Francois v Garner
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Francois v Garner 2023 NY Slip Op 34039(U) November 14, 2023 Supreme Court, New York County Docket Number: Index No. 160344/2023 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160344/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/14/2023 SUPREME COURT SUPREME COURT OF OF OF THE THE STATE OF NEW STATE NEW YORK YORK NEW YORK YORK COUNTY NEW COUNTY PRESENT: PRESENT: HON. JUDY H. HON. JUDY H. KIM KIM PART PART 05RCP 05RCP Justice Justice ____________________________________Ç -------------------X FRITZ FRANCOIS, FRITZ MD, FACG, EXECUTIVE VICE EXECUTIVE VICE FRANCOIS, MD, MSC, MSC, FACG, AND VICE PRESIDENT AND CHIEF OF HOSPITAL PRESIDENT VICE DEAN, CHIEF OF HOSPITAL DEAN, OPERATIONS, NYU HOSPITALS, NYU LANGONE LANGONE OPERATIONS, HOSPITALS, INDEX NO. INDEX NO. 160344/2023 160344/2023 MOTION DATE MOTION DATE MOTION SEQ. MOTION SEQ. NO. NO. I N/A N/A . 001 001 Plaintiff, Plaintiff, v --- V + DECISION, ORDER + ORDER DECISION, JUDGMENT ON JUDGMENT ON MOTION MOTION ZABER GARNER, ZABER GARNER, Defendant. Defendant. ---_______________________________Ç -------------------X The following e-filed The e-filed documents, listed document number (Motion 001) o, 11, listed by NYSCEF document number (Motion 12 documents, following by NYSCEF 4, 7, 7, 8, 8, 9, 9, 1 10, 001) 4, 11, 12 on this were to/for were read read on this motion motion to/for DISCHARGE DISCHARGE NYU Langone Langone Hospitals (the "Hospital"), Petitioner NYU Hospitals (the filed the petition by to filed the instant instant petition order to "Hospital"), by order Petitioner show cause on October October show cause on 23, seeking a judgment judgment pursuant to Public Health Law pursuant to Public Health Law §2801-c §2801-c 23, 2023, 2023, seeking patient Respondent-a at one one of of Petitioner's Petitioner's requiring Respondent-a patient at hospitals-to discharge herself from th~ hospitals-to discharge herself from the requiring Petitioner Hospital. also requested Hospital. Petitioner also requested that records of proceeding be that the the court's court's records of this this ·special special be sealed, sealed, proceeding pursuant to 22 22 NYCRR NYCRR §216.1. pursuant to §216.1. virtual was held held on on November with A virtual A hearing was November 13, with appearances by: counsel appearances by: petitioner; counsel 13, 2023, 2023, petitioner; hearing for R. Lawlor, for petitioner, Tammy R. Esq; and· Respondent's court-appointed counsel Kenneth and Respondent's court-appointed Kenneth counsel petitioner, Lawlor, Esq; Tammy . Esq.. .. Respondent declined speak with in advance Barocas, Esq declined to with Mr. Barocas in of and Respondent to speak Mr. Barocas advance of the the hearing and at at Barocas, hearing or otherwise the hearing refused to or participate in the scheduled scheduled refused to testify otherwise participate in the the hearing. hearing. hearing testify given Dr. Cruz At testimony was given by Rogelio Cruz. Dr. Cruz detailed the At the the hearing, was Rogelio Cruz. Dr. detailed the care care hearing, testimony by Dr. through her course of admission admission the Hospital Hospital and represented represented that of at and that received by through her received the respondent respondent course at the by the longer that inpatient care was was no no longer the medical staff had that care medically necessary medical staff had determined determined inpatient the Hospital's Hospital's medically necessary PRESIDENT AND AND VICE VICE VICE PRESIDENT 160344/2023 FRITZ FRITZ FRANCOIS, EXECUTIVE VICE 160344/2023 MSC, FACG, FACG, EXECUTIVE FRANCOIS, MD, MD, MSC, vs. GARNER, ZABER CHIEF OF OF HOSPITAL NYU LANGONE LANGONE HOSPITALS HOSPITALS vs. DEAN, HOSPITAL OPERATIONS, GARNER, ZABER OPERATIONS, NYU DEAN, CHIEF Motion No. No. 001 Motion [* 1] 1 of 4 of 4 Page Page 1 of4 INDEX NO. 160344/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/14/2023 for respondent. respondent. Dr. for Cruz further Dr. Cruz further testified that respondent's testified presence in that bed respondent's presence in the the Hospital Hospital at the bed at the hospital had deprived deprived other hospital had other patients patients with medical with acute medical needs acute of such of needs such a bed. testified to bed. Dr. Dr. Cruz Cruz testified to the service service of two two the discharge of discharge notices, September dated September 27, dated and 29, 2023 and September upon September upon notices, 27, 2023 29, 2023, 2023, respondents (See Doc. NYSCEF Nos. 22 and Doc. Nos. and 3). 3). · (Sg NYSCEF respondents DISCUSSION DISCUSSION The Petition Petition is granted. granted. The is Pursuant Pursuant to 10 10 NYCRR to NYCRR §405.9(f)(7)(ii), once is once a patient patient is medically §405.9(f)(7)(ii), medically from discharged discharged from a hospital, she she must must leave leave that Under that hospital. hospital. Public Health Law Under Public Health this Law §2801-c, this hospital, §2801-c, Court has the the authority to enjoin Court has enjoin 10 NYCRR to a violation violation of 10 of NYCRR §405.9(f)(7)(ii) (See (See Matter Matter of United of United authority §405.9(f)(7)(ii) Health Health Services Services Inc. Hosps., Inc. vv J.W., Misc 47 3d [Sup 47 Misc 3d 1202(A) Ct, County Hosps., 2013]; New Broome Hew J.W., Ct, Broome 2013]; 1202(A) [Sup County York York Methodist Methodist Hospital v. EH, Hospital v. 25 Misc Misc 3d 648 3d 648 [Sup County, 2009]; Wyckoff Kings Heights Wyckoff Heights EH, 25 Ct, Kings County, 2009]; [Sup Ct, Medical Center Medical Center vv Rodriguez, et et al, 191 Misc Misc 207 [Sup 2d 2d 207 County, 2002]). Kings Rodriguez, 2002]). al, 191 Ct, Kings County, [Sup Ct, In this petitioner In has this case, that has established established that respondent does not does require acute respondent not require hospital care hospital care acute case, petitioner that the her discharge and and that the predicates predicates to her discharge set forth to forth in 10 10 NYCRR NYCRR §405.9(7) set in that respondent's (i.e., that respondent's (i.e., §405.9(7) discharge was based on her her medical medical hospital discharge based on assessment the hospital and that was that respondent respondent received assessment by proper and received proper by the written notice of her written discharge and was afforded the notice of her discharge to appeal appeal and was afforded the the discharge opportunity to the discharge opportunity determination) have been petitioner have been satisfied. satisfied. has estab.lished Finally, petitioner has established that respondent respondent that refuses to refuses to Finally, determination) cooperate cooperate with her discharge discharge and that that this refusal with her plan plan and this refusal "deprives public and other other "deprives the public patients the and needy patients needy needs" of hospital their medical hospital to (New York Methodist Hospital of a bed bed at at petitioner's petitioner's to meet meet their acute acute medical needs" (New York Methodist Hospital v. EH, 2009]). v. Misc 3d 648 Court Kings 3d Ct, 25 Misc 648 [Sup the Court concludes that the the County, 2009]). Accordingly, the concludes that Ct, Kings County, Accordingly, EH, 25 [Sup injunction mandatory sought petitioner warranted see also Wyckoff Heights Medical injunction sought by is warranted also is (Id.; Wyckoff Heights Medical (IcL; see by petitioner mandatory Center vv Rodriguez. Center 191 Misc Misc 207 [Sup Kings 2002]). et et al, 2d 207 2d Ct, County, 2002]). Rodriguez, al, 191 Ct, Kings County, [Sup PRESIDENT AND AND VICE VICE VICE PRESIDENT 160344/2023 EXECUTIVE VICE FRITZ FRITZ FRANCOIS, 160344/2023 FRANCOIS, MD, MD, MSC, MSC, FACG, FACG, EXECUTIVE HOSPITALS vs. ZABER DEAN, vs. GARNER, CHIEF OF HOSPITAL NYU LANGONE LANGONE HOSPITALS HOSPITAL OPERATIONS, GARNER, ZABER OPERATIONS, NYU DEAN, CHIEF Motion No. Motion No. 001 [* 2] 2 of 4 2 of 4 Page Page 2of4 INDEX NO. 160344/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/14/2023 In of it In light light of the the foregoing,' it is is foregoing, ORDERED and that is and ORDERED and ADJUDGED ADJUDGED that the the Petition Petition is granted; and it it is is further further granted; ORDERED ORDERED that to Health Law 2801-C, Zader Gamer is that pursuant pursuant to Public Public Health Law Section Section Zader Garner directed is directed 2801-C, to discharge herself forthwith from NYU Langone Hospital within twenty-four (24) to voluntarily herself forthwith discharge from NYU Langone Hospital within twenty-four voluntarily (24) . subfrom of this hours from the of and and placement in subhours the signing decision and order order and to this decision to accept accept placement in any appropriate signing any appropriate acute rehabilitation fac!lity that a bed including but not to acute rehabilitation that offers bed for for admission, offers but not limited limited Hempstead to Hempstead admission, facility including Park Nursing Park Home, located at Street, Hempstead, New 11550, pending insurance located at 800 800 Front Front New York York insurance Home, Street, Hempstead, 11550, Nursing pending or Mayfair Mayfair approval, or Care Center, located at Road, Hempstead, New 11550, Care located at 100 Baldwin 100 Baldwin New York York approval, Center, Road, Hempstead, 11550, pending insurance approval; and further insurance and it it is is further approval; pending ORDERED that Gamer refuses to with this and a warrant ORDERED Zader Garner with decision that if if Zader refuses to comply this decision and order, warrant order, comply of shall be to her NYU. Langone Hospital; and of eviction eviction shall be issued issued to remove remove her from from NYU Langone and it it is is further further Hospital; ORDERED that execution of of if Gamer then chooses ORDERED the warrant of eviction, if Zader Zader Garner that upon upon execution of the warrant then chooses eviction, in an rehabilitation set forth forth above and recommended recommended to be placed in sub-acute rehabilitation facility, as above and an appropriate appropriate sub-acute as set facility, to be placed if Zader Garner she may transfer herself to said said Zader if Gamer by then she voluntarily transfer herself to facility; the Petitioner, then facility; Petitioner, may voluntarily by the herself an appropriate appropriate sub-acute rehabilitation continues to to voluntarily transfer herself to sub-acute rehabilitation facility, refuse to voluntarily transfer to an continues to refuse facility, from Langone Hospital Sheriff shall remove Zader Garner NYU Langone then County Sheriff shall remove Zader Gamer. from NYU Hospital by then the the New New York York by County further and it it is is further teasonable and force; and reasonable and necessary force; necessary serve of this this ORDERED that counsel for petitioner is directed to a copy of decision, for petitioner is directed to serve ORDERED that counsel decision, copy or before November counsel on or judgment, and on and·respondent's counsel on before November 15, order respondent and respondent's and order on respondent 15, 2023; 2023; judgment, further and and it it is is further of this this decision, further directed to serve serve ORDERED that counsel for is directed to a copy of counsel for petitioner petitioner is further ORDERED that decision, copy Room Centre Clerk of the the Court Court (60 Centre of entry, on the the Clerk of on of (60 St., 141B). judgment, and with notice with notice and order, St., Room 141B) entry, order, judgment, VICE PRESIDENT AND AND VICE EXECUTIVE VICE VICE PRESIDENT 160344/2023 FRITZ FRITZ FRANCOIS, 160344/2023 FACG, EXECUTIVE FRANCOIS, MD, MD, MSC, MSC, FACG, ZABER HOSPITALS vs. vs. GARNER, LANGONE HOSPITALS DEAN, NYU LANGONE HOSPITAL OPERATIONS, CHIEF OF OF HOSPITAL GARNER, ZABER OPERATIONS, NYU DEAN, CHIEF No. 001 Motion Motion No. [* 3] 3 of 4 Page 3 of of 4 Page INDEX NO. 160344/2023 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 11/14/2023 and the the Clerk Clerk of the the General General and of Clerk's Office (60 St., 119), within ten Clerk's Office (60 Centre Centre Rm. within ten days of the the date days of date St., Rm. 119), of judgment and and of this this decision, judgment and order; it is further and it is further decision, order; that such such service ORDERED that upon the of Clerk's Office shall be ORDERED service upon the Clerk Clerk of the the General General Clerk's Office shall be made made in accordance Protocol on and County Clerk in with the set in with the procedures procedures forth accordance set foi:th in the the Protocol on Courthouse Courthouse Clerk and County "E-Filing" Procedures/or Electronically Ele~tronically FiledCases Filed Cases (accessible at website (accessible at the page on on the the "E-Filing" page the court's court's website Proceduresfor at www.nycourts.gov/supctmanh); and at the and it the address address it is is further further www.nycourts.gov/supctmanh); ORDERED that, upon such service., the of is to order ORDERED upon such the Clerk Clerk the Court of the Court directed s_e_al this order is directed to seal this service, that, of and and upon which it except to their attorneys except their of record, authorized the papers papers upon which it is is based based to the the parties, attorneys and authorized and the record, parties, court personnel; and and it it is is further further court personnel; $1,000.00 to Kenneth Kenneth ORDERED that petitioner shall pay the agreed upon sum of to petitioner shall the agreed upon sum of $1,000.00 ORDERED that pay Zader in this proceeding. Gamer in this proceeding. Barocas, Esq. Appointed Counsel for Counsel for Zader Garner Esq. as Court Appointed as Court Barocas, order Court. of the Court. This constitutes the and constitutes decision and order of the This the decision 42 11/14/2023 11/14/2023 N. DATE DATE CHECK ONE: ONE: CHECK X X DENIED DENIED PART GRANTED GRANTED IN IN PART APPLICATION: SETTLE· SETTLE ORDER SUBMIT ORDER ORDER SUBMIT APPROPRIATE: CHECK IF IF APPROPRIATE: CHECK TRANSFER/REASSIGN INCLUDES TRANSFER/REASSIGN APPOINTMENT FIDUCIARY FIDUCIARY APPOINTMENT VICE AND VICE VICE PRESIDENT PRESIDENT AND EXECUTIVE VICE 160344/2023 FRITZ 160344/2023 FRITZ FRANCOIS, MD, MSC, MSC, FACG, FACG, EXECUTIVE FRANCOIS, MD, ZABER vs. GARNER, HOSPITALS vs. LANGONE HOSPITALS DEAN, NYU LANGONE GARNER, ZABER HOSPITAL OPERATIONS, CHIEF OF OF HOSPITAL OPERATIONS, NYU DEAN, CHIEF . No. 001 Motion Motion No. [* 4] I. KlM, .S.C. NON-Fl NON-F1 AL DISPOSITION AL DISPOSITION DISPOSED CASE CASE DISPOSED GRANTED . GRANTED JUDy 4 of 4 OTHER OTHER . REFERENCE REFERENCE Page 4 of4 of 4 Page .
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