IN RE: Letitia JAMES (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In the course of investigating alleged instances of neglect and abuse at a skilled nursing facility operated by respondent VDRNC, LLC, doing business as Van Duyn Center for Rehabilitation and Nursing (Van Duyn), petitioner's Medicaid Fraud Control Unit subpoenaed records from respondents, including Medication Administration Records (MARs) and Treatment Administration Records (TARs). MARs and TARs, respectively, document the administration of medications and treatments provided to residents of the facility. Additionally, petitioner sought metadata showing, among other things, the time that MARs and TARs were entered into Van Duyn's computer system.

Respondents failed to fully comply with the subpoenas, and petitioner moved to compel. Van Duyn cross-moved for a protective order, contending that the time-of-entry metadata was privileged pursuant to the quality assurance privilege in the Federal Nursing Home Reform Act (see 42 USC §§ 1395i-3 [b] [1] [B]; 1396r [b] [1] [B]). Van Duyn did not contend that the MARs and TARs themselves were privileged.

Supreme Court entered an order in which it determined that the MARs and TARs were subject to the quality assurance privilege. Petitioner then moved for leave to reargue or renew its motion to compel. The court granted the motion insofar as it sought leave to reargue and, upon reargument, determined that the MARs and TARs were not privileged and that the time-of-entry metadata also was not privileged. Van Duyn now appeals.

Contrary to Van Duyn's contention, the court properly granted petitioner's motion to the extent that it sought leave to reargue. Pursuant to CPLR 2221 (d) (2), a motion for leave to reargue shall be “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining [a] prior motion.” As noted above, the dispute between the parties concerns the applicability of the quality assurance privilege to the time-of-entry metadata. In its initial order, however, the court never reached that issue because it concluded that the MARs and TARs themselves were privileged, which was not an argument raised by Van Duyn. Van Duyn correctly concedes that the court's conclusion was erroneous and afforded it relief that it did not seek. Under these circumstances, we conclude that the court properly granted petitioner leave to reargue (see Dentico v. Turner Constr. Co., 207 A.D.3d 1036, 1037, 172 N.Y.S.3d 245 [4th Dept. 2022]; Timpano v. New York Cent. Mut. Fire Ins. Co., 206 A.D.3d 1675, 1676, 170 N.Y.S.3d 747 [4th Dept. 2022]; see also Centerline/Fleet Hous. Partnership, L.P.—Series B v. Hopkins Ct. Apts., L.L.C., 195 A.D.3d 1375, 1376, 151 N.Y.S.3d 272 [4th Dept. 2021], lv dismissed 37 N.Y.3d 1227, 164 N.Y.S.3d 65, 184 N.E.3d 886 [2022]).

Contrary to Van Duyn's additional contention, we conclude that, upon reargument, the court properly granted petitioner's motion to compel and concluded that the time-of-entry metadata was not subject to the quality assurance privilege. In opposing petitioner's motion to compel and in support of its own cross-motion for a protective order, Van Duyn failed to establish that the time-of-entry metadata was “generated by or at the behest of [its] quality assurance committee for quality assurance purposes” (Matter of Subpoena Duces Tecum to Jane Doe, 99 N.Y.2d 434, 441, 757 N.Y.S.2d 507, 787 N.E.2d 618 [2003]; see Sanchez v. Kateri Residence, 79 A.D.3d 492, 492, 911 N.Y.S.2d 630 [1st Dept. 2010]; Clement v. Kateri Residence, 60 A.D.3d 527, 527, 875 N.Y.S.2d 66 [1st Dept. 2009]; Spakoski v. Amsterdam Mem. Hosp. Skilled Nursing Facility, 6 Misc.3d 757, 758, 789 N.Y.S.2d 408 [Sup. Ct., Montgomery County 2005]). In light of our conclusion, we need not address Van Duyn's remaining contentions.