Ainsworth M. Bennett,, Appellant,v.St. John's Home et al., Respondents.BriefN.Y.November 18, 2015To be Argued by: DAVID E. WOODIN (Time Requested: 15 Minutes) Docket Nos. CA 14-01354 and CA 14-01356 Monroe County Clerk’s Index No. 9516/10 New York Supreme Court Appellate Division – Fourth Department Docket No. CA 14-01354 AINSWORTH M. BENNETT, individually and on behalf of the Estate of Virginia R. Bennett, deceased, Plaintiff-Appellant, – against – ST. JOHN’S HOME and ST JOHN’S HEALTH CARE CORPORATION, Defendants-Respondents. (Appeal No. 1) —————————————————————————— Docket No. CA 14-01356 AINSWORTH M. BENNETT, individually and on behalf of the Estate of Virginia R. Bennett, deceased, Plaintiff-Appellant, – against – ST. JOHN’S HOME and ST JOHN’S HEALTH CARE CORPORATION, Defendants-Respondents. (Appeal No. 2) REPLY BRIEF FOR PLAINTIFF-APPELLANT DAVID E. WOODIN, LLC Attorneys for Plaintiff-Appellant 291 Main Street P.O. Box 433 Catskill, New York 12414 (518) 821-6194 Table of Contents to Appellant’s Reply Brief Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Point I Respondents’ Entire “Appendix” Should Be Disregarded by This Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Point II Supreme Court’s “Own Interest” in Resolving Questions of Law Prior to Trial is Not Sufficient “Good Cause” to Permit Consideration of a Late Motion for Summary Judgment.. . . . . . . . . . . . . . . . . . . . . . . . . . 2 Point III Respondents' Requirement to "Sign Out" AMA is an Admitted Requirement, and a Real "Restraint". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Point IV A Cause of Action under PHL § 2801-d Cannot Be "Waived". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Point V Respondents Have Neither Refuted nor Addressed Appellant's Argument that the Interdisciplinary Team, Not the Doctor, Has Sole Authority to Discharge a Nursing Home Resident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Point VI Disputed Factual Assertions Not Supported by Respondents’ Claimed Record References are Questions of Fact for Trial. . . . . . . . . . . . . . . . . . . . . . . 11 Point VII Damages for Emotional Distress are Available in this Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Point VIII All of Appellant’s Arguments are Properly Before this Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 i TABLE OF AUTHORITIES CASES Allegro Oil & Gas, Inc. v McGranahan, 156 AD2d 939 [4th Dept 1989]. . . . . . . . . . . . . . . . . . . 1 Allinger v City of Utica, 226 AD2d 1118 [4th Dept 1996]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Armentano v Broadway Mall Props., Inc., 48 AD3d 493 [2d Dept 2008]. . . . . . . . . . . . . . . . . . . 2 Balcerzak v DNA Contr., LLC, 9 Misc3d 524 [2005]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Brill v City of New York, 2 NY3d 648 [2004]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Broadnax v Gonzalez, 2 NY3d 148 [2004]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Cajamarca v Euro Marble Ctr., Inc., 2012 N.Y. Misc. LEXIS 3434 [2012].. . . . . . . . . . . . . . . . 4 Coty v County of Clinton, 42 AD3d 612 [3d Dept 2007]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Derdiarian v Felix Contr. Co., 51 NY2d 308 [1980].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Dana v Oak Park Marina, 230 AD2d 204 [4th Dept 1997]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Eiseman v State of New York, 70 NY2d 175 [1987]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Garcia v Lawrence Hosp., 5 AD3d 227 [1st Dept 2004]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Harmon v Marks, 175 AD2d 44 [1st Dept 1991]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Home of Histadruth Ivrith, Inc. v State Facilities Dev. Corp., 114 AD2d 200 [3d Dept 1986].. . 7 Ingleston v Francis, 206 AD2d 745 [3d Dept 1994]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Kaufman v Physical Measurements, 207 AD2d 595 [1994]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Kennedy v McKesson Co., 58 NY2d 500 [1983]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Marton v Consolidated Edison Co. of NY, Inc., 36 Misc3d 1239A [2012]. . . . . . . . . . . . . . . . . . 3 Matter of Pfeffer, 33 Misc3d 1213(A) [2011]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Matter of Topa, 10 Misc3d 355 [2005]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ii Mich. Nat’l Bank-Oakland, 89 NY2d 94 [1996]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Mulligan v Lackey, 33 AD2d 991 [4th Dept 1970]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 O’Donnell v K-Mart Corp., 100 AD2d 488 [4th Dept 1984]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Parrott v Pelusio, 65 AD2d 914 [4th Dept 1978]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Perry-Rogers v Obasaju, 282 AD2d 231 lv dismissed 96 NY2d 936 [2001].. . . . . . . . . . . . . . . 14 Pezza v Pezza, 2005 N.Y. Misc. LEXIS 3243 [2005]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Scholl v City of Utica, 163 AD2d 909 [4th Dept 1990]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Shaw v Tague, 257 NY 193 [1931]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Trump Vill. Section 3, Inc. v. N.Y. State Hous. Fin. Agency, 307 AD2d 891 [1st Dept 2003].. 3, 4 Twitchell v MacKay, 78 AD2d 125 [4th Dept 1980]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Williams v City of Buffalo, 72 AD2d 952 [4th Dept 1979] app dism 49 NY2d 799. . . . . . . . . . 14 Yannon v RCA Corp., 100 AD2d 966 [2d Dept 1984]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STATUTES CPLR § 3212. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PHL § 2801-d.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 15, 16, 17 RULES 22 NYCRR § 1000.3 [c][2]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 22 NYCRR § 1000.4 [a][1][I]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 22 NYCRR § 1000.4 [d][2][ii] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 10 NYCRR § 415.1[1]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 NYCRR § 415.1[2]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 NYCRR § 415.1[5] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 iii Point I Respondents’ Entire “Appendix” Should Be Disregarded by This Court Respondents have annexed to Respondents’ Brief an “appendix” containing documents not contained in the stipulated Record on Appeal. Appellant submits respondents’ entire “appendix” should be disregarded by this Court, for the following reasons: First, a respondent’s “appendix” is not authorized by the Rules of this Court, inasmuch as the present appeal has been perfected on a “complete record” (22 NYCRR § 1000.3 [c][2]). Second, even where permitted, a respondent’s appendix “shall contain only such additional parts of the record on appeal necessary to consider the questions involved” (22 NYCRR § 1000.4 [d][2][ii] [emphasis added]). The “appendix” annexed to Respondents’ Brief contains material not part of the stipulated Record on Appeal. An “appendix” to a party’s brief containing documents “not a part of the record on appeal” should not be considered by this Court (Allegro Oil & Gas, Inc. v McGranahan, 156 AD2d 939 [4th Dept 1989]). Review by this Court is limited to the record made before supreme court and to the certified record on appeal. “Matters contained in the brief, not properly presented by the record, are not to be considered by an appellate court” (Mulligan v Lackey, 33 AD2d 991, 992 [4th Dept 1970]). Third, not only has the complete Record on Appeal been stipulated to (22 NYCRR § 1000.4 [a][1][I]), the proposed Table of Contents to the proposed Record was provided to opposing counsel well in advance and was discussed several times before being finalized. Further, the contents of the “appendix” principally concern the scheduling of the trial and are claimed by respondent to bear upon the issue of the timeliness of the summary judgment motion, an issue to which opposing counsel was expressly alerted well in advance precisely to enable him to timely propose adding to the Record on Appeal any documents he felt had a bearing on that 1 issue. None of the items included in the “appendix” were timely so proffered. Fourth, the contents of the “appendix” include a copy of a purported “Amended Scheduling Order”, apparently signed by plaintiff’s counsel on May 22, 2013. However, the document included is neither signed by supreme court nor has it been stipulated to represent an actual order signed or filed by supreme court. Fifth, to the extent the contents of the “appendix” consist of mere correspondence, it has been held that “letters to the Motion Court” that are “not part of the record” will not be considered on an appeal (Harmon v Marks, 175 AD2d 44 [1st Dept 1991]). Accordingly, this Court should consider neither the documents contained in Respondents’ purported “appendix”, nor any references thereto in Respondents’ Brief. Point II Supreme Court’s “Own Interest” in Resolving Questions of Law Prior to Trial is Not Sufficient “Good Cause” to Permit Consideration of a Late Motion for Summary Judgment Respondent asserts, “[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” (RB 9), citing Armentano v Broadway Mall Props., Inc. (48 AD3d 493 [2d Dept 2008]). However, in the case cited by respondent, the appellate court specifically found: “Here, such good cause was shown. The respondent based its motion for summary judgment, dated August 15, 2006, upon a decision and order of this Court dated June 13, 2006, in a prior appeal in this matter (30 AD3d 450, 817 NYS2d 132 [2006]) reversing, inter alia, an order denying its cross motion for summary judgment dismissing the complaint against it and granting that cross motion. Under these circumstances, the Supreme Court providently exercised its discretion in finding that good cause existed to entertain the late motion for summary judgment” (Armentano v Broadway Mall Props., Inc., 48 AD3d 493, 494 [2d Dept 2008]). Thus, in the case 2 cited there was “good cause” for a late motion based on prior proceedings resulting in a change in circumstances and procedural posture. Here, no good cause was “shown”, and nothing of the kind occurred. There was no prior motion or appeal in this case, and no reason that the motion could not have been timely made. In similar vein, respondent cites Marton v Consolidated Edison Co. of NY, Inc., (36 Misc3d 1239A [2012]). Notably, in that case, the motion court also specifically found “good cause”, in the explanation for the delay tendered by counsel on behalf of the moving party, viz.: “Michael J. McNulty, Esq., an attorney employed by Con Ed as in house counsel, states that he is the reason the motion was brought late. He states that he underwent medical tests during the months of April and March, 2012. Following a biopsy, shortly before this motion was due, a serious medical condition was confirmed and surgery ensued. Attorney McNulty states that this crisis affected his state of mind, causing him to miscalculate the due date for the motion. CPLR § 3212 [a] is not so unyielding as to require that an ‘excellent’ excuse be offered for the delay. There simply has to be ‘satisfactory explanation for the untimeliness’ and the court has considerable discretion in determining whether there is ‘good cause’ shown for a delay in the making of the motion (citations omitted). Thus, in deciding whether there is ‘good cause’ the court should not lose sight of why cases such as Brill and its progeny came to be. They were intended to stem the tide of ‘11th hour’ motions for summary Judgment which often disrupted calendars and delayed trials. An attorney’s illness has been found to be ‘good cause’ for why a motion for summary judgment was made beyond 120 days (citation omitted). Attorney McNulty has shared the details of his private condition, establishing this was more than law office failure. The court finds that Attorney McNulty has established ‘good cause’ for why Con Ed’s motion was made late. Therefore, both motions are properly before the court, they are consolidated for decision, and will be decided on the merits.” (Marton v Consolidated Edison Co. of NY, Inc., 36 Misc3d 1239A [2012]). Thus, in this cited case there was “good cause” shown for a late motion because the defendant’s attorney explained that he had been sick. Here, the defendants tendered no explanation for the undisputed tardiness and supreme court required none, therefore the late motion was not “properly before the court”, and should not have been “decided on the merits” (Id.). And, respondent cites Trump Vill. Section 3, Inc. v. N.Y. State Hous. Fin. Agency (307 3 AD2d 891 [1st Dept 2003]). But, in that case, the court also specifically noted the existence of “good cause”, once again arising from the procedural history of the case, stating: “. . . this motion could not have been brought any earlier on this specific ground. HFA’s renewed motion to dismiss the cross claims was indisputably premised on this Court’s determination in the prior appeal that HFA owed plaintiff none of the supervisory contractual duties alleged in the complaint. Once this Court issued its ruling, a completely new basis arose upon which HFA could base its arguments for dismissal. Since the appellate adjudication of the nature of HFA’s alleged duties owed plaintiff clearly had a bearing on the viability of the cross claims for contribution and indemnification, the motion court should have found that ‘good cause’ existed for the late filing” (Trump Vill. Section 3, Inc. v. N.Y. State Hous. Fin. Agency, 307 AD2d 891, 894 [1st Dept 2003]). Again, nothing of said nature occurred or was present in this case. The appellate court in Trump also noted that the summary judgment motion “was not made on the eve of trial” (307 AD2d 891, 894). In contrast, this motion was made on the eve of trial, thus directly implicating the rule of Brill and its progeny yet respondent, even on this appeal, totally fails to address why the motion could not have been earlier and timely made. Instead, respondent simply asserts that “the Lower Court’s own interest in resolving issues of law prior to the trial of the facts was the good cause” (RB 9). However, if the existence of “issues of law” were sufficient “good cause” for a late motion, no summary judgment motion however tardy would ever be barred. That is clearly not the law. As shown by respondents’ own cited cases, “good cause” must consist of other facts, “shown” on the record, sufficient to explain and excuse the lateness. 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- 4 the-record showing of “good cause” before entertaining a late motion for summary judgment. Contrary to respondents’ statements, appellant has never claimed “that neither he nor the Lower Court agreed to the late filing of the summary motion” (RB 37). As the record clearly does reflect, “[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). Appellant’s modest point is merely that his consent is irrelevant to whether there has been compliance by the motion court with the requirements of Brill. Appellant strongly disputes however, respondent’s contention that “Plaintiff-Appellant also conceded the Lower Court’s finding of good cause” (RB 37) – apart from the “existence” of “questions of law”, no good cause was “shown”, and none was “found.” Further, since appellate authority requires motion courts’ adherence to the rule of Brill notwithstanding “consent” of the parties to a late motion (Brill v City of New York, 2 NY3d 648 [2004]; Coty v County of Clinton, supra), contrary to respondents’ assertion (RB 36) the issue is obviously one that may be raised for the first time on appeal. The ability of a losing party to raise on appeal the absence of “good cause shown” for a late summary judgment motion to which he consented below provides both a key enforcement mechanism for the rule, and an additional incentive for moving parties and lower courts to comply with the mandate of the Court of Appeals. Since no “good cause” for the delay was required or shown here, notwithstanding plaintiff’s consent to the late motion the order of supreme court granting summary judgment must be reversed and the case remitted for trial. 5 Point III Respondents’ Requirement to “Sign Out” AMA is an Admitted Requirement, and a Real “Restraint” Respondent labels as “disingenuous” appellant’s argument that SJH “restrained” the Bennetts through its requirement that they “sign out AMA” in order to effectuate their desire to separate from the facility and return home without “24/7 home care” in place, claiming “there is no support in the record that Mrs. Bennett was being retained because Mr. Bennett refused to sign a piece of paper” (RB 16), that the phrase “sign out” is merely a “term of art” (RB 16), and that the Bennett family on several occasions took Virginia Bennett out of SJH “for doctor’s appointments and day care facility inspections” (RB 16), yet each time returned her to SJH before the end of the day (RB 17). However, what is actually “disingenuous” is to maintain that had Mr Bennett actually attempted to permanently separate Virginia Bennett from respondents’ facility “AMA”, such a “piece of paper” would not have been produced by SJH and presented for him to sign. What is disingenuous, is to claim that SJH’s refusal to support Mr. Bennett’s right to bring his wife home and care for her there, together with its insistence that he could do so only pursuant to an “AMA discharge” which would result in SJH cutting off all aid and assistance should the Bennetts so “sign out”, did not constitute a “restraint” in fact upon the Bennetts’ ability to separate from the facility and return home on their own terms. If the phrase to “sign out” is indeed a “term of art”, it is only because it is a ubiquitous practice for facilities to request some person to execute a writing whenever a patient leaves a facility “against medical advice”, even when the patient himself cannot do so (see, e.g., Matter of Pfeffer, 33 Misc3d 1213(A), 1213A n4 [2011] [decedent “signed out” of hospital against medical 6 advice and went home, doctor testified he asked decedent’s wife “to sign the medical note acknowledging that decedent’s decision to go home was against medical advice because decedent was an amputee”]; Matter of Topa, 10 Misc3d 355, 356-357 [2005] [hospital refused to allow patient to leave, court appointed temporary guardian who “signed out” patient and took him home]). Contrary to respondent’s assertion that the issue is first raised on appeal, it was counsel for defendants who first used the term, to the court below, in his affirmation in support of the motion for summary judgment (R75 ¶ 48 [Ainsworth Bennett failed to “simply sign his wife out ‘AMA’”]; R728 ¶ 55 [“. . . her right to go home and to sign out from the St. John’s Home Against Medical Advice (hereinafter ‘AMA’), anytime she wanted”]; R728 ¶ 57 [“The mere fact that the Plaintiff did not want to sign out of the St. John’s Home AMA does not mean that she could not exercise that right to leave”]; R734 ¶ 97 [“. . . there is no right . . . to sue for . . . being restricted in his ability to bring his wife home to care for her himself without having to sign her out of the nursing home AMA”]; R734 ¶ 96 [“. . . take his wife home from St. John’s Home without any restrictions and without any support from any home care services and without signing an AMA document”][emphases added]). Such usage of a “term of art” by counsel in an affirmation filed with the motion court constitutes an “informal judicial admission” (Prince, Richardson on Evidence § 8-219, at 529 [11th ed]) of all that said “term of art” implies (see Mich. Nat'l Bank-Oakland, 89 NY2d 94 [1996] [“Informal judicial admissions are . . . ‘facts incidentally admitted’ during the judicial proceeding” which, though “not conclusive”, are “‘evidence’ of the fact . . . admitted”, and it is “irrelevant that the admissions were made . . . by counsel . . . and . . . contained in affidavits or briefs”]; Home of Histadruth Ivrith, Inc. v State Facilities Dev. Corp., 114 AD2d 200, 204 [3d 7 Dept 1986] [express averment in affidavit by counsel in support of motion to dismiss, as to who was ‘the proper party in interest’, constituted an informal judicial admission]; Yannon v RCA Corp., 100 AD2d 966 [2d Dept 1984] [affidavits of defendant’s counsel containing admissions should have been admitted against defendant at hearing]; Pezza v Pezza, 2005 N.Y. Misc. LEXIS 3243, 3-4 [2005] [statements by defendant’s counsel as to characterization of martial residence and businesses as “separate property” made in course of motion practice and colloquy with court on the record were “informal judicial admissions”, held to constitute “evidence of the facts admitted” with probative value to be determined by trier of fact at trial]). The fact is that had the Bennetts chosen to exercise the “AMA option” offered them by SJH, there can be no doubt they would have been presented (as respondents’ counsel asserts) with an “AMA document” (R734 ¶ 96), which the facility would subsequently have used as a basis for “washing its hands” of any further obligation to provide care or assistance to Virginia or Ainsworth Bennett. Accordingly, it is irrelevant that “no formal ‘sign out’ documents were ever discussed or submitted below” (RB 37) for, as informally admitted by respondents’ counsel, the “sign out” requirement is real. Point IV A Cause of Action under PHL § 2801-d Cannot Be “Waived” Respondent asserts “the Lower Court properly found that Plaintiff-Appellant waived a claim for the delayed discharge of his wife” (RB 13). But, respondent fails to address appellant’s argument based upon the plain wording of the statute, which specifically provides, “Any waiver by a patient or his legal representative of the right to commence an action under this section, whether oral or in writing, shall be null and void and without legal force or effect” (PHL § 2801- 8 d[7] [emphasis added]). Therefore, if plaintiff at any time acquired a cause of action (as noted by supreme court) for defendants’ “failure to provide sufficient available assistance to enable a person to choose home care rather than institutional care” (R8), it could not be “waived”, either orally, or in writing, or by appellant’s “conduct” in removing his wife from the facility for day outings or sojourns, all while maintaining her residency. Point V Respondents Have Neither Refuted nor Addressed Appellant’s Argument that the Interdisciplinary Team, Not the Doctor, Has Sole Authority to Discharge a Nursing Home Resident Respondents have not controverted appellant’s argument (AB 23-26) that nursing home regulations place upon the “team”, not the doctor, the obligation to discharge a resident, and in support of their claim that the doctor alone holds that power, respondents cite no authority other than their doctor’s own affidavit. Respondents assert “It was uncontroverted before the Lower Court that the social worker did not have the authority to order the discharge of Mrs. Bennett. That was solely the job of the attending physician, Michele Carpenter, M.D., who attested to the Lower Court that it was her judgment, and not the social worker’s judgment or advocacy, that framed the conditions of her order for discharge. (R644, R647).” However, respondents fail to provide any legal or regulatory authority whatever that this is the case. The record pages cited by respondent contain merely Dr. Carpenter’s assertions that she is a doctor (R644), and that “[i]t is undisputed that . . . only the assigned physician has . . . authority” to “discharge a patient from the facility” (R647 ¶ 20). But, appellant does dispute the doctor’s assertion, which is one of law, not medicine. Respondents’ facility is not a hospital but a nursing home, subject to unique regulations (e.g., 10 9 NYCRR §415.1[1], [2]) which in part provide that “clinical interventions for the nursing home resident must be part of a comprehensive approach planned and provided by an interdisciplinary care team, with the participation of the resident, rather than through a physician-directed acute care orientation” (10 NYCRR §415.1[5] [emphasis added]). Discharge is required, by regulation, if the interdisciplinary care team (not defendants’ doctor) in consultation with the resident or the resident’s designated representative, determines that: (1) the . . . discharge is necessary for the resident’s welfare and the resident’s needs cannot be met after reasonable attempts at accommodation in the facility; [or] (2) . . . discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility” (10 NYCRR §415.3 [h] [I] [a] [1], [2] [emphasis added]). Further, in regard to those “needs”, regulations provide that a resident’s “psychosocial needs” must be given a prominence by the “interdisciplinary team”, “at least equal to medical condition” (10 NYCRR §415.1[5] [emphasis added]). Respondents’ own doctors noted by the end of July 2007 there were no medical issues requiring Virginia Bennett to remain at SJH (R269, R253). Therefore, repeating that medical considerations were the sole criteria in Virginia’s retention at SJH until October and that respondents’ doctor alone held veto power over Virginia’s discharge by respondent’s facility does not make it so. Respondents are free to dispute appellant’s interpretation of the regulations, but they have not done so with any argument supported by legal authority. 10 Point VI Disputed Factual Assertions Not Supported by Respondents’ Claimed Record References are Questions of Fact for Trial Numerous statements by respondents in Respondents’ Brief concerning the Bennetts and the facts of this case are supported not by direct references to the nursing home records but merely by conclusory allegations contained in affidavits submitted by respondents on the motion. These self-serving assertions should have been given little or no weight by supreme court or, at a minimum, should have been held to present disputed factual issues requiring resolution at trial. For example, respondents assert that “Mr. Bennett was assessed as a potential care giver at home for his wife” (RB 8). However, the Record citations stated to support this assertion (R649, R656, R659, R664) are not to any “assessment” documented in the facility’s records, but merely to self-serving assertions in the affidavits of its doctor (R649) or social worker (R664) that such “assessment” occurred, and sometimes merely to the affidavit’s title page (R649, R659) or to pages containing nothing whatever to do with the assertion (R656). Similarly, the claims that “Mr and Mrs Bennett were informed of the skills and judgments that would be required of the primary care provider for Mrs Bennett at home” and that “[t]he staff educated Mr. Bennett on several areas of care” (RB 8) are supported by references to mere assertions of the social worker (R664) that such “education” occurred, or to the title page of her affidavit (R659). The sole citation to the facility’s records (R421) does not support respondents’ “education” claim. The claim that the staff “extensively discussed Mrs Bennett’s needs with Mr Bennett and made observations of him in which they were able to determine his ability, capacity and willingness to provide care for Mrs Bennett when necessary” (RB 8) is supported by references (R407, R438, R649, R654, R659, R664) that are, respectively, a title page of a doctor’s affirmation (R649), that doctor’s “opinion” that the assertion is true (R654), 11 the title page of the social workers affidavit (R659), her self-serving opinion (R664), a reported discussion of discharge planning (R438) that does not support the assertion for which it is cited, and one reported observation (R407) by a CNA (“certified nursing assistant”) who purportedly “observed Resident’s husband transferring her to W/C from bed”, but who does not indicate that the transfer was being done unsafely or that any danger or injury to Virginia Bennett occurred. In support of the claim that “[e]ach discipline made notes …. as to their observations and assessments” (RB 8) the cited pages (R174, R196, R247, R261, R287, R394, R488, R517, R659) are but title pages to various portions of the Record (R174, R196, R261, R287, R394, R488, R517, ) and again to the title page of the social worker’s affidavit (R659). Regarding the claim that “[a]ll concluded that Mr. Bennett was not a reliable primary provider”, the references (R659, R665, R666) are again not to any such “conclusions” themselves documented in the Record, but merely to the assertion of the social worker. Assertions of facts and events of such significance should have been documented in the facility’s record, and referred to specifically by respondents, on the motion, and on this appeal. The affidavit of Ainsworth Bennett on the other hand (R714), states, from firsthand knowledge, that “[t]he staff at St. John’s refused to consider me as a caregiver for my wife” (R716 ¶ 9) and that he was “not trained or educated by the staff at St. John’s during this admission in preparation for Virginia to return home” (R716 ¶ 10). The affidavit of plaintiff’s expert social worker, Elise Beaulieu (R700) confirms, based on her review of the facility’s records, that “there is no documentation that any family members received care training on how to potentially care for [Virginia] if she were to be discharged”, including “such basics as proper transfer from bed to chair, toileting and transfers in and out of a care”, nor is there any record that any such training, if it occurred, was “evaluated and documented, so an accurate picture of their 12 abilities could be ascertained” (R707 ¶ 12). As an aside, it bears inquiry that, despite respondents’ ostensible concern that Virginia Bennett was “at risk” for “falling” and that Ainsworth Bennett was “incapable” of keeping Virginia Bennett “safe” at home, the record reflects no parallel “concern” regarding his “capacity” to safely remove Virginia from the facility and to bring her to visit day care centers or doctor’s offices. Similarly, with regard to the comparison of “24/7 home health care” and “24/7 nursing care in a nursing home”, respondents’ doctor Sharon Brangman states, “In both cases, the care providers are available on a 24-hour basis and neither requires one-on-one care, 24-hours a day” (R740-741 ¶ 12). This observation addresses neither the fact that Ainsworth Bennett would also have been “available on a 24-hour basis” to provide a similar level of care for Virginia at their home, nor how this level of care that Ainsworth could provide differs from that provided at SJH where, according to the medical record, Virginia was “found on floor” by aides on at least three occasions, including the day after she was admitted to SJH and the date she was discharged (R401, R403, R440, R444, R444). There are thus stark factual disputes presented by the Record that was before supreme court, which should be referred for trial. Point VII Damages for Emotional Distress are Available in this Case Respondents have not responded to appellant’s argument (AB 34) that defendants failed to appeal from that part of the decision and order of supreme court which explicitly stated that “[t]he level of care or benefit at the home, if Mrs. Bennett was improperly kept there, would not prevent a jury’s evaluation of the pain and suffering of a person who prefers to live their last days at home with their family, rather than in an institution” (R10), thus finding that the alleged “pain 13 and suffering” of Virginia Bennett, if she was improperly prevented by defendants from returning home, was an item of damages as to which a jury was capable of making an assessment. Because defendants failed to appeal from said part of supreme court’s decision, they have not preserved for this Court’s review any of the arguments they now seek to raise relating to damages. In any event, damages for emotional distress resulting from a violation of a duty of care may be awarded even in the absence of an independent injury (Broadnax v Gonzalez, 2 NY3d 148, 155 [2004]). It is well established that one may recover for emotional injuries even in the absence of a showing of physical damages (see, Scholl v City of Utica, 163 AD2d 909; O’Donnell v K-Mart Corp., 100 AD2d 488, 492; Williams v City of Buffalo, 72 AD2d 952, 953 appeal dismissed 49 NY2d 799). All there need be to recover for emotional injury is breach of a duty owing from defendant to plaintiff that results directly in emotional harm, together with “evidence sufficient to guarantee the genuineness of the claim” (Garcia v Lawrence Hosp., 5 AD3d 227, 228 [1st Dept 2004]; Kaufman v Physical Measurements, 207 AD2d 595, 596 [1994]; Perry-Rogers v Obasaju, 282 AD2d 231, 231 lv dismissed 96 NY2d 936 [2001]; Kennedy v McKesson Co., 58 NY2d 500, 504 [1983]). “As a general rule, a plaintiff who has not suffered any physical injury may recover damages for mental or emotional distress if she can establish that defendant owed a duty to her and that a breach of that duty directly resulted in mental or emotional harm” (Dana v Oak Park Marina, 230 AD2d 204, 207 [4th Dept 1997]). Whether the alleged emotional injuries suffered by plaintiff were caused by the defendant’s conduct is an issue for the jury (see, Eiseman v State of New York, 70 NY2d 175, 187; Derdiarian v Felix Contr. Co., 51 NY2d 308, 315 [1980] rearg denied 52 NY2d 784). But, “expert medical evidence to establish causation” is not required where, as here, jurors may draw their conclusions about causation “from their own knowledge or experience” (Shaw v Tague, 257 14 NY 193, 195; see, Ingleston v Francis, 206 AD2d 745, 746; Twitchell v MacKay, 78 AD2d 125; Parrott v Pelusio, 65 AD2d 914). The conclusion that a nursing home resident may suffer emotional trauma from awareness that she was being kept from the comforts of her own home does not require “special knowledge or training.” The affidavit of Ainsworth Bennett, Virginia’s husband of over 60 years, states that on his daily visits with Virginia at SJH, she “clearly expressed” both that “she was aware she was staying at a facility”, and that “she wanted to return home” (R715 ¶ 4). This is sufficient basis upon which a jury could find, “even without medical testimony”, that Virginia Bennett suffered a compensable “injury” on account of the denial by defendants of the rights and benefits to which she was entitled (see Allinger v City of Utica, 226 AD2d 1118, 1119-1120 [4th Dept 1996]). Further, by statute, emotional harm alone is clearly an item of damages recoverable under PHL §2801-d, both as originally enacted and as clarified by 2009 amendment. As one practitioner in the field has publicly observed, “. . . In June 2009, the state Public Health Law was amended, as it pertains to claims against nursing homes for alleged violations of a resident’s rights, which could mark a sea-change in the test for the recovery of emotional harm in New York. The bill stated that it was intended to “clarify the grounds for liability claims against nursing homes.” Specifically, Public Health Law Section 2801-d was amended to specify that injuries for which a nursing home may be held liable under the statute include physical, emotional and financial harm to the patient. The amendments clarified that liability for such injuries is not solely limited to violations of Section 2803-c of the Public Health Law, which enumerates certain rights to nursing home residents (often called the Resident Bill of Rights). Proponents stated that the “bill would make it clear that ... that the right to sue applies to any injury to the patient by the nursing home.” Importantly, the statutory amendment does not require that a claim for emotional harm be linked to any physical injury, or be the result of intentional or outrageous conduct. . . .” (Somerset, Margaret E., “New Test for Recovery of Emotional Harm”, The Daily Record, May 17, 2010, quoting from Bill Jacket to Chapter 61 of the Laws of 2009). To the extent that the issue of damages is before this Court for review, the Court should 15 hold that the question is for the jury, and summary judgment should have been denied. Point VIII All of Appellant’s Arguments are Properly Before this Court Respondents contend (RB Point IV) that appellant has raised “new theories and questions” which, because they were “not contained within his papers before the Lower Court” (RB 35), should not be considered by this Court on appeal. Respondents contend that these “new theories” include appellant’s arguments that the motion for summary judgment was untimely, that “acquiescence does not constitute acceptance”, that respondents “denied discharge” of Virginia Bennett from the nursing home, and that the requirement and that the Bennetts “sign out” if leaving the facility “AMA” constituted a further “restraint”, not an “option” as characterized by respondents (RB 35-36). Appellant has addressed reviewability of the timeliness issue in Point II, above (p. 5). None of the other arguments is new; each merely highlights an aspect of plaintiff’s claim, raised in the court below. Plaintiff has but one claim, a cause of action under PHL § 2801-d. Plaintiff had a right, as embodied in multiple cited statutes, rules and regulations, to go home following her rehabilitation, and defendants had a duty, under those same statutes, rules and regulations, to assist her. Instead, defendants hindered rather than helped Virginia Bennett to return to her home, and as result she spent seven of the last weeks of her life in a place she did not want to be. For thwarting Virginia’s desire to return home, defendants are to be held liable for compensatory and punitive damages to the extent warranted by a jury’s verdict. 16 Conclusion It is uncontroverted in this case that Virginia Bennett wanted to return home to 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 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’ brief 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. 17