Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 44 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 ete,attorneys for Plaintiff, BRENDA BARNES, Individually and as Administratrix De
Bonis Non of the ESTATE OF JOHN ANTHONY DOBBINS, herein serve upon the attorneys
for Defendants, LEGACY HEALTH CARE, LLC, W. RICHARD ZACHER, and JOHN DOES
1-200 (hereinafter "Defendants"), submits this verified bill of particulars of the corsplaint:
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DEMAND NO. 1
The manner 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 rendering care and treatment to the plaintiff's decedent, JOHN
ANTHONY DOBBINS (hereinafter "decedent"), so as to avoid injury to decedent.
"treatment"
Plaintiff objects to this demand to the extent that it references of
decedeñt, JOHN ANTHONY DOBBINS, to the extent that it implies that Plaintiff's
decedent sought medical treatment from Defendants. Decedent did not seek medicâl
treatment from the Defendants. Rather, decedent and all others similarly situated were
Defeñdañts'
admitted to facility for nursing home/rehabilitative services. As such, the
instant litigation has been brought for injuries arising from nursing home and corporate
ñêgligence, pursuant to common law and the provisions afforded to the Plaintiffs in
conjunction with Public Health Law §2801-d.
Subject to, and without waiving Plaintiff's abjectiõn, based upon information
presently availabic, Plaintiff will claim that Defendants were negligent, careless and reckless
in that they, by and/or through its owners, management, 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 adeqüate 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 deficicacy for
quality of care issues, failure to advance and suppert envircamcats that promoted resident
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dignity and quality of care, and failure to provide appropriate and adeqüâte resources for
facility staff, facility maintenance, facility supplies and staff training: failed to provide
proper services to Plaintiffs decedent; failed to provide adeqüã‡e staffing; willfully,
wanter!y and/or recldessly disregarded the safety and well-being of decedent by deliberately
understaffing the facility; failed to meet basic human needs by deliberately understaffing the
facility; deprived Plaintiffs decedent of a dignified existence; failed to provide sufficient care
and staffing to provide necessary services; failed to enact proper and adequate staffing
precedures that iñcluded an adequate number of qualified personnel; failed to provide
adequate services to maintain Plaintiff's decedeñt's mental and psycho-social well-
physical,
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 envirañment; failed to protect and promote the rights of Plaintiffs decedent;
failed to promote Plaintiffs decedcñt's dignity, auto=o=y, and independence ev......wnsurate
with Plaintiff's decedent'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 provide an
organized program of care, supervision and services that met applicable standards; failed to
comply with state and federal statutes and regulations; accepted and retained admission for
nursing home residents, including Plaintiff's decedent, for whom Defeñdañts knew it could
not provide adequate care based upon inadeqüã‡e staffing; grossly deviated from established
care plan with regard to fall prevention, and/or assistance to or recitering of Plaintiff's
decedent; failed to provide adequate safety measures to prevent falls; failed to properly
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assess and/or document fall risk; failed to properly monitor, supervise and/or to assist
Plaintiff's decedent, most egregisüsly on February 3, 2008, April 30, 2008 and May 1, 2008;
failed to ensure that Plaintiff's decedent's environment remained as free from ãccident
hazards as possible; failed to provide housekeeping and maintenance services ñecessary to
maintain a sanitary, orderly and comfortable interior; failed to provide proper wound care
to Plaintiff's decedent's right shculder lesion; failed to provide adequate and appropriate
assistance with activities of daily living to the resident, most significantly with respect to
Plaintiff's decedêñt's ability to transfer and/or ambulate, which resulted in repeated falls;
and failed to provide adequate and appropriate assistance with personal hygiene.
Plaintiff will pursuant to Public Health Law that W. RICHARD
claim, §2808-a,
ZACHER is and/or was a controlliñg 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 provided by agêñts, servants and/or employees of Defcñdant's facility, and engaged
in f'mancial decisions that adversely affected resident care. Plaintiff contends that said
Defendant 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, promulgated, effectuated and/or followed at subject facility for the prevention
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and reporting of accidcñts in accordañce 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 relationships"/communications were
established among nursing staff and other departments/services and/or discipliñés, so that
resident care needs could be met.
Plaintiff contends that Defendant allowed for systemic failures at subject facility,
most significantly, with regard to prevention of falls.
To particularize further would require evidentiary information and/or would
require Plaintiff to render a legal and/or medical :pirier, which is improper for this
pleading, as it goes beycad 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 proceedi=gs, 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 objects to this demand to the extent that it infers that Plaintiff's decedcat,
sought medical treatment from defendants. Plaintiff's decedcat did not seek medical
treatment from Defêñdants. Rather, Plaintiff's decedent, JOHN DOBBINS, was admitted
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Defendants'
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 negligcace, and pursüänt to the previsions afforded to the Plaintiff coñcomitant
with Public Health Law §2801-d. Subject to, and without waiving this objection, Plaintiff's
falls"
decedent, JOHN DOBBINS, was a "risk for and sustained an infected right sh::!dêr
lesion; sepsis; 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. 2008D.
DEMAND NO. 3
The place or places where the services were rendered by defendants.
Subject nursing home care and services were rendered at Williamsville Suburban
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 ñêgligêñce of Defendants, and/or itsagents, servants, employees and/or other
perseññêl, Plaintiff's decedent, JOHN DOBBINS, sustained serious and permañêñt
injuries, includiñg but not limited to: infected right st::!der lesion; sepsis; deprivation of
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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 unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amcñd this response 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. 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 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 it would require evidentiary
information and/or would require Plaintiff to rcñdcr a legal and/or expert :;in!:ñ, which is
improper for this pleading, 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 information presently
available, itwill be claimed that Defendants violated the following statutes, codes and/or
regulations: Public Health Law §2801(d), in that the facility denied the resident rights and
benefits pursuant to State and Federal regulations and pursuant to the admission contract;
failed to promote and/or enhance his quality of life; failed to provide adeqastc staffing and
services to maintain resident's physical well-being; Public Health Law §2803-d, in that the
residêñt 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 promoted and/or enhanced his 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 §483.21(b)(1), in that the facility failed to develõp and implement a
comprehensive person-centered care plan for the resident, incI;din;; measurable õbjectives
and timeframes to meet a resident's medical, nursing, and mental and psychesocial needs;
42 CFR §483.24, in that the facility failed to provide the necessary care and services to
attain or =aiwain the highest practicable physical, mental, and psychosocial well-being,
includiag for activities of daily living; 42 CFR §483.25, in that the facility failed to provide
quality of care, consistent with professional standards of practice; 42 CFR §483.25(d), in
that the fâcility failed to ensure that the resident environment remains as free of accident
hazards as is possible, and that the resident received adequate 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
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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,
regdstiens, and codes, and with accepted professional standards and principles that apply
to services being provided at the facility; 42 CFR §483.70(e), in that the facility failed to
cGnduct and esca:nent a facility-wide assessment to determine what resources were
necessary to care for its residents competently 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 gêñêrally 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(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 qualified 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 mental and psycho-
physical,
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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/incideñts; 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 psychosocial 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 §415.19, in that
Defendants'
the facility failed to prevent infection and/or failed to maintain an adequate
infection control program; 10 NYCRR §415.26(c), in that the Defcadant 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 falls.
To particularize further would require evidentiary infor=ation and/or would require
the Plaintiff to render a legal and/or medical :;!r!:s, 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 supplement and/or amcad this respence upon
completion of discovery and, further, will rely on any and all facts elicited at depositions,
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during other discovery pr6ccediags, and at the trial of this action to establish a claim in this
regard.
pEMAND 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 itwould reqüire evidentiary
information and/or would require Plaintiff to render a legal and/or expert spiniêñ, 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. P1nintiff nonetheless reserves the right to supplement and/or amend this
response upon completion of discovery and, further, will rely on any and all facts clicitêd 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 objects to this query to the extent that itwould require evidentiary
information and/or would require Plaintiff to render a legal and/or medical :p!:!: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, see response numbers 1
and 5, sm. Plaintiff nonetheless reserves the right to supplement and/or amend this
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response upon campletion of discõvery 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. 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 Complairit,
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, JOHN DOBBINS, are contained in the
clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union Road,
Williamoville, New York 14221; Buffalo VA Medical Center, 3495 Bailey Avenue, Buffalo,
New York 14215; 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 treatmcñt.
Further information responsive to this demand is presently unknown or unav2ild!s
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 clicited at depositions,
during other discovery preceedings, 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 waiting said objection, Defendants are referred to response r:nis 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 decedent, JOHN DOBBINS, was admitted
to the Buffalo VA Medical Center, 3495 Bailey Avenue, Buffalo, New York 14215 and Erie
County Medical Center, 462 Grider Street, Buffalo, New York 14215. 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 discovery and, further, will rely on any and all facts clicited at depositions,
other discovery preccedir.ga, and at the trial of this action to establish a claim in this
during
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 grsands of ambiguity. To the extent the
"institutions"
term is understood, Plaintiff's decedent, JOHN DOBBINS, did not receive
"institutions."
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 conf-mement to home; and
b. The date or dates of confinement to bed.
Based upon information presently available, the Plaintiff alleges that as a result of
the negligence of the Defeadants, decedent, JOHN DOBBINS, was generally confined more
so to bed from the date of his admission on or about February 1, 2008, through the time of
his death, on August 16, 2008.
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 a=:rts paid
for medical care and treatment rendered to Plaintiff's decedcat, JOHN DOBBINS, as a
result of the events in the underlying matter. Upon information and belief, the relevant
medical expenses of Plaintiff's decedent, JOHN DOBBINS, were paid by Medicaid
(Medicaid No.: EF57605C), Medicare (Medicare No.: *****5209A), and Univera Health
Care (Policy No.: 100359474-00), which may retain a right of subrogation. 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
compañy involved in each case, and the amount paid in each case by said iñsürance company.
Defendants are referred to response number 13, s_gga.
Further information responsive to this demand is unknown at this time; if any
exists, it will 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.
Defcadants are referred to response number 13, sm.
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Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 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 ete,attorneys for Plaintiff, BRENDA BARNES, Individually and as Administratrix De Bonis Non of the ESTATE OF JOHN ANTHONY DOBBINS, herein serve upon the attorneys for Defendants, LEGACY HEALTH CARE, LLC, W. RICHARD ZACHER, and JOHN DOES 1-200 (hereinafter "Defendants"), submits this verified bill of particulars of the corsplaint: -BROWN CHIARILLP- 1 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - - RECEIVED NYSCEF: 08/30/2021 Page 2 DEMAND NO. 1 The manner 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 rendering care and treatment to the plaintiff's decedent, JOHN ANTHONY DOBBINS (hereinafter "decedent"), so as to avoid injury to decedent. "treatment" Plaintiff objects to this demand to the extent that it references of decedeñt, JOHN ANTHONY DOBBINS, to the extent that it implies that Plaintiff's decedent sought medical treatment from Defendants. Decedent did not seek medicâl treatment from the Defendants. Rather, decedent and all others similarly situated were Defeñdañts' admitted to facility for nursing home/rehabilitative services. As such, the instant litigation has been brought for injuries arising from nursing home and corporate ñêgligence, pursuant to common law and the provisions afforded to the Plaintiffs in conjunction with Public Health Law §2801-d. Subject to, and without waiving Plaintiff's abjectiõn, based upon information presently availabic, Plaintiff will claim that Defendants were negligent, careless and reckless in that they, by and/or through its owners, management, 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 adeqüate 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 deficicacy for quality of care issues, failure to advance and suppert envircamcats that promoted resident -BROWN CHIARI LLP - 2 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - - RECEIVED NYSCEF: 08/30/2021 Page 3 dignity and quality of care, and failure to provide appropriate and adeqüâte resources for facility staff, facility maintenance, facility supplies and staff training: failed to provide proper services to Plaintiffs decedent; failed to provide adeqüã‡e staffing; willfully, wanter!y and/or recldessly disregarded the safety and well-being of decedent by deliberately understaffing the facility; failed to meet basic human needs by deliberately understaffing the facility; deprived Plaintiffs decedent of a dignified existence; failed to provide sufficient care and staffing to provide necessary services; failed to enact proper and adequate staffing precedures that iñcluded an adequate number of qualified personnel; failed to provide adequate services to maintain Plaintiff's decedeñt's mental and psycho-social well- physical, 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 envirañment; failed to protect and promote the rights of Plaintiffs decedent; failed to promote Plaintiffs decedcñt's dignity, auto=o=y, and independence ev......wnsurate with Plaintiff's decedent'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 provide an organized program of care, supervision and services that met applicable standards; failed to comply with state and federal statutes and regulations; accepted and retained admission for nursing home residents, including Plaintiff's decedent, for whom Defeñdañts knew it could not provide adequate care based upon inadeqüã‡e staffing; grossly deviated from established care plan with regard to fall prevention, and/or assistance to or recitering of Plaintiff's decedent; failed to provide adequate safety measures to prevent falls; failed to properly -BROWN CHIARI LLP - 3 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - - RECEIVED NYSCEF: 08/30/2021 Page 4 assess and/or document fall risk; failed to properly monitor, supervise and/or to assist Plaintiff's decedent, most egregisüsly on February 3, 2008, April 30, 2008 and May 1, 2008; failed to ensure that Plaintiff's decedent's environment remained as free from ãccident hazards as possible; failed to provide housekeeping and maintenance services ñecessary to maintain a sanitary, orderly and comfortable interior; failed to provide proper wound care to Plaintiff's decedent's right shculder lesion; failed to provide adequate and appropriate assistance with activities of daily living to the resident, most significantly with respect to Plaintiff's decedêñt's ability to transfer and/or ambulate, which resulted in repeated falls; and failed to provide adequate and appropriate assistance with personal hygiene. Plaintiff will pursuant to Public Health Law that W. RICHARD claim, §2808-a, ZACHER is and/or was a controlliñg 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 provided by agêñts, servants and/or employees of Defcñdant's facility, and engaged in f'mancial decisions that adversely affected resident care. Plaintiff contends that said Defendant 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, promulgated, effectuated and/or followed at subject facility for the prevention -BROWN CHIARI LLP - 4 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - - RECEIVED NYSCEF: 08/30/2021 Page 5 and reporting of accidcñts in accordañce 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 relationships"/communications were established among nursing staff and other departments/services and/or discipliñés, so that resident care needs could be met. Plaintiff contends that Defendant allowed for systemic failures at subject facility, most significantly, with regard to prevention of falls. To particularize further would require evidentiary information and/or would require Plaintiff to render a legal and/or medical :pirier, which is improper for this pleading, as it goes beycad 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 proceedi=gs, 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 objects to this demand to the extent that it infers that Plaintiff's decedcat, sought medical treatment from defendants. Plaintiff's decedcat did not seek medical treatment from Defêñdants. Rather, Plaintiff's decedent, JOHN DOBBINS, was admitted -BROWN CHIARI LLP - 5 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - - RECEIVED NYSCEF: 08/30/2021 Page 6 Defendants' 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 negligcace, and pursüänt to the previsions afforded to the Plaintiff coñcomitant with Public Health Law §2801-d. Subject to, and without waiving this objection, Plaintiff's falls" decedent, JOHN DOBBINS, was a "risk for and sustained an infected right sh::!dêr lesion; sepsis; 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. 2008D. DEMAND NO. 3 The place or places where the services were rendered by defendants. Subject nursing home care and services were rendered at Williamsville Suburban 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 ñêgligêñce of Defendants, and/or itsagents, servants, employees and/or other perseññêl, Plaintiff's decedent, JOHN DOBBINS, sustained serious and permañêñt injuries, includiñg but not limited to: infected right st::!der lesion; sepsis; deprivation of - BROWN CHIARI LLP - 6 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - Page - RECEIVED NYSCEF: 08/30/2021 7 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 unavailable to the Plaintiff. However, the Plaintiff reserves the right to amcñd this response 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. 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 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 it would require evidentiary information and/or would require Plaintiff to rcñdcr a legal and/or expert :;in!:ñ, which is improper for this pleading, 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. 44 - Page 8 - RECEIVED NYSCEF: 08/30/2021 Subject to, and without waiving said objection, based upon information presently available, itwill be claimed that Defendants violated the following statutes, codes and/or regulations: Public Health Law §2801(d), in that the facility denied the resident rights and benefits pursuant to State and Federal regulations and pursuant to the admission contract; failed to promote and/or enhance his quality of life; failed to provide adeqastc staffing and services to maintain resident's physical well-being; Public Health Law §2803-d, in that the residêñt 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 promoted and/or enhanced his 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 §483.21(b)(1), in that the facility failed to develõp and implement a comprehensive person-centered care plan for the resident, incI;din;; measurable õbjectives and timeframes to meet a resident's medical, nursing, and mental and psychesocial needs; 42 CFR §483.24, in that the facility failed to provide the necessary care and services to attain or =aiwain the highest practicable physical, mental, and psychosocial well-being, includiag for activities of daily living; 42 CFR §483.25, in that the facility failed to provide quality of care, consistent with professional standards of practice; 42 CFR §483.25(d), in that the fâcility failed to ensure that the resident environment remains as free of accident hazards as is possible, and that the resident received adequate 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 -BROWN CHIARI LLP - 8 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - - RECEIVED NYSCEF: 08/30/2021 Page 9 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, regdstiens, and codes, and with accepted professional standards and principles that apply to services being provided at the facility; 42 CFR §483.70(e), in that the facility failed to cGnduct and esca:nent a facility-wide assessment to determine what resources were necessary to care for its residents competently 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 gêñêrally 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(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 qualified 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 mental and psycho- physical, -BROWN CHIARI LLP - 9 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - Page 10 - RECEIVED NYSCEF: 08/30/2021 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/incideñts; 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 psychosocial 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 §415.19, in that Defendants' the facility failed to prevent infection and/or failed to maintain an adequate infection control program; 10 NYCRR §415.26(c), in that the Defcadant 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 falls. To particularize further would require evidentiary infor=ation and/or would require the Plaintiff to render a legal and/or medical :;!r!:s, 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 supplement and/or amcad this respence upon completion of discovery and, further, will rely on any and all facts elicited at depositions, -BROWN CHIARI LLP - 10 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - - RECEIVED NYSCEF: 08/30/2021 Page 11 during other discovery pr6ccediags, and at the trial of this action to establish a claim in this regard. pEMAND 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. 44 - - 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 itwould reqüire evidentiary information and/or would require Plaintiff to render a legal and/or expert spiniêñ, 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. P1nintiff nonetheless reserves the right to supplement and/or amend this response upon completion of discovery and, further, will rely on any and all facts clicitêd 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 objects to this query to the extent that itwould require evidentiary information and/or would require Plaintiff to render a legal and/or medical :p!:!: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, see response numbers 1 and 5, sm. Plaintiff nonetheless reserves the right to supplement and/or amend this -BROWN CHIARI LLP - 12 of 21 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 44 - RECEIVED NYSCEF: 08/30/2021 -Page 13 response upon campletion of discõvery 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. 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 Complairit, 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, JOHN DOBBINS, are contained in the clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union Road, Williamoville, New York 14221; Buffalo VA Medical Center, 3495 Bailey Avenue, Buffalo, New York 14215; 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 treatmcñt. Further information responsive to this demand is presently unknown or unav2ild!s 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 clicited at depositions, during other discovery preceedings, 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. 44 - - 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 waiting said objection, Defendants are referred to response r:nis 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 decedent, JOHN DOBBINS, was admitted to the Buffalo VA Medical Center, 3495 Bailey Avenue, Buffalo, New York 14215 and Erie County Medical Center, 462 Grider Street, Buffalo, New York 14215. 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 discovery and, further, will rely on any and all facts clicited at depositions, other discovery preccedir.ga, and at the trial of this action to establish a claim in this during 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. 44 - Page 15 - RECEIVED NYSCEF: 08/30/2021 Objection is made to this demand, upon the grsands of ambiguity. To the extent the "institutions" term is understood, Plaintiff's decedent, JOHN DOBBINS, did not receive "institutions." 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 conf-mement to home; and b. The date or dates of confinement to bed. Based upon information presently available, the Plaintiff alleges that as a result of the negligence of the Defeadants, decedent, JOHN DOBBINS, was generally confined more so to bed from the date of his admission on or about February 1, 2008, through the time of his death, on August 16, 2008. 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. 44 - Page - RECEIVED NYSCEF: 08/30/2021 16 Plaintiff presently has no record or information regarding the total a=:rts paid for medical care and treatment rendered to Plaintiff's decedcat, JOHN DOBBINS, as a result of the events in the underlying matter. Upon information and belief, the relevant medical expenses of Plaintiff's decedent, JOHN DOBBINS, were paid by Medicaid (Medicaid No.: EF57605C), Medicare (Medicare No.: *****5209A), and Univera Health Care (Policy No.: 100359474-00), which may retain a right of subrogation. 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 compañy involved in each case, and the amount paid in each case by said iñsürance company. Defendants are referred to response number 13, s_gga. Further information responsive to this demand is unknown at this time; if any exists, it will 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. Defcadants are referred to response number 13, sm. -BROWN CHIARI LLP - 16 of 21 FILED: ERIE COU