James Berkley as Administrator of the Estate of Erma Berkley, Plaintiff, v. Northern Manhattan Rehabilitation and Nursing Center and Northern Manhattan Nursing Home Inc., Defendants. (2025)

In this action, plaintiff, James Berkley, acting as administrator of his late mother's estate, is suing defendants over what he alleges to be poor-quality nursing-home care provided to his mother. Plaintiff served a subpoena on non-party Mary Primus, a nurse formerly employed by defendants. Defendants move to quash the subpoena and for a protective order. The motion is granted.

Defendants argue that the nonparty subpoena fails to give Primus proper notice about "the circumstances or reasons such disclosure is sought or required," as the CPLR requires for nonparty subpoenas. (CPLR 3101 [4].) This court disagrees that the subpoena should be quashed on notice grounds. Plaintiff's attorney affirmation on this motion, which states, among other things, that Primus "rendered nursing care to Decedent when [Decedent] was a resident at Defendants' facility" (NYSCEF No. 236 at ¶ 10), sufficiently explains for CPLR 3101 (4) purposes why plaintiff is seeking Primus's testimony. (See Matter of Madison Sq. Garden Entertainment Corp. v New York State Liq. Auth., 221 AD3d 536, 540 [1st Dept 2023].)

Nonetheless, defendants have established—at least on the current record—that "the materials sought are utterly irrelevant to any proper inquiry." (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 112 [1st Dept 2006].) Defendants contend that plaintiff's decedent's medical records show that Primus did not provide or coordinate care for the decedent. (See NYSCEF No. 226 at ¶¶ 16-18.) To support this contention, defendants provide copies of the nursing home's progress notes and care-plan reports for the decedent—none of which mention Primus. (See NYSCEF Nos. 229, 230.)

Plaintiff's opposition papers do not rebut this showing. Plaintiff does not, for example, submit other medical records for decedent that do reflect Primus's involvement in her care; or provide documents indicating that Primus was involved in or consulted on decedent's care notwithstanding her formal absence from the medical records; or point to deposition testimony reflecting Primus's involvement. At most, plaintiff's counsel suggests in her affirmation that some of the licensed practical nurses who provided direct care to plaintiff reported to Primus. (See NYSCEF No. 236 at ¶¶ 11-14.) But counsel does not explain the basis for this suggestion, nor for counsel's evident firm belief that Primus provided care in some form to decedent.

This court does not rule out the possibility that Primus provided care to decedent, such that her deposition testimony would be relevant to plaintiff's claims. But given defendants' proffered documentary evidence indicating that Primus was not involved in decedent's care, bare unsupported assertions by plaintiff's counsel that Primus was involved are insufficient to support the disputed subpoena.

Accordingly, it is

ORDERED that defendants' motion to quash the Primus subpoena and for a protective order is granted.

7/3/2025

Gerald Lebovits, J.