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FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 08/30/2021
STATE OF NEW YORK :
SUPREME COURT : COUNTY OF ERIE
DENISE CLAY, Individually and as Administratrix of the
Estate of RANDALL CLAY; THADDEUS C. TOMAKA,
Individually and as Executor of the Estate of LILLIAN
TOMAKA; ALBERT YOUNG, Individually and as
Executor of the Estate of LULA STEVENS; BRENDA
BARNES, Individually and as Administratrix De Bonis
Non of the Estate of JOHN ANTHONY DOBBINS;
VELPO JOHNSON, III,Individually and as Executor of
the Estate of WILLIE LEE STEWART; DIANE
ANTKOWIAK and DAVID JANUSZ, Individually and as
Co-Executors of the Estate of LEOCADIA FRANUSIAK;
and on behalf of allothers similarly situated,
Plaintiffs'
Plaintiffs Verified
vs. BILL OF PARTICULARS
Index #003907/2010
RIDGE VIEW MANOR, LLC,
WILLIAMSVILLE SUBURBAN, LLC
LEGACY HEALTH CARE, LLC
W. RICHARD ZACHER
JOHN DOES 1-200
Defendants
Pursuant to Rule 3041 et sequitur of the Civil Practice Law and Rules, BROWN
CHIARI tte, attorneys for Plaintiff, DIANE ANTKOWIAK and DAVID JANUSZ,
INDIVIDUALLY and as CO-EXECUTORS of the ESTATE OF LEOCADIA FRANUSIAK
(hereinafter "Defendants"), submits this verified bill of particulars of the complaint:
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DEMAND NO. 1
The wiaññer and respect in which itis claimed defendants, were negligent, careless, and
unskillful including, but not limited to, how defendants failed to exercise due and reasonable care
under the circumstances in renderiñg care and treatment to the plaintiff's decedent, LEOCADIA
FRANUSIAK (hereinafter "decedent"), so as to avoid injury to decedent.
"treatment"
Plaintiff objects to this demand to the extent that it references of
decedent, LEOCADIA FRANUSIAK, to the extent that itimplies that decedent sought
medical treatment from Defendants. Decedent did not seek medical treatment from the
Defendants'
Defendants. Rather, deccdent was admitted to facility for nursing
home/rehabilitative services. As such, the instant litigation has been brought for personal
injuries arising as a result of nursing home negligence, pursuant to common law and the
provisions afforded to the Plaintiff in conjunction with Public Health Law §2801-d.
Subject to, and without waiving Plaintiff's objection, based upon information
presently available, Plaintiff will claim that Defendants were ñcgligêñt, careless and reckless
in that they, by and/or through its owners, management, administration, agents, servants,
and cmployees, by virtue of their failure to comply with New York State Public Health Law
§2801-d, failure to employ an adequate number of qualified personnel to carry out all the
functions of their in violation of New York State Public Health Law §2801-
necessary facility
d, and related statutes, codes, rules and regulations, allowance of a pattern of deficiency for
quality of care issues, failure to advance and support environments that prameted resident
dignity and quality of care, and failure to provide appropriate and adequate resources for
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facility staff, facility maintenance, facility supplies and staff training: failed to provide
proper services to Plaintiff's decedent; failed to provide adequate staffing; failed to meet
basic human needs by deliberately understaffing the facility; deprived Plaintiff's decideñt
of a digñified existence; failed to provide sufficient care and staMng to provide necessary
services; failed to enact proper and adequate staffing procedures; failed to provide adequate
services to maintain Plaintiff's decedéñt's physical, mental and psycho-social well-being in
violation of New York State Public Health Law §2801; poor, improper and/or insufficient
implementation of resident's established care plan; failed to maintain and provide a safe
environment; failed to protect and promote the rights of Plaintiff's decedent; failed to
promote Plaintiff's decedent's dignity, anter_ery, and independence commensurate with
Plaintiff's decedent's physical and mental statüs; failed to identify and evaluate the
resident's needs and the capability of the facility to meet those needs; failed to provide an
organized program of care, supervision and services that met applicable standards; failed to
comply with State and Federal statutes and regulations, includiñg New York State Public
Health Law §2801; accepted and retained admission for nursing home residents, including
Plaintiff's decedent, for whom Defendants knew it could not provide adeqüãte care based
upon inadeqüâte staffing; grossly deviated from established care plan with regard to fall
prevention, and/or assistance to or moñitoring of Plaintiff's decedent; failed to provide
adequate safety measures to prevent falls; failed to properly assess and/or document fall risk;
failed to properly monitor, supervise and/or to assist Plaintiff's decedcat, most egregisüsly
on June 29, 2010; failed to ensure that Plaintiff's decedent's environment remained as free
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from accident hazards as passible; failed to provide housekeeping and maiñtcñañce services
necessary to maintain a sanitary, orderly and comfortable interior; failed to provide
adequate and appropriate assistance with activities of daily living to the resident, most
significantly with respect to Plaintiff's decedent's ability to transfer and/or ambüIate, which
resulted in fall(s); failed to provide adequate and appropriate assistance with personal
hygiene; failed to properly hydrate Plaintiff's decedent; and failed to provide proper
grooming to Plaintiff's decedent.
Plaintiff will claim, pursuant to Public Health Law §2808-a, that W. RICHARD
ZACHER is and/or was a controlling person of LEGACY HEALTH CARE, LLC, and liable,
jointly and severally, with and to the same extent as such residential health care facility, to
Plaintiff's decedent for damages, or to the state for any civil fine, penalty, assessment or
damages.
Plaintiff additionally contends that Defendant, W. RICHARD ZACHER, failed to
adequately and properly manage, control and/or supervise the daily operations of, and/or
services prõvided agents, servants and/or emplõyees of Defendant's facility, and êñgaged
by
in fiñañcial decisions that adversely affected resident care. Plaintiff cañtêñds that said
Defcñdañt failed to ensure that subject nursing home was properly and sufficiently staffed,
and further failed to ensure that adequate and proper pôlicies and procedures were
established, promulgated, effectuated and/or followed at subject facility for the prevention
and reporting of accident(s) in accordance with the provisions set forth in 10 NYCRR
§415.30(f), to ensure that accurate and consistent clinical records were kept with regard to
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residents, as well as to ensure that proper "working relationships"/commüñications were
established among nursing staff and other departments/services ==d/or disciplines, so that
resident care needs could be met.
Plaintiff contends that Defendant allowed for systemic failures at subject facility,
most sigñificantly, with regard to prevention of fall(s).
To particularize further would require evidentiary information and/or would
require Plaintiff to render a legal and/or medical :;!rirs, which is improper for this
pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043.
Plaintiff nonetheless reserves the right to sapplemcat and/or amend this response upon
completion of discovery and, further, will rely on any and all facts elicited at depositions,
during other discovery proceedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 2
State decedent's condition which itis claimed that defendants failed to take due and
improper cognizance of, and the true condition from which the decedent from which the
decedent was suffering, which itis claimed that defendants failed to guard and treat against.
Plaintiff Gbjects to this demand to the extent that it infers that Plaintiff's decadêñt,
sought medical treatment from Defêñdants. Plaintiff's decêdent did not seek medical
treatment from Defendants. Rather, Plaintiff's decedent, LEOCADIA FRANUSIAK, was
Defendants'
admitted to facility for nursing home care and rch±ilitative services. As such,
subject litigation has been brought for personal injuries arising as a result of nursing home
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and corporate negligence, and pursuant to the provisions afforded to the Plaintiff
côñcamitant with Public Health Law §2801-d. Subject to, and without waiving this
falls"
objection, Plaintiff's decedent, LEOCADIA FRANUSIAK, was a "risk for and
sustained bruising; facial lacerations; dehydration; weight loss; deprivation of dignity;
deprivation of rights; loss of enjoyment of life; fear of impcading death; and ultimately,
death.
To particularize further goes bcyañd the scope of CPLR §3043, requests evidentiary
(expert) information, and is virtually identical to others struck down in the Fourth
(4th
Department (See Stidism v. Clerk, 57 A.D.2d 1369 Dept. 2008)).
DEMAND NO. 3
The place or places where the services were rendered by defendants.
Subject nursing home care and services were rendered at Williamsville Subarbañ
Nursing Home, located at 193 South Union Road, Williamsville, New York 14221.
DEMAND NO. 4
The nature, location, extent, and duration of each injury itwill be claimed was caused by
the negligence of defendants.
Based upon information presently available, the Plaintiff will claim that as a result
of the negligêñce of Defêñdants, and/or itsagêñts, servants, emplayees and/or other
personnel, Plaintiff's decêdent, LEOCADIA FRANUSIAK, sustained serious and
permanent injuries, inclñding but not limited to: bruising; facial lacerations; dehydration;
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weight loss; deprivation of dignity; deprivation of rights; loss of enjoyment of life;fear of
impending death; and ultimately, death.
Further information responsive to this demand is presently unknown or unavaildic
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
ce=piction of disc6very and, further, will rely on any and all facts elicited at depositions,
during other disc6very proceedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 5
Pursuant to the authority of Webb-Weber v. Community Action for Human Services, Inc.,
(3rd
23 N.Y.3d 448 (2014), and Neissel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881
2006), identify each section of every statute, code, regulation, and/or ordinance which plaintiff
will claim defendants violated and as to each such alleged violation:
a. State the manner and respect in which it isclaimed that defendants violated each
statute, code regulation, and/or ordinance set forth above; and
b. As to each such alleged violation, identify the agent or employee or other
representative of defendants for whom plaintiff would hold defendants vicariously
liable whom plaintiff alleges committed the violation.
Plaintiff objects to this query to the extent that itwould require evidentiary
information and/or would require Plaintiff to render a legal and/or expert epirier, which is
improper for this pleadir:g, as it goes beyond the scope of that which is required pursuant
to CPLR §3043.
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Subject to, and without waiving said objection, based upon infermation presently
available, itwill be claimed that Defendants violated the following statutes, codes and/or
regalâ‡iens: Public Health Law §2801(d), in that the facility denied the resident rights and
bcacfits pursuant to State and Federal regulations and pursuant to the admission contract;
failed to promote and/or enhance her quality of life;failed to enact and follow an
appropriate care plan; failed to provide adeqüâte staffing; failed to provide adeqüâ‡e
and services to maintain resident's physical Public Health Law §2803-
staffing well-being;
d, in that the resident was neglected and/or mistreated; 42 CFR §483.10(a)(1), in that
subject facility failed to care for resident in a manner in which pre=eted andler enhanced
her quality of life, and failed to pr:=:tc care for resident to maintain resident's dignity; 42
CFR §483.10(e), in that the facility failed to protect the resident's right to be treated with
respect and dignity; 42 CFR §483.21, in that the facility failed to devel6p and implement a
comprehensive person-centered care plan for the resident, includi=g measurable objectives
and timeframes to meet a resident's medical, nursing, and mental and psychesecial needs;
42 CFR §483.24, in that the facility failed to provide the necessary care and services to
attain or maintain the highest practicable physical, mental, and psychosocial well-being,
including for activities of daily living; 42 CFR §483.25, in that the facility failed to provide
quality of care, consistent with prefcssional standards of practice; 42 CFR §483.35, in that
subject facility failed to have sufficient nursing staff to provide nursing and related services
in accordance with resident's care plan; 42 CFR §483.70, in that the Defendants failed to
administer the subject facility in a manner that used its resources effectively and efficiently,
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and in that the facility failed to operate and provide services in compliance with all
applicable Federal, State, and local laws, regulations, and codes, and with accepted
professional standards and priaciples that apply to services being provided at the facility;
42 CFR §483.70(e), in that the facility failed to côñdact and document a facility-wide
assessment to determine what resources were necessary to care for its residents
competcñtly during day-to-day operations; 10 NYCRR §415.1(a)(1), in that the facility
failed to meet every basic human need of the resident; 10 NYCRR §415.1(b)(1), in that the
facility failed to provide care and services in a manner and quality consistent with
generally accepted standards of practice, by deviating from and/or disregarding resident's
care plan, and failing to properly staff sübject facility; 10 NYCRR §415.3(a), in that the
facility failed to ensure a dignified existence to said resident and to protect and pramate the
rights of the resident; 10 NYCRR §415.3(f)(1)(i), in that the facility failed to protect the
resident's right to adequate and appropriate medical care; 10 NYCRR §415.5(a), in that
the facility failed to ensure an appropriate quality of life for said resident by deprivation of
resident's dignity; 10 NYCRR §415.5(h), in that the facility failed to provide an
environment that was safe, clean and comfortable; 10 NYCRR §415.11(c)(3), in that
subject facility failed to provide or arrange services that met generally accepted standards
of care provided by qualiñêd persons in accordance with resident's care plan; 10 NYCRR
§415.12, in that the facility failed to provide necessary care and services to attain or
maintain the highest practicable physical, mental and psycho-social well-being for resident;
10 NYCRR §415.12(h)(2), in that the facility staff failed to provide adequate supervision
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and assistance to prevent âccidents/iacidents; 10 NYCRR §415.12(j), in that resident was
not provided sufficient fluid intake to maintain proper hydration and health; 10 NYCRR
§415.13, in that the facility failed to provide sufficient nursing staff to provide nursing and
related services to attain or maintain the highest practicable physical, mental, and
psychosôcial well-being of resident; 10 NYCRR §415.15(b)(2)(i), in that the proper
communication was not established between nursing staff and the responsible physician, to
assure that all patient care needs were met in the development and implementation of the
resident's care plan; 10 NYCRR §415.26(c), in that the Defendant failed to employ
sufficient professional staff members to assure the health, safety, proper care and
treatment of the residents, including Plaintiff's decedent.
Plaintiff reiterates that Defendants allowed for systemic failures at subject facility
with regard to adequate staffing and prevention of fall(s).
To particularize further would require evidentiary information andler would require
the Plaintiff to render a legal and/or medical opinion, which is improper for this pleading,
as it goes beyond the scope of that which is required pursuant to CPLR §3043. The Plaintiff
nonetheless will reserve the right to supplcmcnt and/or amend this response upon
completion of discõvery and, further, will rely on any and all facts elicited at depesidens,
during other discovery proccadings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 6
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Ifitwill be claimed defendants violated any right or benefit of the decedent, identify each
and every such right and/or benefit plaintiff claims was violated and as to each such alleged
violation:
a. State the date of each and every alleged violation as claimed above;
b. Set forth the source of each such right and/or benefit claimed to have bene
violated, specifically identifying whether such right and/or benefit was created by
the following:
1. The terms of any contract and, if so, the date and signatories to such
contract;
2. State statute;
3. State rule or regulation;
4. State code;
5. Federal statute;
6. Federal code; and/or
7. Federal rule or regulation;
c. Identify each section and subsection of every contract, statute, code, regulation,
rule, and ordinance set forth above as the source of each right or benefit
defendants alleged to have violated; and
d. If itwill be claimed that the decedent suffered injuries as a result of a violation of
any of the above rights and/or benefits, state the nature, location, extent, and
duration of each such injury.
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Plaintiff 6bjects to this query to the extent that itwould require evidentiary
informatian and/or would require Plaintiff to render a legal and/or expert :;iri:r, which is
improper for this pleading, as it goes beyond the scope of that which is required pursuant
to CPLR §3043.
Subject to, and without waiving this objection, Plaintiff refers to response numbers
1, 4 and 5, supra. Plaintiff nonetheless reserves the right to supplemcñt and/or amend this
respanse upon completion of discovery and, further, will rely on any and all facts clicited at
depositions, during other discovery proceedings, and at the trial of this action to establish a
claim in this regard.
DEMAND NO. 7
State with particularity each other act and/or omission on the part of defendants not
included above which plaintiff will claim constituted a violation of a right and/or benefit of the
decedent.
Plaintiff abjects to this query to the extent that itwould require evidentiary
information and/or would require plaintiff to render a legal and/or medicâl epirier, which
is improper for this pleading, as it goes beyond the scope of that which is required pursuant
to CPLR §3043. Subject to, and without waiving this abjectian, see response numbers 1
and 5, supra. Plaintiff nonetheless reserves the right to supplement andler amend this
response upon completion of discovery and, further, will rely on any and all facts elicited at
dep6sitions, during other discovery prüccediñgs, and at the trial of this action to establish a
claim in this regard.
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DEMAND NO. 8
A particular statement setting forth the name and address of each and every physician
who rendered treatment to the decedent as a result of the injuries alleged in the Complaint,
providing the dates of all such treatment.
Upon information and belief, the names and address of each and every physician
who rendered treatment to Plaintiff's decedent, LEOCADIA FRANUSIAK, are cêntained
in the clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union
Road, Williamsville, New York 14221 and Erie County Medical Center, 462 Grider Street,
Buffalo, New York 14215. Plaintiff will rely upon the medical records for exact dates and
types of treatment.
Further information responsive to this demand is presently unknown or unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
campletion of discovery and, further, will rely on any and all facts elicited at depositions,
during other discovery proceedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 9
A particular statement setting forth the name and address of each and every physician
who rendered treatment to the decedent, prior to the date(s) of the alleged negligence/violation,
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for the injuries and/or conditions alleged in the Complaint, providing the dates of all such
treatment.
Plaintiff abjects to this demand upon the grounds of relevance. Subject to, and
without waiving said objection, Defendants are referred to response number 8,supra.
DEMAND NO. 10
Ifitwill be claimed that the aforesaid injuries necessitated any hospitalization or
treatment at a health care facility, set forth the name of each hospital or health care facility with
the dates of confinement or outpatient treatment.
Upon information and belief, Plaintiff's deccdcat, LEOCADIA FRANUSIAK, was
admitted to Erie County Medical Center. Plaintiff relies upon the medical records for any
and all medical providers and dates of treatment.
Further information responsive to this demand is presently unknown or unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
completion of discüvery and, further, will rely on any and all facts elicited at depesitions,
during other discovery proccadings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 11
If itwill be claimed that the aforesaid injuries necessitated treatment by any other facility
or institution, set forth the name of each facility and/or institution with dates of confmement or
outpatient treatment.
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Objection is made to this demand, upon the grounds of ambiguity. To the extent the
"institutions"
term is understood, Plaintiff's decedent, LEOCADIA FRANUSIAK, did not
"institutions."
receive treatment by any other
DEMAND NO. 12
Ifitwill be claimed that the aforesaid injuries necessitated confinement to bed or home,
set forth the following:
a. The date or dates of confinement to home; and
b. The date or dates of confinement to bed.
Based upon information presently availst-le, the Plaintiff alleges that as a result of
the ñcgligence of the Defendants, decedent, LEOCADIA FRANUSIAK, was generally
coñfined more so to bed from her admission to Williamsville Suburban Nursing Home,
through the time of her death, on July 6, 2010.
DEMAND NO. 13
If any special damages are claimed as a result of the alleged negligence or violation by
defendants, set forth the following:
a. The charges for the above-named hospitals, health care facilities, or any other
facilities or institutions, separately listing each hospital or other facility bill;
Physicians'
b. charges, separately listing each such physician and the amount of
special damages claim;
c. Charges for medicines, itemizing the medicines charged; and
d. Charges for nursing care.
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Plaintiff presently has no record or information regarding the total amounts paid
for medical care and treatment rendered to Plaintiff's decêdent, LEOCADIA
FRANUSIAK, as a result of the events in the underlying matter. Upon information and
belief, the relevant medical expenses of Plaintiff's decedent, LEOCADIA FRANUSIAK,
were paid by Medicare. Plaintiff is seeking medical expenses in this matter, and will
provide additional information relative to same, under separate cover.
DEMAND NO. 14
A particular statement as to each of the aforesaid amounts of money paid on behalf of the
decedent setting forth which, if any, were covered by insurance, the name of the insurance
company involved in each case, and the amount paid in each case by said insurance corñpany.
Defendants are referred to response nu=ber 13, supra.
Further information responsive to this demand is unknown at this time; if any
exists, itwill be provided once it isobtained. Accordingly, Plaintiff reserves the right to
supplement this response at a later date.
DEMAND NO. 15
Ifany of the said amounts were reimbursed to plaintiff or his/her decedent or paid
directly by a source other than insurance, a particular statement as to each setting forth the source
involved and the amount paid.
Defendants are referred to response number 13, supra.
DEMAND NO. 16
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Set forth the nature and amount of each and every other claim for damages and/or fees
not specified above including, but not limited to:
a. Punitive damages;
Attorneys'
b. fees;
c. Specify the basis for each claim(s) for the damage(s) and/or fee(s) set forth above;
and
d. If punitive damages will be claimed, state in which manner/respect itis claimed
defendants'
that conduct was willful, reckless, and/or grossly negligent.
Plaintiff herein claims punitive damages for the injuries sustained by Plaintiff's
decedent, LEOCADIA FRANUSIAK, due to the ñêgligence and recklessness of the
Plaintiffs'
Defendants in conscious disregard of health, rights and dignity. Punitive
damages are recoverable under Public Health Law §2801-d, and under New York State
common law. Plaintiff is entit
Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 08/30/2021 STATE OF NEW YORK : SUPREME COURT : COUNTY OF ERIE DENISE CLAY, Individually and as Administratrix of the Estate of RANDALL CLAY; THADDEUS C. TOMAKA, Individually and as Executor of the Estate of LILLIAN TOMAKA; ALBERT YOUNG, Individually and as Executor of the Estate of LULA STEVENS; BRENDA BARNES, Individually and as Administratrix De Bonis Non of the Estate of JOHN ANTHONY DOBBINS; VELPO JOHNSON, III,Individually and as Executor of the Estate of WILLIE LEE STEWART; DIANE ANTKOWIAK and DAVID JANUSZ, Individually and as Co-Executors of the Estate of LEOCADIA FRANUSIAK; and on behalf of allothers similarly situated, Plaintiffs' Plaintiffs Verified vs. BILL OF PARTICULARS Index #003907/2010 RIDGE VIEW MANOR, LLC, WILLIAMSVILLE SUBURBAN, LLC LEGACY HEALTH CARE, LLC W. RICHARD ZACHER JOHN DOES 1-200 Defendants Pursuant to Rule 3041 et sequitur of the Civil Practice Law and Rules, BROWN CHIARI tte, attorneys for Plaintiff, DIANE ANTKOWIAK and DAVID JANUSZ, INDIVIDUALLY and as CO-EXECUTORS of the ESTATE OF LEOCADIA FRANUSIAK (hereinafter "Defendants"), submits this verified bill of particulars of the complaint: - BROWN CHIARILLP- 1 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page - RECEIVED NYSCEF: 08/30/2021 2 DEMAND NO. 1 The wiaññer and respect in which itis claimed defendants, were negligent, careless, and unskillful including, but not limited to, how defendants failed to exercise due and reasonable care under the circumstances in renderiñg care and treatment to the plaintiff's decedent, LEOCADIA FRANUSIAK (hereinafter "decedent"), so as to avoid injury to decedent. "treatment" Plaintiff objects to this demand to the extent that it references of decedent, LEOCADIA FRANUSIAK, to the extent that itimplies that decedent sought medical treatment from Defendants. Decedent did not seek medical treatment from the Defendants' Defendants. Rather, deccdent was admitted to facility for nursing home/rehabilitative services. As such, the instant litigation has been brought for personal injuries arising as a result of nursing home negligence, pursuant to common law and the provisions afforded to the Plaintiff in conjunction with Public Health Law §2801-d. Subject to, and without waiving Plaintiff's objection, based upon information presently available, Plaintiff will claim that Defendants were ñcgligêñt, careless and reckless in that they, by and/or through its owners, management, administration, agents, servants, and cmployees, by virtue of their failure to comply with New York State Public Health Law §2801-d, failure to employ an adequate number of qualified personnel to carry out all the functions of their in violation of New York State Public Health Law §2801- necessary facility d, and related statutes, codes, rules and regulations, allowance of a pattern of deficiency for quality of care issues, failure to advance and support environments that prameted resident dignity and quality of care, and failure to provide appropriate and adequate resources for -BROWN CHIARI LLP - 2 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - - RECEIVED NYSCEF: 08/30/2021 Page 3 facility staff, facility maintenance, facility supplies and staff training: failed to provide proper services to Plaintiff's decedent; failed to provide adequate staffing; failed to meet basic human needs by deliberately understaffing the facility; deprived Plaintiff's decideñt of a digñified existence; failed to provide sufficient care and staMng to provide necessary services; failed to enact proper and adequate staffing procedures; failed to provide adequate services to maintain Plaintiff's decedéñt's physical, mental and psycho-social well-being in violation of New York State Public Health Law §2801; poor, improper and/or insufficient implementation of resident's established care plan; failed to maintain and provide a safe environment; failed to protect and promote the rights of Plaintiff's decedent; failed to promote Plaintiff's decedent's dignity, anter_ery, and independence commensurate with Plaintiff's decedent's physical and mental statüs; failed to identify and evaluate the resident's needs and the capability of the facility to meet those needs; failed to provide an organized program of care, supervision and services that met applicable standards; failed to comply with State and Federal statutes and regulations, includiñg New York State Public Health Law §2801; accepted and retained admission for nursing home residents, including Plaintiff's decedent, for whom Defendants knew it could not provide adeqüãte care based upon inadeqüâte staffing; grossly deviated from established care plan with regard to fall prevention, and/or assistance to or moñitoring of Plaintiff's decedent; failed to provide adequate safety measures to prevent falls; failed to properly assess and/or document fall risk; failed to properly monitor, supervise and/or to assist Plaintiff's decedcat, most egregisüsly on June 29, 2010; failed to ensure that Plaintiff's decedent's environment remained as free -BROWN CHIARI us - 3 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - - RECEIVED NYSCEF: 08/30/2021 Page 4 from accident hazards as passible; failed to provide housekeeping and maiñtcñañce services necessary to maintain a sanitary, orderly and comfortable interior; failed to provide adequate and appropriate assistance with activities of daily living to the resident, most significantly with respect to Plaintiff's decedent's ability to transfer and/or ambüIate, which resulted in fall(s); failed to provide adequate and appropriate assistance with personal hygiene; failed to properly hydrate Plaintiff's decedent; and failed to provide proper grooming to Plaintiff's decedent. Plaintiff will claim, pursuant to Public Health Law §2808-a, that W. RICHARD ZACHER is and/or was a controlling person of LEGACY HEALTH CARE, LLC, and liable, jointly and severally, with and to the same extent as such residential health care facility, to Plaintiff's decedent for damages, or to the state for any civil fine, penalty, assessment or damages. Plaintiff additionally contends that Defendant, W. RICHARD ZACHER, failed to adequately and properly manage, control and/or supervise the daily operations of, and/or services prõvided agents, servants and/or emplõyees of Defendant's facility, and êñgaged by in fiñañcial decisions that adversely affected resident care. Plaintiff cañtêñds that said Defcñdañt failed to ensure that subject nursing home was properly and sufficiently staffed, and further failed to ensure that adequate and proper pôlicies and procedures were established, promulgated, effectuated and/or followed at subject facility for the prevention and reporting of accident(s) in accordance with the provisions set forth in 10 NYCRR §415.30(f), to ensure that accurate and consistent clinical records were kept with regard to -BROWN CHIARI LLP - 4 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - - RECEIVED NYSCEF: 08/30/2021 Page 5 residents, as well as to ensure that proper "working relationships"/commüñications were established among nursing staff and other departments/services ==d/or disciplines, so that resident care needs could be met. Plaintiff contends that Defendant allowed for systemic failures at subject facility, most sigñificantly, with regard to prevention of fall(s). To particularize further would require evidentiary information and/or would require Plaintiff to render a legal and/or medical :;!rirs, which is improper for this pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043. Plaintiff nonetheless reserves the right to sapplemcat and/or amend this response upon completion of discovery and, further, will rely on any and all facts elicited at depositions, during other discovery proceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 2 State decedent's condition which itis claimed that defendants failed to take due and improper cognizance of, and the true condition from which the decedent from which the decedent was suffering, which itis claimed that defendants failed to guard and treat against. Plaintiff Gbjects to this demand to the extent that it infers that Plaintiff's decadêñt, sought medical treatment from Defêñdants. Plaintiff's decêdent did not seek medical treatment from Defendants. Rather, Plaintiff's decedent, LEOCADIA FRANUSIAK, was Defendants' admitted to facility for nursing home care and rch±ilitative services. As such, subject litigation has been brought for personal injuries arising as a result of nursing home -BROWN CHIARI LLP - 5 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - - RECEIVED NYSCEF: 08/30/2021 Page 6 and corporate negligence, and pursuant to the provisions afforded to the Plaintiff côñcamitant with Public Health Law §2801-d. Subject to, and without waiving this falls" objection, Plaintiff's decedent, LEOCADIA FRANUSIAK, was a "risk for and sustained bruising; facial lacerations; dehydration; weight loss; deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impcading death; and ultimately, death. To particularize further goes bcyañd the scope of CPLR §3043, requests evidentiary (expert) information, and is virtually identical to others struck down in the Fourth (4th Department (See Stidism v. Clerk, 57 A.D.2d 1369 Dept. 2008)). DEMAND NO. 3 The place or places where the services were rendered by defendants. Subject nursing home care and services were rendered at Williamsville Subarbañ Nursing Home, located at 193 South Union Road, Williamsville, New York 14221. DEMAND NO. 4 The nature, location, extent, and duration of each injury itwill be claimed was caused by the negligence of defendants. Based upon information presently available, the Plaintiff will claim that as a result of the negligêñce of Defêñdants, and/or itsagêñts, servants, emplayees and/or other personnel, Plaintiff's decêdent, LEOCADIA FRANUSIAK, sustained serious and permanent injuries, inclñding but not limited to: bruising; facial lacerations; dehydration; -BROWN CHIARI LLP - 6 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - - RECEIVED NYSCEF: 08/30/2021 Page 7 weight loss; deprivation of dignity; deprivation of rights; loss of enjoyment of life;fear of impending death; and ultimately, death. Further information responsive to this demand is presently unknown or unavaildic to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon ce=piction of disc6very and, further, will rely on any and all facts elicited at depositions, during other disc6very proceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 5 Pursuant to the authority of Webb-Weber v. Community Action for Human Services, Inc., (3rd 23 N.Y.3d 448 (2014), and Neissel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881 2006), identify each section of every statute, code, regulation, and/or ordinance which plaintiff will claim defendants violated and as to each such alleged violation: a. State the manner and respect in which it isclaimed that defendants violated each statute, code regulation, and/or ordinance set forth above; and b. As to each such alleged violation, identify the agent or employee or other representative of defendants for whom plaintiff would hold defendants vicariously liable whom plaintiff alleges committed the violation. Plaintiff objects to this query to the extent that itwould require evidentiary information and/or would require Plaintiff to render a legal and/or expert epirier, which is improper for this pleadir:g, as it goes beyond the scope of that which is required pursuant to CPLR §3043. -BROWN CHIARI LLP - 7 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 8 - RECEIVED NYSCEF: 08/30/2021 Subject to, and without waiving said objection, based upon infermation presently available, itwill be claimed that Defendants violated the following statutes, codes and/or regalâ‡iens: Public Health Law §2801(d), in that the facility denied the resident rights and bcacfits pursuant to State and Federal regulations and pursuant to the admission contract; failed to promote and/or enhance her quality of life;failed to enact and follow an appropriate care plan; failed to provide adeqüâte staffing; failed to provide adeqüâ‡e and services to maintain resident's physical Public Health Law §2803- staffing well-being; d, in that the resident was neglected and/or mistreated; 42 CFR §483.10(a)(1), in that subject facility failed to care for resident in a manner in which pre=eted andler enhanced her quality of life, and failed to pr:=:tc care for resident to maintain resident's dignity; 42 CFR §483.10(e), in that the facility failed to protect the resident's right to be treated with respect and dignity; 42 CFR §483.21, in that the facility failed to devel6p and implement a comprehensive person-centered care plan for the resident, includi=g measurable objectives and timeframes to meet a resident's medical, nursing, and mental and psychesecial needs; 42 CFR §483.24, in that the facility failed to provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, including for activities of daily living; 42 CFR §483.25, in that the facility failed to provide quality of care, consistent with prefcssional standards of practice; 42 CFR §483.35, in that subject facility failed to have sufficient nursing staff to provide nursing and related services in accordance with resident's care plan; 42 CFR §483.70, in that the Defendants failed to administer the subject facility in a manner that used its resources effectively and efficiently, -BROWN CHIARI LLP - 8 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 9 - RECEIVED NYSCEF: 08/30/2021 and in that the facility failed to operate and provide services in compliance with all applicable Federal, State, and local laws, regulations, and codes, and with accepted professional standards and priaciples that apply to services being provided at the facility; 42 CFR §483.70(e), in that the facility failed to côñdact and document a facility-wide assessment to determine what resources were necessary to care for its residents competcñtly during day-to-day operations; 10 NYCRR §415.1(a)(1), in that the facility failed to meet every basic human need of the resident; 10 NYCRR §415.1(b)(1), in that the facility failed to provide care and services in a manner and quality consistent with generally accepted standards of practice, by deviating from and/or disregarding resident's care plan, and failing to properly staff sübject facility; 10 NYCRR §415.3(a), in that the facility failed to ensure a dignified existence to said resident and to protect and pramate the rights of the resident; 10 NYCRR §415.3(f)(1)(i), in that the facility failed to protect the resident's right to adequate and appropriate medical care; 10 NYCRR §415.5(a), in that the facility failed to ensure an appropriate quality of life for said resident by deprivation of resident's dignity; 10 NYCRR §415.5(h), in that the facility failed to provide an environment that was safe, clean and comfortable; 10 NYCRR §415.11(c)(3), in that subject facility failed to provide or arrange services that met generally accepted standards of care provided by qualiñêd persons in accordance with resident's care plan; 10 NYCRR §415.12, in that the facility failed to provide necessary care and services to attain or maintain the highest practicable physical, mental and psycho-social well-being for resident; 10 NYCRR §415.12(h)(2), in that the facility staff failed to provide adequate supervision -BROWN CHIARI LLP - 9 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - - RECEIVED NYSCEF: 08/30/2021 Page 10 and assistance to prevent âccidents/iacidents; 10 NYCRR §415.12(j), in that resident was not provided sufficient fluid intake to maintain proper hydration and health; 10 NYCRR §415.13, in that the facility failed to provide sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosôcial well-being of resident; 10 NYCRR §415.15(b)(2)(i), in that the proper communication was not established between nursing staff and the responsible physician, to assure that all patient care needs were met in the development and implementation of the resident's care plan; 10 NYCRR §415.26(c), in that the Defendant failed to employ sufficient professional staff members to assure the health, safety, proper care and treatment of the residents, including Plaintiff's decedent. Plaintiff reiterates that Defendants allowed for systemic failures at subject facility with regard to adequate staffing and prevention of fall(s). To particularize further would require evidentiary information andler would require the Plaintiff to render a legal and/or medical opinion, which is improper for this pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043. The Plaintiff nonetheless will reserve the right to supplcmcnt and/or amend this response upon completion of discõvery and, further, will rely on any and all facts elicited at depesidens, during other discovery proccadings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 6 -BROWN CHIARI LLP - 10 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 11 - RECEIVED NYSCEF: 08/30/2021 Ifitwill be claimed defendants violated any right or benefit of the decedent, identify each and every such right and/or benefit plaintiff claims was violated and as to each such alleged violation: a. State the date of each and every alleged violation as claimed above; b. Set forth the source of each such right and/or benefit claimed to have bene violated, specifically identifying whether such right and/or benefit was created by the following: 1. The terms of any contract and, if so, the date and signatories to such contract; 2. State statute; 3. State rule or regulation; 4. State code; 5. Federal statute; 6. Federal code; and/or 7. Federal rule or regulation; c. Identify each section and subsection of every contract, statute, code, regulation, rule, and ordinance set forth above as the source of each right or benefit defendants alleged to have violated; and d. If itwill be claimed that the decedent suffered injuries as a result of a violation of any of the above rights and/or benefits, state the nature, location, extent, and duration of each such injury. - BROWN CHIARI LLP - 11 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 12 - RECEIVED NYSCEF: 08/30/2021 Plaintiff 6bjects to this query to the extent that itwould require evidentiary informatian and/or would require Plaintiff to render a legal and/or expert :;iri:r, which is improper for this pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving this objection, Plaintiff refers to response numbers 1, 4 and 5, supra. Plaintiff nonetheless reserves the right to supplemcñt and/or amend this respanse upon completion of discovery and, further, will rely on any and all facts clicited at depositions, during other discovery proceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 7 State with particularity each other act and/or omission on the part of defendants not included above which plaintiff will claim constituted a violation of a right and/or benefit of the decedent. Plaintiff abjects to this query to the extent that itwould require evidentiary information and/or would require plaintiff to render a legal and/or medicâl epirier, which is improper for this pleading, as it goes beyond the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving this abjectian, see response numbers 1 and 5, supra. Plaintiff nonetheless reserves the right to supplement andler amend this response upon completion of discovery and, further, will rely on any and all facts elicited at dep6sitions, during other discovery prüccediñgs, and at the trial of this action to establish a claim in this regard. -BROWN CHIARI LLP - 12 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 13 - RECEIVED NYSCEF: 08/30/2021 DEMAND NO. 8 A particular statement setting forth the name and address of each and every physician who rendered treatment to the decedent as a result of the injuries alleged in the Complaint, providing the dates of all such treatment. Upon information and belief, the names and address of each and every physician who rendered treatment to Plaintiff's decedent, LEOCADIA FRANUSIAK, are cêntained in the clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union Road, Williamsville, New York 14221 and Erie County Medical Center, 462 Grider Street, Buffalo, New York 14215. Plaintiff will rely upon the medical records for exact dates and types of treatment. Further information responsive to this demand is presently unknown or unavailable to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon campletion of discovery and, further, will rely on any and all facts elicited at depositions, during other discovery proceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 9 A particular statement setting forth the name and address of each and every physician who rendered treatment to the decedent, prior to the date(s) of the alleged negligence/violation, -BROWN CHIARI LLP - 13 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 14 - RECEIVED NYSCEF: 08/30/2021 for the injuries and/or conditions alleged in the Complaint, providing the dates of all such treatment. Plaintiff abjects to this demand upon the grounds of relevance. Subject to, and without waiving said objection, Defendants are referred to response number 8,supra. DEMAND NO. 10 Ifitwill be claimed that the aforesaid injuries necessitated any hospitalization or treatment at a health care facility, set forth the name of each hospital or health care facility with the dates of confinement or outpatient treatment. Upon information and belief, Plaintiff's deccdcat, LEOCADIA FRANUSIAK, was admitted to Erie County Medical Center. Plaintiff relies upon the medical records for any and all medical providers and dates of treatment. Further information responsive to this demand is presently unknown or unavailable to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon completion of discüvery and, further, will rely on any and all facts elicited at depesitions, during other discovery proccadings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 11 If itwill be claimed that the aforesaid injuries necessitated treatment by any other facility or institution, set forth the name of each facility and/or institution with dates of confmement or outpatient treatment. - BROWN CHIARI LLP - 14 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 15 - RECEIVED NYSCEF: 08/30/2021 Objection is made to this demand, upon the grounds of ambiguity. To the extent the "institutions" term is understood, Plaintiff's decedent, LEOCADIA FRANUSIAK, did not "institutions." receive treatment by any other DEMAND NO. 12 Ifitwill be claimed that the aforesaid injuries necessitated confinement to bed or home, set forth the following: a. The date or dates of confinement to home; and b. The date or dates of confinement to bed. Based upon information presently availst-le, the Plaintiff alleges that as a result of the ñcgligence of the Defendants, decedent, LEOCADIA FRANUSIAK, was generally coñfined more so to bed from her admission to Williamsville Suburban Nursing Home, through the time of her death, on July 6, 2010. DEMAND NO. 13 If any special damages are claimed as a result of the alleged negligence or violation by defendants, set forth the following: a. The charges for the above-named hospitals, health care facilities, or any other facilities or institutions, separately listing each hospital or other facility bill; Physicians' b. charges, separately listing each such physician and the amount of special damages claim; c. Charges for medicines, itemizing the medicines charged; and d. Charges for nursing care. - BROWN CHIARI LLP - 15 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 16 - RECEIVED NYSCEF: 08/30/2021 Plaintiff presently has no record or information regarding the total amounts paid for medical care and treatment rendered to Plaintiff's decêdent, LEOCADIA FRANUSIAK, as a result of the events in the underlying matter. Upon information and belief, the relevant medical expenses of Plaintiff's decedent, LEOCADIA FRANUSIAK, were paid by Medicare. Plaintiff is seeking medical expenses in this matter, and will provide additional information relative to same, under separate cover. DEMAND NO. 14 A particular statement as to each of the aforesaid amounts of money paid on behalf of the decedent setting forth which, if any, were covered by insurance, the name of the insurance company involved in each case, and the amount paid in each case by said insurance corñpany. Defendants are referred to response nu=ber 13, supra. Further information responsive to this demand is unknown at this time; if any exists, itwill be provided once it isobtained. Accordingly, Plaintiff reserves the right to supplement this response at a later date. DEMAND NO. 15 Ifany of the said amounts were reimbursed to plaintiff or his/her decedent or paid directly by a source other than insurance, a particular statement as to each setting forth the source involved and the amount paid. Defendants are referred to response number 13, supra. DEMAND NO. 16 - BROWN CHIARI LLP - 16 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 45 - Page 17 - RECEIVED NYSCEF: 08/30/2021 Set forth the nature and amount of each and every other claim for damages and/or fees not specified above including, but not limited to: a. Punitive damages; Attorneys' b. fees; c. Specify the basis for each claim(s) for the damage(s) and/or fee(s) set forth above; and d. If punitive damages will be claimed, state in which manner/respect itis claimed defendants' that conduct was willful, reckless, and/or grossly negligent. Plaintiff herein claims punitive damages for the injuries sustained by Plaintiff's decedent, LEOCADIA FRANUSIAK, due to the ñêgligence and recklessness of the Plaintiffs' Defendants in conscious disregard of health, rights and dignity. Punitive damages are recoverable under Public Health Law §2801-d, and under New York State common law. Plaintiff is entit