Preview
FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/18/2021
STATE OF NEW YORK
SUPREME COURT :: COUNTY OF ERIE
____________________________________________
ROBERT P. CLARK, as Administrator
of the Estate of SHARON M. CLARK,
Plaintiff,
vs. Index No.: 804695/2021
AUTUMN VIEW HEALTH CARE FACILITY,
AUTUMN VIEW HEALTH CARE FACILITY, LLC,
THE MCGUIRE GROUP, INC.,
VESTRA SPV1, LLC,
VESTRA SPV2, LLC,
BUFFALO GENERAL MEDICAL CENTER,
KALEIDA HEALTH,
Defendants.
____________________________________________
DEMAND FOR STATEMENTS, MEDICAL AUTHORIZATIONS,
MEDICAL REPORTS, WITNESSES & PHOTOGRAPHS, COLLATERAL
SOURCE INFORMATION PURSUANT TO CPLR 4545, EXPERT
WITNESS INFORMATION PURSUANT TO CPLR 3101(d),
AUTHORIZATION TO OBTAIN EMPLOYMENT AND/OR
SCHOOL RECORDS, AND FOR INSURANCE INFORMATION
PLEASE TAKE NOTICE that pursuant to Article 31 of the Civil Practice Law
and Rules, the undersigned attorneys for defendant, AUTUMN VIEW HEALTH CARE
FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC.,
VESTRA SPV1, LLC and VESTRA SPV2, LLC, hereby demand that you furnish us
within TWENTY (20) days of the service of this Notice the following:
1. Copies of all statements, whether oral, written, signed or unsigned, of or
the agents, servants, or employees of said defendants;
2. Duly-executed and acknowledged authorizations, permitting these
defendants to obtain and copy all hospital records, x-ray reports and all physicians’
records, as well as authority to speak with all treating providers, pursuant to the Court of
Appeals’ case Arons v. Jutkowitz, 9 NY3d 393 (2007).
3. All existing (and future) reports of all physicians who have treated or
examined the plaintiff’s decedent in connection with injuries and conditions for which
recovery is sought. [See Hoenig v Westphal, 52 NY2d 605 (1981)];
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4. Names and addresses of each and every witness:
a. To the incident which is the subject of the above-entitled action;
b. To any allegedly defective condition;
c. To any notice to said defendants;
d. To any admission(s) by said defendants;
e. To any other element reflecting on liability; and
f. To any damages sustained by the plaintiff.
[See Hughes v Elias, 120 AD2d 703 (2d Dept. 1986); O’Connor v Larson,
74 AD2d 734 (4th Dept. 1980); and Wolf v Davis, 108 Misc.2d 19 (Sup. Ct. 1981)].
5. Any and all photographs, slides, films or videotapes of the scene of the
incident which is the subject of this litigation, all instrumentalities involved, and any
damages or injuries sustained.
6. Pursuant to CPLR §4545, all documents or other information in your
possession or in the possession of your clients concerning the costs of medical care,
custodial care, or rehabilitation services, loss of earnings or other economic loss which
was replaced or indemnified, in whole or in part, from any collateral source such as
insurance, Social Security (except those benefits provided under Title XVIII of the Social
Security Act), workers’ compensation or employee benefit programs, except such
collateral sources entitled by law to liens against recovery of the plaintiff.
7. Pursuant to Section 3101(d) of the Civil Practice Law and Rules:
a. A description, in reasonable detail, of each and every person whom
the plaintiff expects to call as experts at the time of trial of this
action.
b. The particular field of expertise with respect to which the plaintiff
intends to offer each individual as an expert;
c. A description, in reasonable detail, of the subject matter on which
each expert is expected to testify;
d. A summary of the grounds for each expert’s opinion;
e. The qualifications of each expert witness, including the place of
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/18/2021
education, extent of education, special areas of practice, years of
practice and areas of Board Certification, if any. [Hamilton v
Wein, 132 Misc.2d 1023 (Sup. Ct. 1986)]; and
f. That in the event that plaintiff retains an expert or experts after
responding to the above demands, same shall be considered as
continuing demands and shall be responded to as soon as plaintiff
decides upon any of said individuals.
8. Pursuant to the applicable sections of the Civil Practice Law and Rules and
Johnson v National Railroad Passenger Corporation, 83 AD2d 916 (1st Dept. 1981), a
duly executed authorization permitting said defendants to obtain copies of employment
and/or school records of plaintiff.
9. Pursuant to CPLR §3101(f), any and all insurance agreements, which may
provide primary or excess coverage or a defense for any of the causes of action, alleged in
this case.
10. Any and all notes, diaries, logs, photographs, journals, letters, electronic
mail, text messages, calendars, Facebook postings, tweets, or other social media messages
that relate or refer to the alleged negligence or damages in this lawsuit.
11. Any notes taken by any of the plaintiffs or regarding the care and treatment
by any of the defendants.
12. Any medical records, record summaries, correspondence, or any other
materials, in electronic or paper format, received from the named defendants prior to the
initiation of the instant suit or relative to the care and treatment at issue.
13. Any audio or video recordings of any defendants or their agents, employees
and/or representatives.
14. Any and all testimony, or sworn statements, of plaintiff or decedent relative
to the incident or injuries alleged herein.
15. All reports prepared by any person, including by not limited to agents,
employees or representatives of a party, concerning the accident which is the subject of
this litigation (e.g. MV-104, report to law enforcement agency, Worker’s Compensation
forms, C-2 and C-3, any internal report to any employer concerning the accident, any
report prepared by an employer as part of the regular internal operations of that
enterprise).
16. All correspondence and records received by the plaintiff and/or his counsel
from the defendants prior to the initiation of the suit.
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/18/2021
17. Any and all communications or correspondence with Autumn View Health
Care Facility and/or Autumn View Health Care Facility, LLC, whether in physical or
electronic means, complete with any attachments and/or exhibits.
18. Any and all information contained in plaintiff’s decedent’s physicians’
electronic patient portals.
19. Any documentation from the New York State Department of Health,
including, but not limited to, health reports and deficiencies.
If you do not have one or more of the above-requested items, a letter or affidavit to
that effect should be submitted.
IF YOU FAIL TO COMPLY, we shall rely on all sanctions provided by law.
DATED: Buffalo, New York
May 17, 2021 BARGNESI BRITT PLLC
By:___________________________
Julie M. Bargnesi, Esq.
Attorneys for Defendants
Autumn View Health Care Facility,
Autumn View Health Care Facility, LLC,
The McGuire Group, Inc.,
VESTRA SPV1, LLC and
VESTRA SPV2, LLC
Main Place Tower
350 Main Street, Suite 1105
Buffalo, New York 14220
(716) 343-7830
TO: JOHN J. FROMEN, ATTORNEYS AT LAW, P.C.
Michael A. Iacono, Esq.
Attorneys for Plaintiff
4367 Harlem Road
Snyder, New York 14226
(716) 855-1222
v.1
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Preview
FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/18/2021 STATE OF NEW YORK SUPREME COURT :: COUNTY OF ERIE ____________________________________________ ROBERT P. CLARK, as Administrator of the Estate of SHARON M. CLARK, Plaintiff, vs. Index No.: 804695/2021 AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW HEALTH CARE FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC, VESTRA SPV2, LLC, BUFFALO GENERAL MEDICAL CENTER, KALEIDA HEALTH, Defendants. ____________________________________________ DEMAND FOR STATEMENTS, MEDICAL AUTHORIZATIONS, MEDICAL REPORTS, WITNESSES & PHOTOGRAPHS, COLLATERAL SOURCE INFORMATION PURSUANT TO CPLR 4545, EXPERT WITNESS INFORMATION PURSUANT TO CPLR 3101(d), AUTHORIZATION TO OBTAIN EMPLOYMENT AND/OR SCHOOL RECORDS, AND FOR INSURANCE INFORMATION PLEASE TAKE NOTICE that pursuant to Article 31 of the Civil Practice Law and Rules, the undersigned attorneys for defendant, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, hereby demand that you furnish us within TWENTY (20) days of the service of this Notice the following: 1. Copies of all statements, whether oral, written, signed or unsigned, of or the agents, servants, or employees of said defendants; 2. Duly-executed and acknowledged authorizations, permitting these defendants to obtain and copy all hospital records, x-ray reports and all physicians’ records, as well as authority to speak with all treating providers, pursuant to the Court of Appeals’ case Arons v. Jutkowitz, 9 NY3d 393 (2007). 3. All existing (and future) reports of all physicians who have treated or examined the plaintiff’s decedent in connection with injuries and conditions for which recovery is sought. [See Hoenig v Westphal, 52 NY2d 605 (1981)]; 1 1 of 4 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/18/2021 4. Names and addresses of each and every witness: a. To the incident which is the subject of the above-entitled action; b. To any allegedly defective condition; c. To any notice to said defendants; d. To any admission(s) by said defendants; e. To any other element reflecting on liability; and f. To any damages sustained by the plaintiff. [See Hughes v Elias, 120 AD2d 703 (2d Dept. 1986); O’Connor v Larson, 74 AD2d 734 (4th Dept. 1980); and Wolf v Davis, 108 Misc.2d 19 (Sup. Ct. 1981)]. 5. Any and all photographs, slides, films or videotapes of the scene of the incident which is the subject of this litigation, all instrumentalities involved, and any damages or injuries sustained. 6. Pursuant to CPLR §4545, all documents or other information in your possession or in the possession of your clients concerning the costs of medical care, custodial care, or rehabilitation services, loss of earnings or other economic loss which was replaced or indemnified, in whole or in part, from any collateral source such as insurance, Social Security (except those benefits provided under Title XVIII of the Social Security Act), workers’ compensation or employee benefit programs, except such collateral sources entitled by law to liens against recovery of the plaintiff. 7. Pursuant to Section 3101(d) of the Civil Practice Law and Rules: a. A description, in reasonable detail, of each and every person whom the plaintiff expects to call as experts at the time of trial of this action. b. The particular field of expertise with respect to which the plaintiff intends to offer each individual as an expert; c. A description, in reasonable detail, of the subject matter on which each expert is expected to testify; d. A summary of the grounds for each expert’s opinion; e. The qualifications of each expert witness, including the place of 2 2 of 4 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/18/2021 education, extent of education, special areas of practice, years of practice and areas of Board Certification, if any. [Hamilton v Wein, 132 Misc.2d 1023 (Sup. Ct. 1986)]; and f. That in the event that plaintiff retains an expert or experts after responding to the above demands, same shall be considered as continuing demands and shall be responded to as soon as plaintiff decides upon any of said individuals. 8. Pursuant to the applicable sections of the Civil Practice Law and Rules and Johnson v National Railroad Passenger Corporation, 83 AD2d 916 (1st Dept. 1981), a duly executed authorization permitting said defendants to obtain copies of employment and/or school records of plaintiff. 9. Pursuant to CPLR §3101(f), any and all insurance agreements, which may provide primary or excess coverage or a defense for any of the causes of action, alleged in this case. 10. Any and all notes, diaries, logs, photographs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to the alleged negligence or damages in this lawsuit. 11. Any notes taken by any of the plaintiffs or regarding the care and treatment by any of the defendants. 12. Any medical records, record summaries, correspondence, or any other materials, in electronic or paper format, received from the named defendants prior to the initiation of the instant suit or relative to the care and treatment at issue. 13. Any audio or video recordings of any defendants or their agents, employees and/or representatives. 14. Any and all testimony, or sworn statements, of plaintiff or decedent relative to the incident or injuries alleged herein. 15. All reports prepared by any person, including by not limited to agents, employees or representatives of a party, concerning the accident which is the subject of this litigation (e.g. MV-104, report to law enforcement agency, Worker’s Compensation forms, C-2 and C-3, any internal report to any employer concerning the accident, any report prepared by an employer as part of the regular internal operations of that enterprise). 16. All correspondence and records received by the plaintiff and/or his counsel from the defendants prior to the initiation of the suit. 3 3 of 4 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/18/2021 17. Any and all communications or correspondence with Autumn View Health Care Facility and/or Autumn View Health Care Facility, LLC, whether in physical or electronic means, complete with any attachments and/or exhibits. 18. Any and all information contained in plaintiff’s decedent’s physicians’ electronic patient portals. 19. Any documentation from the New York State Department of Health, including, but not limited to, health reports and deficiencies. If you do not have one or more of the above-requested items, a letter or affidavit to that effect should be submitted. IF YOU FAIL TO COMPLY, we shall rely on all sanctions provided by law. DATED: Buffalo, New York May 17, 2021 BARGNESI BRITT PLLC By:___________________________ Julie M. Bargnesi, Esq. Attorneys for Defendants Autumn View Health Care Facility, Autumn View Health Care Facility, LLC, The McGuire Group, Inc., VESTRA SPV1, LLC and VESTRA SPV2, LLC Main Place Tower 350 Main Street, Suite 1105 Buffalo, New York 14220 (716) 343-7830 TO: JOHN J. FROMEN, ATTORNEYS AT LAW, P.C. Michael A. Iacono, Esq. Attorneys for Plaintiff 4367 Harlem Road Snyder, New York 14226 (716) 855-1222 v.1 4 4 of 4