Preview
FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019
STATE OF NEW YORK
SUPREME COURT :: COUNTY OF ERIE
LYNN A. FERRAINA, Individually and as the Executrix
of the Estate of JAMES C. MIGLIORE, SR., a/k/a
JAMES C. MIGLIORE,
ATTORNEY AFFIRMATION
Plaintiff,
vs. Index No.: 808470/2018
HARRIS HILL NURSING FACILITY
HARRIS HILL NURS1NG FACILITY, LLC
THE MCGUIRE GROUP, INC.
FRANK MCGUIRE
F. JAMES MCGUIRE,
Defendants.
JASON T. BRITT, ESQ., an attorney licensed to practice law in the State of New York
affirms the following under penalties of perjury:
1. I am an attorney at law duly liccüsed to practice in the State of New York and am
a partner with the law firm of Bargnesi Britt, PLLC, counsel for the defendants, Harris Hill
Nursing Facility, Harris Hill Nursing Facility, LLC, The McGuire Group, Inc., Frank McGuire,
"defendants"
and F. James McGuire (hereinafter or "Harris Hill"). As such, I am fully familiar
with the facts and circumstances stated herein.
2. This affidavit is submitted in support of the motion made by Harris Hill seeking to
compel a further response to Harris Hill's demand for a verified bill of particulars. This motion
is made pursuant to CPLR §§ 3042, 3043, 3124, and 3125.
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Procedural History
3. This action was commenced by the filing of a Summons & Complaint in the Erie
County Clerk's Office on May 31, 2018, a copy of which is attached hereto as Exhibit A.
4. The Answer was served on behalf of defendants on or about July 18, 2018. A copy
is attached hereto as Exhibit B.
5. In addition, on July 18, 2018, defendants served on plaintiff a demand for a verified
defendants'
bill of particulars. A copy of demands is attached hereto as Exhibit C.
6. Defendants received no response to their discovery demands despite good faith
efforts. As such, the defendants filed a motion to compel discovery. A copy of the filed notice
of motion is attached hereto as Exhibit D for reference. The plaintiff subsequently provided
responses to the defendants and the motion to compel was withdrawn as moot.
7. A copy of the verified bill of particulars provided by the plaintiff in response to the
defendant's demand for a bill of particulars is attached hereto as Exhibit E.
8. Following receipt of that bill of particulars, defendants identified deficiencies in the
plaintiff's bill of particulars and sought further amplification of those areas deemed deficient.
A copy of the correspondence requesting amplification is attached hereto as Exhibit F.
defendañts'
9. The primary objection to the plaintiff's billof particulars was that the
bill failed to provide any dates or descriptions of injuries resulting from most of the plaintiff's
generalized alleged regulatory violations alleged to have occurred during his three-year
admission to Harris Hill.
10. These regulatory violations included, for example, claims involving alleged
existence" needs."
deprivations of a "dignified and of "basic human Given the broad language
and the fact that the decedent was a resident at Harris Hill for three years, some
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particularization is necessary to guide the discovery process and limit the potential for surprise
at trial.
11. These concerns were raised at a recent pretrial conference and the parties were
directed to file this motion in the event the matter could not be resolved. Defendants have not
received a response to the correspondence attached as Exhibit F or an amplified bill of
particulars.
Argument
12. The plaintiff's complaint alleges four causes of action. They are characterized as a
negligence claim, a wrongful death claim, a Public Health Law claim under Public Health Law
§ 2801-d, and an amorphous (and likely improper) claim for deprivation of dignity. See
Exhibit A.
13. Plaintiff's bill of particulars is deficient because itfails to adequately particularize
the dates and acts giving rise to plaintiff's claimed regulatory violations under the third and
fourth causes of action in his complaint.
A. The Claims Particularized By Plaintiff Relate Solely to The Alleged Mis-.anagonsent
of an Incarcerated Hernia Between October 3, 2016 and November 6, 2016.
14. The decedent was a resident at Harris Hill for a period beginning on July 23, 2013
and continuing until November 8, 2016.
15. The plaintiff's bill of particulars identifies the focus of the case to be an allegation
that Harris Hill failed to properly manage the decedent's incarcerated hernia and bowel
obstruction allegedly occurring between October 30, 2016 and November 6, 2016. See Exhibit
E, page 7, ¶ 3.
16. The injuries plaintiff identified in his bill of particulars also appear to relate solely
to the claimed mismanagement of the incarcerated hernia. These enumerated injuries include
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inguinal hernia, inguinal hernia protrusion, emesis, incarcerated hernia, small bowel
obstruction, sepsis, and death. See Exhibit E, page 7-8, ¶ 6.
17. A plain reading of the plaintiff's billof particulars demonstrates the focus of this
case is the alleged mismanagement of the incarcerated hernia and the injuries resulting
therefrom.
18. Assuming for purposes of this motion that the bill of particulars adequately
particularizes the plaintiff's negligence and wrongful death claims, it comparatively does
almost nothing to amplify the third and fourth causes of action, as set forth below.
B. The Plaintiff's Bill of Particulars Fails to Provide Meaningful Particularinfian
Any
of Its Third and Fourth Causes of Action.
19. The plaintiff's third cause of action arises under Public Health Law § 2801-d. It
Decedent..."
alleges the defendants acted in "reckless disregard of the lawful rights of the See
Exhibit A, ¶¶ 28-32. The plaintiff's fourth cause of action similarly alleges a cause of action
exists for deprivation of the decedent's dignity. See Exhibit A, ¶¶ 33-36.
20. In the most general sense, Public Health Law § 2801-d created a vehicle for a
resident of a residential health care facility to gain recoñrpense for violations of rights or
benefits created for the well-being of a patient through various State and Federal codes and
regulations. See Public Health Law § 2801-d (1).
21. These violations must result in a discernable injury. See Public Health Law 2801-
§
d (1) ("[a]ny residential health care facility that deprives any patient of said facility of any right
or benefit ... shall be liable to patient for injuries suffered as a result of said deprivation...)
(emphasis added); Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1001 (2d
Dep't. 2016) (2801-d liability coñtemplates "injury to the patient caused by the deprivation of
a right conferred by contract, statute, regulation, code or rule").
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22. As it currently stands, the plaintiff's bill of particulars provides almost no
amplification of how or when the decedent's rights were violated; how or when the decedent's
dignity was deprived; or what injury resulted therefrom.
23. - The bill of particulars rattles off various general State and
simply exceedingly
Federal regulations and then claims that the defendants violated these rules when it failed to
implement a proper care plan, deviated from the resident's care plan, failed to treatthe resident
with dignity, failed to enhance the resident's quality of life,failed to supervise the resident's
care,"
needs, failed to follow "generally accepted standards of failed to provide "the highest
practicable physical, mental and psycho-social
well-being,"
and so on and so forth. h Exhibit
E atpage 8-11 ¶ 7.
24. None of these allegations have any meaning when they are not tied to an action, a
date of deviation, and/or a resulting injury. They are meaningless without further clarification.
25. The subparagraphs of paragraph 7 of Harris Hill's demand seek this clarification.
Neither of these demands are responded to except to refer the defendant back to other responses
within the bill of particulars where the injuries related to the alleged incarcerated hernia are
set forth.
26. This cross-reference may have been adequate ifitwas clear that plaintiff meant to
defendants'
limit its claims to those injuries. However, paragraph 8 of the demand for a bill
of particulars seeks the dates upon which the regulatory/statutory violations occurred. In
response to that demand, the plaintiff references a different paragraph of its response wherein
italleges Harris Hill was "negligent throughout the duration of the subject residency with
regard to resident rights, quality of care, and care planning for the
resident."
h Exhibit E,
page 7, ¶ 3.
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27. If the plaintiff intends to limit its third and fourth causes of action to the period of
October 2016 - November it should be required to state that fact. If the plaintiff
3, 6, 2016,
intends to claim that the basis of its third and fourth causes of action arise from different
circumstances, then the CPLR plainly requires that the date, a description of the negligent act,
and the resulting injury be identified.
C. Plaintiff's Bill of Particulars Fails to Particularize His Claims As Required by CPLR
§§ 3042 and 3043.
28. CPLR §§ 3042 and 3043 govern billsof particular in personal injury actions. CPLR
§ 3042(c) states that "if a party fails to respond to a demand in a timely fashion or fails to
comply fully with a demand, the party seeking the bill of particulars may move to compel
penalties..."
compliance, or, ifsuch failure is willful, for the imposition of
29. In a personal injury action, CPLR § 3043 requires particularization of the date and
approximate time of day of the occurrence, a general statement of the acts constituting
negligence, and a statement of the injuries allegedly resulting from the injuries. S_ee CPLR §
3043 (a).
30. "The purpose of a bill of particulars is to amplify the pleadings, limit the proof and
trial."
prevent surprise at Neissel v. Rensselear Polytechnical Institute, 30 A.D.3d 881 (3d
Dep't. 2006). A bill of particulars is insufficient where itprovides only "extremely broad
malpractice."
statements encompassing virtually any type of Heyward v. Ellenville
Community Hosp., 215 A.D.2d 967, 968 (3d Dep't. 1995).
31. As currently formulated, the plaintiff's bill of particulars is exceedingly broad and
provides no particularization regarding when or how the alleged statutory/regulatory violations
occurred or what injuries may have resulted therefrom. The bill also makes no distinction
between the various defendants or their actions. Both are required.
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32. This is particularly relevant in this type of action because plaintiff will likely
attempt to pursue punitive damages under the Public Health Law, in part, for these alleged
statutory/regulatory violations. In light of the fact that plaintiff's caniplaint alleges the
violations giving rise to its Public Health Law § 2801-d claims include willful and reckless
conduct, one would assume this conduct would be identifiable for inch winn in a
readily
response to a bill of particulars.
WHEREFORE defendants, Harris Hill Nursing Facility, Harris Hill Nursing Facility, LLC,
The McGuire Group, Inc., Frank McGuire, and F. James McGuire, request that this Court issue an
defeñdañts'
Order compelling a further response to the demands for a bill of particulars along with
such other and further relief the Court deems appropriate.
Dated: Buffalo, NY
May 7, 2019
J ifÚ. Britt sq.
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Preview
FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019 STATE OF NEW YORK SUPREME COURT :: COUNTY OF ERIE LYNN A. FERRAINA, Individually and as the Executrix of the Estate of JAMES C. MIGLIORE, SR., a/k/a JAMES C. MIGLIORE, ATTORNEY AFFIRMATION Plaintiff, vs. Index No.: 808470/2018 HARRIS HILL NURSING FACILITY HARRIS HILL NURS1NG FACILITY, LLC THE MCGUIRE GROUP, INC. FRANK MCGUIRE F. JAMES MCGUIRE, Defendants. JASON T. BRITT, ESQ., an attorney licensed to practice law in the State of New York affirms the following under penalties of perjury: 1. I am an attorney at law duly liccüsed to practice in the State of New York and am a partner with the law firm of Bargnesi Britt, PLLC, counsel for the defendants, Harris Hill Nursing Facility, Harris Hill Nursing Facility, LLC, The McGuire Group, Inc., Frank McGuire, "defendants" and F. James McGuire (hereinafter or "Harris Hill"). As such, I am fully familiar with the facts and circumstances stated herein. 2. This affidavit is submitted in support of the motion made by Harris Hill seeking to compel a further response to Harris Hill's demand for a verified bill of particulars. This motion is made pursuant to CPLR §§ 3042, 3043, 3124, and 3125. 1 1 of 7 FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019 Procedural History 3. This action was commenced by the filing of a Summons & Complaint in the Erie County Clerk's Office on May 31, 2018, a copy of which is attached hereto as Exhibit A. 4. The Answer was served on behalf of defendants on or about July 18, 2018. A copy is attached hereto as Exhibit B. 5. In addition, on July 18, 2018, defendants served on plaintiff a demand for a verified defendants' bill of particulars. A copy of demands is attached hereto as Exhibit C. 6. Defendants received no response to their discovery demands despite good faith efforts. As such, the defendants filed a motion to compel discovery. A copy of the filed notice of motion is attached hereto as Exhibit D for reference. The plaintiff subsequently provided responses to the defendants and the motion to compel was withdrawn as moot. 7. A copy of the verified bill of particulars provided by the plaintiff in response to the defendant's demand for a bill of particulars is attached hereto as Exhibit E. 8. Following receipt of that bill of particulars, defendants identified deficiencies in the plaintiff's bill of particulars and sought further amplification of those areas deemed deficient. A copy of the correspondence requesting amplification is attached hereto as Exhibit F. defendañts' 9. The primary objection to the plaintiff's billof particulars was that the bill failed to provide any dates or descriptions of injuries resulting from most of the plaintiff's generalized alleged regulatory violations alleged to have occurred during his three-year admission to Harris Hill. 10. These regulatory violations included, for example, claims involving alleged existence" needs." deprivations of a "dignified and of "basic human Given the broad language and the fact that the decedent was a resident at Harris Hill for three years, some 2 2 of 7 FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019 particularization is necessary to guide the discovery process and limit the potential for surprise at trial. 11. These concerns were raised at a recent pretrial conference and the parties were directed to file this motion in the event the matter could not be resolved. Defendants have not received a response to the correspondence attached as Exhibit F or an amplified bill of particulars. Argument 12. The plaintiff's complaint alleges four causes of action. They are characterized as a negligence claim, a wrongful death claim, a Public Health Law claim under Public Health Law § 2801-d, and an amorphous (and likely improper) claim for deprivation of dignity. See Exhibit A. 13. Plaintiff's bill of particulars is deficient because itfails to adequately particularize the dates and acts giving rise to plaintiff's claimed regulatory violations under the third and fourth causes of action in his complaint. A. The Claims Particularized By Plaintiff Relate Solely to The Alleged Mis-.anagonsent of an Incarcerated Hernia Between October 3, 2016 and November 6, 2016. 14. The decedent was a resident at Harris Hill for a period beginning on July 23, 2013 and continuing until November 8, 2016. 15. The plaintiff's bill of particulars identifies the focus of the case to be an allegation that Harris Hill failed to properly manage the decedent's incarcerated hernia and bowel obstruction allegedly occurring between October 30, 2016 and November 6, 2016. See Exhibit E, page 7, ¶ 3. 16. The injuries plaintiff identified in his bill of particulars also appear to relate solely to the claimed mismanagement of the incarcerated hernia. These enumerated injuries include 3 3 of 7 FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019 inguinal hernia, inguinal hernia protrusion, emesis, incarcerated hernia, small bowel obstruction, sepsis, and death. See Exhibit E, page 7-8, ¶ 6. 17. A plain reading of the plaintiff's billof particulars demonstrates the focus of this case is the alleged mismanagement of the incarcerated hernia and the injuries resulting therefrom. 18. Assuming for purposes of this motion that the bill of particulars adequately particularizes the plaintiff's negligence and wrongful death claims, it comparatively does almost nothing to amplify the third and fourth causes of action, as set forth below. B. The Plaintiff's Bill of Particulars Fails to Provide Meaningful Particularinfian Any of Its Third and Fourth Causes of Action. 19. The plaintiff's third cause of action arises under Public Health Law § 2801-d. It Decedent..." alleges the defendants acted in "reckless disregard of the lawful rights of the See Exhibit A, ¶¶ 28-32. The plaintiff's fourth cause of action similarly alleges a cause of action exists for deprivation of the decedent's dignity. See Exhibit A, ¶¶ 33-36. 20. In the most general sense, Public Health Law § 2801-d created a vehicle for a resident of a residential health care facility to gain recoñrpense for violations of rights or benefits created for the well-being of a patient through various State and Federal codes and regulations. See Public Health Law § 2801-d (1). 21. These violations must result in a discernable injury. See Public Health Law 2801- § d (1) ("[a]ny residential health care facility that deprives any patient of said facility of any right or benefit ... shall be liable to patient for injuries suffered as a result of said deprivation...) (emphasis added); Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1001 (2d Dep't. 2016) (2801-d liability coñtemplates "injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule"). 4 4 of 7 FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019 22. As it currently stands, the plaintiff's bill of particulars provides almost no amplification of how or when the decedent's rights were violated; how or when the decedent's dignity was deprived; or what injury resulted therefrom. 23. - The bill of particulars rattles off various general State and simply exceedingly Federal regulations and then claims that the defendants violated these rules when it failed to implement a proper care plan, deviated from the resident's care plan, failed to treatthe resident with dignity, failed to enhance the resident's quality of life,failed to supervise the resident's care," needs, failed to follow "generally accepted standards of failed to provide "the highest practicable physical, mental and psycho-social well-being," and so on and so forth. h Exhibit E atpage 8-11 ¶ 7. 24. None of these allegations have any meaning when they are not tied to an action, a date of deviation, and/or a resulting injury. They are meaningless without further clarification. 25. The subparagraphs of paragraph 7 of Harris Hill's demand seek this clarification. Neither of these demands are responded to except to refer the defendant back to other responses within the bill of particulars where the injuries related to the alleged incarcerated hernia are set forth. 26. This cross-reference may have been adequate ifitwas clear that plaintiff meant to defendants' limit its claims to those injuries. However, paragraph 8 of the demand for a bill of particulars seeks the dates upon which the regulatory/statutory violations occurred. In response to that demand, the plaintiff references a different paragraph of its response wherein italleges Harris Hill was "negligent throughout the duration of the subject residency with regard to resident rights, quality of care, and care planning for the resident." h Exhibit E, page 7, ¶ 3. 5 5 of 7 FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019 27. If the plaintiff intends to limit its third and fourth causes of action to the period of October 2016 - November it should be required to state that fact. If the plaintiff 3, 6, 2016, intends to claim that the basis of its third and fourth causes of action arise from different circumstances, then the CPLR plainly requires that the date, a description of the negligent act, and the resulting injury be identified. C. Plaintiff's Bill of Particulars Fails to Particularize His Claims As Required by CPLR §§ 3042 and 3043. 28. CPLR §§ 3042 and 3043 govern billsof particular in personal injury actions. CPLR § 3042(c) states that "if a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel penalties..." compliance, or, ifsuch failure is willful, for the imposition of 29. In a personal injury action, CPLR § 3043 requires particularization of the date and approximate time of day of the occurrence, a general statement of the acts constituting negligence, and a statement of the injuries allegedly resulting from the injuries. S_ee CPLR § 3043 (a). 30. "The purpose of a bill of particulars is to amplify the pleadings, limit the proof and trial." prevent surprise at Neissel v. Rensselear Polytechnical Institute, 30 A.D.3d 881 (3d Dep't. 2006). A bill of particulars is insufficient where itprovides only "extremely broad malpractice." statements encompassing virtually any type of Heyward v. Ellenville Community Hosp., 215 A.D.2d 967, 968 (3d Dep't. 1995). 31. As currently formulated, the plaintiff's bill of particulars is exceedingly broad and provides no particularization regarding when or how the alleged statutory/regulatory violations occurred or what injuries may have resulted therefrom. The bill also makes no distinction between the various defendants or their actions. Both are required. 6 6 of 7 FILED: ERIE COUNTY CLERK 05/07/2019 03:01 PM INDEX NO. 808470/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/07/2019 32. This is particularly relevant in this type of action because plaintiff will likely attempt to pursue punitive damages under the Public Health Law, in part, for these alleged statutory/regulatory violations. In light of the fact that plaintiff's caniplaint alleges the violations giving rise to its Public Health Law § 2801-d claims include willful and reckless conduct, one would assume this conduct would be identifiable for inch winn in a readily response to a bill of particulars. WHEREFORE defendants, Harris Hill Nursing Facility, Harris Hill Nursing Facility, LLC, The McGuire Group, Inc., Frank McGuire, and F. James McGuire, request that this Court issue an defeñdañts' Order compelling a further response to the demands for a bill of particulars along with such other and further relief the Court deems appropriate. Dated: Buffalo, NY May 7, 2019 J ifÚ. Britt sq. 7 7 of 7