Ainsworth M. Bennett,, Appellant,v.St. John's Home et al., Respondents.BriefN.Y.November 18, 2015David E. Woodin LLC 291 Main Street PO Box 433 Catskill, NY 12414 518-821-6194 m 888-453-1921 fx (not for service) dewoodin@gmail.com August 11, 2015 Andrew W. Klein Clerk of the Court Court of Appeals 20 Eagle Street Albany, NY 12207-1095 AINSWORTH M. BENNETT, Individually and on behalf of the ESTATE OF VIRGINIA R. BENNETT, Plaintiff-Appellant, vs. ST. JOHN’S HOME and ST JOHN’S HEALTH CARE CORPORATION, Defendants-Respondents CA 14-01354 / CA 14-01356 Monroe County Ind. No. 10/9516 #APL-2015-00186 Dear Mr. Klein : On behalf of Ainsworth M. Bennett, individually and on behalf of the estate of his wife Virginia R. Bennett, (“Appellant”), the undersigned pursuant to 22 NYCRR 500.11 [c] [2] respectfully submits to the Court these arguments in support of plaintiff-appellant’s position on the merits of the above appeal. Plaintiff’s original appeal was from supreme court’s dismissal of plaintiff’s claim, upon defendants’ motion for summary judgment, which dismissal was affirmed by the appellate division. The two questions of law now presented to this Court are (1) whether, as a matter of public policy, defendants’ motion for summary judgment should have been rejected by supreme court as untimely notwithstanding plaintiff’s consent, the motion being made more than 120 days after plaintiff’s filing of note of issue with no prior showing of good cause having been required by supreme court or provided by defendants, and (2) whether summary judgment as a matter of law should have been denied, defendants having failed to demonstrate entitlement to summary judgment and the papers before supreme court having raised questions of fact requiring a trial. Plaintiff appealed to the Appellate Division, Fourth Department from (1) the decision and order of supreme court (Hon. William P. Polito, Monroe County, Index No. 10/9516) dated November 20, 2013 and entered November 22, 2013, and (2) the order and judgment of supreme court entered thereon January 28, 2014, awarding summary judgment to defendants and dismissing the complaint. By order dated and entered August 15, 2014, the Fourth Department consolidated the appeals and directed they be heard together. Plaintiff’s motion to expedite the appeal was granted by order dated and entered October 22, 2014 and, following oral argument held January 21, 2014, the Fourth Department by memorandum decision and order dated and entered May 8, 2015 affirmed the order and judgment of supreme court, one justice dissenting. Leave to appeal to this Court was granted by the Appellate Division, Fourth Department, by order dated and entered July 2, 2015. Page 1 of 14 Point I Timeliness of Summary Judgment Motion Appellant contends defendants’ motion for summary judgment should have been rejected by supreme court as untimely notwithstanding plaintiff’s consent, the motion being made more than 120 days after plaintiff’s filing of note of issue with no prior showing of good cause having been required by supreme court or provided by defendants. The majority opinion of the Fourth Department stated, “Plaintiff contends that the motion should have been denied as untimely because it was made more than 120 days after the filing of the note of issue without a showing of good cause for the delay (see generally CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652) . . . . While we agree with our dissenting colleague that [supreme court] “was not required to accept the express stipulation of the parties to extend the 120-day deadline in CPLR 3212 we note that the court in fact did so in advance of the motion” Respectfully, the decision of the majority below mis-states the argument of the dissent (Whalen, J.) in order to “agree” with it. Under the law and circumstances reflected by the record, not only was supreme court “not required” to accept the parties’ stipulation to extend the deadline for filing a motion for summary judgment, it was “required not” to do so. “‘[G]ood cause’, as used in CPLR 3212 (a), refers not to the alleged strength of the belated motion but to the reason (i.e., the ‘cause’) for filing the motion belatedly” (John v Bastien, 178 Misc2d 664, 666 [1998]). Here, as recognized by the dissent below, “[d]efendants’ moving papers did not include any explanation for the delay, and the reason set forth by the court during proceedings on May 13, 2013 was simply that defendants may have a meritorious motion and, thus, that determining the motion might simplify the issues at trial, which is the same excuse that was rejected by the Court of Appeals in Miceli and Brill (see Miceli, 3 NY3d at 727; Brill, 2 NY3d at 652-653)” (Whalen, J., dissenting). The law is clear that neither the merits of the motion itself (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]), nor consent of the parties (Coty v County of Clinton, 42 AD3d 612, 613-614 [3d Dept 2007]; Cajamarca v Euro Marble Ctr., Inc., 2012 N.Y. Misc. LEXIS 3434 [May 15, 2012]; Eum v Stephens, 26 Misc 3d 1223(A) [2010]; Balcerzak v DNA Contr., LLC, 9 Misc3d 524, 530 [2005]) relieves the trial court of its obligation to require an on- the-record showing of “good cause” before entertaining a late motion for summary judgment. “[A]bsent a showing of good cause, the parties cannot extend the time to make a summary judgment motion by stipulation” (Eum v Stephens, 26 Misc3d 1223(A) [2010]; see, Balcerzak v DNA Contr., LLC, 9 Misc3d 524, 530 [2005]; Cajamarca v Euro Marble Ctr., Inc., 2012 N.Y. Misc. LEXIS 3434 [May 15, 2012]). Accordingly, notwithstanding plaintiff’s consent to the timing of the motion, “the parties’ stipulation is insufficient to excuse the delay” (Coty v County of Clinton, 42 AD3d 612, 613-614 [3d Dept 2007]). Page 2 of 14 Rather, without satisfactory explanation for the delay, the filing of an untimely motion for summary judgment should be given “the same affect as not filing a motion at all” (Cheeks v City of New York, 123 AD3d 532, 565 [1st Dept 2014]; see Brill v City of New York, 2 NY3d 648 [2004]), and defendants should not be “rewarded for failing to follow procedural rules that have been in place for quite some time” (Id.; see also John v Bastien, 178 Misc 2d 664 [Civ Ct, Kings County 1998] [cited with approval in Brill, at 652]). Where a defendant offers no explanation for the failure to move during the 120 days after the filing of the note of issue, it is error for a court to consider the motion (see, McNeill v Menter, 19 AD3d 1161, 1162 [4th Dept 2005]; Polhamus v Foulke, 20 AD3d 888, 888-889 [4th Dept 2005]). The record here clearly demonstrates that supreme court “improvidently exercised its discretion in considering this motion since the defendant failed to offer any excuse for the untimely submission of the motion” (Ofman v Ginsberg, 89 AD3d 908, 909 [2d Dept 2011]). Further, appellate courts, like trial courts, “are not free, for the sake of judicial economy, to consider an untimely summary judgment motion in the absence of a showing of good cause” (Crawford v Liz Claiborne, Inc., 45 AD3d 284 [1st Dept 2007] reversed on other grounds 11 NY3d 810 [2008]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill, supra; Perini Corp. v City of New York, 16 AD3d 37 [2005]). Accordingly, neither supreme court nor the majority below should have proceeded beyond the tardiness of defendants’ motion. Compliance with CPLR 3212[a] is Not “Waived” by Plaintiff Having Consented to the Timing of Defendants’ Motion With respect to appellant’s argument that defendants’ motion was untimely, the majority below stated Plaintiff had “waived” that contention “by expressly consenting to the timing of the motion before it was made (see Stephen v Brooklyn Pub. Lib., 120 AD3d 1221, 1221; see generally Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466, 469).” The record in this case does reflect that, “[a]t the time, Plaintiff-Appellant joined the Defendants-Respondents in requesting that the Lower Court entertain a summary judgment motion to determine multiple issues of law in advance of trial” (RB 37, R54:5-21; R55:1-7). However, as the dissent below and the above argument make clear, the parties’ consent is irrelevant to whether there has been compliance by the motion court with the requirements of CPLR 3212 [a] and Brill. The record is equally indisputable that, notwithstanding plaintiff’s consent to the late motion, no showing of “good cause for the delay” was required by supreme court or tendered by defendants. The general authority cited by the majority expressly recognizes that in any given case, “waiver” may be precluded by “public policy” considerations (Hadden v Consolidated Edison Co., 45 NY2d 466, 469 [1978] [“Generally and excepting instances where there would be transgressions of public policy, all rights and privileges to which one is legally entitled . . . may be waived”] [emphasis added]). And, Stephen, the specific authority cited by the majority, does not indicate whether this “public policy exception” was there invoked or properly considered (Stephen v Brooklyn Pub. Lib, 120 AD3d 1221, 1221 [2d Dept 2014] [concluding simply that “plaintiff waived any argument with respect to the motion being untimely”]). The majority below did “not view the timing requirements applicable to motions for summary judgment as a matter of public policy that may not be affirmatively waived by a party”, citing Mitchell v New Page 3 of 14 York Hosp. (61 NY2d 208, 214 [1984]). But, because this holding directly contravenes the declared public policy of this state as set forth in statute and by this Court, the order based thereon should be reversed, and plaintiff’s case remitted for trial, with an age preference. Public Policy Requires Compliance with CPLR 3212[a] While without doubt “public policy” in general favors the enforcement of stipulations between parties, a separate public policy forbids the late filing of a summary judgment motion without satisfactory prior showing of “good cause for the delay.” And, since the general rule in favor of enforcing stipulations contains a specific exception denying enforcement of waivers that “transgress public policy”, the only way to give proper effect to both policies is for appellate courts to require trial courts to enforce the “good cause” requirement of CPLR 3212(a), irrespective of parties’ attempts to stipulate it away. In Mitchell, supra, this Court restated the general principal that “unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course” and “may stipulate away statutory, and even constitutional rights.” However, upon examining the particular stipulation there at issue [one designed to insure fair and prompt compensation of an injured party while reserving the right of one tort-feasor to seek contribution from remaining wrongdoers toward the end of achieving equitable sharing of liability], this Court took care to observe, “There can be no serious claim that the subject stipulation offends public policy. Far from offending our sense of justice . . . [w]e believe stipulations such as this effectuate, rather than affront, the public policy of this State” (Mitchell v New York Hospital, 61 NY2d 208, 214 [1984]). The statute involved (GOL §15-108[c]) contained no requirement that a court determine the existence of “good cause.” Accordingly, Mitchell stands only for the proposition that a stipulation, embodying a “waiver” that does not offend public policy, should be enforced. Here however, as aptly noted by the dissent below, “as articulated by the legislature and the Court of Appeals, it is public policy to strictly enforce the 120-day limit for summary judgment motions in the absence of leave of court on good cause shown” (Whalen, J., dissenting [emphasis added]). This declared public policy of the State cannot be overridden by what the parties, or a trial court judge, may in a particular case view as being “good” policy, or in the interest of “judicial economy” generally. As the United States Supreme Court has stated, “public policy” is to be ascertained “by reference to the laws and legal precedents and not from general considerations of supposed public interests” (Muschany v United States, 324 US 49, 66 [1945]). Citing Muschany, this Court has stated, “In a concise definition, thrice reiterated by this court, we have said that ‘when we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records’” (Kraut v Morgan & Brother Manhattan Stor. Co., 38 NY2d 445 [1976], citing Glaser v Glaser, 276 NY 296, 302; Mertz v Mertz, 271 NY 466, 472; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407, 413; see, People v Hawkins, 157 NY 1, 12 [1898]). And, in Hollis v Drew Theol. Seminary (95 NY 166, 172 [1884]), this Court stated, “In a juridical sense, public policy does not mean simply sound policy, or good policy; but as defined by Daniel Webster in the Girard Will Case (2 How [U. S.] 127) [43 US 127, 11 L Ed 205 (1844)] it means the policy of a State established for the public weal ‘either by law, by courts Page 4 of 14 or general consent’” (see Balcerzak v DNA Contr., LLC, 9 Misc3d 524, 527 [2005]). In other words, where there exists a clearly stated policy articulated in statute and binding judicial precedent, courts are not free to substitute their “view” of what would constitute “good” or “sound” policy, in determining what “public policy” requires or forbids. “Public policies in general are those considerations of public interest and morality which the State enforces by legislation or judicial action” (Matter of Andrus, 156 Misc 268 [Sur Ct, Westchester County 1935]). Accordingly, while the majority below stated, “we do not view the timing requirements applicable to motions for summary judgment as a matter of public policy that may not be affirmatively waived by a party”, on this very point both this Court and the New York Legislature have already spoken, determining the public policy of the State for the filing of summary judgment motions, as codified in CPLR 3212 (a), to be that: “Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.” The statute does not extend to the court the discretion to “grant leave” to file a late motion upon “consent” of the parties, or upon the court’s own view that “judicial economy” would be promoted by entertaining a motion rather than conducting a trial, but only upon “good cause shown” for the failure to move before expiration of the statutory deadline. This policy was created by the Legislature, at the behest of the courts. “Notably, the Legislature added the 120-day deadline to CPLR 3212 (a) in 1996 at the request of the court system to ameliorate the problem of parties filing dilatory summary judgment motions” (Coty v County of Clinton, 42 AD3d 612, 615; see Brill v City of New York, 2 NY3d 648, 651 [2004] [emphasis added]). Professor Siegel, in his Practice Commentaries (McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:12, at 21-22), explains that: “Complaints about unreasonably delayed motions for summary judgment were heard for a long time before 1996. Judges especially resented them when they were made on the eve of trial, or, indeed, after preparations for the trial were already under way. There was always the question of why, if the motion had merit and there was a potential for putting the case to rest with no further effort, the motion had been so long delayed. The legislature addressed the matter with an amendment of subdivision (a) of CPLR 3212 that took effect January 1, 1997.” (See, Balcerzak v DNA Contr., LLC, 9 Misc3d 524, 528 [2005].) As noted by the dissent below, “CPLR 3212 (a) was amended by the legislature with ‘the purpose . . . to end the practice of eleventh-hour summary judgment motions’ (Brill, 2 NY3d at 652), which the Court of Appeals Page 5 of 14 described as a ‘sloppy practice threatening the integrity of our judicial system’ (id. at 653). ‘[T]he Court of Appeals [has] clearly indicated that the 120-day statutory time frame contained in CPLR 3212 (a) is a strict requirement “to be taken seriously by the parties”’ (Coty, 42 AD3d at 614, quoting Miceli, 3 NY3d at 726) and ‘must be “applied as written and intended”’ (id., quoting Brill, 2 NY3d at 653). Although parties may stipulate away some statutory rights (see Mitchell, 61 NY2d at 214), under CPLR 3212 (a) and the decisions of the Court of Appeals in Brill and Miceli, ‘the court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval will not suffice’ (Coty, 42 AD3d at 614), and the court may not approve of the delayed motion without a showing of good cause (see CPLR 3212 [a]; Brill, 2 NY3d at 652). The above policy having been enacted into law by the Legislature at the request of the court system, it falls to the courts, and especially this Court, to recognize and enforce that policy uniformly and across the board. Here, the late filing of defendants’ summary judgment motion contravened public policy as set forth in CPLR 3212 (a) and the decisions of this Court in Brill and Miceli, which “eloquently explain New York’s public policy with respect to CPLR 3212 (a)” (Balcerzak v DNA Contr., LLC, 9 Misc3d 524, 531 [2005]). Accordingly, contrary to the majority opinion below, litigants cannot “waive” the statutory requirement that good cause be shown before late filing of a motion pursuant to CPLR 3212, for “the statute does not permit courts to accept a stipulation of the parties ‘in advance of the motion’ where there is no showing of good cause” (Whalen, J., dissenting). Contrary to the position urged by Respondents, it is simply not the case that supreme court had “discretion” to approve the stipulation and entertain the motion without first requiring a showing of “good cause for the delay.” Numerous appellate decisions expressly hold that “[i]n the absence of a showing of good cause for the delay in filing a motion for summary judgment, ‘the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment’” (Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796 [2d Dept, 2011] [emphasis added]; Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158 [2d Dept 2011]; John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899, 901 [2d Dept 2008]; Hesse v Rockland County Legislature, 18 AD3d 614, 614 [2d Dept 2005]; Thompson v N.Y. City Bd. of Educ., 10 AD3d 650, 651 [2d Dept 2004]; see, Brill v City of New York, 2 NY3d 648, 652; Sakow v Trilobite, LLC, 2014 N.Y. Misc. LEXIS 248, 11 [N.Y. Sup. Ct. Jan. 16, 2014]). The recent case of Jones v City of New York, (2015 NY Slip Op 05914, 2015 N.Y. App. Div. LEXIS 5783, *2-3 [2d Dept, 7/8/15]) is especially illustrative: On the date assigned for trial, “the court, sua sponte, directed a framed-issue hearing on the issue of whether the defendant, the City of New York, had received prior written notice of the allegedly defective condition, or whether there was a written acknowledgment by the defendant of that condition. At the conclusion of the hearing, the court determined that the defendant did not receive prior written notice or make a written acknowledgment of the condition. The court asked counsel for the defendant whether he had ‘an application,’ and counsel thereafter made an oral application ‘to dismiss,’ which the court granted.” The Second Department held that supreme court had “erred in granting the oral application of the defendant, which was, in effect, for summary judgment dismissing the complaint” since “the defendant failed to demonstrate good cause for its failure to timely move for summary judgment” and that “[t]he defendant's failure to establish good cause for its delay warranted denial of the application, without consideration of the merits Page 6 of 14 thereof.” Under the circumstances of the case, which included “the trial court having, sua sponte, directed a framed-issue hearing prior to the start of trial and eliciting the defendant’s untimely oral application, in effect, for summary judgment dismissing the complaint”, the appellate court deemed it appropriate to remit the matter to supreme court, “for further proceedings on the complaint before a different Justice.” The parties’ counsel here stipulated to a summary judgment deadline in contravention of public policy with their agreement to violate CPLR 3212(a) without first applying for “leave of the Court on good cause shown”, and supreme court also violated that public policy by entertaining the motion without requiring that good cause for the delay first be shown. As noted by the dissent, “[i]f this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated” (Brill, 2 NY3d at 653). In recognition of legislatively and judicially declared public policy of this State, as urged by the dissent below this Court should “not countenance such statutory violations” (see Whalen, J., dissenting). Chief Judge Judith Kaye, two years after authoring this Court’s decision in Brill, registered dismay there had been “[s]o much effort, so much lawyer and court time, so much client risk and expense, to avoid simple compliance with a rule requiring that motions for summary judgment be made no later than 120 days after the filing of the note of issue, unless the movant can establish good cause”, and her guidance, then offered to both “bench and bar”, was to “just honor the deadlines, whether statutory or court-ordered” (Kaye, C.J., POSTSCRIPT to Connors, Patrick M., “CPLR 3212(a)’s Timing Requirement for Summary Judgment Motions : Ona Brill’s Stroll Through Brooklyn and the Dramatic Effect it Has Had on New York State’s Civil Practice”, Vol. 71:4 Brooklyn Law Review 1529, 1586 [2006]). Appellant asks that this Court continue to follow Judge Kaye’s guidance, require trial courts to carry out and effectuate the Court’s simple enunciated rule, and “just honor the deadlines” of CPLR 3212[a]. Requiring the trial court to enforce the public policy of Brill in this case will result in no prejudice to defendants. As this Court has stated, “Brill threatens an untimely summary judgment movant with the expense and inconvenience of a trial, but the deterrent object of Brill is tempered with justice: no party forfeits substantive rights” (Farkas v Farkas, 11 NY3d 300, 312 [2008]). Accordingly, the order of supreme court appealed from granting summary judgment to defendants should be reversed and the case remitted for trial, with an age preference. Point II Summary Judgment as a Matter of Law Should Have Been Denied Because Plaintiff Failed to Demonstrate Entitlement to Summary Judgment and the Papers Before Supreme Court Raised Questions of Fact Requiring a Trial. Virginia Bennett was admitted to St. John’s Home at age 80 suffering from “generalized weakness” after a brief stay at Strong Memorial Hospital, prior to which she had been living at home with Ainsworth Bennett, her husband, health care proxy and primary care-giver, at their residence in Monroe County. While at home, Ainsworth had been providing full-time care to Virginia, assisted only by an aide who came in for one hour a day, five days a week. Page 7 of 14 The essence of appellant’s claim is that Virginia Bennett was denied her liberty and right to self-determination, and appellant was denied the company and companionship of his spouse together at their home, for seven of Virginia’s last weeks because defendants for that period following Virginia’s rehabilitation unreasonably prevented and delayed her discharge from St. John’s nursing home. Plaintiff’s claim, based on Public Health Law §2801–d, is that Virginia and Ainsworth Bennett were deprived of a “right or benefit” when defendants not only refused to “discharge” her, but failed to provide assistance and advocacy supportive of plaintiffs’ desire for Virginia to leave defendants’ facility on her own terms and return home under the care of her husband and family, resulting in compensable injuries to herself and her husband. Plaintiff cited and relied upon specific laws and regulations in support of this claim (e.g., 42 CFR §§ 483.10, 483.10 [a] [1], [2], 483.15, 483.15[a], 483.15[g][1], 483.20[l][3]; PHL § 2803-c[3][a], [e], [h]). Defendants, who on the motion had “the burden of establishing . . . entitlement to judgment as a matter of law” (Kimpland v Camillus Mall Assoc., L.P., 37 AD3d 1128, 1128), admitted that they “delayed” Virginia Bennett’s discharge from St. John’s Home for seven weeks by requiring that 24-hour home healthcare services be in place before issuing a medical discharge, however defendants identified no statute, rule or regulation permitting their physician to withhold an order of “discharge” from a resident of a nursing home facility who wishes to return to her home, on the basis that such discharge would be “unsafe”, “contrary to medical advice”, or for any other reason. The most defendants could summon was the assertion that “Mrs. Bennett’s discharge was properly delayed” [emphasis added] because defendant St. John’s Home (“SJH”), “had an obligation under law to assure a safe discharge for Virginia Bennett” (R68 ¶ 22). Plaintiff, on the other hand, identified numerous regulations that, individually and collectively, strongly imply that the withholding of such a “discharge” from a patient in any manner that limits the resident’s freedom to leave the facility and return home contrary to her right of self-determination, constitutes denial of a right or benefit (e.g., 42 CFR § 483.10 [a][1] [“The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States”]; PHL § 2803-c [3][a] [“Every patient’s civil . . . liberties . . . including the right to independent personal decisions . . . shall not be infringed”]; 42 CFR § 483.10 [“The resident has a right to . . . self-determination”]; 10 NYCRR § 415.1[1] [“the exercise of self-determination [must be] protected and promoted, by the operator and staff of the facility”], 42 CFR § 483.10[a][2] [“The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights”]). As documented, there was no “medical need” for Mrs. Bennett to remain at the facility. Respondents’ own doctors admitted that by the end of July 2007 there were no medical issues requiring Virginia Bennett to remain at SJH (R269, R253). Yet, the gist of defendants’ defense is that defendants still “properly” delayed their “discharge” of Virginia Bennett until “24/7 care” was in place, so as to avoid discharging her to the allegedly “unsafe environment” of her husband’s care. Defendants further assert that “it takes a doctor’s order for a resident of a nursing home to be discharged to home” (R734 ¶ 101), however they identify no authority at all granting a nursing home resident’s assigned physician the power or discretion to withhold such a “discharge” from a resident who desires to return home. Appellant maintains that defendants had no right, and therefore could have had no duty, to do so (see, Kowalski v. St. Francis Hosp. & Page 8 of 14 Health Ctrs., 21 NY3d 480, 484-485 [2013]). “There are surely few principles more basic than that the members of a free society may, with limited exceptions, come and go as they please” (Kowalski v. St. Francis Hosp. & Health Ctrs., 21 NY3d 480, 485-486 [2013]). The “category” of people so “impaired” that they must be denied this right is “a narrow one” and does not include everyone who would be “safer” in a facility than “on the street.” Thus, common law permitted restraint even of people, for example, whose mental state might make them a danger to themselves or others, only in “extreme circumstances”, i.e., “only when necessary to prevent the party from doing some immediate injury either to himself or others and only when the urgency of the case demands immediate intervention” (Warner v State of New York, 297 NY 395, 401 [1948]). For the category of people who, like plaintiff, come to a facility voluntarily, the law makes no provision for “involuntary retention.” Virginia Bennett had not been ruled incapacitated or incompetent, and she expressed both personally and through her designated proxy, her husband, her desire to leave the facility and return to her home. The facility took no steps to honor Mrs. Bennett’s desires or to suspend or supersede Mr. Bennett’s proxy (see, PHL§ 2992; Matter of Topa, 10 Misc3d 355, 359 [2005]), they simply ignored them. Defendants argue that a “duty not to discharge” Virginia Bennett flowed from the facility’s and the doctors’ “duty of care”, but there can be no duty to do that which the law forbids. Indeed, to physically restrain plaintiff on these facts would have exposed defendants to liability for false imprisonment (see Kowalski v St. Francis Hosp. & Health Ctrs., 21 NY3d 480, 485-486 [2013]). Pursuant to Kowalski, defendants had no right whatever, and therefore no duty, to attempt to prevent the Bennetts from leaving defendants’ facility either by withholding a “medical discharge”, or by threatening them with the consequences of leaving “against medical advice” (see Ingutti v Rochester Gen. Hosp., 114 AD3d 1302, 1303 [4th Dept 2014]). Defendants may not hide behind the “white coats” of their physicians to avoid responsibility for having failed to assist Mrs. Bennett to return home, for, contrary to defendants’ argument, the decision whether to assist or obstruct the Bennett’s desire for Mrs. Bennett to leave the nursing home and return home was not “the doctor’s call.” While, as this Court has held, in a hospital, staff “may not invade the area of the physician's competence and authority to overrule his orders”, and “the primary duty of a hospital's nursing staff is to follow the physician's orders” (Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 265 [1968]; see Clune v Moore, 45 Misc3d 427, 430-431 [2014]), in a nursing home the concerns are broader than that of a “physician-directed acute care orientation”, with a resident’s “psychosocial needs” occupying “a prominence at least equal to medical condition” (10 NYCRR 415.1[a]). Thus, while nursing homes may be “under the supervision” of a physician in a general sense and as the “context . . . requires” (see PHL §2801[d]), the treating physician’s “area of competence” extends only to the arena of “medical services” (10 NYCRR 415.15 [b][1][I] [“The facility shall ensure that . . . the medical care of each resident is supervised by a physician who assumes the principal obligation and responsibility to manage the resident's medical condition”]). As regards decisions pertaining to the broader needs of the resident, responsibility is entrusted to an “interdisciplinary care team” (10 NYCRR §415.1[5]) and, as a member of that team (10 NYCRR 415.5[g][2][ix]) it was the duty of the social worker to argue with and persuade the doctor to issue a “discharge” (see 10 NYCRR 415.5[g][2][vii] Page 9 of 14 [social worker to interpret residents’ needs and extend “professional intervention” to “all levels of staff” suggesting “positive approaches”]). Regulations require the facility to provide a “qualified social worker” (10 NYCRR 415.5[g][2]), who must provide numerous specific services to assure the resident’s maximum attainable emotional well-being, and secure her right to “self-determination, self respect and dignity” (10 NYCRR 415.5[g][1]), including [I] an initial interview with resident and family to evaluate appropriateness of placement; [ii] interpreting the resident’s rights to family and staff; [iii] “advocating for the resident” with “problems involved with institutionalization”; [iv] facilitating communication with other disciplines, including medical services, on behalf of the resident; [v] coordinating services to assure optimum emotional well-being and independence; [vi] involving the resident, other disciplines and administration as appropriate regarding matters of transfer and discharge; [vii] interpreting residents’ needs and extending professional intervention to all levels of staff suggesting positive approaches; [ix] initiating and participating in interdisciplinary meetings and team conferences; [x] providing assistance and support to the resident’s family members; and [xiv] coordinating and facilitating referral of the resident for needed and requested services and outside resources not available in the facility (see 10 NYCRR 415.5[g][1]). Regulations require that nursing homes “shall provide such care and services in a manner and quality consistent with generally accepted standards of practice” (10 NYCRR 415.1[b][1]). Plaintiff’s expert in social work opined defendant’s social worker failed to provide these social work services in accordance with generally accepted standards of social worker practice. On the issue of whether defendants provided “good social work”, the affidavit (R700) of plaintiff’s expert, Elise Bealieu, LMSW, licensed Master Social Worker, member of the Academy of Certified Social Workers, former Director of Social Work in a nursing facility, author of the book “A Guide for Nursing Home Social Workers” and a recognized expert in the field of social work, stated that the role of a social worker in a nursing home setting is to be an advocate for the rights of the resident, and she opined that “[r]ather than adopting a pro-active, supportive approach, working to achieve the resident and the family goals, the Social Worker here instead adopted a rigid, paternalistic view of this case, and sought to convince the family that the facility knew best, regardless of the resident’s or family’s wishes” (R706 ¶ 11). It is her opinion that this is not considered “good and accepted social work” (R706 ¶ 11). Beaulieu further states that “any violation of what is considered to be good and accepted social work practice, or any deviation from the NASW guidelines, would be a violation of 42 CFR 483.15” (R705 ¶ 8). Defendants’ physicians on the other hand are neither lawyers, qualified to express an opinion as to when a medical discharge is legally required, nor are they “social workers” qualified to express opinions as to whether the facility properly provided required social worker services. Thus, the assertion of defendants’ medical expert that “[t]he decision to order Mrs. Bennett’s discharge was entirely within the province and exclusive control of the treating physician, Michele Carpenter, MD” (R739 ¶ 5), is merely an unqualified (and erroneous) opinion as to the law, and the statement of defendants’ “treating physician” Dr. Carpenter that, “No amount of additional advocacy by Rebecca Priest, L.S.W. for Mrs. Bennett’s discharge would have changed my mind about the need for 24/7 care and services required to ensure a safe discharge for Mrs. Bennett” (R743 ¶ 9), is both without foundation (because she cannot know Page 10 of 14 what effect “good and accepted social worker advocacy” would have had on her), and it is in actuality an admission, that defendants did employ, and intended to hold to a procedure and protocol regarding discharge of residents more restrictive than what the law actually demands. Defendants in fact offered the Bennetts only three “options” : either to accept Virginia Bennett’s transfer from rehabilitation to long term care at SJH, to obtain a “medical discharge” order from SJH after arranging for “24/7 care” at home, or to “sign out” from the facility “against medical advice” (with the admonition that if the latter “AMA option” were taken, defendants would report Mr. Bennett to adult protective services (R716 ¶ 11)). Because each “option” offered by defendants deprived Virginia Bennett of a right or benefit established for her well- being by statute and regulation, defendants’ motion failed in the first instance to show defendants were entitled to judgment as a matter of law, and their motion accordingly should have been denied, without reference to plaintiff’s opposing papers. With respect to the merits of defendants’ motion, the majority below stated, “[W]e conclude that defendants established as a matter of law that they provided appropriate care and treatment to decedent and did not violate any of the various federal and state regulations identified by plaintiff as the bases for this action, and plaintiff failed to raise a triable issue of fact in opposition (see Gold v Park Ave. Extended Care Ctr. Corp., 90 AD3d 833, 834; see generally Zuckerman v City of New York, 49 NY2d 557, 562).” However, neither of the authorities cited by the majority supports its conclusion in this case. In Gold, supra, summary judgment dismissing a PHL § 2801-d [1] cause of action was affirmed because in response to the affidavit of defendant’s expert physician (opining defendant did not violate regulations set forth in plaintiff’s bill of particulars and, even if regulations were violated, no alleged injuries were proximately thereby caused), the affidavits of plaintiff’s experts offered only “conclusory and unsubstantiated allegations of violations of the subject regulations” (90 AD3d 833, 834), thus failing to raise a triable issue of fact. In this case, the affidavit of plaintiff’s expert set forth that she had reviewed the full and complete medical records of Virginia Bennett kept by defendants, written records maintained by plaintiff, and deposition testimony (R701 ¶ 2), that she was familiar with the rules, regulations and standards governing good and accepted social work in nursing homes (R702 ¶ 5 - R705 ¶ 8), and that the social worker responsible for plaintiff and Mrs. Bennett departed from what is considered good and accepted social work by “merely try[ing] [to] get the family to accept the conclusions of the facility” (R706 ¶ 11, R712 ¶ 20), citing specific deficiencies in the facility record (R707-711) to support her opinion. As stated by the Fourth Department itself just three weeks after argument of the instant appeal, “it is well settled that ‘conflicting expert opinions may not be resolved on a motion for summary judgment’” (Lawrence v McClary, 125 AD3d 1502, 1503 [4th Dept 2/13/2015]; see Edwards v Devine, 111 AD3d 1370, 1372 [4th Dept 2013]; Pittman v Rickard, 295 AD2d 1003 [4th Dept 2002]). Page 11 of 14 Further, the general holding of Zuckerman, supra, [that “a hearsay affirmation by counsel alone” fails to “demonstrate by admissible evidence the existence of a factual issue requiring a trial” (49 NY2d 557, 560)] is not applicable to this case, for plaintiff in opposition to defendants’ motion here submitted not merely an affirmation of counsel but, in addition, the expert affidavit of Elise Beaulieu, LMSW (R700) and the first-hand affidavit of plaintiff Ainsworth Bennett himself, (R714), who had direct knowledge of the facts therein by him set forth. Thus, the majority decision at the Appellate Division offers no reference or authority supportive of its conclusion that “defendants established as a matter of law that they provided appropriate care and treatment to decedent and did not violate any of the various federal and state regulations identified by plaintiff as the bases for this action.” The affidavit of plaintiff Ainsworth Bennett clearly set forth his personal observations of his wife in the nursing home, observing that she “clearly expressed” that “she wanted to return to our home”, and that “she was aware she was staying at a facility, and that she wanted to return home” (R715 ¶ 4), that she was “sad and upset because she was forced to remain there” (R715 ¶ 5), and that she “became more depressed due to feeling like she was being held captive at St. John’s” (R715 ¶ 6). These observations are corroborated in defendants’ own records (see, e.g., R223 [“Resident not happy . . .”]). Plaintiff further flatly stated, “I was not trained or educated by the staff at St. John’s during this admission in preparation for Virginia to return home” (R716 ¶ 10) substantiating the affidavit of plaintiff’s expert who specifically noted in defendants’ records the absence of documentation of any such training or education having occurred (R706-7-7 ¶ 12). The affidavit of Mr. Bennett, standing alone, raises triable issues of fact. A PHL § 2801-d action is not a medical malpractice action. Nothing in the language of the statute requires expert opinion to sustain a cause of action. However, in addition, defendants’ own submission in support of its motion contained expert witness disclosure documents containing opinions from four experts expected to testify for plaintiff (R113, Sandor, RN; R122, Bashkoff, Forensic Psychologist; R129 Chrymko , LMSW; R149, Beaulieu, ACSW, LICSW), each of which raises numerous questions of fact sufficient to require a trial. Any conflict in the parties’ claims merely “presents a credibility issue that cannot be resolved in the context of a motion for summary judgment” (Lawrence v McClary, 125 AD3d 1502, 1503 [4th Dept 2/13/2015]; see, Rew v County of Niagara, 115 AD3d 1316, 1318). As discussed in Appellant’s Reply Brief (pp 11-13) and January 26, 2015 Post-Argument Memorandum (pp 6-7), defendants’ claims lacking support in the record on appeal at most merely demonstrate the existence of factual disputes requiring a trial. Adults have a basic right to make choices, good or bad, and determine the course of their lives. It is uncontroverted that Virginia Bennett wanted to return home to “age in place” under her husband’s care immediately after her rehabilitation ended. However, the nursing home instead willfully chose first to “medicalize” her condition, and then to “infantilize” Mrs. Bennett, rather than honor her decisions regarding what she actually needed to maintain a modicum of meaning in that portion of life remaining to her. The nursing home’s paternalistic opinion as to what Mrs. Bennett’s “safety” required, was wrongfully used to keep Mrs. Bennett “stuck” in the nursing home for seven weeks, to the nursing home’s own financial benefit. Those missed days Page 12 of 14 at home were of course “priceless” to both Mrs. Bennett and her husband, and can be neither retrieved nor replaced. Concerns for “safety” cannot be used to justify keeping nursing home residents in nursing homes. A nursing home must go to court if it intends to use “safety” to confine a citizen, and respondents here did not. Mrs. Bennett did not lose her right to make decisions regarding her life when she entered defendants’ nursing home for rehabilitation. From respondents’ submissions it is clear that, seven years after Mrs. Bennett’s nursing home confinement, the nursing home remains unaware that residents have the same civil rights and civil liberties as any citizen, and that those rights must not be infringed. The nursing home should have said to Mrs. Bennett, in early August of 2007, “Virginia, although we believe your safety will be at risk at home without 24/7 home health care, we respect your right to live where and as you choose, and we will assist you to the best of our ability.” A nursing home’s desire to “medicalize” a nursing home resident’s last days must not be permitted to trump the resident’s fundamental civil rights and civil liberties. The Legislature intended to prevent such abuse in enacting PHL § 2801-d, and this Court’s decision will be crucial in ensuring that the clear intent of the Legislature is given effect by the courts of this State. Defendants’ submissions to supreme court were insufficient to demonstrate entitlement to summary judgment, and plaintiff’s submissions presented clearly disputed factual questions whose existence was disregarded both by supreme court in granting summary judgment, and by the appellate court below in affirming the order and judgment appealed from. Upon appeal to this Court, the order of the appellate division affirming the order of supreme court granting summary judgment should be reversed and the case remitted for trial, with an age preference. Conclusion Plaintiff’s Appeal Presents Important Issues of Statewide Importance To the extent the Fourth Department holds that supreme court had discretion to entertain defendants’ untimely motion for summary judgment based upon its purported merit, upon its potential to promote “judicial economy”, or upon consent of the parties, without prior showing of good cause related to the delay, that Department’s decision is both in conflict with decisions from the First (Cheeks v City of New York, 123 AD3d 532, 565 [1st Dept 2014]; Crawford v Liz Claiborne, Inc., 45 AD3d 284 [1st Dept 2007] ), Second (Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796 [2d Dept, 2011]; Ofman v Ginsberg, 89 AD3d 908 [2d Dept 2011]; Greenpoint Props., Inc. v Carter, 82 AD3d 1157 [2d Dept 2011]; John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899 [2d Dept 2008]; Hesse v Rockland County Legislature, 18 AD3d 614 [2d Dept 2005]; Thompson v N.Y. City Bd. of Educ., 10 AD3d 650 [2d Dept 2004]) and Third Departments (Coty v County of Clinton, 42 AD3d 612 [3d Dept 2007]), and contrary to binding precedent from this Court (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; see, Farkas v Farkas, 11 NY3d 300 [2008]). The issue of whether a nursing home physician may “condition” issuance of a medical discharge to a competent resident and her medical proxy who both desire the resident to return home presents a pure legal question which is unsettled and has broad Statewide implications, enabling the Court to develop an emerging area of common law, construe the numerous statutes Page 13 of 14 and rules governing this developing area of Public Health Law § 2801–d rights and benefits, and clarify the fundamental civil rights of all nursing home residents. Appellant’s action was commenced July 6, 2010 and at the time of defendants’ summary judgment motion on the eve of trial the action had been awaiting trial for several years. Appellant is over 96 years old with limited remaining life expectancy. Given that appellant was entitled to a statutory trial preference (CPLR 3403[a][4]), the interests of justice would have been best served by an expedited trial. Instead, supreme court, by entertaining defendants’ late summary judgment motion without first requiring a showing of good cause for the delay, diverted appellant’s case from trial, with resulting delay due to the appellate process. Additional relevant circumstances include the uncertainty of appellant’s future health, the importance to the trial of his first-hand knowledge and testimony as a witness, his desire to confront defendants’ witnesses, and the fact that the issues presented by this trial are of concern to significant numbers of elderly or infirm persons who are or may find themselves in circumstances similarly situated to Mr. and Mrs. Bennett. The ends of justice, to the extent cognizable, were not promoted by supreme court’s decision. Accordingly, for all of the above reasons and upon all arguments set forth in appellant’s brief, reply brief and post-argument submission, which are specifically reserved and incorporated herein by reference (22 NYCRR 500.11[f]), it is respectfully requested that the order appealed from be reversed, and appellant’s case remitted to supreme court for trial, with an age preference. Dated: August 11, 2015 ______________________________ David E. Woodin, Esq. Appellate Attorney for Appellant 291 Main Street PO Box 433 Catskill, NY 12414 518-821-6194 cc: Underberg & Kessler, LLP David H. Fitch, Esq., of Counsel Attorneys for Defendants-Respondents 300 Bausch & Lomb Place Rochester, NY 14604 (585) 258-2840 Page 14 of 14