Ainsworth M. Bennett,, Appellant,v.St. John's Home et al., Respondents.

Brief

N.Y.November 18, 2015

DAVID H. FITCH, SENIOR COUNSEL (585) 258-2840 dfitch@underbergkessler.com August 27, 2015 Andrew W. Klein Clerk of the Court Court of Appeals 20 Eagle Street Albany, New York 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 St. John’s Home and St. John’s Health Care Corporation (“Respondents”), the undersigned, pursuant to 22 NYCRR 500.11[d], respectfully submits to the Court these arguments in opposition to Appellant’s position on the merits of the above appeal. Point I Timeliness of Summary Judgment Motion The procedural question before this Court is simple: if a trial court sets a scheduling order, which establishes a schedule for the filing of summary judgment motions beyond 120 days from the filing of a Note of Issue and all parties agree to the schedule, does such a schedule constitutes a "date set by the court" as described by CPLR section 3212(a), and thereby circumvent the statutory default deadline of 120 days? Page 2 of 16 The Appellant argues to this Court that if a trial court sets a schedule for summary judgment beyond the 120 days from the filing of a Note of Issue, then that schedule should be treated as a nullity. Instead, Appellant argues, any motion filed beyond the 120-day default deadline set forth in Section 3212(a), even if filed in keeping with a schedule set by the court and agreed upon by all parties, then the trial court cannot consider that motion, unless the moving party makes an affirmative showing of good cause for filing the motion more than 120 days after the filing of the Note of Issue. This argument contradicts the clear language of the statute and flies in the face of well-established public policy that grants a trial court great discretion in managing its own calendar. In this case, on May 13, 2013, more than 120 days after the filing of the Note of Issue, the trial court held a conference with counsel for all parties and then noted on the record that there were a number of material legal issues to be resolved before the case should proceed to trial. (R54:11-20). Counsel for each party then agreed on the record to the trial court’s proposal to postpone the trial so that the court could set a new schedule to allow for the summary judgment motion. (R54- 58). Furthermore, counsel for the Appellant also placed on the record a proposed schedule for this motion to which all parties and the trial judge agreed. (R55:9-17). On the record, the Supreme Court also agreed to issue its decision on the summary judgment motion by the middle of October 2013, prior to a new trial date of October 28, 2013. (R56:5-9). The trial court then amended its Day Certain Trial Order dated May 23, 2013 to memorialize the new trial schedule to accommodate the court’s desire to consider the summary judgment motion. (R57). Respondents’ motion for summary judgment was filed in keeping with the trial court's schedule. The trial court subsequently agreed to amend the schedule of the summary judgment motion when the Appellant requested an extension of time to respond. (Appendix to Defendants-Respondents’ Brief; Exhibit “3A”). The trial court then also, at the request of the Appellant on two separate occasions, amended its trial schedule in order to accommodate extensions to this motion schedule. (R678; Appendix to Defendants-Respondents' Brief, Exhibits "lA", "2A", "3A", "4A"). Appellant, in responding to the summary judgment motion, did not raise any objection to the trial court’s schedule for the motion even though it was well known to all parties that the entire schedule for summary judgment was well outside of the default deadline set forth in CPLR 3212(a). In a Decision and Order entered November 22, 2013, the Supreme Court granted the Respondents’ motion for summary judgment in its entirety and dismissed the Appellant’s claims. (R5). It was not until the Appellant filed his Page 3 of 16 appeal from the trial court’s decision, granting Respondents’ summary judgment, that he first raised the argument that the summary judgment motion should not have been considered because it was filed more than 120 days after the filing of the Note of Issue. The Appellate Division, Fourth Department, held in its Memorandum and Order dated and entered May 8, 2015 that the trial court properly considered the Respondents’ motion for summary judgment and that the trial court’s schedule for summary judgment in this case did not offend public policy. Respondents respectfully submit that good cause was not required to bring their summary judgment motion as the trial court, by setting a new scheduling order which included a deadline for the motion, circumvented the statutory default deadline of 120 days for such motions. In 1996, the New York Legislature established the public policy for the filing of summary judgment motions in CPLR 3212(a), effective January 1, 1997, which dictates that “if no 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…” CPLR 3212(a). [Emphasis added.] As the Respondents’ motion for summary judgment was filed in keeping with the trial court's schedule, the motion was timely and good cause was not required for the court to accept the motion. Balcerzak v. DNA Contr., LLC, 9 Misc3d 524, 528 [2005]; Coty v. County of Clinton, 42 AD3d 612, 613 [3d Dept 2007]; McNeill v. Menter, 19 AD3d 1161 [4th Dept 2005]; Crawford v. Liz Claiborne, Inc., 11 NY3d 810, 812 [2008] (trial court’s schedule can differ from the statute); Siegel N.Y. Practice § 279 (5th ed.). Here, the Supreme Court exercised its authority by setting a new scheduling order, to which all of the parties agreed, thereby circumventing the default deadline of 120 days provided for in CPLR 3212(a) by specifically establishing a new date for the filing of the summary judgment motion. In the alternative, it is respectfully submitted that the good cause for filing the summary judgment motion more than 120 days after the Note of Issue was the trial court’s own interest, with the parties’ consent, in resolving issues of law prior to a trial of the facts of the case. A trial court may properly entertain a motion for summary judgment more than 120 days after the filing of the note of issue where the parties have leave of court and the court has found good cause. NY CPLR 3212(a); Armentano at 494; citing Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004] and Brill v City of New York, 2 NY3d 648, 652 [2004]. “The standard for a good cause showing should not be an unreasonable one. Nor should untimeliness ever be used as a facile excuse to avoid reaching the merits.” Butt v. Bovis Lend Lease LMB, Inc., 47 A.D.3d 338, 340 [1st Dept 2007]; Urena v. Jack, 20 Misc. 3d 20 [NY Sup. Ct 2008]. A trial court has broad discretion in Page 4 of 16 determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue. See CPLR 3212(a); Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]; Marton v. Consolidated Edison Company of New York, Inc., 36 Misc. 3d 1239 [NY Sup. Ct 2012]. Public policy favors the discretion of the trial court to manage its own calendar. A trial judge has the discretion to set the court’s own calendar with deadlines for motions which do not have to conform to statutory parameters. CPLR 3212(a); Harrington v Palmer Mobile Homes, Inc., 71 A.D.3d 1274 [3d Dept 2010] (“Supreme Court has the authority to control its calendar by establishing schedules and timetables.” Harrington 71 A.D.3d at 1274.) The Supreme Court’s actions demonstrate both its full engagement in, and acceptance of, a plan, mutually agreed by all parties, to a schedule for summary judgment outside the statutory parameters. The fact that the trial court raised issues of law with the parties late in the case is the reason the motion for summary judgment was filed more than 120 days after the Note of Issue. It is respectfully submitted that this fulfills both the requisite good cause and leave of the court for a motion for summary judgment to be heard after the statutory 120 day deadline. It is therefore respectfully submitted that the Supreme Court providently exercised its discretion in finding that good cause existed to entertain the motion for summary judgment and it properly accepted and decided the motion even though it was submitted more than 120 days after the filing of the Note of Issue. See Trump Vil. Section 3, Inc. v New York State Hous. Fin. Agency, 307 AD2d 891 [1st Dept 2003]; Marton v. Consolidated Edison Company of New York, Inc., 36 Misc. 3d 1239 [NY Sup. Ct 2012]. Appellant’s subsequent opposition to the timing of the motion, first raised on appeal, relies on cases that are distinguishable from the case at bar in that they all involve the stipulation and/or consent of the parties for a late motion which was not accepted by the trial court. Coty v. County of Clinton, 42 AD3d 612, 613 [3d Dept 2007]; Cajamarca v. Euro Marble Ctr., Inc., 2012 N.Y. Misc. LEXIS 3434 [May 15, 2012]; Eum v. Stephens, 26 Misc3d 1223(A) [2010]; Balcerzak v. DNA Contr., LLC, 9 Misc3d 524 [2005]. By contrast, it is uncontroverted in this case that the parties expressly consented to the timing of the summary judgment motion and the trial court, in its wish to entertain briefs on matters of law, granted leave and accepted the motion pursuant to its scheduling order. Despite a body of case law that upholds the discretion of a trial court to make its own calendar, the Appellant argues that the trial court does not have the authority to extend the statutory time limit for filing motions for summary Page 5 of 16 judgment. The Appellant essentially argues that if a trial court sets a deadline for the submission of summary judgment motions that falls outside the parameters of the statute, then the moving party must make an affirmative showing of good cause for filing the motion more than 120 days after the Note of Issue or the trial court cannot accept the motion. This position, however, belies well-established law that the trial court does have the broad discretion to establish a calendar that does not conform to the CPLR, including a schedule that permits the filing for summary judgment more than 120 days after the filing of the Note of Issue. For example, in Cooper v Hodge, 13 AD3d 1111 [4th Dept 2004], the Appellate Division, Fourth Department, upheld the parties' understanding of a trial court's scheduling order which they believed extended the time for the parties to file motions for summary judgment more than one year after the filing of the Note of Issue. Cooper v Hodge, 13 AD3d at 1112. In Cooper, the appellate court found that where both parties believed that the trial court had agreed to amend a scheduling order to extend the time to file a motion for summary judgment, then the motion should have been heard by the trial court, even if it was more than a year after the filing of the Note of Issue. Cooper v Hodge, 13 AD3d at 1112. If, as Appellant argues here, the trial court lacks the authority to extend the time for the filing of motions for summary judgment, then any confusion about whether the court in Cooper had in fact granted an extension would have been immaterial and the appellate court in Cooper would have been well within its rights to have upheld the denial of the motion as untimely. Instead, the appellate court went out of its way to enforce an extension of the deadline in the scheduling order, which the parties believed the trial court had granted orally. Cooper v Hodge, 13 AD3d at 1112. In addition, if a trial court does not have the power to manage its own calendar and establish deadlines independent of the CPLR, then scheduling orders that provide more than 120 days after Note of Issue for the filing of motions for summary judgment would be null as a matter of law. But they are not. In fact, quite the contrary, "[p]arties are afforded great latitude in charting their procedural course through the courts, by stipulation or otherwise." Corchado v City of New York, [1st Dept 2009]. The appellate court in Corchado held that "the parties with the court's consent, were free to chart a procedural course that deviated from the path established by the CPLR" and this included a schedule for summary judgment motions that was different than prescribed by the CPLR. In Ford v Kerisant, et al., 54 AD3d 263, 264-267 [1st Dept 2008], a “so ordered” stipulation of the parties which provided for the filing of a motion for summary judgment more than a year after the filing of Note of Issue was held to be enforceable. In Vila v Cablevision Page 6 of 16 of NYC, et al., 28 AD3d 248-249 [1st Dept 2006], a schedule set forth in a “so ordered” stipulation, which appeared to set the deadline for summary judgment beyond the statutory parameters of CPLR 3212, but was ambiguous, was deemed to be a reasonable excuse for filing the motion more than 120 days after Note of Issue. It is therefore respectfully submitted that Respondents’ filing for summary judgment in keeping with the Supreme Court's schedule for the case was timely because the trial court had exercised its authority and set a date for the Respondents’ motion to be filed, thereby circumventing the default statutory deadline. In the alternative, when a trial court and the parties agree that issues of law warrant deliberation late in a case, then this constitutes good cause for summary judgment motions being considered outside the statutory parameters. Waiver by Appellant to Oppose the Timing of Summary Judgment The Appellate Division, Fourth Department, properly determined that Appellant waived his right to contend that Respondents’ motion for summary judgment was untimely when he expressly consented to the timing of the motion before it was made and did not raise any objections to the motion when it was filed and served. Stephen v Brooklyn Pub. Lib., 120 AD3d 1221 [2d Dept. 2014]; see Hadden v Consolidated Edison Co., 45 NY2d 466 [1978]. “A waiver, the intentional relinquishment of a known right…may be accomplished by express agreement…” Hadden 45 NY2d at 469; citing Matter of Meachem v New York Cent. R. R. Co., 8 NY2d 293, 299 [1960]. Here, the Appellant’s trial counsel expressly agreed on the record, after consulting with the Appellant himself, to postpone the trial so that the court could entertain a summary judgment motion. (R55:1-18). "Parties are afforded great latitude in charting their procedural course through the courts…by stipulation or otherwise." Katz v Robinson Silverman Pearce Aronsohn & Berman, L.L.P., 277 A.D2d 70, 73 [1st Dept 2000]; citing Stevenson v News Syndicate Co., 302 NY 81, 87 [1950]; see also, Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]; Matter of Malloy, 278 NY 429 [1938]; Corchado v City of New York, 64 AD3d 429 [1st Dept 2009]. Counsel for the Appellant then placed on the record a proposed schedule for the summary judgment motion to which all parties and the Supreme Court agreed. (R55:9-17). Appellant continued to agree to the trial court’s motion schedule by requesting an extension of time to respond to the Respondents’ motion papers. (Appendix to Defendants-Respondents’ Brief; Exhibit “3A”). When Page 7 of 16 responding to the motion for summary judgment, the Appellant did not object to the motion as either untimely or outside the statutory parameters. Appellant did not contest the timing of the summary judgment motion until after he had lost the motion at the trial court level and was appealing the trial court’s decision, despite conceding that he requested, along with Respondents, that the trial court entertain the motion. (Plaintiff-Appellant’s Brief, pp. 9, 11.) Appellant then confirmed his consent to the timing of the summary judgment motion in his motion papers on appeal before the Appellate Division, Fourth Department, and again before this Court. (Plaintiff-Appellant Affirmation dated May 27, 2015, Paragraph 19; Appellant’s Letter Brief to the Court of Appeals dated August 11, 2015, p. 3.) Appellant thereby voluntarily and intentionally relinquished his right to assert that the summary judgment motion was untimely. Peck v Peck, 232 AD2d 540 [2d Dept 1996]; citing Agati v Agati, 92 AD2d 737 [4th Dept 1983], aff’d 59 NY2d 830; 21 NY Jur, Estoppel, Ratification, and Waiver, §§ 94, 95, at 133-134). Appellant, after explicitly consenting to the timing of the summary judgment motion and receiving an extension to respond, now attempts to take a second bite at the apple by raising the issue of timeliness for the first time on appeal. To allow a disgruntled party, after consenting to the timing of the motion, to have summary judgment nullified on a procedural point which has been waived before the motion was accepted by the trial court contravenes the public policies that provide for the certainty of outcomes and judicial economy through the dismissal of unmeritorious claims on summary judgment. Appellant’s assertion thereby equates to a “facile excuse to avoid reaching the merits [of the case].” Butt v. Bovis Lend Lease LMB, Inc., 47 A.D.3d 338, 340 [1st Dept 2007]; Urena v. Jack, 20 Misc. 3d 20 [NY Sup. Ct 2008]. The appellate court, therefore, properly concluded that Appellant waived his right to oppose the timing of Respondents’ summary judgment motion. Point II Summary Judgment as a Matter of Law was Properly Granted Because Respondents Demonstrated Entitlement to Summary Judgment and Appellant Failed to Raise a Question of Fact Requiring a Trial Appellant brought this action under New York Public Health Law §2801-d, claiming that Virginia Bennett was deprived a right or benefit created for her wellbeing when the St. John’s Home disagreed with her husband, Ainsworth Bennett, as to whether he was capable of safely caring for his wife at home, and Page 8 of 16 when her residency was extended by seven weeks until the Appellant contracted for the placement of home care services. It is respectfully submitted that the Supreme Court properly granted summary judgment dismissing the Complaint when the Respondents showed that there was no cognizable claim for a deprivation of Virginia Bennett’s rights arising out of the timing of her discharge when (1) Virginia Bennett could have left the St. John’s Home at any time, voluntarily, against medical advice (N.Y. Public Health Law §2803-c(3)(e); R186; R193; R411; R649, R656; R659, R666-667; R672); (2) there is no code, rule, regulation, or law that required the nursing home to discharge a resident into the primary care of a spouse who repeatedly failed to demonstrate the requisite skills and judgment to safely care for his wife or before the support services deemed necessary for a safe discharge were in place (42 C.F.R. §483.11; 42 C.F.R. §483.20(1)(3); 10 N.Y.C.R.R. §413.3; 10 N.Y.C.R.R. §415.11(d)(3)); (3) the social worker who is the brunt of Appellant’s criticism did not have the authority to discharge Mrs. Bennett regardless of how much advocacy she made on behalf of Mrs. Bennett (R644; R649; R738; R742); and (4) Mrs. Bennett suffered no injury while in the continued residency of the St. John’s Home nor any specific injury as a result of the alleged deprivation of her rights (R649; R674; R738). Respondents established their right to summary judgment through the submission of Mrs. Bennett’s records together with the expert affirmations of Sharon Brangman, M.D. and the factual affirmation of Mrs. Bennett’s private psychiatrist, William Reamy, M.D., the affidavit from her social worker at St. John’s Home, Rebecca Priest, SW, and the affirmation of her treating physician at St. John’s Home, Michele Carpenter, M.D. (R644; R649; R659; R674, R738; R742). These records established a prima facie entitlement to summary judgment by showing the trial court that: (1) the St. John’s Home discharge plan did not deprive Mrs. Bennett of her rights when all assessments by all disciplines concluded that a safe discharge to home required 24/7 home care assistance (R644; R649; R738; R742); (2) that Mr. Bennett was properly evaluated as being either unwilling or incapable of providing the necessary services for his wife at home (R649, R654; R659; R738); (3) that Mrs. Bennett suffered no emotional or physical harm as a result of her stay at St. John’s Home while she awaited the placement of the home care services for her discharge (R644; R649; R659; R674; R738); and (4) Mr. Bennett had been properly advised of the right to take his wife out of the St. John’s Home AMA if he did not want to accept and comply with the discharge plan (R649; R659). Page 9 of 16 To defeat the Respondents’ motion, it was incumbent upon the Appellant to establish a deprivation of some right conferred upon Mrs. Bennett that resulted in some consequential injury. Butler v. Shorefront Jewish Geriatric Ctr., Inc., 33 Misc. 3d 686, 693 [Kings Co Sup. Ct 2011] (statutory basis for liability under Public Health Law §2801-d is the deprivation of a right conferred by contract, statutes, regulations, code or rule, not a deviation from accepted standards of medical practice nor breach of a duty of care); citing Zeides v. Hebrew Home for the Aged at Riverdale, 300 A.D.2d 178, 179 [1st Dept 2002]. Where the plaintiff fails to establish a deprivation of a resident’s rights or a causal nexus between any alleged deprivation and the claimed injury, the case is properly subject to summary judgment. Butler v. Shorefront Jewish Geriatric Ctr., Inc., 33 Misc. 3d at 697-698; Gold v. Park Ave. Extended Care Ctr. Corp., 90 A.D.3d 833, 834 [2d Dept 2011]. In this case, while the Appellant argued that Virginia Bennett was deprived of some right under law when the St. John’s Home disagreed with him as to whether he was capable of safely caring for his wife at home, the Appellant cited to no statute or law or contract that compelled the Respondents to agree with the health care proxy as to his level of ability to care for his wife or to discharge the resident before home care services, which were evaluated to be necessary for a safe discharge, were in place. Rather, Appellant argued that Mrs. Bennett’s rights under Public Health Law §2803-c entitled her to better advocacy by the social worker at the St. John’s Home and that a failure in such advocacy violated her rights. (R678). While Respondents do not concede that the social worker failed to properly advocate for Mrs. Bennett, even if one assumed this to be true, it does not establish a prima facie case for relief. Appellant failed to establish that such better advocacy somehow would have changed the discharge plan to have enabled Mr. Bennett to take his wife home without home care services in place. It was uncontroverted before the Supreme Court that the social worker did not have the authority to order the discharge of Mrs. Bennett. That was solely the purview of the attending physician, Michele Carpenter, M.D., who attested to the trial court that it was her judgment, and not the social worker’s judgment or advocacy, that framed the conditions of the physician’s order for discharge. (R644, R647). Appellant argued that the nursing home had no legal duty to ensure a safe discharge for Mrs. Bennett. Yet, a very specific state regulation clearly states the when a resident is transitioned from a nursing home either to assisted living or independent living at home, the nursing home's post-discharge plan must "assure that needed medical and supportive service have been arranged and are available to Page 10 of 16 meet the identified needs of the resident." 10 NYCRR §415.11[d][3]. See also 42 CFR 483.20 [1](3) ("A post discharge plan of care that is developed with the participation of the resident and his or her family, which will assist the resident to adjust to his or her new living environment"); 10 NYCRR §415.3(h)(l)(i) ("the facility shall...not transfer or discharge the resident from the facility unless such transfer or discharge is made in recognition of the resident's rights to receive considerate and respectful care, [and] to receive necessary care and services..."). To the extent that the resident desires to leave before supportive services, as deemed necessary to provide needed cares for the resident to adjust to the new living environment in a respectful manner, have been arranged, then the resident has the right to choose to leave without those supportive services in place, knowing that this is against the medical advice of the nursing home. N.Y. Public Health Law §2803-c(3)(e) ("Every patient shall have the right...to refuse medication and treatment after being fully informed of and understanding the consequences of such actions.”)(hereinafter "AMA law"). Contrary to Appellant's argument, there was no restraint on Mr. Bennett's ability to remove his wife from the St. John’s Home against medical advice. Being informed that the consequences of leaving AMA would result in a report to the Elder Abuse hotline was not a restraint of the right to choose to leave, but rather a fulfillment of the statutory requirements of the Public Health Law for the resident to be informed of the consequences of such actions. N.Y. Public Health Law §2803-c(3)(e). Further, there was no piece of paper that Mr. Bennett had to sign nor was Mrs. Bennett retained because her husband failed to sign a piece of paper. There is no allegation in the Complaint or Bill of Particulars that anything like this happened, nor is there any evidence in the record cited by Appellant for this argument, which was raised for the first time on appeal. Rather, Mr. Bennett simply elected not to take advantage of the option to remove his wife AMA because he was wary of the potential consequences. The fact that the consequences of a choice might be distasteful does not mean that the choice ceased to exist. In this case, where Mr. Bennett concedes that he was fully advised of his options and the evidence shows that he elected not to take his wife out of the St. John's Home against medical advice before supportive services were arranged at home, he was exercising his wife's rights to self-determination on her behalf. Any claim that Mrs. Bennett really wanted to leave and that her right to decide to leave was taken from her is therefore without merit and the trial court properly granted summary judgment as to this claim. Page 11 of 16 Virginia Bennett Could Have Left St. John’s Home at Any Time It is respectfully submitted that the Supreme Court properly found that Appellant waived any claim of a delayed discharge of his wife when he made a choice not to remove his wife from the St. John’s Home against medical advice. The New York State Public Health Law Bill of Rights §2803-c permits any patient to refuse medical care and treatment and to sign him/herself out of a nursing home facility against medical advice. N.Y. Public Health Law §2803-c(3)(e) (“Every patient shall have the right…to refuse medication and treatment after being fully informed of and understanding the consequences of such actions.”). The record before the Supreme Court established that, on more than one occasion, the staff at St. John’s Home explained to the Appellant his right to remove his wife against the medical advice of the nursing home’s doctors. (R411; R649, R656; R659, R666). This would have enabled Mr. Bennett to bring Mrs. Bennett home without home healthcare services if that was her wish. This is uncontroverted. It is also uncontroverted that the staff at St. John’s Home fully informed Mr. and Mrs. Bennett that if Mr. Bennett took his wife home AMA without the support services which had been recommended by all of the disciplines that assessed her discharge plan, then the AMA discharge would have to be reported to the Elder Abuse hotline (a/k/a Eldersource Abuse Prevention Agency). (R411; R659, R667). This comports with Respondents’ duty to fully inform Mr. and Mrs. Bennett of their options and of the potential consequences of those options, pursuant to the Public Health Law. N.Y. Public Health Law §2803-c(3)(e). Appellant concedes that all of this information was in fact provided to him and his wife but argued that the AMA option was distasteful and, therefore, it should not have been considered as a legal option. Regardless of whether Mr. and Mrs. Bennett liked that option, however, the choice continued nonetheless to exist. In fact, Mr. Bennett did take his wife out of St. John’s Home on more than one occasion for medical appointments and visits and each time voluntarily returned her to the nursing home to continue her residency. (R659, R672). The fact remains that after being fully informed of the AMA option, Appellant declined to exercise the right to take his wife home and instead opted to accept the discharge plan of the St. John’s Home so that his wife’s discharge properly occurred after Mr. Bennett engaged in a contract for a home care agency to provide support services for his wife at home. It is respectfully submitted that the Supreme Court properly decided that Mr. Bennett was fully informed of his wife’s options and, by choosing not take his wife home against medical advice, he waived any claim that her ongoing residency at the St. John’s Home pending a safe discharge violated her rights. Page 12 of 16 Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184 [1982]; Golfo v. Kycia Assoc., Inc., 45 AD3d 531, 532 [2d Dept 2007]. It is well-established that a valid waiver “requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver would have been enforceable”. Golfo v. Kycia Assoc., Inc., 45 AD3d 531, 532 [2d Dept 2007]; citing Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]. “A waiver may be express or implied and ‘may be established by acts and conduct manifesting an intent and purpose not to claim the alleged advantage or from which an intention to waive may be reasonably inferred.’” Heidi E. v. Wanda W., 210 AD2d 918 [4th Dept 1994] (citation omitted) (Patient waived right to enforce defendant’s duty to maintain confidentiality by authorizing friend to inquire about the patient’s condition. Patient’s actions also waived physician-patient privilege.). This may arise by “such conduct or a failure to act as to evince an intent not to claim the purported advantage”. Golfo 45 AD3d at 533. There must simply be “proof that there was a voluntary and intentional relinquishment of a known and otherwise enforceable right”. Golfo 45 AD3d at 533; see Peck v. Peck, 232 AD2d 540 [2d Dept 1996]. A waiver may be implied where a party’s conduct is inconsistent with its intent to enforce its rights. See GDJS Corp. v. 917 Props., Inc., 99 AD2d 998, 999 [1st Dept 1984]; T.G.I. East Coast Constr. Corp. v. Fireman’s Fund Ins. Co., 600 F. Supp. 178, 181 [SDNY 1985] (Contractor waived subcontractor’s bonding requirement by knowingly permitting subcontractor to proceed with work unbonded.). Respondents submitted uncontroverted evidence to the Supreme Court that Mr. Bennett and his wife were notified on more than one occasion of her right to leave St. John’s Home against medical advice and repeatedly declined to do so. (R411; R659, R672). In fact, Mr. Bennett stated on more than one occasion that he was going to remove his wife from St. John’s Home “against medical advice” but failed to carry out that expressed intent during the remainder of her residency. (R659, R667). This evidenced Appellant’s knowledge and understanding of his wife’s right to leave against medical advice. See Golfo 45 AD3d at 533; referencing Hadden v. Consolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]. Together, Appellant’s actions clearly establish his voluntary decision to abandon the right, on behalf of his wife, for Mrs. Bennett to leave the nursing home before appropriate home care services were in place. Page 13 of 16 Virginia Bennett was not deprived of her right to adequate and appropriate medical care as the result of the advocacy or lack of advocacy by the social worker. Instead of challenging the medical judgment of the physician who was responsible for Mrs. Bennett’s discharge order, Appellant argues that the discharge was delayed because a social worker failed to express the appropriate level of advocacy for Mrs. Bennett and that this deprived Mrs. Bennett of the right to adequate and appropriate medical care. Within the Bill of Rights enumerated by Public Health Law §2803-c is a right to “adequate and appropriate medical care.” N.Y. Pub. Health Law §2803- c(3)(e)(McKinney’s 2013). Appellant disagreed with St. John’s Home about his wife’s needs and argues that the assessments performed at St. John’s Home which led to a determination that her discharge would require 24/7 home health care assistance somehow deprived Virginia Bennett of the right to adequate and appropriate medical care. This argument is without merit as evidenced by the affirmation and reply affirmation of expert Sharon Brangman, M.D. who affirmed to the Supreme Court that the medical care Mrs. Bennett received at the St. John’s Home met all applicable standards of care in New York State, including the right to adequate and appropriate medical care under the Public Health Law. (R649, R653; R738, R741). Appellant submitted no contrary medical expert affidavit to the Supreme Court to create even a question of fact as to the adequacy of Mrs. Bennett’s medical care. Rather, Appellant asserted that a social worker’s lack of advocacy for Mrs. Bennett violated her right to adequate and appropriate medical care. Respondents did not concede this point and submitted the Affidavit of Rebecca Priest, SW, to attest to the extensive efforts made by the staff at St. John’s Home to perform the assessments of Mrs. Bennett’s needs as well as Mr. Bennett’s ability to fulfill those needs as a primary care provider. (R659, R662). Ms. Priest also described in detail the extensive medical and psycho-social services that St. John’s Home put in place to fulfill Mrs. Bennett’s rights to appropriate care. (R659, R662- 666). Yet, even if the alleged inadequacy of the social worker’s advocacy was conceded for argument sake, it is nevertheless respectfully submitted that the trial court properly found that any question of fact in this regard is immaterial to the questions of law upon which the case could be disposed. In short, the degree of advocacy of the social worker is irrelevant where the social worker does not make the decision to discharge the resident. (R738, R739). Rather, the discharge order is Page 14 of 16 made by the attending physician who attested to the Supreme Court that no amount of advocacy by the social worker would have changed the doctor’s plan to make sure that home care services were in place before Mrs. Bennett was discharged because this was the recommendation of every discipline and professional who assessed Mrs. Bennett for discharge. (R742, R743). Consequently, Appellant’s criticism of the social worker at the St. John’s Home lacks the necessary causal nexus to the order for discharge. It is respectfully submitted that the lower courts therefore properly dismissed these arguments. St. John’s Home’s decision to discharge Virginia Bennett’s once the appropriate home health care services were in place did not deprive her right to medically- related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being. A further provision of 42 C.F.R. §483.15 states that a nursing home facility must provide medically-related social services to the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. The lower courts properly refused to interpret this regulation to mean that the nursing home must order the discharge of the resident into an unsafe environment. Rather, the Respondents submitted the uncontroverted expert affirmation and reply affirmation of geriatric physician expert Sharon Brangman, M.D. which explained that this regulation simply requires that the nursing home have social workers and other therapists on staff to work with the resident to maintain the resident’s physical and mental health. (R649; R738). The regulation does not require that the nursing home acquiesce in a discharge decision for a resident that the nursing home’s assessments have concluded to be unsafe. (R649, R653). The uncontroverted record below demonstrated that the St. John’s Home fulfilled Mrs. Bennett’s rights under this regulation by assisting Mrs. Bennett to recover her ability to ambulate under the care of the St. John’s Home’s physical and occupational therapists. (R649, R651). Mrs. Bennett also engaged with other residents in Bingo games and happy hour, and she no longer required Ambien to sleep at night. (R659, R670). All these undisputed facts evidence a resident who was maintaining the highest practicable physical, mental, and psychosocial well- being during her residency. Dr. Brangman’s affirmations opine to the Supreme Court that the medically-related social services provided by St. John’s Home demonstrate that all care reasonably necessary to avoid a deprivation of Mrs. Page 15 of 16 Bennett’s rights was provided to her and that St. John’s Home succeeded in fulfilling her rights. (R649, R657; R738, R741). Finally, Respondents submitted the uncontroverted affirmation of Virginia Bennett’s own long-time psychiatrist, William R. Reamy, M.D., who, after seeing Mrs. Bennett and her husband during and after her residency at St. John’s Home, affirmed that he found no complaints or symptoms which would have indicated that Mrs. Bennett suffered any injury or emotional harm from an alleged delay in her discharge from the nursing home. (R674, R675). In light of this uncontroverted evidence, the trial court properly dismissed the Appellant’s argument that this regulation established a basis for a cause of action in this case. It is therefore respectfully submitted that any allegation that the physician at St. John’s Home should have issued an order for Virginia Bennett’s discharge earlier or without 24/7 home healthcare services is, therefore, necessarily a question of medical malpractice which was not pled. In the absence of any cause of action in this case for medical malpractice, no such theory or any evidence in support of such a theory can be put to trial and, therefore, all such claims were properly dismissed by the Supreme Court. Appellant’s current contention, which was improperly raised for the first time on his motion to reargue before the Appellate Division, Fourth Department, that the affidavit of social worker Elise Beaulise, LMSW (R700) created a conflicting “expert opinion” thereby preventing the resolution on a motion for summary judgment is misplaced. Ms. Beaulise, as a social worker, is not qualified to provide expert opinion as to a physician’s judgment about conditions necessary for the safe discharge of a resident. In addition, Appellant’s “expert opinion” wholly fails to establish the causal nexus between the alleged failure of the Respondents’ social worker and the claimed injury, to wit: an alleged delay in discharge. Finally, the Appellant, by failing to raise the issue on his appeal from the Supreme Court’s decision on the summary judgment motion, did not preserve the issue and, thereby, it is respectfully submitted that this Court may properly disregard the argument. Page 16 of 16 CONCLUSION Respondents respectfully submit that good cause was not required to bring their summary judgment motion as the Supreme Court, by setting a new scheduling order which included a deadline for the motion, circumvented the statutory default deadline of 120 days for such motions. In the alternative, Respondents respectfully submit that the Supreme Court’s own interest in resolving issues of law on their merits, which was raised with the parties more than 120 days after the filing of the Note of Issue, was, in fact, good cause. In addition, the appellate court properly determined that Appellant waived his right to contend that Respondents’ motion for summary judgment was untimely when he expressly consented to the timing of the motion before it was made and did not raise any objections to the motion when it was filed and served. Finally, it is respectfully submitted that the Supreme Court properly granted summary judgment dismissing the Complaint when the Respondents submitted uncontroverted evidence that there was no cognizable claim for a deprivation of Virginia Bennett’s rights as a result of an alleged delay in her discharge from the nursing home. Accordingly, for all of the above reasons and upon all arguments set forth in Respondents’ brief, post-argument submission, and attorney affirmation in opposition to Appellant’s motion to reargue before the Appellate Division, Fourth Department, which are specifically reserved and incorporated herein by reference (22 NYCRR 500.11[f]), it is respectfully requested that the Order appealed from be affirmed in its entirety. Respectfully submitted, s/David H. Fitch David H. Fitch, Esq. DHF:ddd cc: David E. Woodin, Esq. David E. Woodin LLC 291 Main Street PO Box 433 Catskill, New York 12414 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 CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR 500.1[f], Defendants-Respondents St. John’s Home and St. John’s Health Care Corporation, by and through its undersigned counsel, certify that: St. John's Health Care Corporation is a membership corporation. The sole member of the corporation is St. John's Senior Services. St. John's Senior Services is also the sole member of SJH Community Services, Inc. and St. John's Home for the Aging. St. John's Health Care Corporation is also the Active Parent and Co- established Operator of St. John's Penfield Homes. Date: Rochester, New York August 27, 2015 s/David H. Fitch David H. Fitch, Esq. UNDERBERG & KESSLER LLP Attorneys for Defendants- Respondents 300 Bausch & Lomb Place Rochester, New York 14604