SIMMONS v. North General Hospital, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

Paulette SIMMONS, Individually and as Administratrix of the Estate of Daisy Knowles, Deceased, Plaintiff-Respondent, v. NORTHERN MANHATTAN NURSING HOME, INC. doing business as Northern Manhattan Rehabilitation & Nursing Center, Defendant-Appellant, North General Hospital, Defendant.

Decided: June 17, 2008

LIPPMAN, P.J., ANDRIAS, SWEENY, RENWICK, JJ. Martin Clearwater & Bell LLP, New York (Claudia J. Charles of counsel), for appellant. The Cochran Firm, New York (Paul A. Marber of counsel), for respondent.

Orders, Supreme Court, New York County (Milton A. Tingling, J.), entered January 9, 2008, which, in an action for personal injuries and wrongful death arising out of plaintiff's decedent's fall and subsequent care in defendant nursing home, inter alia, denied in part said defendant's motion for a protective order and granted in part plaintiff's cross motion to compel disclosure, unanimously modified, on the law, to strike demand #37, and otherwise affirmed, without costs.

Plaintiff's demands, as time-limited by the court, for (1) negative outcome and incident reports involving conditions and occurrences like those alleged in the complaint, (2) the personnel files of personnel who treated the decedent, and (3) all documents and information relating to the demotion of any personnel who treated the decedent, are material and necessary (see generally Anonymous v. High School for Envtl. Studies, 32 A.D.3d 353, 358, 820 N.Y.S.2d 573 [2006] ), and are not overly broad or unduly burdensome inasmuch as defendant is compelled by regulation to maintain and continuously collect “information concerning the facility's experience with negative health care outcomes and incidents injurious to residents” (10 NYCRR 415.15[a][3][I] ), and does not deny maintenance of personnel files.   Demand #37 for all Quality Assessment and Assurance Committee reports prepared in accordance with 10 NYCRR 415.27(c)(6) relating to the types and conditions and occurrences alleged in the complaint should have been stricken, as such reports are statutorily immune from disclosure (Matter of Subpoena Duces Tecum to Jane Doe, 99 N.Y.2d 434, 438-440, 757 N.Y.S.2d 507, 787 N.E.2d 618 [2003] ).   However, defendant failed to meet its burden of demonstrating that “all documentation of and from” such Committee regarding the decedent relates to the Committee's quality assurance function.   Accordingly, demand #36 for such documentation was properly sustained (see id. at 439-441, 757 N.Y.S.2d 507, 787 N.E.2d 618;  Kivlehan v. Waltner, 36 A.D.3d 597, 598, 827 N.Y.S.2d 290 [2007] ), subject to the understanding that “documentation” does not include the “reports” sought in demand #37.   We have considered defendant's other arguments, as well as plaintiff's argument that defendant waived any right to claim privilege, and find them unavailing.