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FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 46 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 all others 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 LLP, attorneys for Plaintiff, THADDEUS C. TOMAKA, Individually and as Executor of
the ESTATE OF LILLIAN TOMAKA, herein serve upon the attorneys for Defendant
LEGACY HEALTH CARE, LLC, W. RICHARD ZACHER, and JOHN DOES 1-200
(hereinafter "Defendants"), submits this verified bill of particulars of the complaint:
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DEMAND NO. 1
The Riaññêr and respect in which itis claimed defendãñts, were negligent, careless, and
unskillful including, but not limited to, how defendants failed to exercise due and reasonable care
under the circumstances in rendering care and treatment to the plaintiff's decedent, LILLIAN
TOMAKA (hereinafter "decedent"), so as to avoid injury to decedent.
"treatment"
Plaintiff objects to this demand to the extent that it references of
decedent, LILLIAN TOMAKA, to the extent that it implies that Plaintiff's decedent sought
medical treatment from Defendants. Decedent did not seek medical treatment from the
Defendants'
Defeñdañts. Rather, decedest 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 abjectian, based upon information
presently available, Plaintiff will claim that Defendants were negligent, carclcss and reckless
in that they, by and/or through its owners, managemcat, administration, agents, servants,
and employees, 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 regulatiõns, allowance of a pattern of deficiency for
quality of care issues, failure to advance and support environments that promoted 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 decedeat; failed to provide adequate staffing; failed to meet
basic human needs; deprived Plaintiff's decedest of a dignified existence; failed to provide
sufficient care and staffing to provide necessary services; failed to enact proper and adequate
staffing precedures; failed to provide adequate services to maintain Plaintiff's decedent'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 pre=ote the
rights of Plaintiff's decedcat; failed to pre=ote Plaintiff's decedent's dignity, art:::=y, and
indepcñdcñce commensurate with Plaintiff's decedeat's physical and mental status; failed to
identify and evaluate the resident's needs and the capability of the facility to meet those
needs; failed to comply with State and Federal statutes and regulations including New York
State Public Health Law accepted and retained admission for home residents,
§2801; nursing
including Plaintiff's decedent, for whom Defendants knew itcould not provide adeqüà ‡e care
based upon inadequate staffing; grossly deviated from established care plan with regard to
fall prevention, and/or assistance to or monitoring of Plaintiff's decedcat; failed to provide
adequate safety measures to prevent fall(s); failed to properly assess and/or document fall
risk; failed to properly =::it:r, supervise and/or to assist Plaintiff's decedent, most
egregiously on or about January 24, 2009; failed to properly investigate and/or report
resident's accident/injury incurred on or about January 24, 2009; failed to ensure that
Plaintiff's decedeñt's environment remained as free from accident hazards as possible; and
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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
ambulate, which resulted in a fall on or about January 24, 2009.
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 additiañally contends that Defendant, W. RICHARD ZACHER, failed to
adequatcly and properly manage, control and/or supervise the daily operations of, and/or
services provided by agents, servants and/or employees of Defcadant's facility, and engaged
in fiñañcial decisi0ns that adversely affected resident care. Plaintiff contends that said
Defendañ‡ failed to ensure that subject nursing home was properly and sufficiently staffed,
and further failed to ensure that adequate and proper policies and procedures were
established, pre=:!;;ated, 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
residents, as well as to ensure that proper "working relatianships"/commsñications were
established amang nursing staff and other departments/services añd/ar disciplines, so that
resident care needs could be met.
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Plaintiff contends that Dcfcñdast allõwed for systemic failures at subject facility,
most significantly, with regard to prevention of a fall.
To particularize further would require evidentiary information and/or would
require 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.
Plaintiff nonetheless reserves the right to supplement and/or amend this response upon
completion of discovery and, further, will rely on any and all facts elicited at depositions,
during other discovery prsceedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 2
State decedent's condition which it isclaimed 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 objects to this demand to the extent that it infers that Plaintiff's decedent,
sought medical treatment from defêñdants. Plaintiff's decedent did not seek medical
treatment from Defendants. Rather, Plaintiff's decedent, LILLIAN TOMAKA, was
Defendants'
admitted to facility for nursing home care and rehabilitative services. As such,
subject litigation has been brought for personal injuries arising as a result of nursing home
and corporate negligence, and pursuant to the provisions afforded to the Plaintiff
concomitant with Public Health Law §2801-d. Subject to, and without waiving this
falls"
objection, Plaintiff's decedent, LILLIAN TOMAKA, was a "risk for and sustained a
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hcmstema on the right side of farchead; left arm hematema; ecchymosis to forehead, right
eye and left arm; Stage II pressure ulcer of right foot; deprivation of dignity; deprivation
of rights; loss of enjoyment of life; fear of impending death; and ultimately, death.
To particularize further goes beyond the scope of CPLR §3043, requests evidentiary
(expert) information, and is virtually identical to others struck down in the Fourth
(4th
Department (See Stidham 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 Ridge View Manor,
LLC/Safire Rehabilitation of Southtowns, LLC, located at 300 Dorrance Avenue, Buffalo,
New York 14220.
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 negligence of Defendants, and/or its agents, servants, emplayees and/or other
personnel, Plaintiff's decedeat, LILLIAN TOMAKA, sustained serious and permanent
injuries, including but not limited to: hematoma on the right side of forehead; leftarm
hematema; ecchymosis to forehead, right eye and left arm; Stage II pressure ulcer of right
foot; deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of
impending death; and ultimately, death.
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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 discovery and, further, will rely on any and all facts elicited at depositions,
during other discovery praccedings, 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.,
(3d
23 N.Y.3d 448 (2014), and Neissel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881 Dept.
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 itis claimed 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 :;!ri:r, which is
improper for this pleading, as it goes beyand the scope of that which is required pursuant
to CPLR §3043.
Subject to, and without waiving said objection, based upon information presently
availsM3, it will be claimed that Defendants violated the following statutes, codes and/or
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regülatións: Public Health Law §2801-d, in that the facility denied the resident rights and
benefits pursuant to State and Federal regalã‡iens and pursuant to the admission contract;
failed to pre=ote and/or enhance her quality of life; failed to provide adeqüâte staffing and
services to maintain resident's physical well-being; Public Health Law §2803-d, in that the
resident was neglected and/or mistreated and, more specifically, in that facility staff failed
to follow resident's care plan, failed to prevent resident from sustaining an aveidable
injury, failed to provide adeqüâte supervision and safety measures to prevent fall/accident,
and failed to properly report and/or investigate resident's accideat/injury; 42 CFR
§483.10(a)(1), in that subject facility failed to care for resident in a manner in which
premoted and/or enhanced her quality of life,and failed to promote 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 §483.12, in that the facility
failed to provide resident with a dignified existence, and failed to provide necessary services
to avoid physical harm to resident, and failed to adequately and properly investigate and
report accident/incident incurred by resident at subject facility; 42 CFR §483.21, in that
the facility failed to develop and impicmcat a comprehensive person-centered care plan for
the resident, including measurable objectives and timeframes to meet a resident's medical,
nursing, mental and psychosocial seeds; 42 CFR §483.24, in that the facility failed to
provide the care and services to attain or mai=*ain the highest practicable
necessary
physical, mental, and psychosocial well-being, isclading for activities of daily living; 42
CFR §483.25, in that the facility failed to provide quality of care, consistent with
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professional standards of practice; 42 CFR §483.25(c)(3), in that the facility failed to ensure
that the resident with limited mability receives appropriate services, equipment, and
assistance to maintain or improve =:timy; 42 CFR §483.25(d), in that the facility failed to
ensure that the resident enviramment remains as free of accident hazards as is possible, and
that the resident received adegsate supervision and assistance to prevent accidents; 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, 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 conduct and
document a facility-wide assessment to determine what resources were necessary to care
for its residents campetently during day-to-day operations; 10 NYCRR §415.1(a)(1), in that
the facility failed to meet every basic hsses 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 subject facility; 10 NYCRR §415.3 (a), in
that the facility failed to ensure a dignified existence to said resident and to protect and
promote the rights of the resident; 10 NYCRR §415.3(e)(1)(i), in that the facility failed to
protect the resident's right to adequate and appropriate medical care; 10 NYCRR
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§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 prõvided by qualiñed 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 and assistance to prevent accidents/incidents; 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 psychosocial well-being of
resident; and 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 a fall.
To particularize further would require evidentiary information and/or 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 supplciment and/or amend this response upon
completion of diseóvery and, further, will rely on any and all facts elicited at depositions,
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during other discovery preceedings, and at the trial of this action to establish a claim in this
regard.
DEMAND NO. 6
If itwill 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
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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.
Plaintiff objects to this query to the extent that it would require evidentiary
information and/or would require Plaintiff to render a legal and/or expert :;!ri: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 supplement and/or a=end this
response upon cGmpletion of discovery and, further, will rely on any and all facts clicited at
depositions, during other discovery prsecediñgs, 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 objects to this query to the extent that it would require evidentiary
information and/or would require Plaintiff to render a legal and/or medical :;!r!:r, which
is improper for this plcadiñg, as it goes bcyañd the scope of that which is required pursuant
to CPLR §3043. Subject to, and without waiving this ôbjectiün, see response numbers 1
and 5, supra. Plaintiff nonetheless reserves the right to supplement and/or amêñd this
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response upon completion of discovery and, further, will rely on any and all facts elicited at
depesitiens, during other discóvery preceediñgs, and at the trial of this action to establish a
claim in this regard.
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 allsuch treatment.
Upon information and belief, the names and address of each and every physician
who rendered treatment to Plaintiff's decedent, LILLIAN TOMAKA, are contained in the
clinical chart/records of Ridge View Manor, LLC/Safire Rehabilitation of Southtowns,
LLC, 300 Dorrance Avenue, Buffalo, New York 14220 and Mercy Hospital of Buffalo, 565
Abbott Road, Buffalo, New York 14220. 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
completion of discovery and, further, will rely on any and all facts elicited at depesitiõns,
during other discovery pröceedings, 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 objects to this demand upon the grounds of relevance. Subject to, and
without waiving said objection, Defendants are referred to response ñüñ1bêr 8,supra.
DEMAND NO. 10
If itwill 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 decêdent, LILLIAN TOMAKA, was
admitted to Mercy Haspital of Buffalo, 565 Abbott Road, Buffalo, New York 14220.
Plaintiff relies upon the medical records for any and all medical providers and dates of
treatment.
Further information respansive to this demand is presently unknown or unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amcnd this respanse 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. 11
Ifitwill 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 confinement 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 üñderstood, Plaintiff's decedent, LILLIAN TOMAKA, did not
"institutions."
receive treatment by any other
DEMAND NO. 12
If itwill 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 prescatly available, the Plaintiff alleges that as a result of
the negligeñce of the Defendants, decedeñt, LILLIAN TOMAKA, was generally confined
more so to bed from the date of her admission on or about January 21, 2009, through the
time of her death, on February 2, 2009.
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 amenets paid
for medical care and treatment rendered to Plaintiff's decedent, LILLIAN TOMAKA, as a
result of the events in the underlying matter. Upon information and belief, the relevant
medical expenses of Plaintiff's decedent, LILLIAN TOMAKA, were paid by Medicare
(Medicare No.: *****0372A), and Independent Health Encompass (Policy No.:
which retain a right of subrogation. Plaintiff is medical
A0712849000), may seeking
expenses in this matter, and will provide additicaal 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, ifany, were covered by insurance, the name of the insurance
company involved in each case, and the amount paid in each case by said insurance cou1pany.
Defendants are referred to response number 13, supra.
Further information responsive to this demand is unknown at this time; if any
exists, it will be previded once it is obtained. Accordingly, Plaintiff reserves the right to
supplement this response at a later date.
DEMAND NO. 15
Ifany of the said amoun
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FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 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 all others 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 LLP, attorneys for Plaintiff, THADDEUS C. TOMAKA, Individually and as Executor of the ESTATE OF LILLIAN TOMAKA, herein serve upon the attorneys for Defendant LEGACY HEALTH CARE, LLC, W. RICHARD ZACHER, and JOHN DOES 1-200 (hereinafter "Defendants"), submits this verified bill of particulars of the complaint: -BROWN CHIARI LLP - 1 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - RECEIVED NYSCEF: 08/30/2021 - Page 2 DEMAND NO. 1 The Riaññêr and respect in which itis claimed defendãñts, were negligent, careless, and unskillful including, but not limited to, how defendants failed to exercise due and reasonable care under the circumstances in rendering care and treatment to the plaintiff's decedent, LILLIAN TOMAKA (hereinafter "decedent"), so as to avoid injury to decedent. "treatment" Plaintiff objects to this demand to the extent that it references of decedent, LILLIAN TOMAKA, to the extent that it implies that Plaintiff's decedent sought medical treatment from Defendants. Decedent did not seek medical treatment from the Defendants' Defeñdañts. Rather, decedest 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 abjectian, based upon information presently available, Plaintiff will claim that Defendants were negligent, carclcss and reckless in that they, by and/or through its owners, managemcat, administration, agents, servants, and employees, 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 regulatiõns, allowance of a pattern of deficiency for quality of care issues, failure to advance and support environments that promoted 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. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 3 facility staff, facility maintenance, facility supplies and staff training: failed to provide proper services to Plaintiff's decedeat; failed to provide adequate staffing; failed to meet basic human needs; deprived Plaintiff's decedest of a dignified existence; failed to provide sufficient care and staffing to provide necessary services; failed to enact proper and adequate staffing precedures; failed to provide adequate services to maintain Plaintiff's decedent'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 pre=ote the rights of Plaintiff's decedcat; failed to pre=ote Plaintiff's decedent's dignity, art:::=y, and indepcñdcñce commensurate with Plaintiff's decedeat's physical and mental status; failed to identify and evaluate the resident's needs and the capability of the facility to meet those needs; failed to comply with State and Federal statutes and regulations including New York State Public Health Law accepted and retained admission for home residents, §2801; nursing including Plaintiff's decedent, for whom Defendants knew itcould not provide adeqüà ‡e care based upon inadequate staffing; grossly deviated from established care plan with regard to fall prevention, and/or assistance to or monitoring of Plaintiff's decedcat; failed to provide adequate safety measures to prevent fall(s); failed to properly assess and/or document fall risk; failed to properly =::it:r, supervise and/or to assist Plaintiff's decedent, most egregiously on or about January 24, 2009; failed to properly investigate and/or report resident's accident/injury incurred on or about January 24, 2009; failed to ensure that Plaintiff's decedeñt's environment remained as free from accident hazards as possible; and -BROWN CHIARI LLP - 3 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 4 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 ambulate, which resulted in a fall on or about January 24, 2009. 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 additiañally contends that Defendant, W. RICHARD ZACHER, failed to adequatcly and properly manage, control and/or supervise the daily operations of, and/or services provided by agents, servants and/or employees of Defcadant's facility, and engaged in fiñañcial decisi0ns that adversely affected resident care. Plaintiff contends that said Defendañ‡ failed to ensure that subject nursing home was properly and sufficiently staffed, and further failed to ensure that adequate and proper policies and procedures were established, pre=:!;;ated, 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 residents, as well as to ensure that proper "working relatianships"/commsñications were established amang nursing staff and other departments/services añd/ar disciplines, so that resident care needs could be met. -BROWN CHIARI LLP - 4 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 5 Plaintiff contends that Dcfcñdast allõwed for systemic failures at subject facility, most significantly, with regard to prevention of a fall. To particularize further would require evidentiary information and/or would require 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. Plaintiff nonetheless reserves the right to supplement and/or amend this response upon completion of discovery and, further, will rely on any and all facts elicited at depositions, during other discovery prsceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 2 State decedent's condition which it isclaimed 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 objects to this demand to the extent that it infers that Plaintiff's decedent, sought medical treatment from defêñdants. Plaintiff's decedent did not seek medical treatment from Defendants. Rather, Plaintiff's decedent, LILLIAN TOMAKA, was Defendants' admitted to facility for nursing home care and rehabilitative services. As such, subject litigation has been brought for personal injuries arising as a result of nursing home and corporate negligence, and pursuant to the provisions afforded to the Plaintiff concomitant with Public Health Law §2801-d. Subject to, and without waiving this falls" objection, Plaintiff's decedent, LILLIAN TOMAKA, was a "risk for and sustained a BROWN CHIARI LLP - 5 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 6 hcmstema on the right side of farchead; left arm hematema; ecchymosis to forehead, right eye and left arm; Stage II pressure ulcer of right foot; deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impending death; and ultimately, death. To particularize further goes beyond the scope of CPLR §3043, requests evidentiary (expert) information, and is virtually identical to others struck down in the Fourth (4th Department (See Stidham 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 Ridge View Manor, LLC/Safire Rehabilitation of Southtowns, LLC, located at 300 Dorrance Avenue, Buffalo, New York 14220. 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 negligence of Defendants, and/or its agents, servants, emplayees and/or other personnel, Plaintiff's decedeat, LILLIAN TOMAKA, sustained serious and permanent injuries, including but not limited to: hematoma on the right side of forehead; leftarm hematema; ecchymosis to forehead, right eye and left arm; Stage II pressure ulcer of right foot; deprivation of dignity; deprivation of rights; loss of enjoyment of life; fear of impending death; and ultimately, death. -BROWN CHIARI LLP - 6 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 7 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 discovery and, further, will rely on any and all facts elicited at depositions, during other discovery praccedings, 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., (3d 23 N.Y.3d 448 (2014), and Neissel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881 Dept. 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 itis claimed 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 :;!ri:r, which is improper for this pleading, as it goes beyand the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving said objection, based upon information presently availsM3, it will be claimed that Defendants violated the following statutes, codes and/or -BROWN CHIARI LLP - 7 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 08/30/2021 - Page 8 - regülatións: Public Health Law §2801-d, in that the facility denied the resident rights and benefits pursuant to State and Federal regalã‡iens and pursuant to the admission contract; failed to pre=ote and/or enhance her quality of life; failed to provide adeqüâte staffing and services to maintain resident's physical well-being; Public Health Law §2803-d, in that the resident was neglected and/or mistreated and, more specifically, in that facility staff failed to follow resident's care plan, failed to prevent resident from sustaining an aveidable injury, failed to provide adeqüâte supervision and safety measures to prevent fall/accident, and failed to properly report and/or investigate resident's accideat/injury; 42 CFR §483.10(a)(1), in that subject facility failed to care for resident in a manner in which premoted and/or enhanced her quality of life,and failed to promote 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 §483.12, in that the facility failed to provide resident with a dignified existence, and failed to provide necessary services to avoid physical harm to resident, and failed to adequately and properly investigate and report accident/incident incurred by resident at subject facility; 42 CFR §483.21, in that the facility failed to develop and impicmcat a comprehensive person-centered care plan for the resident, including measurable objectives and timeframes to meet a resident's medical, nursing, mental and psychosocial seeds; 42 CFR §483.24, in that the facility failed to provide the care and services to attain or mai=*ain the highest practicable necessary physical, mental, and psychosocial well-being, isclading for activities of daily living; 42 CFR §483.25, in that the facility failed to provide quality of care, consistent with -BROWN CHIARI LLP - 8 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 9 professional standards of practice; 42 CFR §483.25(c)(3), in that the facility failed to ensure that the resident with limited mability receives appropriate services, equipment, and assistance to maintain or improve =:timy; 42 CFR §483.25(d), in that the facility failed to ensure that the resident enviramment remains as free of accident hazards as is possible, and that the resident received adegsate supervision and assistance to prevent accidents; 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, 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 conduct and document a facility-wide assessment to determine what resources were necessary to care for its residents campetently during day-to-day operations; 10 NYCRR §415.1(a)(1), in that the facility failed to meet every basic hsses 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 subject facility; 10 NYCRR §415.3 (a), in that the facility failed to ensure a dignified existence to said resident and to protect and promote the rights of the resident; 10 NYCRR §415.3(e)(1)(i), in that the facility failed to protect the resident's right to adequate and appropriate medical care; 10 NYCRR -BROWN CHIARI LLP - 9 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - RECEIVED NYSCEF: 08/30/2021 - Page 10 §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 prõvided by qualiñed 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 and assistance to prevent accidents/incidents; 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 psychosocial well-being of resident; and 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 a fall. To particularize further would require evidentiary information and/or 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 supplciment and/or amend this response upon completion of diseóvery and, further, will rely on any and all facts elicited at depositions, -BROWN CHIARILLP- 10 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 11 during other discovery preceedings, and at the trial of this action to establish a claim in this regard. DEMAND NO. 6 If itwill 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 -BROWN CHIARI LLP - 11 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 12 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. Plaintiff objects to this query to the extent that it would require evidentiary information and/or would require Plaintiff to render a legal and/or expert :;!ri: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 supplement and/or a=end this response upon cGmpletion of discovery and, further, will rely on any and all facts clicited at depositions, during other discovery prsecediñgs, 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 objects to this query to the extent that it would require evidentiary information and/or would require Plaintiff to render a legal and/or medical :;!r!:r, which is improper for this plcadiñg, as it goes bcyañd the scope of that which is required pursuant to CPLR §3043. Subject to, and without waiving this ôbjectiün, see response numbers 1 and 5, supra. Plaintiff nonetheless reserves the right to supplement and/or amêñd this -BROWN CHIARI LLP - 12 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 13 response upon completion of discovery and, further, will rely on any and all facts elicited at depesitiens, during other discóvery preceediñgs, and at the trial of this action to establish a claim in this regard. 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 allsuch treatment. Upon information and belief, the names and address of each and every physician who rendered treatment to Plaintiff's decedent, LILLIAN TOMAKA, are contained in the clinical chart/records of Ridge View Manor, LLC/Safire Rehabilitation of Southtowns, LLC, 300 Dorrance Avenue, Buffalo, New York 14220 and Mercy Hospital of Buffalo, 565 Abbott Road, Buffalo, New York 14220. 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 completion of discovery and, further, will rely on any and all facts elicited at depesitiõns, during other discovery pröceedings, 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. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 14 for the injuries and/or conditions alleged in the Complaint, providing the dates of all such treatment. Plaintiff objects to this demand upon the grounds of relevance. Subject to, and without waiving said objection, Defendants are referred to response ñüñ1bêr 8,supra. DEMAND NO. 10 If itwill 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 decêdent, LILLIAN TOMAKA, was admitted to Mercy Haspital of Buffalo, 565 Abbott Road, Buffalo, New York 14220. Plaintiff relies upon the medical records for any and all medical providers and dates of treatment. Further information respansive to this demand is presently unknown or unavailable to the Plaintiff. However, the Plaintiff reserves the right to amcnd this respanse 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. 11 Ifitwill 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 confinement 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. 46 - - RECEIVED NYSCEF: 08/30/2021 Page 15 Objection is made to this demand, upon the grounds of ambiguity. To the extent the "institutions" term is üñderstood, Plaintiff's decedent, LILLIAN TOMAKA, did not "institutions." receive treatment by any other DEMAND NO. 12 If itwill 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 prescatly available, the Plaintiff alleges that as a result of the negligeñce of the Defendants, decedeñt, LILLIAN TOMAKA, was generally confined more so to bed from the date of her admission on or about January 21, 2009, through the time of her death, on February 2, 2009. 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. 46 RECEIVED NYSCEF: 08/30/2021 - Page 16 - Plaintiff presently has no record or information regarding the total amenets paid for medical care and treatment rendered to Plaintiff's decedent, LILLIAN TOMAKA, as a result of the events in the underlying matter. Upon information and belief, the relevant medical expenses of Plaintiff's decedent, LILLIAN TOMAKA, were paid by Medicare (Medicare No.: *****0372A), and Independent Health Encompass (Policy No.: which retain a right of subrogation. Plaintiff is medical A0712849000), may seeking expenses in this matter, and will provide additicaal 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, ifany, were covered by insurance, the name of the insurance company involved in each case, and the amount paid in each case by said insurance cou1pany. Defendants are referred to response number 13, supra. Further information responsive to this demand is unknown at this time; if any exists, it will be previded once it is obtained. Accordingly, Plaintiff reserves the right to supplement this response at a later date. DEMAND NO. 15 Ifany of the said amoun