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  • Katharine Noga as Proposed Executrix of the Estate of GEORGE S. NOGA, SR. v. Brothers Of Mercy Nursing & Rehabilitation Center, Brothers Of Mercy Nursing Home Company, Inc. Torts - Other Negligence (Nursing Home) document preview
  • Katharine Noga as Proposed Executrix of the Estate of GEORGE S. NOGA, SR. v. Brothers Of Mercy Nursing & Rehabilitation Center, Brothers Of Mercy Nursing Home Company, Inc. Torts - Other Negligence (Nursing Home) document preview
  • Katharine Noga as Proposed Executrix of the Estate of GEORGE S. NOGA, SR. v. Brothers Of Mercy Nursing & Rehabilitation Center, Brothers Of Mercy Nursing Home Company, Inc. Torts - Other Negligence (Nursing Home) document preview
  • Katharine Noga as Proposed Executrix of the Estate of GEORGE S. NOGA, SR. v. Brothers Of Mercy Nursing & Rehabilitation Center, Brothers Of Mercy Nursing Home Company, Inc. Torts - Other Negligence (Nursing Home) document preview
						
                                

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FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 STATE OF NEW YORK SUPREME COURT COUNTY OF ERIE KATHARINE NOGA as Preliminary Executrix of the Estate of GEORGE NOGA, a/k/a GEORGE S. NOGA, SR., ATTORNEY AFFIRMATION Plaintiff, Index No.: 809353/2018 v. BROTHERS OF MERCY NURSING & REHABILITATION CENTER; BROTHERS OF MERCY NURSING HOME COMPANY, INC. Defendants. JON P. GETZ, ESQ., being duly sworn, deposes and affirms the following to be true under penalties of perjury pursuant to CPLR § 2106: 1. I am an attorney duly admitted to practice before the courts of the State of New York, and a member of the law firm Vahey Getz, LLP, attorneys for defendants Brothers of Mercy Nursing & Rehabilitation Center and Brothers of Mercy Nursing Home Company, Inc., (collectively, “Brothers of Mercy”) in the above-captioned action. As such, I am fully familiar with the facts and circumstances set forth herein. 2. This Affirmation and the Expert Reply Affirmation of Sharon Brangman, M.D. (attached hereto as Exhibit A1 and incorporated herein) are submitted in further support of Brothers of Mercy’s motion for summary judgment to dismiss the complaint with prejudice pursuant to CPLR 3212. 1 Hereinafter, Exhibit A will be referenced as “Brangman Aff.” 1 1 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 3. Initially, it should be noted that Plaintiff’s counsel incorrectly characterizes Cynthia Shafer, R.N. as an expert witness for Brothers of Mercy. Ms. Shafer is an employee of Brothers of Mercy and her affidavit in support of Brothers of Mercy’s motion for summary judgment was provided in her capacity as an employee of the facility, not as an expert witness. STATEMENT OF FACTS 4. Brothers of Mercy reiterates the facts as initially presented in my affirmation dated December 12, 2019. (Dkt. #24). Some clarification is required, however, as to the facts as proffered by Plaintiff. 5. Erica Marshall testified that she brought Mr. Noga to the day room about 12:45 p.m. (Dkt. #32, pp. 46-47). She thereafter came back to the day room to let Mr. Noga when the patio hours began. (Dkt. #32, p. 52). Ms. Marshall also brought Mr. Noga a cup of coffee. (Dkt. #32, p. 52). Although Mr. Noga was alone in the day room, Brothers of Mercy staff checked in on him periodically. A witness statement obtained as part of the Accident/Incident Report sets forth that the witness observed Mr. Noga sitting in his wheelchair in the day room at 2:40 p.m. and at 2:45 p.m. (Dkt. #34, p. BOM000015). 6. Plaintiff’s counsel references the June 14, 2016 nursing notes that state “placement of seat belt pending until xray results and further orders obtained.” (Dkt. #34, p. BOM000525). “Further orders” refers to “MD Orders Update” (Dkt. #34, p. BOM000525) - orders which would be made by Hospice Buffalo physician Dr. Christopher Jacobus (Dkt. #34, p. BOM000525). 7. In the incomplete and uncertified medical records from Millard Fillmore Plaintiff attached to her opposition papers as Exhibit 2 (and incorrectly cited as Exhibit 1), the following is also noted: 2 2 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 a. Mr. Noga was morbidly obese (Dkt. #41, p. 1); b. The palliative care consultation notes state that Mr. Noga signed his own MOLST and wanted comfort care only with no labs or diagnostics performed “not even to be weighed”. Further “[w]e have discussed the patient with Hospice Buffalo and confirmed his admission to their program.” (Dkt. #41, p. 7); c. Mr. Noga indicated on admission to Millard Fillmore that he “does not want any treatment other than pain control.” (Dkt. #41, p. 11); d. When Mr. Noga was pronounced dead at 4:36 p.m. on June 16, 2016 “no family members are present at the bedside” (Dkt. #41, p. 2); ARGUMENT 8. Plaintiff’s counsel repeatedly deflects from presenting opposition to Brothers of Mercy’s motion papers, by claiming that Brothers of Mercy’s motion for summary judgment “is comprised primarily of attempts to point to gaps in Plaintiff’s proof.” See e.g. Attorney’s Affirmation in Opposition of Nicole T.C. Marques, Esq., dated February 12, 2020 (hereinafter “Marques Aff.”), ¶ 41. This ignores the almost one hundred pages - in affirmations and affidavits alone - of detailed facts and arguments Brothers of Mercy presented in support of their motion, going point by point through George Noga’s (“Decedent” or “Noga”) records and refuting Plaintiff’s allegations. I. Because Brothers of Mercy Were Not Negligent in Rendering Care and Treatment to Mr. Noga, Plaintiff’s First Cause of Action Must be Dismissed 9. Brothers of Mercy reiterates the detailed arguments and analysis set forth in the initial moving papers that have established they were not negligent in rendering care and treatment to Mr. Noga. 3 3 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 A. Brothers of Mercy Met Their Prima Facie Burden of Establishing That They Were Not Negligent in Rendering Care and Treatment to Decedent 10. Importantly, according to Dr. Brangman, “when a nursing home patient is cognitively intact, it is the obligation of the nursing home team to respond and listen to the wishes of that patient in directing daily care, including what the patient wants to eat, whether the patient wants to bathe or not, and what time the patient chooses to get up or go to bed.” Brangman Aff., ¶ 7. Mr. Noga was cognitively intact and Brothers of Mercy strove to abide by his rights of self-determination as to how he wanted to live out his last days. Brangman Aff., ¶ 10. 11. The uncontested evidence in Mr. Noga’s medical records demonstrated that he could direct his own care, including his daily care. Plaintiff does not dispute Mr. Noga’s decision-making capabilities. 12. Seatbelts on a wheelchair are still considered a form of restraint and are contrary to policies regarding the use of restraints on residents in nursing homes. According to Dr. Brangman, most nursing homes no longer use seat belts or other restraints. Brothers of Mercy is a “no restraint” facility. Brangman Aff., ¶ 12. 13. As set forth more fully by Dr. Brangman, while claiming that Mr. Noga “could have” been belted into the tilt wheelchair, Dr. Schwartz fails to account for Mr. Noga’s medical condition. Mr. Noga was a double above-the knee amputee who weighed approximately 248 pounds. Brangman Aff., ¶ 14. With Mr. Noga’s double above the knee amputations, he would have a different center of gravity that the average patient with legs in a wheelchair. Putting a seat belt on him could increase his chances of tipping over in the wheelchair if he leaned forward, possibly causing the chair to end up on top of him, causing 4 4 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 additional injuries or more significant injuries than if Mr. Noga were no belted into the wheelchair. Brangman Aff., ¶ 15. 14. Further, Mr. Noga was admitted to Brothers of Mercy with multiple skin issues, and a lap belt would likely have further aggravated these skin conditions. See Brangman Aff., ¶ 16. 15. More importantly, Dr. Schwartz acknowledges that the facility’s investigation following the fall yielded that Mr. Noga told staff he was trying to get up and walk when he fell (Dkt. #40, ¶ 28); yet, Dr. Schwartz offers no opinion as to how a restraint would have stopped this accident from occurring. 16. Plaintiff contends that Brothers of Mercy failed to update the care plan to reassess for fall risk. See Dkt. #40. 17. On this point, Plaintiff states that “Defendants…admit and acknowledge that Cheryl J. Klyczk (occupational therapist) was employed by Brothers of Mercy” (Marques Aff., ¶ 57), and cites to a statement by Teresa Dillsworth in support of that contention. Yet, Plaintiff also asks for this statement (and other statements made by Teresa Dillsworth) “upon information and belief” to be disregarded (Marques Aff., ¶ 88). Plaintiff cannot have it both ways. Plaintiff cannot pick and choose only the portions she views as favorable to her to be considered for probative value. 18. Reassessing Mr. Noga’s fall risk would be fixing a non-problem. Mr. Noga had no incidence of falls after his April 11, 2016 Care Plan update and placement in the tilt-in- space wheelchair. According to Dr. Brangman, it is presumed the falls protocols put in place were adequate and there would be no need to update his care plan. See Brangman Aff., ¶ 17. 5 5 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 19. Confusingly, Plaintiff’s expert states that Mr. Noga’s chart indicates he “was able to make his own health care decisions and participate in activities” in June 2016 (Dkt. #40, ¶ 37), but then he opines that Mr. Noga needed constant supervision. The latter opinion is clearly in contravention to the guiding principles of self-determination and autonomy that govern nursing homes and permeate the Public Health statutes. See e.g. Brangman Aff., ¶¶ 6- 7, 18-20. 20. This is a man who was dying, who was competent to make his own decisions regarding his care. He wanted to enjoy a cup of coffee in the day room. He had an unfortunate accident, but this accident does not equate to negligence. B. Because Brothers of Mercy Met Their Prima Facie Burden of Establishing That They Did Not Depart from Accepted Standards of Care in Providing Treatment to Mr. Noga and Their Actions Were Not a Proximate Cause of Mr. Noga’s Injuries, Plaintiff’s Claim for Professional Negligence Must be Dismissed 21. When a complaint challenges assessing the supervisory and treatment needs of a patient, this conduct is an integral part of rendering medical treatment and thus sounds in medical malpractice. (See Dkt. #37, Memorandum of Law in Support of Defendant’s Motion for Summary Judgment, pp. 10-11). 22. Plaintiff claims Brothers of Mercy failed to provide appropriate nursing home care by “failing to develop an appropriate plan of care.” Marques Aff., ¶ 43. 23. As set forth more fully in Brothers of Mercy’s initial motion papers and as detailed in case law, developing a plan of care is a claim of professional malpractice. (See Dkt. # 16, Point I(B), Dkt. #37, pp. 10-15). 24. Similarly, allegations of improper assessment of a patient’s condition and the degree of supervision required sounds in medical malpractice rather than negligence. See accompanying Memorandum of Law. 6 6 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 25. Here, in opposition to summary judgment, both Plaintiff and her expert repeatedly allege that Brothers of Mercy improperly assessed Mr. Noga’s condition, including the measures that should have been put in place to alleviate fall risk and Plaintiff’s expert opines that Mr. Noga should have had constant supervision. These are clearly allegations of medical malpractice. 26. Plaintiff further fails to refute any of the arguments or present case law to counter Brothers of Mercy’s detailed arguments dividing Plaintiff’s claims between those alleging negligence and those alleging professional malpractice, except to say that because she says the claims are not malpractice, then they are not malpractice. 27. As set forth above, Ms. Shafer is not an expert for Brothers of Mercy. Thus, Plaintiff’s argument that “the conflict [sic] opinions…of Defendants’ experts” precludes summary judgment is without merit. Marques Aff., ¶ 49. 28. Plaintiff’s expert opines that the fracture “placed insurmountable stress on Mr. Noga’s body system…that directly contributed to his death.” (Dkt. #40, ¶ 37). Plaintiff’s expert makes this conclusory opinion while ignoring that Mr. Noga was on hospice for multi- organ failure at the time of the fall and was no longer on dialysis for his failing kidneys. According to his death certificate, Mr. Noga died as a result of cardiopulmonary arrest due to coronary artery disease and/or end stage renal failure. (Dkt. #33). The fall or alleged resultant injuries are not listed as a cause or contributing factor of his death. 29. Moreover, any changes in physician orders (i.e. medication, treatments) for Mr. Noga, Brothers of Mercy was instructed to contact Hospice Buffalo (see Dkt. #34, p. BOM000021). Dr. Christopher Jacobus was the physician who signed off on the care plan, medical orders and who made physician visits to Mr. Noga (see Dkt. #34). 7 7 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 30. Without conceding the validity of Plaintiff’s claims, the record shows that any changes to Mr. Noga’s care plan were referred to Dr. Jacobus of Hospice Buffalo. (Dkt. #34, p. BOM000525). The uncertified records Plaintiff submitted from Millard Filmore confirm that Mr. Noga was part of the Hospice Buffalo hospice program. (Dkt. #41, p. 7). 31. As set forth in Brothers of Mercy’s initial motion papers, to the extent any of Plaintiff’s allegations of malpractice pertain to conduct or alleged conduct on the part of individuals not employed by Brothers of Mercy, Brothers of Mercy cannot be held liable for these allegations and such claims should be dismissed as to Brothers of Mercy. 32. Based on the previously submitted motion papers as well as the accompanying affirmation of Dr. Brangman, Brothers of Mercy was not negligent in their care of Mr. Noga. II. Because Plaintiff Fails to Meet All the Elements Required for a Wrongful Death Claim, the Second Cause of Action Must be Dismissed 33. Brothers of Mercy are entitled to summary judgment dismissing Plaintiff’s second cause of action because they have established Decedent’s death was not caused by any alleged negligence on the part of Brothers of Mercy. 34. Brothers of Mercy have established prima facie entitlement to summary judgment on Plaintiff’s wrongful death claim through the expert medical affirmations of Sharon Brangman, M.D., who opines that Decedent died of natural causes due to his significant medical history of coronary artery disease and end stage renal failure, and not as a result of any alleged negligence on the part of Brothers of Mercy (see Brangman Aff.; Dkt. #25). 35. Mr. Noga’s death certificate also indicates he died of cardiopulmonary arrest due to coronary artery disease and/or end stage renal failure. (Dkt. #33). The fall or alleged resultant injuries are not listed as a cause. 8 8 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 36. Plaintiff also contends that Brothers of Mercy “mischaracterizes” her allegations as to the wrongful death claim. However, Plaintiff specifically indicates that she is not making a claim for pecuniary loss in her Bill of Particulars (Dkt. #29, pp. 17-18). 37. Particularly, in response to question 21, which asks in part “[t]he manner and respect in which it will be claimed that that person incurred a loss of inheritance or pecuniary loss,” Plaintiff states “(a.-b.) Not applicable. Loss of inheritance or pecuniary loss is not claimed with regard to the instant action.” (Dkt. #29, pp. 17-18). 38. It is unclear how Plaintiff’s own statement is a “mischaracterization” of her claims or how it is an attempt to “improperly shift the burden of proof to Plaintiff” (as it is Plaintiff’s burden to prove her claims). See Marques Aff., ¶ 65. 39. Further, although Plaintiff contends she alleges pecuniary loss in the form of loss of moral support and guidance, she failed to submit any affidavits to provide any facts to support this allegation. This failure is fatal to the claim for wrongful death. 40. Based on the aforementioned reasons, and those set out in the initial motion papers, Brothers of Mercy are entitled to summary judgment dismissing Plaintiff’s cause of action for wrongful death. III. Because Brothers of Mercy Have Not Violated Public Health Law, Plaintiff’s Third Cause of Action Must be Dismissed 41. Brothers of Mercy are entitled to summary judgment dismissing Plaintiff’s third cause of action based upon violations of Public Health Law §§ 2801-d and 2803-c. Brothers of Mercy have established, through the certified medical records, expert affirmations of Sharon Brangman, M.D. and affidavits of Cynthia Shafer, R.N. and Brothers of Mercy Administrator Teresa Dillsworth, they did not violate the various state regulations asserted in 9 9 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 Plaintiff’s Bill of Particulars as the basis for this cause of action and, none of the alleged injuries were proximately caused by these alleged violations. 42. Where there is a claim for violating Public Health Law, summary judgment in favor of a nursing home is appropriate where the evidence establishes that the decedent’s injuries did not arise through any action or negligence of its employees and/or that none of the alleged injuries were proximately caused by a violation of the statutes upon which the claims are predicated. 43. In the Verified Bill of Particulars, Plaintiff alleges that Brothers of Mercy violated a myriad of statutes. However, Plaintiff has failed to put forth proof to substantiate these allegations. That is because there is none. 44. Significantly, at her deposition, Plaintiff testified that aside from her belief that there should have been a belt for Mr. Noga’s wheelchair, there were no other services Brothers of Mercy failed to provide and that she did not believe there was an unsafe environment for Mr. Noga at Brothers of Mercy. (Dkt. #30, pp. 35 – 36). 45. In their initial moving papers, Brothers of Mercy went through each of the allegations in Plaintiff’s Bill of Particulars to show how the statutes were not violated. (Dkt. #24, ¶¶ 130-174). Tellingly, Plaintiff fails to refute these arguments in her response papers. 46. Consequently, any of those claimed statutory violations Plaintiff fails to address in opposition to the motion should be dismissed on summary judgment. 47. Moreover, Plaintiff’s new claims that Brothers of Mercy failed to assist Decedent with bathing run contrary to her deposition testimony wherein she testified that aside from her belief that there should have been a belt for Mr. Noga’s wheelchair, there were 10 10 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 no other services Brothers of Mercy failed to provide and that she did not believe there was an unsafe environment for Mr. Noga at Brothers of Mercy. (Dkt. #30, pp. 35 – 36). 48. These allegations are also without merit based on Mr. Noga’s medical record. Although the record reflects that Noga did not have a daily shower, his preference was a shower only once per week (Dkt. #34, p. BOM000559). 49. Dr. Schwartz contends that Mr. Noga was deprived of “ bath of any sort” while he resided at Brothers of Mercy (Dkt. #40, ¶ 56), but the records are replete with entries showing Mr. Noga was regularly checked for moisture and cleansed frequently (see e.g. Dkt. #34, pp. BOM000086, BOM000090, BOM000100, BOM000104, BOM000398-399). 50. Plaintiff also ignores that Mr. Noga was still able to make his own decisions to direct his care. The text of 10 NYCRR 415.12 specifically notes that all care provided shall be subject to the resident's right of self-determination. If Mr. Noga chose not to go for a shower or bath, then Brothers of Mercy could not force him to do so. 51. Lastly, without conceding the validity of Plaintiff’s claims as to alleged failures to assist Mr. Noga with bathing, for statutory liability to attach, there must be injuries associated with that alleged failure. Plaintiff fails to show any injury as a result of this allegation, and cannot, because there was no injury and was no failure. IV. Because There is No Independent Cause of Action for “Deprivation of Dignity,” Plaintiff’s Fourth Cause of Action Must be Dismissed 52. Plaintiff asserts causes of action for ordinary negligence and violations of Public Health Law §§ 2801-d and 2803-c (see,Dkt. #27, ¶¶ 12-17, 22-25). Thus, the fourth cause of action can only be characterized as a claim for “deprivation of dignity” (see Dkt. #27, ¶¶ 26- 29). 11 11 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 53. Plaintiff fails to refute any of Brothers of Mercy’s arguments that “deprivation of dignity” is not a recognized cause of action under the common law, and, to the extent it is a recognized statutory action, it is duplicative of Plaintiff’s cause of action alleging violations of Public Health Law §§ 2801-d and 2803-c. 54. Thus, this Court must dismiss Plaintiff’s fourth cause of action as a matter of law because it cannot stand as a separate cause of action. V. Where Plaintiff’s Allegations in Her Bill of Particulars Exceed the Scope of Her Complaint, Those Allegations Must be Dismissed A. Allegations of gross negligence exceed the scope the complaint and must be dismissed 55. As set forth above, Plaintiff alleged four causes of action: (1) ordinary negligence; (2) wrongful death; 3) violations of Public Health Law §§ 2801-d and 2803-c and (4) “deprivation of dignity” (see Dkt. #27) – not gross negligence. 56. Plaintiff claims that she was “not setting forth another cause of action…but rather setting forth contentions supporting Plaintiff’s claim for punitive damages, available under the Public Health Law.” Marques Aff., ¶ 78. 57. However, the allegations Brothers of Mercy references are not those made in response to the question regarding punitive damages in the Bill of Particulars. 58. As discussed in Brothers of Mercy’s initial motion papers, in response to Brothers of Mercy’s demand for further particularization of “the manner and respect in which it is claimed the defendants were negligent,” [question #1](emphasis added) Plaintiff stated, among other things, that Defendants “willfully and wantonly disregarded the safety and well- being of the decedent” and “engaged in gross deviation from and/or willful and wanton disregard of decedent's care plan.” (Dkt. #29, pp. 2-3). 12 12 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 59. It is well settled that a bill of particulars cannot allege a theory or claim not originally asserted in the complaint. 60. Gross negligence is a separate and distinct cause of action from ordinary negligence. 61. Not only is Plaintiff’s Complaint lacking a separate cause of action alleging gross negligence (see Dkt. #27), but it is devoid of any facts to support a claim that Brothers of Mercy’s conduct evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing – especially since it was not even negligent. Consequently, the allegations of gross negligence asserted in Plaintiff’s Bill of Particulars must be dismissed. B. Likewise, allegations as to violation of any federal statutes must be dismissed because plaintiff never specifies which statutes were allegedly violated 62. Plaintiff claims that her failure to allege violations of a specific federal code is not fatal to her claim because “it is well known that Article 28 of the New York Public Health Law and Part 415 of Title 10 of the New York Codes…largely mirror federal equivalents, including the regulations found in part 481 of Title 42 of the Code of Federal Regulations.” Marques Aff., ¶ 84. 63. It should be noted that a search for 42 CFR 481 shows that part 481 is “reserved” (i.e. contains no regulations). 64. Further, it is somewhat disingenuous for Plaintiff to claim because she already enumerated multiple state regulations claimed to be violated, she does not have to enumerate any specific federal regulations because it “would serve only to amplify and elaborate upon facts and theories already set forth in this matter.” Marques Aff., ¶ 85. The whole point of a bill of particulars to is amplify and elaborate on the claims so the opposing party can prepare to defend against those claims. 13 13 of 14 FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020 65. Based on the above, the vague allegations as to violation of "federal statutes" must be dismissed. VI. Plaintiff's Arguments as to proof submitted "upon information and belief'' is inaccurate 66. As set forth above, Cynthia Shafer is an employee of Brothers of Mercy and her affidavit in support of Brothers of Mercy's motion for summary judgment was provided in her capacity as an employee, not as an expert witness . 67. Further, none of the three statements Plaintiff quotes from Cynthia Shafer are referenced in the initial attorney affirmation as specific proof Brothers of Mercy are entitled to summary judgment, so they cannot be said to be "relied upon." 68. Without conceding the validity of Plaintiff's argument that any statements made "upon information and belief' should be disregarded, it should be noted that Plaintiff asks for any statements made by Teresa Dillsworth "upon information and belief' to be disregarded. However, Plaintiff also states that "Defendants ... admit and acknowledge that Cheryl J. Klyczk (occupational therapist) was employed by Brothers of Mercy" (Marques Aff., ~ 57), and cites to one of the very statements by Dillsworth that Plaintiff argues should not be considered. Plaintiff cannot have it both ways and pick and choose only the portions she views as favorable to her to be considered for probative value. 69. Wherefore, Brothers of Mercy respectfully requests an Order from this Court dismissing Plaintiff's complaint in its entirety, together with costs and disbursements of this motion, and for such other and further relief as this Court deems just and proper. February 19, 2020 14 14 of 14