Olmann v. Willoughby Rehab. & Health Care Ctr., LLC

• Decision Date: 26 August 2020
• Docket Number: 2016–07212,Index No. 514289/15,2017–07645
• Citation: 130 N.Y.S.3d 46,186 A.D.3d 837
• Parties: Joseph OLMANN, etc., appellant, v. WILLOUGHBY REHABILITATION AND HEALTH CARE CENTER, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 837

130 N.Y.S.3d 46

Joseph OLMANN, etc., appellant,

v.WILLOUGHBY REHABILITATION AND HEALTH CARE CENTER, LLC, et al., respondents.

2016–07212

2017–07645

Index No. 514289/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 30, 2020

August 26, 2020

Finkelstein, Blankinship, Frei–Pearson & Garber, LLP, White Plains, N.Y. (Jeremiah Frei–Pearson of counsel), for appellant.

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell and Rebecca A. Barrett of counsel), for respondents.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a putative class action, inter alia, to recover damages for negligence and violation of Public Health Law § 2801–d, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Gloria M. Dabiri, J.), dated May 11, 2016, and (2) an order of the same court dated June 20, 2017. The order dated May 11, 2016, denied the plaintiff's motion pursuant to CPLR 3103(a) for a protective order. The order dated June 20, 2017, insofar as appealed from, denied the plaintiff's motion pursuant to CPLR 901 and 902 for class certification and denied stated portions of the plaintiff's separate motion pursuant to CPLR 3124 to compel the defendants to comply with his discovery demands.

ORDERED that the order dated May 11, 2016, is affirmed; and it is further,

ORDERED that the order dated June 20, 2017, is modified, on the law, by deleting the provisions thereof denying those branches of the plaintiff's motion pursuant to CPLR 3124 which were to compel the defendants to comply with (1) his discovery demand number 30, (2) his discovery demand number 32 to the extent that it demands "[a]ll documents relating to meals provided to" the decedent, (3) his discovery demand number 33 to the extent that it demands "[a]ll documents relating to bed changing records for" the decedent, (4) his discovery demand number 34 to the extent that it demands "[a]ll documents relating to [the] movement of" the decedent, (5) his discovery demand number 35 to the extent that it demands "[a]ll documents relating to [the] washing of" the decedent, (6) his discovery demand number 36 to the extent that it demands "[a]ll documents relating to the change of position of" the decedent, and (7) his discovery demand number 51, and substituting therefor provisions granting those branches of that motion; as so modified, the order dated June 20, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

Marie C. Olmann (hereinafter the decedent) was a resident of the defendant Spring Creek Rehabilitation & Nursing Care Center (hereinafter Spring Creek), a nursing home, from June 2012 to January 2014. In November 2015, the decedent's son, Joseph Olmann (hereinafter the plaintiff), individually and as the proposed administrator of her estate, and purportedly on behalf of all others similarly situated, commenced this putative class action against Spring Creek and its owner, the defendant Willoughby Rehabilitation and Health Care Center, LLC, inter alia, to recover damages for negligence and violation of Public Health Law § 2801–d. The plaintiff alleged that the decedent and other residents at Spring Creek sustained injuries attributable to substandard nursing care. The plaintiff was subsequently appointed the administrator of the decedent's estate, and the caption was amended to reflect that appointment.

Thereafter, the plaintiff moved pursuant to CPLR 3103(a) for a protective order to allow for the disclosure of confidential health information of other residents at Spring Creek. In an order dated May 11, 2016, the Supreme Court denied that motion as "premature and overly broad." The plaintiff also moved pursuant to CPLR 901 and 902 for class certification and separately moved pursuant to CPLR 3124 to compel the defendants to comply with his discovery demands. In an order dated June 20, 2017, the court, inter alia, denied the plaintiff's motion for class certification and denied stated portions of the plaintiff's motion to compel the defendants to comply with his discovery demands. The plaintiff appeals.

Under the circumstances presented, the Supreme Court providently exercised its discretion in denying the plaintiff's motion for a protective order to allow for disclosure of confidential health information of other Spring Creek residents.

Contrary to the plaintiff's contention, the Supreme Court also providently exercised its discretion in denying his motion for class certification. The determination whether to grant a motion for class certification "is ultimately vested in the sound discretion of the trial court" ( Cooper v. Sleepy's, LLC, 120 A.D.3d 742, 743, 992 N.Y.S.2d 95 [internal quotation marks omitted] ). " ‘In order to certify a lawsuit as a class action, the court must be satisfied that questions of law or fact common to the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy’ " ( Osarczuk v. Associated Univs., Inc., 82 A.D.3d 853, 855, 918 N.Y.S.2d 538, quoting Aprea v. Hazeltine Corp., 247...