ANNE MCDONALD v. LLC PINE VALLEY CENTER FOR REHABILITATION AND NURSING (2026)

The following papers, numbered 1-3, were read and considered in connection with Plaintiff's Notice of Motion (Motion Seq. No. 3) for an order: (a) compelling production of all quality and assurance records and reports; and (b) for such other further and different relief as to the Court may seem just and proper:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 3)/Affirmation of Jeffrey M. Adams, Esq./

Exhibits 1-4 1

Affirmation of Elizabeth D. Dreisbach, Esq. in Opposition/Exhibits A-H 2

Reply Affirmation of Jeffrey M. Adams, Esq. 3

Upon the foregoing papers, the Court now rules as follows:

PROCEDURAL HISTORY

Plaintiff commenced the instant action with the filing of a Summons and Verified Complaint on July 9, 2021, seeking damages allegedly related to negligence in the care received by Plaintiff decedent while she was a resident at Defendant facility from October 17, 2018, through April 18, 2020. See NYSCEF Doc. No. 1. Defendant was served on July 28, 2021, at 661 N. Main Street, Spring Valley, New York by service on BARA AAH/Director-Nursing. See NYSCEF Doc. No. 3. Defendant joined issue with the filing of a Verified Answer raising thirty-two (32) Affirmative Defenses. See NYSCEF Doc. No. 4.

On December 7, 2022, Defendant filed a motion to dismiss pursuant to Civil Practice Law and Rules § 3211(a)(7) (Motion Seq. No. 1) based upon immunity under New York's Emergency or Disaster Treatment Protection Act (hereinafter EDTPA), Public Health Law §§ 3080-82. See NYSCEF Doc. Nos. 12-38. Prior to a decision on Defendant's pending motion, on February 16, 2023, Plaintiff's counsel filed a Notice Requesting Coordination pursuant to 22 NYCRR 202.69(F) regarding transfer of the instant action as a COVID-19 case to Nassau County Supreme Court. See NYSCEF Doc. Nos. 45-46. On February 17, 2023, Plaintiff filed opposition to Defendant's motion and filed a Cross-Motion severing causes of action in Plaintiff's Summons and Verified Complaint (Motion Seq. No. 2). See NYSCEF Doc. Nos. 47-84.

On February 24, 2023, Defendant's counsel informed the Honorable Rolf Thorsen, J.S.C., that they had filed an Order to Show Cause with a Temporary Restraining Order in Suffolk County Supreme Court regarding Plaintiff's pending Notice of Coordination. See NYSCEF Doc. Nos. 87-89. In addition, on March 3, 2023, Defendant's opposed Plaintiff's severance motion and included a copy of the restraining order issued on February 17, 2023, by the Honorable C. Stephen Hackeling, J.S.C. of Suffolk County. See NYSCEF Doc. Nos. 90-92. On March 14, 2023, Defendant provided notice to Judge Thorsen that a stipulation was entered into extending the Temporary Restraining Order against statewide enforcement of the State of New York Litigation Coordinating Panel's Final Order of Coordination from October 19, 2022, to May 16, 2023. See NYSCEF Doc. No. 97.

On April 30, 2023,¹ Defendant's counsel informed Judge Thorsen that the instant matter was believed to be transferred to the Coordination part in Nassau County Supreme Court while Plaintiff's and Defendant's motions were pending (Motion Seq. Nos. 1 and 2) despite the existence of the stay prohibiting enforcement of the statewide transfer of matters to the COVID case coordination part in Nassau Supreme Court. See NYSCEF Doc. No. 99. Defendant's counsel sought to have the venue of the matter remain in Rockland County Supreme Court based upon the stay of coordination. See NYSCEF Doc. Nos. 99-101. During 2023 and 2024, both Plaintiff and Defendant's counsel submitted letters referencing recent decisions of the Appellate Division, Second Department which each party believed were controlling as to the pending motions. See NYSCEF Doc. Nos. 102-104, 107.

On May 3, 2024, the Plaintiff informed the Honorable Hal B. Greenwald, J.S.C. (retired) that the coordination panel that transferred the matter to Supreme Court, Nassau County, was disbanded and the matter was re-assigned to Rockland County Supreme Court. See NYSCEF Doc. No. 106. In December 2024, counsel appeared before Judge Greenwald for a status conference and subsequently on January 16, 2025, by written decision, Judge Greenwald denied both Defendant's motion to dismiss (Motion Seq. No.1) and Plaintiff's motion to sever (Motion Seq. No. 2) without prejudice. See NYSCEF Doc. Nos. 115-118.

On January 14, 2025, Judge Greenwald issued the first Preliminary Conference Order as to the exchange of discovery. See NYSCEF Doc. No. 114. Subsequently, a Compliance Conference Order and a Preliminary Conference Order were issued on March 18, 2025, and June 11, 2025. See NYSCEF Doc. Nos. 127, 129. On October 16, 2025, Plaintiff informed Judge Greenwald of Defendant's discovery default and sought Court intervention. See NYSCEF Doc. No. 132. In response, Judge Greenwald directed counsel to appear on October 22, 2025. See NYSCEF Doc. No. 133.

On January 20, 2026, Plaintiff's counsel submitted a lengthy letter delineating the pending discovery issues remaining -- including a reference outstanding "Quality Assurance Fall Reports." See NYSCEF Doc. No. 134. Page 3, ¶ 3. A subsequent letter dated January 21, 2026, sent by Plaintiff's counsel to Defendant's counsel, inter alia, indicates that Plaintiff did not receive an incident report concerning a fall on October 17, 2018. See NYSCEF Doc. No. 135. On February 25, 2026, Plaintiff's counsel sent Defendant's counsel a letter seeking a "Jackson Affidavit" regarding missing incident reports from 2018 and inter alia, "Fall Logs, Risk Assessments; and Quality Assurance meeting minutes." See NYSCEF Doc. No. 137. On March 3, 2026, Plaintiff's counsel sought a discovery conference with the undersigned based upon the missing incident reports from 2018 and regarding scheduling of depositions. See NYSCEF Doc. No. 138.

On April 8, 2026, Plaintiff filed an Amended Complaint removing all causes of action related to COVID-19 and instead pleading only one cause of action sounding in negligence and one cause of action alleging a violation of Public Health Law § 2801-d. See NYSCEF Doc. No. 140. Defendant joined issue with the filing of a Verified Answer to the Amended Verified Complaint raising thirty (30) Affirmative Defense. See NYSCEF Doc. No. 141. On May 18, 2026, Plaintiff filed the instant motion to compel discovery of "all quality assurance records and reports." See NYSCEF Doc. Nos. 152-157.

ARGUMENTS

Plaintiff contends, through an affirmation of counsel, that Defendant received letters on or about February 9, 2026, and February 25, 2026, requesting that Defendant provide "the subject matter of this motion," which according to the Notice of Motion are "quality assurance records and reports." See NYSCEF Doc. No. 153, page 3, ¶ 9. Further, Plaintiff's counsel asserts that, after a conference with the undersigned on May 5, 2026, he was permitted to make the instant application.²

The Plaintiff argues that quality assurance fall reports are properly discoverable citing a Decision issued in 2025 by a justice in Broome County Supreme Court (Dailey v VRNC, LLC, 2025 NY Slip Op 30919). See NYSCEF Doc. No. 153, page 5, ¶ 18. Plaintiff concedes that if "the documents" were generated by or at the behest of a quality assurance committee then "the documents" are confidential and are not discoverable. See NYSCEF Doc. No. 153, page 5, ¶ 19. Further, Plaintiff asserts that Education Law § 6527(3) does not provide that all quality assurance reports are not discoverable. Additionally, Plaintiff citing Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 46 [2d Dept 2004] avers that an entity seeking to invoke the privilege set forth in Public Health Law § 2805-m and Education Law § 6527 has the burden to establish "that the documents sought were prepared in accordance with the relevant statutes." See NYSCEF Doc. No. 153, page 6, ¶ 21.

LAW/ANALYSIS

It is undeniable, pursuant to Civil Practice Law and Rules § 3101(a), that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." See Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; See also Siegel v Snyder, 202 AD3d 125 [2d Dept 2021]. " 'The words, 'material and necessary,' are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial.' " Siegel v Snyder, 202 AD3d at 130 quoting Allen v Crowell-Collier Publ. Co., 21 NY2d at 406. However, it is also well settled that unlimited disclosure is not condoned or permitted. See LaPierre v Jewish Bd. of Family & Children Servs., 47 AD3d 896, 896 [2d Dept 2008]. "[T]he CPLR establishes three categories of protected materials privileged matter, absolutely immune from discovery (CPLR3101[b]); attorney's work product (CPLR 3101[c]); and trial preparation materials (CPLR3103[d][2])." Spectrum Systems Intern. Corp. v Chemical Bank, 78 NY2d 371, 376-377 [1991]. However, "[o]bvious tension exists between the policy favoring full disclosure and the policy permitting parties to withhold relevant evidence" and as a result "the burden of establishing any right to protection is on the party asserting it." Id. at 377. Further, any protection granted must be narrowly construed and the application of same "must be consistent with the purposes underlying the immunity." Id.

"It is well settled that certain documents generated in connection with the 'performance of a medical or a quality assurance review function' are not subject to disclosure." LaPierre v Jewish Bd. of Family and Children Services, Inc., 47 AD3d 896, 896 [2d Dept 2008] citing Education Law § 6527(3). Additionally, Public Health Law § 2805-m(1) provides:

information required to be collected and maintained pursuant to sections twenty- eight hundred five-j and twenty-eight hundred five-k of this article, reports required to be submitted pursuant to section twenty-eight hundred five-l of this article and any incident reporting requirements imposed upon diagnostic and treatment centers pursuant to the provisions of this chapter shall be kept confidential and shall not be released except to the department or pursuant to subdivision four of section twenty- eight hundred five-k of this article.

Documents that are prepared in connection with a hospital's quality assurance review function and as part of their required incident reporting to the Department of Health are exempt from disclosure in a medical malpractice and wrongful death action. See Klinger v Mashioff, 50 AD3d 746 [2d Dept 2008]; See Estate of Testa v Mercy Medical Center, 60 AD3d 624 [2d Dept 2009]; Bennet v Sybel, 59 AD3d 652 [2d Dept 2009]. If the material sought by a plaintiff in medical malpractice action was not prepared by or at the behest of a quality assurance committee then the privilege in Public Health Law § 2805-m(2) and Education Law § 6527(3) is inapplicable. See Hernandez v City of New York, 207 AD3d 450, 454 [2d Dept 2022]; See also Gibbs v Kings Harbor Health Services, LLC, 190 AD3d 586, 587 [1st Dept 2021].

At the outset, before reaching whether Plaintiff's motion to compel should be granted, this Court must address Plaintiff's assertion that Public Health Law § 2805-j, which addresses creation of quality assurance committees and their responsibilities, is inapplicable to the nursing home and therefore the privilege set forth in Public Health Law § 2805-m cannot be invoked by Defendant. The crux of Defendant's argument, in opposition to Plaintiff's application, is that Public Health Law § 2805-j is applicable to a nursing home based upon the definition of a "Hospital" set forth in Public Health Law § 2801(1) and, as a result, pursuant to Public Health Law § 2805-m, the quality assurance records sought by Plaintiff are privileged and not subject to discovery. See NYSCEF Doc. No. 153.

Public Health Law § 2801(1) defines "Hospital" as it is used in Article 28 as "a facility or institution engaged principally in providing services by or under the supervision of a physician or for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition, including but not limited to, a general hospital, public health center, diagnostic center, treatment center, a rural emergency hospital rehabilitation center other than a facility used solely for vocational rehabilitation, nursing home ."

However, Public Health Law § 2805-j(1)(j) specifically states that the definition of "hospital" as used within the statute will have the same meaning as the definition of "hospital" from Public Health Law § 2801(10), not § 2801(1), as asserted by Defendant (see NYSCEF Doc. No. 170, page 7, ¶ 34). See Public Health Law § 2805-j(1)(j). Public Health Law § 2801(1), provides that the term "General Hospital" does not include "a residential health care facility," which is defined in Public Health Law § 2801(3) as "a nursing home or facility providing health- related service." Public Health Law §§ 2801(10) and 2801(3).

Defendant's assertion that the documents sought by Plaintiff are privileged is grounded in an incorrect interpretation of Public Health Law § 2805-j's applicability to Defendant facility -- which is a nursing home. Nonetheless, the Second Department, Appellate Division has previously stated in Robertson v Brookdale Hosp. Medical Center, (153 AD3d 743, 743-744 [2d Dept 2017]) that "Public Health Law § 2805-j requires nursing homes, among other healthcare-related entities, to maintain a program for the identification and prevention of medical malpractice, including the establishment of a quality assurance committee. "³ Therefore, based upon the caselaw within the Second Department, Public Health Law § 2805-j is applicable to Defendant, a nursing home.

The limitations for disclosure set for in Education Law § 6527(3) as to proceedings and records relating to proceedings and records related to a medical or a quality assurance review function are applicable to nursing homes since they, like hospitals, are required to have quality assurance committees. The Court of Appeals, addressing the privilege applicable to hospital quality-assurance committees records, has concluded that the same prohibitions regarding disclosure apply to nursing home quality assurance committees. The Court of Appeals has determined that nursing home quality assurance committees have a similar purpose as hospital-based quality assurance committees — "to ensure the proper delivery of services and the maintenance and improvement in quality of care." In re Subpoena Duces Tecum to Jane Doe, Esq., 99 NY2d 434, 439 [2003]. The Court of Appeals, citing their decision in Katherine F. v State of New York, noted that Education Law § 6527(3), "attaches to the proceedings and work product of hospital quality assurance committees," and was enacted to " 'promote the quality of care through self-review without fear of legal reprisal.' " Id. quoting Katherine F. v State of New York, 99 NY2d 200, 205 [1999].

Based upon the Court of Appeals decisions in In re Subpoena Duces Tecum and Katharine F., a Plaintiff seeking quality assurance records should specifically delineate the type of records sought from a quality assurance committee in their demand. A description of the records sought by a plaintiff allows a defendant nursing home to properly determine which documents sought in discovery are precluded from disclosure pursuant to Education Law § 6527(3) while also allowing a court presented with a disclosure dispute to engage in analysis of the relationship of any quality assurance records to a nursing home's statutory requirement to document "every accident" pursuant to 10 NYCRR 415.30[f]. This analysis is necessary to determine whether the documents sought are in fact quality assurance records that are privileged or rather incident reports that are subject to disclosure.

Here, the documentation submitted by Plaintiff -- regarding Defendant's alleged non- compliance -- fails to clearly delineate the desired records. Each of the documents provided in support of Plaintiff's motion seeks something different than set forth in the instant motion to compel. According to Plaintiff's Notice of Motion, the instant application seeks to compel the production of "all quality assurance records." However, the documentation provided by Plaintiff in support of the instant application demonstrates that the prior discovery demands were not for "all quality assurance records." Instead, the Plaintiff has previously demanded a 2018 incident report and quality assurance committee minutes.

The documents annexed to Plaintiff's application include the following: a February 5, 2026, email between the parties' counsel addresses a 2018 incident report, a copy of a "Jackson Affidavit" provided by Defendant to Plaintiff regarding the 2018 incident report, and two (2) letters from Plaintiff's counsel to Defendant's counsel in February 2026 seeking "Quality Assurance meeting minutes." The February 5, 2026, email from Plaintiff's counsel to Defendant's counsel submitted in support of the instant motion to compel by Plaintiff seeks production of "the relevant Incident Report and Investigation," not quality assurance records. See NYSCEF Doc. No. 154.

Defendant contends there are no additional incident reports from 2018 other than those provided already to Plaintiff and, consistent with same, has provided a "Jackson Affidavit" -- which Plaintiff has also annexed to the instant application. See NYSCEF Doc. No. 155. The two (2) letters from February 2026 sent to Defendant's counsel by Plaintiff's counsel seek minutes from the Quality Assurance Board, which fall within the privilege set forth in Education Law § 6527(3). Neither of the February 2026 letters demonstrates that the Plaintiff ever demanded the Defendant produce quality assurance reports related to a 2018 incident. The affirmation of Plaintiff's counsel, in support of the instant motion, provides no further clarity as to the documents Plaintiff seeks to compel. This Court cannot imply or infer -- from Plaintiff's vague and inconsistent demands -- the documents Plaintiff seeks to compel.

Education Law § 6527(3) exempts three (3) categories of documents created by hospitals from disclosure pursuant to article 31 of the Civil Practice Law and Rules: (1) records that relate to medical review and quality assurance functions; (2) records that reflect participation in a medical and dental malpractice prevention program; and (3) reports that are required by the Department of Health pursuant to Public Health law § 2805-l. See Katherine F. v State of New York, 94 NY2d at 203-204; See also Daly v Brunswick Nursing Home, Inc., 95 AD3d 1262, 1263 [2d Dept 2012]. However, the mere requirement of a hospital to report an incident does not mean that all documents sought by a plaintiff about the incident are exempt from disclosure. See Marte v Brooklyn Hosp. Center, 9 AD3d 41, 46 [2d Dept 2004]. Rather, the entity seeking to invoke the privilege set forth in Education Law § 6527(3) has the burden to "establish that the documents sought were prepared in accordance with the relevant statutes." Id; See also Ross v Northern Westchester Hosp. Ass'n, 43 AD3d 1135, 1136 [2d Dept 2007].

Since the Plaintiff never demanded that the Defendant produce the documents it is now seeking to compel, this Court cannot require the Defendant to produce those documents or find that they have failed to comply with Plaintiff's discovery demands. In any event, even if this Court assumes that the Defendant was aware that Plaintiff's prior demands included "all quality assurance records," Defendant -- in its opposition -- has asserted that some of the quality assurance records fall within the privilege set forth in Education Law § 6527(3) and Public Health Law § 2805-m and are not discoverable. This Court cannot determine whether the documents are privileged without further clarification from Plaintiff as to the exact documents sought or the relationship of the documents to the 2018 incident. See Gabriels v Vassar Bros. Hosp., 135 AD3d 903, 905-906 [2d Dept 2016]. As such, Plaintiff's motion is denied, without prejudice, in its entirety.

Considering the foregoing, this Court need not decide whether Plaintiff's motion to compel is procedurally defective.

In arriving at this decision the Court has reviewed, evaluated, and considered all the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Plaintiff's Motion to Compel (Motion Seq. No. 3) is denied in its entirety without prejudice; and it is further

ORDERED that all counsel appear for a compliance conference before the undersigned on September 3, 2026, at 9:30 a.m.

The foregoing constitutes the Decision and Order of this Court on Motion Seq No. 3.

Dated: August 28, 2026

New City, New York

Hon. John P. Collins, Jr., J.S.C.

FOOTNOTES

1.   The letter was e-filed on NYSCEF on May 1, 2023.

2.   The Court has no documentation of Plaintiff's assertion as the instant motion does not include a transcript from the court proceedings on May 5, 2026.

3.    See Daly v Brunswick Nursing Home, Inc., 95 AD3d 1262 [2d Dept 2012] (the quality assurance privilege set forth in Public Health Law § 2805-m was applied to Plaintiff's demand for an accident report related to injuries sustained by a plaintiff which she alleged occurred when she fell out of the bed at a nursing home where she was a resident).

John P. Collins, Jr., J.