        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

501
CA 16-01789
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


LISA T. SNOW, AS ADMINISTRATOR OF THE ESTATE
OF SALVATORE S. TRUSELLO, DECEASED,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DEPAUL ADULT CARE COMMUNITIES, INC., DOING
BUSINESS AS KENWELL, DEFENDANT-RESPONDENT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA, LLP, BUFFALO (ARLOW M. LINTON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered December 21, 2015. The order, inter alia, denied
in part the cross motion of plaintiff to compel responses to nonparty
subpoenas.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order that granted only in
part her cross motion to compel responses to nonparty subpoenas
seeking psychiatric records of Chester Rusek, who assaulted and caused
the death of plaintiff’s decedent while they were both residents at
the Kenwell DePaul Adult Care Center (Kenwell), an assisted living
facility operated by defendant. In the course of a criminal
proceeding commenced against Rusek, both prosecution and defense
experts conducted psychiatric examinations of Rusek. Rusek died
during the pendency of that proceeding, and the charges were
dismissed. By the nonparty subpoenas, plaintiff seeks the reports of
those psychiatric experts and the documents upon which they relied.
Defendant moved to quash the subpoenas, and plaintiff cross-moved to
compel compliance with them. Following an in camera review, Supreme
Court denied the motion in part and granted the cross motion in part,
directing the production of seven of those documents relied upon by
the prosecution’s expert, all of which predated or concerned the
assault. The court did not direct the production of the reports
themselves. Plaintiff appeals.

     CPLR 3101 (a) (4) allows a party to obtain discovery from a
nonparty, and provides that “[t]here shall be full disclosure of all
                                 -2-                           501
                                                         CA 16-01789

matter material and necessary in the prosecution or defense of an
action, regardless of the burden of proof.” The phrase “material and
necessary” in section 3101 “must ‘be interpreted liberally to require
disclosure, upon request, of any facts bearing on the controversy
which will assist preparation for trial by sharpening the issues and
reducing delay and prolixity’ ” (Matter of Kapon v Koch, 23 NY3d 32,
38, quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). A
movant seeking to quash a subpoena has the burden of establishing that
“the futility of the process to uncover anything legitimate is
inevitable or obvious . . . or . . . the information sought is utterly
irrelevant to any proper inquiry” (id. [internal quotation marks
omitted]). Contrary to plaintiff’s contention, we conclude that
defendant met its burden with respect to all but the seven documents
in the file of the prosecution’s expert.

     The complaint herein alleges that defendant breached its duty to
keep plaintiff’s decedent safe. As the operator of the assisted
living facility, defendant owed plaintiff’s decedent a duty to protect
him from Rusek only to the extent that Rusek’s violence was
foreseeable (see Schnorr v Emeritus Corp., 118 AD3d 1307, 1307).
Thus, we agree with the court that the only “proper inquiry” was
defendant’s actual or constructive notice of Rusek’s violent nature
prior to the assault (Kapon, 23 NY3d at 38 [internal quotation marks
omitted]). Having reviewed the submitted documents in camera, we
conclude that the only documents relevant to that inquiry were the
seven documents that the court released to plaintiff.

     Given our conclusion that the remaining documents are not
material and necessary to the prosecution or defense of the action, we
do not reach plaintiff’s further contentions that those documents are
not privileged and were not sealed pursuant to CPL 160.50.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
