Winifred Quinn Clark, as Executrix of the Estate of Evelyn H. Engel, deceased, Plaintiff,

against

Bishop Francis J. Mugavero Center for Geriatric Care, Inc., and Saint Vincents Catholic Medical Centers of New York, Defendants.



22575/05



Plaintiff was represented by Dennis Marc Reisman, Esq. Defendants were represented by Craig G. Bienstock, Esq. of Shaub, Ahmuty, Citrin & Spratt, LLP.

Jack M. Battaglia, J.

On March 11, 2004, Plaintiff's decedent, Evelyn H. Engel, was, and had been for approximately two years, a resident of a nursing home operated by defendant Bishop Francis J. Mugavero Center for Geriatric Care, Inc. (the "Mugavero Center.") At approximately 10:30 p.m. that evening, she was discovered during regular rounds lying in her bed with a ruptured globe of her left eye that was eventually surgically removed. Ms. Engel was physically and mentally [*2]disabled, and could not say how the injury occurred. She was alone in the room when the injury was discovered, although she had a roommate whose whereabouts at the time of discovery of the injury are not disclosed. No object that could have caused the injury was seen in Ms. Engel's vicinity, and there is no evidence as to how the injury occurred, or of the involvement of any person other than Ms. Engel. Visiting hours had ended more than two hours earlier, and Ms. Engel was apparently fine when she was given medication at approximately 10:00 p.m.

Plaintiff's Verified Complaint purports to allege two causes of action: the First Cause of Action sounding in negligence, the Second Cause of Action based upon the doctrine of res ipsa loquitor. But "the principal that the thing speaks for itself' does not state a separate theory on which a plaintiff may recover for injury." (See Abbott v Page Airways, Inc., 23 NY2d 502, 512 [1969].) Res ipsa "merely permits the jury to infer negligence." (States v Lourdes Hospital, 100 NY2d 208, 213-14 [2003].)

The Verified Bill of Particulars contains the following "general statement of the acts or omissions constituting the negligence":

"The defendants, their agents, servants and/or employees were negligent in that they carelessly, negligently, unskillfully, and improperly conducted the supervision, treatment, and care of plaintiff's decedent, and failed to give plaintiff's decedent proper care and attention, causing the injuries complained of to the decedent; that defendants, their agents, servants and/or employees placed or caused plaintiff's decedent to be placed in a bed without the necessary and proper supervision, and in so placing her in the bed did not provide a bed with sufficient side rails, and did not provide the customary or usual restraints for a patient in decedent's condition, and if they were so provided, were improperly provided, whereby, on or about March 11, 2004, plaintiff's decedent was permitted to move about without assistance, or else was permitted to move with assistance negligently provided by defendants, or else was negligently moved by defendants, resulting in serious injuries to the plaintiff's decedent." (Verified Bill of Particulars ¶ 3.)

There is nothing in the Verified Complaint or the Verified Bill of Particulars to suggest that Plaintiff purports to assert a claim for medical malpractice, nor do Defendants contend in their Verified Answer or their submission on this motion that Plaintiff's claim, in whole or in part, must be assessed as one for medical malpractice. (See Friedman v New York Hospital-Cornell Med. Ctr., 65 AD3d 850, 850-51 [1st Dept 2009]; D'Elia v Menorah Home & Hosp. for Aged & Infirm, 51 AD3d 848, 850 [2d Dept 2008].)

With this motion, Plaintiff seeks an order, among other things, presumably pursuant to CPLR 3212, granting her summary judgment on her Verified Complaint, "holding Defendant Bishop J. Mugavero Center for Geriatric Care, Inc. ( Defendant') solely negligent and liable for injuries suffered by the Plaintiff's decedent, Evelyn Engel, under a theory of res ipsa loquitor, or, alternatively, granting said relief as a discovery sanction as authorized under CPLR § 3126 due to Defendant's willful noncompliance with discovery obligations, and granting other appropriate [*3]relief pursuant to §3126." (Notice of Motion dated August 3, 2010.)

Perhaps the simplest formulation of the doctrine of res ipsa loquitor is that "the circumstances of the case unexplained justify the inference of negligence." (See Galbraith v Busch, 267 NY 230, 233 [1935].) "The doctrine . . . requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant." (Id. at 234.) "The logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available." (Id.)

"Res ipsa loquitor is a phrase that, perhaps because it is in Latin, has taken on its own mystique, although it is nothing more than a brand of circumstantial evidence." (Morejon v Rais Constr. Co., 7 NY3d 203, 211 [2006] [footnote omitted].) That general statement of circumstantial inference has been particularized as three conditions to the doctrine's application: "(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within that exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Id. at 209 [quoting Corcoran v Banner Super Mkt., 19 NY2d 425, 430 (1967) (quoting Prosser, Torts §39, at 218 [3d ed])].)

The probative value of the circumstantial evidence offered by a plaintiff must be assessed by the court with attention to the proper application and effect of the res ipsa doctrine. With res ipsa, "the jury is . . . allowed . . . but not compelled . . . to draw the permissible inference." (Kambat v St. Francis Hosp., 89 NY2d 489, 495 [1997].) "Evidence which under the rule of res ipsa loquitor satisfies the plaintiff's duty of producing evidence sufficient to go to the jury . . . is ordinarily not sufficient, even when the defendant produces no evidence in contradiction or rebuttal, to entitle the plaintiff to the direction of a verdict" or summary judgment. (See Foltis, Inc. v City of New York, 287 NY 108, 119-20 [1941].) Even where the defendant's evidence "leaves open the possibility that the injury was due to fault," summary judgment or a directed verdict based upon res ipsa is not appropriate. (See id. at 118.)

"Only in the rarest of res ipsa loquitor cases may a plaintiff win summary judgment or a directed verdict." (Morejon v Rais Constr. Co., 7 NY3d at 209.) "That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable." (Id.) "If [the circumstantial evidence] presents a question of fact as to the defendant's liability under the Kambat/Corcoran test for res ipsa loquitor, the case should go to trial." (Id. at 212.)

Since res ipsa loquitor is at bottom a rule of negligence, its use may assume, but does not avoid, determinations as to duty and the appropriate standard of care or the related question of whether evidence from an expert is required to allow the court or jury, as appropriate, to make those determinations. Here, specifically, despite the numerous recent decisions that address claims against nursing homes for traumatic injury to a resident, there is as yet no clear direction on such issues to the extent that the claims are found to sound in "ordinary" or "general" [*4]negligence rather than "medical malpractice." (See Giandana v Providence Rest Nursing Home, 32 AD3d 126 [1st Dept 2006], rev'd 8 NY3d 859 [2007]; De Carlo v Eden Park Health Servs., Inc., 66 AD3d 1211 [3d Dept 2009]; Friedman v New York Hospital-Cornell Med. Ctr., 65 AD3d 850; D'Elia v Menorah Home & Hosp. for Aged & Infirm, 51 AD3d 848; Hranek v United Methodist Homes of Wyo. Conference, 27 AD3d 879 [3d Dept 2006]; Yamin v Baghel, 284 AD2d 778 [3d Dept 2001]; Rey v Park View Nursing Home, Inc., 262 AD2d 624 [2d Dept 1999]; Gold v Park Ave. Extended Care Ctr. Corp., 2010 NY Slip Op 31376 [U] [Sup Ct, Nassau County]; Held v Woodmere Rehabilitation & Health Care Ctr., 2009 NY Slip Op 32033 [U] [Sup Ct, NY County]; Maloney v Meadowbrook Care Ctr., Inc., 2009 NY Slip Op 31176 [U] [Sup Ct, Nassau County]; Yakhey v Ascher, 2009 NY Slip Op 31079 [U] [Sup Ct, NY County]; Osborne v Rivington House-Nicholas A. Rango Health Care Facility, 19 Misc 3d 1132 [A], 2008 NY Slip Op 50975 [U] [Sup Ct, NY County]; Slobin v Bosiako, 19 Misc 3d 1110 [A], 2008 NY Slip Op 50628 [U] [Sup Ct, Nassau County]; Bush v Cobble Hill Health Ctr., Inc., 17 Misc 3d 1135 [A], 2007 NY Slip Op 52268 [U] [Sup Ct, Kings County]; Passet v Menorah Nursing Home, Inc., 16 Misc 3d 1117 [A], 2007 NY Slip Op 51452 [U] [Sup Ct, Kings County]; Pasqua v Bon Secour NY Health Sys., Inc., 13 Misc 3d 1036 [Sup Ct, Bronx County 2006]; Acevedo v Augustana Lutheran Home, 7 Misc 3d 1005 [A], 2004 NY Slip Op 51867 [U] [Sup Ct, Kings County].)

Rarer still are opinions addressing res ipsa loquitor on claims of traumatic injury to nursing home residents. The parties here have cited no such opinion to the Court, and the Court has found only one by a New York court and two by courts elsewhere. In Slobin v Bosiako (2008 NY Slip Op 50628 [U]), Supreme Court determined that "[u]nder the circumstances extant, plaintiff's claim is one of medical malpractice, not ordinary negligence" (see id. at * 6), and addressed the plaintiff's res ipsa contention in that context, finding "issues of fact as to whether [the resident's] injuries and resultant death were caused by other non-malpractice causes such as his prior medical condition," and that the "plaintiff's expert . . . has failed to state in her affidavit that the injury in question does not happen absent negligence" (see id. at * 15- * 16.)

In the two decisions in other states, the courts likewise considered the plaintiff's res ipsa contention in the context of claims determined to sound in medical malpractice. In Marshall v Fairlane Mem. Convalescent Home, Inc. (1999 Mich App LEXIS 2189 [Mich Ct App 1999]), the Court of Appeals of Michigan affirmed the trial court's grant of the defendants' motion for summary judgment, stating that "[n]o evidence was provided that a hip fracture does not normally occur in the absence of negligence" (id. at * 5.) In Cannon v McKendree Vill., Inc. (295 SW3d 278 [Tenn Ct App 2008]), the Court of Appeals of Tennessee also affirmed a trial court's grant of a defendant's motion for summary judgment, stating that the plaintiff "has not demonstrated that a fall from bed by an elderly person suffering from dementia and Alzheimer's disease is an injury that ordinarily does not occur in the absent of negligence" (id. at 285.)

Here, as previously noted, Defendants do not contend that Plaintiff's claims sound in medical malpractice. "[I]n the area of medical malpractice, the jury is generally not equipped to determine the issue of negligence, in which there involves the level of care required of physicians [*5]in the community, without the aid of expert medical opinion." (Quigley v Jabbur, 124 AD2d 398, 399 [3d Dept 1986]; see also States v Lourdes Hosp., 100 NY2d at 212; Delaney v Champlain Valley Physicians Hosp. Med. Ctr., 232 AD2d 840, 841-42 [3d Dept 1996]; Santangelo v Crouse Medical Group, P.C., 209 AD2d 942, 942-43 [4th Dept 1994]; Sohn v Sand, 180 AD2d 789, 790 [2d Dept 1992]; Pipers v Rosenow, 39 AD2d 240, 243-45 [2d Dept 1972].)

"Ordinarily, expert medical opinion evidence, based on suitable hypothesis, is required, when the subject - matter to be inquired about is presumed not to be within common knowledge and experience and when legal inference predominates over statement of fact, to furnish the basis for a determination by a jury of unskilled practice and medical treatment by physicians; but where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary." (Meiselman v Crown Heights Hospital, Inc., 285 NY 389, 396 [1941].)

These principles are applied to require expert testimony as well to claims against accountants (see Kristina Denise Enters. v Arnold, 41 AD3d 788, 789 [2d Dept 2007]; Menard M. Gertler, M.D., P.C. v Sol Masch & Co., 40 AD3d 282, 282 [1st Dept 2007]; architects (see 530 E. 89 Corp. v Ungar, 43 NY2d 776, 777 [1977]; Tower Bldg. Restoration v 20 E. 9th St. Apt Corp., 7 AD3d 407, 408 [1st Dept 2004]); attorneys (see Northrop v Thorsen, 46 AD3d 780, 728 [2d Dept 2007]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 665 [2d Dept 1993]); and engineers (see Travelers Indem. Co. v Zeff Design, 60 AD3d 453, 455 [1st Dept 2009]; Dennehy v LaRuffa & Durcan, 36 AD3d 848, 848 [2d Dept 2007]; see also Gayle v AMTRAK, 2010 US Dist LEXIS 10981, * 27- * 30 [SDNY 2010] [crane inspector].) And where evidence from an expert is required to establish the standard of care, it is required to support res ipsa loquitor. (See Savage v Thomas J. Shea Funeral Home, 212 AD2d 875, 876 [3d Dept 1995].)

In order to determine, therefore, whether evidence from an expert is required to support res ipsa loquitor, it is necessary to first determine the nature of the duty and the standard of care owed the plaintiff. Here, the nursing home "has a general duty to exercise reasonable care and diligence in safeguarding a [resident], based in part on the capacity of the [resident] to provide for his or her own safety." (See D'Elia v Menorah Home and Hosp. for Aged & Infirm, 51 AD3d at 850; see also Alexander v American Med. Response, 68 AD3d 1026, 1027 [2d Dept 2009]; Yamin v Baghel, 284 AD2d at 779.) The nursing home's duty extends to safeguarding a resident even from harm inflicted by another resident or other third party. (See Hranek v United Methodist Homes of Wyo. Conference, 27 AD3d at 881; Rodriguez v Terence Cardinal Cooke Health Care Ctr., 4 AD3d at 148.) Again, the duty is "measured by the capacity of the patient to provide for his or her own safety" and is "circumscribed by those risks which are reasonably foreseeable"; the "sliding scale of duty . . . does not render [the facility] an insurer of [resident] safety or require it to keep each [resident] under constant surveillance." (See N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252-53 [2002]; see also Dawn W. v State of New York, 47 AD3d 1048, 1050 [3d Dept 2008]; Borillo v Beekman Downtown Hosp., 146 AD2d 734, 735 [2d Dept 1989].) [*6]

Several Appellate Division decisions, although not directly addressing the question, refer to or suggest a nursing standard of care or a nursing home standard of care, distinct from the standard of care to which physicians are held, and presumably not "ordinary negligence." (See Carter v Isabella Geriatric Center, 71 AD3d 443, 444 [1st Dept 2010] ["nursing malpractice"]; Rosen v John J. Foley Skilled Nursing Facility, 45 AD3d 558, 559 [2d Dept 2007] ["acceptable standards of skilled nursing care"]; Hranek v United Methodist Homes of Wyo. Conference, 27 AD3d at 880-81 ["standard of care customarily exercised in similar facilities"/"accepted standards of supervision"]; Rodriguez v Terence Cardinal Cooke Health Care Ctr., 4 AD3d 147, 148 [1st Dept 2004] ["relevant industry standard of care"]; Yamin v Baghel, 284 AD2d at 779 ["standard of care customarily exercised in similar facilities in the community"]; Salter v Deaconess Family Medicine Center, 267 AD2d 976, 976-77 [4th Dept 1999]; Weinstein v Prostkoff, 13 AD2d 539, 540 [2d Dept 1961]; see also Cannon v McKendree Vill., Inc., 295 SW2d at 281 ["standard of care required of professional nursing home facilities"].) Where such a standard of care is applicable, it must be shown by expert testimony. (See Yamin v Baghel, 284 AD2d at 779.)

Nonetheless, not all claims against a nursing home for traumatic injury to a resident will be assessed by reference to a nursing or nursing home standard of care. The extensive caselaw attempting to distinguish between "medical malpractice" and "simple negligence" was recently described by Justice Catterson of the First Department as a "plethora of seemingly arbitrary and inconsistent determinations." (See Friedman v New York Hospital-Cornell Med. Ctr., 65 AD3d at 859 [Catterson, J., dissenting].) Indeed, recent cases in the First and Second Departments alleging claims against nursing homes for traumatic injury to a resident resulted in split decisions. (See Friedman v New York Hospital-Cornell Med. Ctr., 65 AD3d 850; D'Elia v Menorah Home & Hosp. for Aged & Infirm, 51 AD3d 848.)

Of course, all depends on the mechanism of the injury and the plaintiff's allegations of negligence. In D'Elia v Menorah Home & Hosp. for Aged & Infirm (id.), the plaintiff's decedent "apparently had fallen while trying to reach the bathroom without assistance", and the plaintiff alleged that the nursing home "negligently permitted the decedent to remain unattended in a bed without restraints or other devices to prevent her from falling out of bed" (see id. at 849-50.) Characterizing the plaintiff's claim as "encompass[ing] allegations of medical negligence and ordinary negligence," the majority concluded that, to the extent the plaintiff alleged that the nursing home should have used restraints, the claim sounded in medical malpractice and was properly dismissed in the absence of an expert affidavit; but that, to the extent that the plaintiff alleged "available devices or tools" other than restraints should have been used, the supervising nurse's deposition testimony was sufficient to raise a question of fact as to whether reasonable care was exercised in supervising the decedent. (See id. at 851-52.) The dissent disagreed that the latter allegations could be assessed without medical expertise. (See id. at 855-56 [Covello, J., dissenting].)

Here, the mechanism of the injury to Plaintiff's decedent is unknown. The injury could have been caused by an employee of Defendant (see, for example, Friedman v New York [*7]Hospital-Cornell Med. Ctr., 65 AD3d 850 ["The right leg of plaintiff's decedent ruptured after it struck a bed rail while aides . . . were preparing her for dinner and adjusting her bedding.]); or the injury could have been caused intentionally or otherwise by Ms. Engel's roommate or another resident; or Ms. Engel could have caused the injury to herself. "In a res ipsa case, as in any other, the plaintiff must establish first and foremost the nature of the instrumentality which is alleged to have caused the injury . . . and its identity with the defendant." (Manley v New York Tel. Co., 303 NY 18, 25 [1951]; see also Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227 [1986].) "Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant." (Corcoran v Banner Super Mkt., 19 NY2d 425, 431 [1967] [internal quotation marks and citation omitted].) "[T]he evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it." (Id. [internal quotation marks and citations omitted] [emphasis supplied].)

In a res ipsa case, the "exclusive control" prong of the more modern formulations of the doctrine serves to bring any negligence home to the defendant. (See Dermatossian v New York City Tr. Auth., 67 NY2d at 227; Corcoran v Banner Super Mkt., 19 NY2d at 431.) More than one independent duty may be at play, but application of the doctrine is not defeated so long as the accident would not have happened had the defendant fulfilled his. (See id. at 432; see also Schroeder v City & County Sav. Bank, 293 NY 370, 374 [1944].) Here, Defendant owed a duty or duties to use reasonable care to protect Ms. Engel from harm from each of the "instrumentalities" that might have caused her injury.

In such circumstances, "[t]he lack of evidence of the precise instrumentality that caused the injury does not bar the application of res ipsa loquitor." (See Roman v Board of Ed. of the City of NY, 9 AD3d 305, 307 [1st Dept 2004].) "Where . . . the injury is one that would not occur without negligence and the condition of the injured plaintiff prevented him from ascertaining thecause of his injuries, the exclusiveness of the defendant's control together with the helplessness of the plaintiff is sufficient." (Id.) In DeCarlo v Eden Park Health Servcs., Inc. (66 AD3d 1211 [3d Dept 2009]), where a nonambulatory resident of a nursing home suffered fractures of her left ankle and right femur, "the immediate cause of which is unknown" (id. at 1212), the court held that the plaintiff's showing of res ipsa was sufficient to require denial of the nursing home's motion for summary judgment of dismissal (see id. at 1213.) "Plaintiff's evidence that decedent was essentially immobile, under the exclusive control of defendant and that at least one of her injuries appears to have resulted from the application of some external force presents triable issues as to the proximate cause of decedent's injuries." (Id.)

But, unlike here, in DeCarlo the plaintiff also presented the expert opinion of an orthopedist that the injuries "were the result of defendant's negligence" (see id.); andthe plaintiff relied on res ipsa to defeat the defendant's motion for summary judgment and not, as here, to obtain summary judgment. Even assuming that Plaintiff's evidence here would raise triable issues sufficient to defeat a motion by the Mugavero Center for summary dismissal, the absence of any expert evidence precludes summary judgment in Plaintiff's favor. [*8]

Plaintiff has not demonstrated that any of the possible "instrumentalities" of Ms. Engel's injury was sufficiently "remote" or "technical" (see Schneider v Kings Highway Hosp. Center, 67 NY2d 743, 744 [1986])such that expert testimony that the injury would not have occurred in the absence of negligence can be dispensed with. Plaintiff's contention that "the injury is of such a nature as to make it highly improbable that a person would voluntarily (or involuntarily) inflict such an injury on oneself with bare hands" (Affirmation ¶ 22) is not supported by any citation to the evidence.

To the extent, moreover, that the allegations found in Plaintiff's Verified Bill of Particulars include any specifics as to negligent "supervision, treatment, and care" that could have resulted in Ms. Engel's injury, they are that Defendant "did not provide the customary or usual restraints for a patient in decedent's condition, and if they were so provided , were improperly provided." (Verified Bill of Particulars ¶3.) As previously noted, a claim based upon the failure to provide restraints has been deemed to relate to "medical practice," so as to require the support of expert testimony (see D'Elia v Menorah Home & Hosp. for Aged & Infirm, 51 AD3d at 851); and in any event "must be assessed in light of Federal and State laws, rules and regulations which generally establish the right of a facility resident to be free from restraints that are not required to protect his or her safety" (see Yamin v Baghel, 284 AD2d at 779.)

Although there is no contention that Plaintiff's allegations of negligence sound in medical malpractice, and may in any event include as well allegations that sound in ordinary negligence, expert evidence is necessary to allow the jury to " bridge the gap' between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of [nursing and nursing home professionals], which does" (see States v Lourdes Hosp., 100 NY2d at 212.)

In the absence of expert evidence, Plaintiff has not established that Ms. Engel's injury would not have happened without the Mugavero Center's negligence; has not established a prima facie case based upon application of the doctrine of res ipsa loquitor; and has not established, therefore, that she is entitled prima facie to judgment as a matter of law.

Plaintiff contends in the alternative that she is entitled to summary judgment "as a discovery sanction under CPLR §3126 due to Defendant's willful noncompliance with discovery obligations" (Notice of Motion dated August 3, 2010.) Plaintiff cites no authority for a court's ordering summary judgment as a penalty for failure to timely or fully respond to a disclosure notice or demand, and the Court is not aware of any. (See generally CPLR 3124, 3126.) Although in an appropriate case the court may strike a defendant's answer (see CPLR 3126 [3]), the plaintiff who seeks judgment on that basis must yet comply with the requirements of CPLR 3215 (f), including establishing "a viable cause of action." (See Geroulanos v Maynard, 24 Misc 3d 1232 [A], 2009 NY Slip Op 51712 [U], * 2- * 3 [Sup Ct, Kings County 2009].) What has been said above on Plaintiff's showing for summary judgment is essentially applicable here as well, i.e., a showing has not been made sufficient to warrant judgment against the Mugavero Center. [*9]

Nonetheless, Plaintiff describes and documents a rather arduous course of disclosure, during which Defendant's responses have been, at best, dilatory and non-cooperative. Indeed, based upon the documented exchanges and court orders presented by Plaintiff, Defendant's contention that Plaintiff's motion for a disclosure penalty must be denied because there is no separate "affirmation of good faith" (see Uniform Civil Rules for the Supreme Court and the County Clerk §202.7, 22 NYCRR §202.7) is itself frivolous. Although Defendant contends that "the discovery sought by plaintiff was protected by privilege and/or plaintiff's demands were broad, unduly burdensome and palpably improper" (Affirmation in Opposition ¶ 55), Defendant never sought a protective order (see CPLR 3103.)

At this point, the dispute appears to relate to two general issues, i.e., Defendant's failure to disclose documents described in the examination before trial of Lorna Haye, a certified nursing assistant ("CNA") assigned to Ms. Engel during the shift on which Ms. Engel was discovered injured, and Defendant's apparent assertion of a privilege or privilege(s) from disclosure with respect to unidentified documents. Plaintiff's contentions as to both are, at least up to a point, well-founded.

Lorna Haye has been identified by Defendant as the person who first discovered Ms. Engel's injury. At her examination before trial on September 30, 2009, Ms. Haye testified that, before she ended her shift on the night she discovered Ms. Engel's injury, she prepared a report that she gave to the charge nurse or the supervisor. Ms. Haye also described a book that each CNA was required to sign after each tour or rounds, and which would reveal which CNA last made rounds before Ms. Engel's injury was discovered.

These documents were subsequently demanded in writing, as Defendant's counsel appropriately required. In a letter dated January 6, 2010, Defendant's counsel stated, "we have been unable to locate any incident report' purportedly prepared by former employee, Lorna Haye," and "we believe you are seeking what is commonly called the Safety Round Sheet,' however, we have been advised by our client that the item you requested is no longer available given the lengthy period of time that has passed since decedent was a resident."

"A party that destroys essential evidence such that its opponent is prejudicially bereft of appropriate means to either present or confront a claim with incisive evidence is subject to severe sanctions." (Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890 [2d Dept 2010] [quoting Di Domenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 (2d Dept 1998)] [internal quotation marks omitted].) "As a matter of fairness, this is true even in cases where the destruction of the evidence was not willful or contumacious if the other party has been severely prejudiced by the destruction." (Id.) "Where the evidence lost is not central to the case or its destruction is not prejudicial, a lesser sanction, or no sanction, may be appropriate." (Id. [quoting Klein v Ford Motor Co., 303 AD2d 376, 377 [2d Dept 2003].) Even where a plaintiff fails to clearly establish that a defendant negligently lost or intentionally destroyed evidence, such that a striking of the answer is not warranted, the plaintiff may be entitled to the sanction of an adverse inference [*10]charge at trial. (See Gotto v Eusebe-Carter, 69 AD3d 566, 568 [2d Dept 2010].)

"Discovery sanctions have . . . been employed against a litigant who had an opportunity to safeguard evidence but failed to do so." (Ortega v City of New York, 9 NY3d 69, 76 n2 [2007].) Here, the Mugavero Center was aware of Plaintiff's claim at the latest on September 20, 2005 when it served its Verified Answer and Demand for Verified Bill of Particulars. At that time, approximately 18 months after Ms. Engel's injury, Defendant should have taken reasonable steps to ensure that documentary evidence relevant to the injury and Defendant's supervision and care of Ms. Engel was preserved. Defendant offers no explanation for the unavailability of the documents except for the passage of time. Indeed, Defendant does not assert that the documents were no longer available in September 2007 when Plaintiff first served a Demand for Discovery and Inspection that called for their production, even if Plaintiff could not describe them with particularity until after CNA Haye's deposition. Even if otherwise overbroad, Plaintiff's demand was certainly appropriate for documents prepared at the time of Ms. Engel's injury.

On the other hand, it is difficult to see how the absence of these documents seriously prejudices Plaintiff's ability to make a prima facie case or properly support it with evidence. Plaintiff has the testimony of CNA Haye, and has the names and employment status of the other CNA's who worked the 3:00 p.m. to 11:00 p.m. shift on March 11, 2004. Plaintiff has apparently not attempted to obtain pre-trial testimony from the other CNAs, and does not assert that she has been hampered in doing so by Defendant's delay in identifying them.

On balance, and such it is, Plaintiff is adequately protected by an adverse inference charge at trial. If more need be said in support, the Court notes that a defendant nursing home is in a much better position to document the care and supervision of its residents, and preserve that evidence, than the resident or the resident's relatives or friends, and that public policy favors the preservation of that evidence.

As to the privilege issue, it is difficult for the Court to know from even Defendant's counsel's Affirmation in Opposition (see ¶ ¶ 58-63) whether Defendant has in fact withheld disclosure of any document or other information on the ground of privilege, except for "a statement . . . taken from Ms. Haye in an effort to investigate the causes of the resident's injury as well as for quality assurance purposes" (¶63.) It is unclear, moreover, whether the statement just described is the "incident report" that counsel reported in his January 6, 2010 letter could not be located; and there is no explanation for Defendant's failure, during the three years since Plaintiff served her Demand for Discovery and Inspection in September 2007, to identify Ms. Haye's statement or any other document as privileged pursuant to Education Law ¶ 6527 (3) or Public Health Law § 2805-m as Defendant contends.

"Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable." (CPLR 3101 [b].) Response to a document demand (see CPLR 3120) must be made within 20 days, and "shall state with reasonable particularity the reasons for each [*11]objection" (see CPLR 3122 [a].) Here, Defendant's response to Plaintiff's demand states only, "Defendant agrees to provide a copy of any incident reports, if available and not privileged, under separate cover" (Response to Discovery and Inspection dated November 15, 2007, ¶¶ 3, 4.) Assuming that Defendant's conditional response may fairly be read as an assertion of privilege with respect to incident reports, Defendant's response does not "state with reasonable particularity the reasons for [its] objection" based upon a claim of privilege, and its objection in opposition to this motion is clearly untimely.

Moreover, "the defendant, as the party seeking to invoke the privilege, ha[s] the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes." (Ross v Northern Westchester Hosp. Ass'n, 43 AD3d 1135, 1136 [2d Dept 2007]; Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 42 [2d Dept 2004].) To the extent Defendant claims privilege pursuant to Public Health Law § 2805-m, the claim is easily disposed of since the statutory provision does not apply to documents generated by a nursing home. (See id. at 45 ["Public Health Law § 2805 pertains to hospitals."]; Matter of Subpoena Duces Tecum to Doe, 293 AD2d 231, 232-33 [4th Dept 2002], mod. in part and rev'd in part on other grounds 99 NY2d 434 [2003]; Hale v Odd Fellow & Rebekah Health Care Facility, 188 Misc 2d 498, 502 [Sup Ct, Niagra County 2001].)

"Pursuant to Education Law §6527 (3) certain documents generated in connection with the performance of a medical or quality assurance review function,' or which are required by the department of health pursuant to' Public Health Law §2805-l, are generally not discoverable." (Fray v Fulton Commons Care Ctr., Inc., 51 AD3d 968, 969 [2d Dept 2008].) To the extent that Education Law §6527 (3) exempts from disclosure documents required pursuant to Public Health Law §2805-l, it is not applicable here because §2805-l is not applicable to nursing homes. (See Spakoski v Amsterdam Mem. Hosp. S.N.F., 6 Misc 3d 757, 759 [Sup Ct, Montgomery County 2005]; Hale v Odd Fellow & Rebekah Health Care Facility, 188 Misc 2d at 500.)

Education Law §6527 (3) also provides, however, a "quality assurance privilege" (see Leardi v Lutheran Med. Ctr., 67 AD3d 651, 651 [2d Dept 2009]) that is available to a nursing home (see Grant v PALJR, LLC, 64 AD3d 750, 751 [2d Dept 2009]; Clement v Kateri Residence, 60 AD3d 527, 527-28 [1st Dept 2009]; Simmons v Northern Manhattan Nursing Home, Inc., 52 AD3d 351, 352 [1st Dept 2008].) "In order to assert the privilege, [a nursing home] is required at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure." (See Kivlehan v Waltner, 36 AD3d 597, 599 [2d Dept 2007] [internal quotation marks and citation omitted].)

"Records simply duplicated by a quality assurance committee are not necessarily privileged." (Id. at 598.) "[M]erely because documents are placed in a quality assurance file does not per se render these documents privileged from disclosure under Education Law §6527 (3)." (Spradley v Pergament Home Ctrs., 261 AD2d 391, 392 [2d Dept 1999] [internal quotation marks and citation omitted].) "[N]egative outcome and incident reports . . . [were] not protected [*12]by the quality assurance privilege, [where] such reports, although utilized by [a nursing home's] quality assurance committee, were not prepared by or at the behest of such committee, but rather of a type routinely prepared and maintained pursuant to 10 NYCRR 415.15 (a) (3) ( i)." (Clement v Kateri Residence, 60 AD3d at 527; see also Simmons v Northern Manhattan Nursing Home, Inc., 52 AD3d at 352 ["defendant failed to meet its burden of demonstrating that all documentation of and from" (the Quality Assessment and Assurance) Committee regarding the decedent relates to the Committee's quality assurance function"].) "A facility does not create a privilege where none would otherwise exist merely by assigning the duty for compliance or compilation to a quality assurance committee." (Matter of Subpoena Duces Tecum to Doe, 99 NY2d at 440.)

Here, in opposition to Plaintiff's motion, the Court is only cited to CNA Haye's September 2009 deposition testimony that she was required to submit a written statement after discovery of Ms. Engel's injury, followed by counsel's statement that, upon investigation after the deposition, counsel "learned that pursuant to Public Health Law §2805 and Education Law §6527, a statement was in fact taken from Ms. Haye in an effort to investigate the causes of the resident's injury as well as for quality assurance purposes" (Affirmation in Opposition ¶63.)

Counsel's conclusory statements, unsupported by the sworn statement of someone with personal knowledge, is insufficient to carry the Mugavero Center's burden of demonstrating that CNA Haye's written statement is privileged under Education Law §6527 (3). (See Marte v Brooklyn Hosp. Ctr., 9 AD3d at 46.) Nor does counsel give an explanation for apparently failing to investigate for two years after receipt of Plaintiff's disclosure demand, and then apparently waiting a year after the deposition to assert the privilege, not in a motion for a protective order but in response to Plaintiff's motion for a penalty.

Under these circumstances, the Court rejects Defendant's offer to provide the document for the Court's in camera inspection. The Court has no basis to conclude that the document on its face will establish its privileged character, or to conclude that it was prepared under circumstances to qualify it for privilege. Moreover, whether considered under the rubic of waiver (see Fernekes v Catskill Regional Med. Ctr., 75 AD3d 959, 961 [3d Dept 2010]; Slotnik v State of New York, 129 Misc 2d 553, 555 [Ct Cl 1985]), or a factor to be weighed on an exercise of discretion, the offer comes too late.

Finally, although Plaintiff also seeks an extension of time to file her note of issue to a date beyond November 5, 2010, counsel's Reply Affirmation (¶37) states that the note of issue has been filed, rendering the request moot.

Plaintiff's motion is, therefore, granted to the extent that at trial Plaintiff shall be entitled to an adverse inference charge for Defendant's failure to provide the "incident report" and "Safety Round Sheet" identified in counsel's January 6, 2010 letter; and that, no later than November 26, 2010, Defendant shall provide Plaintiff with a copy of CNA Haye's statement as described in counsel's Affirmation in Opposition, as well as a list describing with reasonable specificity any [*13]other document or information Defendant is withholding under a claim of privilege.

November 5, 2010_________________

Jack M. Battaglia

Justice, Supreme Court