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

Brief

N.Y.November 18, 2015

STATE OF NEW YORK APPELLATE DIVISION SUPREME COURT FOURTH DEPARTMENT ______________________________________________________ AINSWORTH M. BENNETT, Individually and on behalf of the ESTATE OF VIRGINIA R. BENNETT, Plaintiff-Appellant POST-ARGUMENT MEMORANDUM -against- CA 14-01354 CA 14-01356 Ind.No. 10/9516 ST. JOHN’S HOME and ST JOHN’S HEALTH CARE CORPORATION, Defendants-Respondents. ______________________________________________________ Appellant herein respectfully submits this post-argument memorandum pursuant to 22 NYCRR § 1000.11[g]. Point I The Issue of the Untimeliness of the Motion for Summary Judgment is Preserved and Requires Reversal At oral argument, Respondent spoke second, without opportunity for Appellant to rebut (22 NYCRR §1000.11[f]). However, on the issue of timeliness of the motion for summary judgment, Respondent cited to Jim Beam Brands Co v Tequilla Cuero La Rojena, a case not referred to in Respondent’s brief. Upon inspection, that case states simply, ‘The court properly determined the motion for summary judgment, although it was made more than 120 days after the filing of the note of issue. The motion was made pursuant to both a stipulation and the court's own order, upon a showing of “good cause” (CPLR 3212 [a]; cf. Brill v City of New York, 2 NY3d 648, 651-652, 814 NE2d 431, 781 NYS2d 261 [2004]).’ (Jim Beam Brands Co v Tequilla Cuero La Rojena, 85AD3d 556-557 [1st Dept 2011]). The opinion in Jim Beam does not recite the factual basis for the showing of “good cause”, however it is reasonable to infer both that any such “showing” would have been made by the movant, and further that the “showing of good cause” related to the reason for the delay and not to the merits of the case itself or to matters contained in the parties’ “stipulation”, which was presumably not alone sufficient to procure the court’s “order” permitting the late filing. The opinion in Jim Beam is thus in fact consistent with Appellant’s argument that, before entertaining 1 a late motion for summary judgment (even one the court wishes to hear), a trial court must inquire and obtain from the movant a satisfactory explanation for the delay. Subsequent cases citing Jim Beam confirm this reading, for example, Kosovsky v Park S. Tenants Corp., which states: “Park South's argument that plaintiff's motion is untimely is without merit. Although Park South correctly asserts that this motion was filed more than 120 days after the notice of trial was filed in 2010, while this matter was still pending in Civil Court, New York County, this Court granted plaintiff permission to bring the instant motion (Ex. G to Ex. B, at 10-11) upon a showing of good cause. See CPLR 3212(a); Jim Beam Brands Co. v Tequila Cuervo La Rojena, S.A. De C.V., 85 AD3d 556, 924 N.Y.S.2d 793 (1st Dept 2011). Specifically, between the time the notice of trial was filed and the time this Court granted plaintiff leave to move for summary judgment, the ECB determined that Park South failed to maintain plaintiff's unit (Exs. C and D to Ex. B) and Park South was sanctioned for spoliating evidence.” (Kosovsky v Park S. Tenants Corp., 2014 N.Y. Misc. LEXIS 4837, 32-33 [2014] [emphasis added]). The reliance upon Jim Beam by the court in Kosovsky indicates that Jim Beam in fact stands for and reinforces the requirement that a reason for the delay must be shown. The First Department in Kershaw v Hospital for Special Surgery (114 AD3d 75 [2013]) has called upon trial courts to “lead the way” in this regard, stating that “[w]hile the Brill rule may have caused some practitioners and courts to wince at its bright line . . . the Court of Appeals (has) reiterated on more than one occasion, and in varying contexts, that it meant what it said” (114 AD3d 75, 83-84), citing Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010], Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C., 5 NY3d 514 [2005], Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004], and further explaining, ‘[W]e do not find that a straightforward interpretation of the statute, or Brill, leads to "absurd and unintended consequences," especially as the Court of Appeals acknowledges in Brill that if the strictures of CPLR 3212 (a) are applied "as written and intended," there may be situations where a meritorious summary judgment motion may be denied, "burdening the litigants and trial calendar with a case that in fact leaves nothing to try" as was the result in Brill (2 NY3d at 653). However, the solution, the Court of Appeals explains, is not for the courts to overlook or bend CPLR 3212(a) to fit the particular circumstances, but for "practitioners [to] move for summary judgment within the prescribed time period or offer a legitimate reason for the delay" (id.). In other words, Brill calls on the courts to lead by enforcing the words of the statute, rather than let attorney practice slowly eat away at the integrity of our judicial system. When the courts consistently "refus[e] to countenance" violation of statutory time frames, there will be fewer instances of untimely, improperly labeled motions, because "movants will develop a habit of compliance" with the statutory and court-ordered time frames, and late motions will include a good cause reason for the delay (id). 2 We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. Rather, we enforce the law as written by the legislature, and as explained in Brill. It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is "good cause shown" for the delay. Indeed, in our view, the dissent wrongly interprets the statute by claiming that the "good cause shown" prong is not always a part of the CPLR 3212 (a) analysis. There is nothing in the language of the statute to suggest this and it opens the door to abuse; . . . . The value of enforcing the terms of the statute as written is that attorneys will make sure their motions are timely filed or that there is a good reason for the lateness. Nonmovants will suffer no prejudice. The courts will no longer have to address the kinds of questions we address here. The result will be judicial economy, as well as lawyerly economy’ (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 85-86 [1st Dept 2013]). Specifically addressing concerns voiced by the dissent, the First Department in Kershaw stated, ‘The dissent considers our application of Brill in this instance to be "rote," and that our interpretation is antithetical to that decision's policy considerations of preventing eve-of trial summary judgment motions. It contends that in the interest of judicial economy we should not depart from "prior authority" that affords the court discretion to entertain a "marginally late filing" when there is merit to the application and no prejudice has been demonstrated, citing Burns v Gonzalez (307 AD2d 863 [1st Dept 2003]), and Garrison v City of New York (300 AD2d 14 [1st Dept 2002], lv denied 99 NY2d 510 [2003]). The dissent would seemingly limit the reach of Brill to those actions where a party files a motion for summary judgment long after the deadline for dispositive motions and the matter is on the trial calendar. In our view, Brill expresses the Court's overall desire to curb "sloppy" litigation practices, one of them being late summary judgment motions. The dissent's approach of judging a motion's merits without consideration of why it was untimely, can only lead to uncertainty and additional litigation as motions clearly barred by Brill become arguably permissible because one of the litigants perceives the motion to have merit and perceives no prejudice to the other side. But most importantly, the dissent's approach is in derogation of CPLR 3212(a). The dissent expresses concern about an extra burden to the courts and litigants if we strictly enforce Brill "without taking into consideration the circumstances of the case." It reasons that because Brill emphasizes the advantages of summary judgment, with which we of course agree, those advantages outweigh a consistent application of the statute. However, bending the rule results in the practical elimination of the "good cause shown" aspect of CPLR 3212(a), and the clear intent of Brill.’ (Id. [emphasis added]). Thus, Appellant respectfully submits that a desire on the part of a trial court to promote “judicial economy” is simply not sufficient “good cause” for the court to ignore the mandate of Brill, for the Court of Appeals has already therein set forth what statute and its own overriding policy of promoting judicial economy in the trial courts of the state require of 3 both litigants and trial courts. As the Court has again recently articulated, “[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution” (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]). It is well settled that “the parties’ stipulation is insufficient to excuse the delay” (Coty v County of Clinton, 42 AD3d 612, 613-614 [3d Dept 2007]) and, while mutual agreement of the parties with “court approval” may be sufficient (see Id.), the “court’s approval” must be based on something beyond the stipulation itself and the arguable merit of the motion, both of which are indisputably insufficient. Appellant submits that, under Brill, “court approval” of a stipulation to a late motion must be based on a reason related to the delay, or else it is an abuse of discretion for the court to entertain the motion. As such, no objection should be required in order for this Court to find the issue either has been adequately preserved, or should be reached in the interest of justice. Further, as an issue which impacts public policy governing the courts, it should be reviewed by this Court despite being raised for the first time on appeal (see People v Knowles, 88 NY2d 763, 771 [1996]; O'Mara v. Dentinger, 271 A.D. 22 [4th Dept 1946] [where an illegality appears plainly and the transaction is contrary to public policy, the court may, of its own motion, take notice of it and may consider it for the first time on appeal]). Since it is undisputed that supreme court did not require a showing of “good cause for the delay” before entertaining the motion herein, appellant respectfully submits this Court should reverse the order of supreme court that determined defendant’s motion, and remit Appellant’s case for trial. Point II No Regulation Requires a Nursing Home to Ensure the “Safe Discharge” of a Resident Respondent at oral argument argued that “regulations require” a nursing home to ensure the “safe discharge” of a resident. No regulation cited by Respondent contains this requirement. Respondent’s brief cites numerous regulations purported to relate to the “safety” of residents upon discharge, however several of these citations either appear not to exist (i.e., “42 CFR 83.15” [RB 20], “42 CFR 483.11” [RB 18], “10 NYCRR 415.1[d][3]” [RB 19]), are inaccurately cited or, if accurate, are clearly inapposite (e.g., “10 NYCRR 413.3”, referring to an “Appeal process” [RB19]). Of Respondent’s regulatory citations that do exist and are pertinent, with regard to the issue of “planning for discharge”, Respondent’s cited federal regulation requires only that “[w]hen the facility anticipates discharge a resident must have a discharge summary that includes 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” (42 CFR 483.20[1][3] [RB19, 20]). Nothing in this regulation creates a requirement to ensure a “safe discharge” – to the contrary it states that the resident herself shares control over her discharge planning, whatever form it may take. Respondent’s cited State regulation contains language 4 which parallels that of the federal regulation and does provide, in addition, that such “post- discharge plan” shall “assure that needed medical and supportive service have been arranged and are available to meet the identified needs of the resident” (10 NYCRR 415.11[d][3] [RB 19, 20]). However, a resident’s “needs” upon discharge must still be “identified” with reference to the overriding dictate of 10 NYCRR §415.1[5] which decrees that the facility is required to give a resident’s psychosocial needs “prominence at least equal to medical condition” (10 NYCRR §415.1[5] [emphasis added]). Thus, the “psychosocial” need of the resident to “go home” may well trump a facility’s concern that the resident’s home environment may not be “risk-free.” Further, nothing in either regulation empowers the nursing home to “withhold” a discharge, “safe” or otherwise, from a resident who wishes to leave the facility, nor does either regulation enable the facility to avoid its further responsibilities with respect to its resident merely by designating a particular discharge as being “against medical advice” (AMA). Rather, if a resident does decide to leave on terms that vary from the facility’s formulated “post- discharge plan”, the facility must still comply with those regulations, cited by Respondent, governing a resident’s “transfer and discharge rights” : “With regard to the transfer or discharge of residents, the facility shall provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility including an opportunity to participate in deciding where to go” (“10 NYCRR 415.3(h)(1)(vi)” [RB20], see also parallel (uncited) federal regulation, 42 CFR §483.12[a][7]). Thus, if a resident decides to go home without “24/7 home care” recommended by the facility, the facility must still “prepare and orient” the resident to deal with the consequences of that choice. Appellant contends that, contrary to the claims made by Respondent at oral argument, where a resident desires to return home under the care of a family member and health proxy, this duty of “preparation and orientation” extends to the providing of training to the resident’s family member and declared proxy, which in this case was Virginia Bennett’s husband of 60 years, plaintiff Ainsworth Bennett (see 10 NYCRR § 400.21[a] [“The Health Care Proxy Law guarantees an adult’s right to self-determination and the expression of this right through another adult”]). Accordingly, the affidavit of plaintiff’s expert social worker stating that “there is no documentation that any family members received care training on how to potentially care for [Mrs. Bennett] if she were to be discharged” (R707), and the flat statement of plaintiff Ainsworth Bennett in his affidavit that “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), present stark questions of fact as to whether such required training was ever provided. 5 Point III Factual Claims Made by Respondent at Oral Argument Without Citation to the Record Demonstrate Only the Existence of Factual Issues Requiring Resolution by Trial Finally, at oral argument Respondent’s counsel made factual claims regarding Mr. Bennett, that are supported in the Record only by self-serving hearsay contained in affidavits and not by the medical record itself. Such factual claims should be given no weight by this Court and merely highlight the need for a trial. There are factual disputes in this case. The proper forum to address such disputes is a jury trial. At oral argument the factual claims of Respondent’s counsel regarding Mr. Bennett included allegations of his leaving Mrs. Bennett home while playing bridge, leaving Mrs. Bennett on the bathroom floor, and not assisting Mrs. Bennett in getting off the toilet. No date was given nor was there reference to any medical records supporting any of these claims. Support in the Record for such claims is in fact based only upon self-serving hearsay allegations contained in the affidavits of Respondent’s doctors and social worker. Appellant vigorously contests those claims, which as presented are undocumented in the medical records. For example, in oral argument Respondent referred to an alleged incident where Ainsworth Bennett at some unspecified time and location, is alleged to have left his wife Virginia Bennett for some unspecified period on a “bathroom floor”, where Respondent claims she had “fallen.” Respondent provided no citation to the Record to support this claim. In fact, the only reference to “bathroom floor” found in the Record is at R665, Affidavit of Rebecca Priest, SW, which asserts, “Prior to Mrs. Bennett’s admission to St. John’s Home, there was at least one occasion when Mrs. Bennett had fallen at home and Mr. Bennett was unable to get her up off the bathroom floor. He did not call for assistance, but left her on the floor until home health care services arrived in the morning.” But, Rebecca Priest’s hearsay allegation is not supported by any citation to the medical record, and Appellant strongly disputes that such incident occurred as described. Rather, as set forth in Appellant’s brief (AB 38-40), what the Record actually contains are hearsay accounts, albeit repeatedly recited, of two incidents, unobserved firsthand by anyone making the annotation, neither involving a documented fall or injury to Virginia Bennett. It is reported that on one occasion one month prior to Virginia’s admission to SJH an aide arrived at the Bennett residence to find Virginia on the floor (not as the result of any documented “fall”), being attended to by Ainsworth, who had not called an ambulance (R71), and on the other occasion it was reported Virginia had become trapped between her mattress and bed rail and Ainsworth had called an ambulance to assist her (R71 ¶ 34, R403). On neither occasion is there evidence that the presence of “24/7 care”, as defined by defendants’ physician (R741 ¶ 12), would have prevented the incident. There is no indication of why it was deemed “unsafe” for Ainsworth to have allowed Virginia to remain for a period of time on their own floor (on a mattress, covered, and attended to by Ainsworth) until help arrived (as expected) to safely lift her, and there is no indication of why it was considered “unsafe” for Ainsworth on the other occasion to have called 6 for assistance to free Virginia from her trapped bed-rail condition. Neither incident was reported to Adult Protective Services by home health care workers. However, in each case, Ainsworth’s “ability to care” for Virginia is questioned by Respondent, on the one occasion for having elected to summon emergency assistance, and on the other for having “failed” to do so. But, in fact in both cases he exercised judgment, and in neither case did Virginia suffer harm. On the other hand, as Appellant’s brief states (AB39), the medical records included in the Record do reflect that Virginia Bennett while at SJH was “FOF” (“found on floor”) by aides at least three times, including the day after she was admitted to SJH, and the date she was discharged. Thus, there is a question of fact as to whether Respondent’s insistence on “24/7 home care services” as a precondition of Virginia’s discharge to home was reasonable, given the question as to whether Virginia was receiving that level of care at SJH. Respondent’s conclusion that Mr. Bennett was unable or unwilling to provide care for Mrs. Bennett should have had a clear post-admission factual basis, which is lacking. Respondent should have made an independent assessment before forming its conclusions regarding Mr. Bennett. The nursing home record should have clearly detailed the post-admission professional observations that were the basis for that conclusion. The failure of Respondent to document such a factual basis supports an inference there no such factual basis exists. In addition, to defeat a PHL § 2801-d claim Respondent must establish that it “exercised all care reasonably necessary to prevent and limit the deprivation and injury” (PHL § 2801-d (2)). In this case, Respondent opined that “24/7 home care services” was a discharge precondition because Mr. Bennett was the “problem”, but it then both ignored and did nothing to solve that problem. If Mr. Bennett had deficits in his ability to provide care for his wife, the nursing home should have documented those deficits and provided any needed training or education. Whether Respondent exercised all care necessary regarding the alleged “Mr. Bennett problem” at minimum presents a factual issue for a jury. 7 Conclusion A nursing home to remain in business needs to keep its beds filled. “Discharge” of a resident is not to the nursing home’s financial benefit. A nursing home “rehabilitation placement” accordingly presents an inherent conflict of interest tantamount to the “fox guarding the hen house”, as it is too easy for a paternalistic nursing home to simply tell a husband that his spouse, even though medically rehabilitated, will be “safer with us and needs to stay here.” Such a “we know best” attitude enables a nursing home to retain more residents once their medical rehabilitation is complete. The PHL 2801-d cause of action was created in part to supply oversight over the “fox”, and ensure that nursing homes are not allowed to run roughshod over residents’ right of self-determination. Because supreme court entertained a late summary motion without first obtaining from the movant an explanation that could constitute “good cause” for its tardiness, as a matter of public policy this Court should reach this issue, reverse the order of supreme court and remand the case for jury trial. Respondent’s claim at oral argument that “regulations require” a nursing home to “ensure” a “safe discharge” before permitting a resident to return home under the care of her husband and health care proxy does not correctly state the law. Respondent’s claims at oral argument regarding Appellant’s claimed incapacity or “unwillingness” to provide necessary assistance to his wife upon her discharge to home from SJH have no support in the Record other than self-serving hearsay contained in affidavits unsupported by documented medical records, and are insufficient basis upon which to affirm supreme court’s award of summary judgment. For all of the reasons set forth herein and in Appellant’s brief and Reply Brief, Appellant respectfully submits that the order of supreme court should be reversed and the matter remitted for a jury trial, with a CPLR § 3403(a)(4) [over age 70] trial preference. Dated: January 26, 2015 DAVID E. WOODIN, LLC By ______________________________ David E. Woodin, Esq. Appellate Attorney for Appellant 291 Main Street PO Box 433 Catskill, NY 12414 518-821-6194 8