Van Duyn Nursing Home Investigation

CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.
INDEX NO. UNASSIGNED

NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/28/2022
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ONONDAGA
In the Matter of the Application of:

LETITIA JAMES, Attorney General of the
State of New York, Index No.
Petitioner,
For an order pursuant to CPLR § 2308(b) to compel

compliance with subpoenas issued by the Attorney
General
-against-
VDRNC, LLC, doing business as Van Duyn Center

for Rehabilitation and Nursing, and DESG Software,
LLC, doing business as E&I Software Inc.,
Respondents.
PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION BY

ORDER TO SHOW CAUSE TO COMPEL PRODUCTION IN RESPONSE TO
THE ATTORNEY GENERAL’S INVESTIGATORY SUBPOENAS DULY
ISSUED PURSUANT TO NEW YORK STATE EXECUTIVE LAW § 63(12)
LETITIA JAMES
Attorney General of the State of New York
Of Counsel:
Elizabeth Silverman
Special Assistant Attorney General
Office of the Attorney General
Medicaid Fraud Control Unit
28 Liberty Street
New York, New York 10005
Elizabeth.Silverman@ag.ny.gov
Irene Bardot
300 South State Street, Suite 350
Syracuse, New York 13202
Irene.Bardot@ag.ny.gov
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 1 of 30
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………………..…..iv
PRELIMINARY STATEMENT……………………………………………………………...1
STATEMENT OF FACTS…………………………………………………………………....5
I. The Attorney General’s Van Duyn Investigation…………………………………………5
II. Respondents’ Inadequate Production in Response to the Attorney General’s Subpoenas

Pursuant to Executive Law § 63(12)……………………………………………………...5
1. Van Duyn’s Refusal to Produce Records Reflecting the Times of Provision of Care and
Services Is Without Merit; Those Records are Necessary for a Meaningful Review of
Resident Medical Records…………………………………………………………….6
2. E&I’s Refusal to Produce Records Reflecting the Times of Van Duyn’s Alleged
Administration of Care and Services Is Without Merit; Those Records Are Necessary
for a Meaningful Review of Resident Medical Records……………………………...7
3. Van Duyn’s Refusal to Produce 24-Hour Reports and A&I Records is Without Merit
and These Records Are Necessary for a Meaningful Review of Resident Medical
Records……………………………………………………………………………..…9
III. Respondents’ Assertions of the QA Privilege Are Wholly Without Merit ………………9
ARGUMENT………………………………………………………………………………...11
I. The Van Duyn and E&I Subpoenas Are Lawful Under the Attorney General’s Broad
Investigative Authority Pursuant to Executive Law § 63(12)…………………………...11
A. The Attorney General’s Broad Authority Under Executive Law § 63(12)………….11
B. The Subpoenas Request Documents and Records that Van Duyn is Required by Law
to Maintain and Disclose to the Attorney General…………………………………..14
II. The Respondents Unlawfully Failed to Comply with the Attorney General’s
Subpoenas………………………………………………………………………………..15
A. The Quality Assurance Privilege Does Not Justify Withholding the Documents at
Issue………………………………………………………………………………….15
1. Legal Standard………………………………………………………………..15
ii
2. Respondents Have Made Baseless Assertions of the Quality Assurance

Privilege………………………………………………………………………18
3. Van Duyn Has Waived Any Assertions of the Quality Assurance Privilege for
the Subpoenaed Records……………………………………………………...21
CONCLUSION………………………………………………………………………………23
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Am. Dental Coop., Inc. v Attorney-General,

127 AD2d 274 [1st Dept 1987].......................................................................................... 12-13
Ambac Assurance Corp. v Countrywide Home Loans, Inc.,

27 NY3d 616 [2016] ................................................................................................................21
Brown v Sun Healthcare Group,

No. 3:06-CV-24022575/05, 2008 WL 1751675, [ED Tenn, April 14, 2008] .........................18
Carlisle v Bennett,
268 NY 212 [1935] ..................................................................................................................13
Clement v Kateri Residence,

60 AD3d 527 [1st Dept 2009]..................................................................................................17
In re N.Y. City Asbestos Litig.,

109 AD3d 7 [1st Dept 2013]....................................................................................................22
In re Subpoena Duces Tecum to Jane Doe, Esq.,

99 NY2d 434 [2003] .............................................................................. 9-10, 15, 17, 19, 20, 21
Insurance Co. v U.S. Fid. & Guar. Co.,

40 AD3d 486 [1st Dept 2007]..................................................................................................21
Jewish Home of E. Pa. v Ctrs. For Medicare & Medicaid Servs.,

693 F3d 359 [3d Cir 2012].......................................................................................................18
Katherine F. v State of New York,

94 NY2d 200 [1999] ................................................................................................................16
Levin v Murawski,
59 NY2d 35 [1983] ..................................................................................................................13
Logue v Velez,
92 NY2d 13 [1998] ..................................................................................................................17
Marte v Brooklyn Hosp. Ctr.,

9 AD3d 41 [2d Dept. 2004] .....................................................................................................19
Matter of LaBelle Creole Int’l v Attorney General,

10 NY2d 192 [1961] ................................................................................................................13
iv
Nab-Tern-Betts v City of New York,

209 AD2d 223 [1st Dept 1994]..........................................................................................21, 22
Oncor Commc’ns, Inc. v State,

165 Misc 2d 262 [Sup Ct, Albany County 1995], affd, 218 AD2d 60 [3d Dept
1996] ........................................................................................................................................12
Orner v Mount Sinai Hosp.,

305 AD2d 307 [1st Dept 2003]................................................................................................19
People ex rel. Cuomo v Greenberg,

95 AD3d 474 [1st Dept 2012]..................................................................................................12
People v 21st Century Leisure Spa Int’l Ltd.,

153 Misc 2d 938 [Sup Ct, NY County 1991] ..........................................................................12
People v Applied Card Sys., Inc.,

27 AD3d 104 [3d Dep’t 2005], affd on other grounds, 11 NY3d 105 [2008] .........................12
People v Greenberg,
50 AD3d 195 [1st Dept 2008]..................................................................................................21
People v Lexington Sixty-First Assoc.,

38 NY2d 588 [1976] ................................................................................................................12
Sanchez v Kateri Residence,

79 AD3d 492 [1st Dept 2010] ..................................................................................................17
Spakoski v Amsterdam Mem. Hosp. Skilled Nursing Home,

6 Misc 3d 757 [Sup Ct, Mont. County 2005] .................................................................... 17-18
State of New York v Wolowitz,

96 AD2d 47 [2d Dept 1983] ....................................................................................................12
STATE STATUTES
Educational Law
§ 6527(3) ..................................................................................................................................16
Executive Law
§ 63(12) ............................................................................................................................ passim
Mental Hygiene Law

§ 29.29......................................................................................................................................17
Public Health Law

§ 2805-l ....................................................................................................................................17
v
FEDERAL STATUTES
42 USC
§ 1396b(q) ..................................................................................................................................2
§ 1396r(b)(1)(A) ......................................................................................................................15
§ 1396r(b)(1)(B).......................................................................................................................16
Federal Nursing Home Reform Act ...............................................................................................21
Health Insurance Portability & Accountability Act of 1996 .........................................................10
STATE REGULATIONS
10 NYCRR
§ 415.1 (a)(5) .............................................................................................................................3
§ 415.1 (a) ..................................................................................................................................3
§ 415.12......................................................................................................................................3
§ 415.26 (i)(1)(ii) .......................................................................................................................3
§ 415.27(b) ...............................................................................................................................16
§ 415.30(f)......................................................................................................................6, 10, 21
§ 81.1(c) .....................................................................................................................................9
18 NYCRR
§ 504.3(a) .......................................................................................................................2, 14, 22
§ 515.2…………………………………………………………………………………………2
FEDERAL REGULATIONS
42 C.F.R.
§ 1007.11(a)-(b) ........................................................................................................................2,
§ 483.70(i)(1)-(2) .....................................................................................................................14
45 CFR
§ 164.512(d) .............................................................................................................................14
§ 170.210..................................................................................................................................14
RULES
CPLR 403(d) and 2308(b)(1) ...........................................................................................................1
vi
PRELIMINARY STATEMENT
Petitioner, the Attorney General of the State of New York (“Attorney General” or
“Petitioner”) respectfully submits this Memorandum of Law, the accompanying Affirmation of
Irene Bardot, dated March 28, 2022, and the Order to Show Cause in support of Petitioner’s
application for an order compelling Respondents’ compliance with the 23 investigative subpoenas
validly issued pursuant to Executive Law § 63(12) as part of the Attorney General’s ongoing
investigation into multiple allegations of resident neglect and abuse at Respondent VDRNC, LLC,
doing business as Van Duyn Center for Rehabilitation and Nursing (“Van Duyn”), a 513-bed, for-
profit skilled nursing facility at 5075 West Seneca Turnpike in Syracuse, New York. The
Subpoenas are part of the Attorney General’s ongoing investigation into indications that the
owners regularly operated Van Duyn with staffing that was insufficient to provide the residents
with the care required by law, because the owners instead diverted through related-party
transactions—for purposes of personal profit—substantial Medicaid funds that were intended for
resident care. Specifically, the Attorney General seeks to compel production through the instant
Motion by Order to Show Cause, pursuant to Civil Practice Law and Rules 403(d) and 2308(b)(1),
for an order compelling: (i) Van Duyn to comply with the lawful investigatory subpoena issued
to it by the Attorney General pursuant to Executive Law § 63(12) on August 26, 2021, (ii) Van
Duyn to comply with the six lawful investigative subpoenas issued to it by the Attorney General
pursuant to Executive Law § 63(12) on March 7, 2022, (iii) Van Duyn to comply with the six
lawful investigative subpoenas issued to it by the Attorney General pursuant to Executive Law §
63(12) on March 14, 2022, and (iv) Van Duyn to comply with the nine lawful investigative
subpoenas issued to it by the Attorney General pursuant to Executive Law § 63(12) on March 21,
2022, (the “Van Duyn Subpoenas”) in connection with the Attorney General’s investigation; as
1
well as compelling (iv) Respondent DESG Software, LLC, doing business as E&I Software Inc.,
(“E&I”), to comply with a lawful investigatory subpoena issued to E&I by the Attorney General
pursuant to Executive Law § 63(12) on August 26, 2021 (the “E&I Subpoena”) in connection with
the Van Duyn Investigation. 1 The Van Duyn Subpoenas and E&I Subpoena are collectively
referred to herein as the “Subpoenas.” (See Bardot Aff. Exs. 1-23.) Petitioner respectfully requests
that the Court reject Respondents’ privilege assertions and compel Respondents to comply with
the Subpoenas within seven (7) days of entry of the Court’s Order, along with such other relief as
the Court deems appropriate.
The New York State Medicaid Program provides government-funded health care to
millions of indigent New Yorkers, including nursing home residents. The Attorney General’s
Office, through the Medicaid Fraud Control Unit (“MFCU”), has a statutory mandate to protect
the public from Medicaid provider fraud and to protect the State’s vulnerable nursing home
residents from exploitation, neglect, and abuse by unscrupulous providers. (See 42 USC §
1396b[q]; 42 C.F.R. §§ 1007.11[a]-[b]; see also 18 NYCRR §§ 504.3[a], [g], 515.2[a], [b][1]-[4],
[6], [12] [defining unacceptable practices in the Medicaid program]). Medicaid and other
government healthcare programs, primarily Medicare, make up the bulk of nursing home revenue
in New York. Nursing home revenue and expense reporting and distribution is highly regulated
under New York and federal law both because of the substantial amount of funds tendered as
Medicaid and Medicare reimbursement, and because of the well-recognized potential impact of
diversion of such funds from the intended purpose of resident care.
1
This application includes the instant Memorandum of Law, as well as the Affirmation of Special Assistant Attorney
General Irene Bardot, dated March 28, 2022, and exhibits thereto. All references herein to the Bardot Affirmation
appear as “Bardot Aff.”
2
Nursing homes have a “special obligation to the residents who depend upon the facility to
meet every basic human need” in what is for many, probably their last home. (10 NYCRR § 415.1
[a]). New York law recognizes that “nursing homes should be viewed as homes as much as
medical institutions.” (10 NYCRR § 415.1[a][5]). Each nursing home is required to give each
resident “the appropriate treatment and services to maintain or improve his or her abilities” and
provide each resident with “the necessary care and services to attain or maintain the highest
practicable physical, mental and psychosocial well-being, in accordance with the comprehensive
assessment and plan of care subject to the resident’s right of self-determination.” (10 NYCRR
§ 415.12). A nursing home is required to “accept and retain only those residents for whom it can
provide adequate care.” (10 NYCRR § 415.26 [i][1][ii]).
In service of MFCU’s mission, the Attorney General has an active confidential
investigation pursuant to Executive Law § 63(12) into allegations of neglect and abuse of nursing
home residents at Van Duyn, and into indications that, to increase their profit, Van Duyn’s owners
made repeated business decisions to divert Medicaid funds from Van Duyn to related parties.
These decisions by its owners rendered the transferred funds unavailable for Van Duyn to hire and
maintain sufficient staffing to provide residents with the care they needed, and that Van Duyn was
required, yet failed to provide (collectively, the “Van Duyn Investigation”). The Van Duyn
Investigation stems from numerous serious complaints about the facility, including complaints
involving resident neglect and deaths.
To date, the Van Duyn Investigation has identified findings of serious resident harm,
resident death, and repeated, persistent resident neglect, insufficient staffing and diversion of
substantial funds intended for resident care to owners and related parties. The information sought
3
by the Subpoenas is necessary for the Attorney General’s ongoing investigation pursuant to
Executive Law § 63(12).
Before, and during the course of the Attorney General’s investigation, Van Duyn
predominantly had the lowest possible staffing ratings from the U.S. Centers for Medicare &
Medicaid Services. 2 At various points in time during the course of MFCU’s investigation, Van
Duyn’s staffing levels were insufficient to provide its vulnerable residents the clinical and
supportive care that was required by the residents’ assessed care plans.
The Van Duyn Investigation has also shown transfers of significant amounts of funds from
Van Duyn to its owners and related parties over the past several years, which drastically reduced
the amount of money Van Duyn had to invest in direct care staffing to provide care for its residents.
(See Bardot Aff. at ¶ 19.) These related party transfers occurred through numerous LLCs and other
entities that received money from Van Duyn, and then transferred money to the owners and related
parties. (Id.)
As part of this investigation, in August 2021 the Attorney General issued Executive Law §
63(12) subpoenas to Van Duyn and to E&I, which relate to two of the deaths being investigated.
The Attorney General issued 21 additional subpoenas in March of 2022, seeking similar
information that was necessary for a meaningful investigation of resident neglect at Van Duyn.
However, in a patent attempt to delay the Attorney General’s investigation, Respondents have
refused to produce the records required by the Subpoenas. Notably, Respondents have not
disputed the propriety of the Subpoenas or that they possess the responsive medical records.
Rather, they have refused to fully comply with the Subpoenas based on a misplaced and erroneous
reliance on the quality assurance privilege (“QA privilege”), which is entirely inapplicable to the
2
https://www.medicare.gov/care-compare/details/nursing-home/335184?city=Syracuse&state=NY&zipcode=13202
4
documents at issue. This baseless non-compliance amounts to obstruction of the Attorney
General’s lawful investigation and potentially impacts the welfare and safety of Van Duyn’s
residents. Accordingly, Van Duyn and E&I should be ordered to produce the documents sought
by the Subpoenas forthwith.
STATEMENT OF FACTS
I. The Attorney General’s Van Duyn Investigation
In late 2017, the Attorney General’s MFCU commenced its investigation into allegations
of resident neglect at Van Duyn. Since then, MFCU has received numerous complaints from
residents and their families, and other sources, alleging a myriad of deficiencies, including but not
limited to neglect, deficient documentation, improper nursing practices, and insufficient staffing
at Van Duyn. Additionally, complaints concerning Van Duyn have been reported in media outlets,
and some complaints were the subjects of findings in Statements of Deficiencies issued by the
New York State Department of Health. At this time, MFCU is investigating over two dozen
resident complaints, including neglect resulting in serious harm and death. Seven of those
complaints involve the deaths of residents, including the residents whose records are the subjects
of the instant Subpoenas. (See Bardot Aff. at ¶¶ 20-22.) It is imperative that MFCU be granted
complete access to the records demanded by the Subpoenas in order to investigate fully these
disturbing allegations, and to protect Van Duyn’s residents from further neglect and abuse.
II. Respondents’ Inadequate Production in Response to the Attorney General’s

Executive Law § 63(12) Subpoenas
In furtherance of the Attorney General’s authority to investigate fraud and other illegality
in skilled nursing facilities, Petitioner served the aforementioned Executive Law § 63(12)
Subpoenas for documents on Respondents Van Duyn and E&I, as described above. The
5
Subpoenas demanded that Respondents produce certain documents relevant to MFCU’s
investigation. (See Bardot Aff. at ¶¶ 23-28.)
Specifically, the Subpoenas requested, among other things, Medication Administration
Records (“MARs”) in grid format, 3 Treatment Administration Records (“TARs”) in grid format,
Certified Nursing Assistant (“CNA” or “aide”) records in grid format in which aides had reported
the services they provided and the dates and times of these services, 24-Hour Reports, 4 as well as
Accident and Incident (“A&I”) Reports and related records. 5 In addition, the Subpoenas requested
corresponding metadata 6 for each category of documents. (See Bardot Aff. at ¶¶ 4, 29-30.)
To date, Respondents have not fully complied with the Subpoenas. (See Bardot Aff. at ¶¶
55, 65.)
1. Van Duyn’s Refusal to Produce Records Reflecting the Times of Provision of Care
and Services Is Without Merit; Those Records are Necessary for a Meaningful
Review of Resident Medical Records
To date, Respondent has refused to produce the complete medical information
subpoenaed. Moreover, despite the fact that Respondent possesses all of the information
subpoenaed, Respondent has specifically refused to produce medical records that reflect the
dates and times that Van Duyn staff allegedly administered medication, as well as its medical
3
“Grid format,” an accepted record-keeping method in the nursing home industry, is a type of facility business
record that reflects the following information: the medications and treatments the facility is required to provide to
each resident as well as the required frequency and times of administration; the frequency and times the required
medications and treatments are purportedly provided to each resident; and the initials or signature of the facility
staff member who administered the medication or treatment to the resident.
4
A 24-Hour Report is a record that enables nursing home staff to monitor the needs of residents and communicate
any changes in the residents’ condition between shifts and disciplines. The 24-Hour Report is commonly used by
outgoing nursing shifts to communicate resident problems, and changes in their condition to the oncoming shift.
5
A&I records should include a clear description of the accident and/or incident, the names of individuals involved, a
description of medical and other services provided, by whom such are provided, and the steps taken to prevent
recurrence. (10 NYCRR § 415.30[f]).
6
Metadata describes data and helps to sort and identify attributes of the information it describes, such as the author
of the data, when it was created, if and when the data has been altered, how the data was altered, and by whom.
The Attorney General demanded the metadata because the metadata is where the EMR system captures and stores
the data that reflects the actual time and date that Van Duyn staff logged onto the system and made entries that
reflect the purported dates and times that they claimed to have provided medication and/or services.
6
records that reflect the dates and times that Van Duyn staff allegedly provided treatments or
services, and corresponding metadata. As a result, Van Duyn’s productions are wholly
incomplete. As Van Duyn understands, as a result of its incomplete production, the Attorney
General is unable to conduct a meaningful review of the medical records to determine whether
Van Duyn violated its obligations to its residents to provide care in accordance with residents’
care plans.
2. E&I’s Refusal to Produce Records Reflecting the Times of Van Duyn’s Alleged
Administration of Care and Services Is Without Merit; Those Records Are
Necessary for a Meaningful Review of Resident Medical Records
The Attorney General also issued the E&I Subpoena on August 26, 2021. E&I is a third-
party software vendor that has hosted and maintained a customized Electronic Medical Records
(“EMR”) system for Van Duyn that was implemented in or around October 2020. The E&I
Subpoena demanded the production of several items, including but not limited to the complete
medical chart for Van Duyn resident L.C.1 7 and any and all metadata associated with said chart.8
(Bardot Aff. at ¶ 35.) The Attorney General demanded the metadata associated with resident
L.C.1’s medical chart because the metadata is where the new EMR system captures and stores the
data reflecting the actual times and dates that Van Duyn staff logged onto the EMR system and
made entries that reflect the purported dates and times that they provided medication and/or
services to resident L.C.1 (Bardot Aff. at footnote 9.) The metadata is essential in the investigation
of nursing home resident neglect because it is often the only source of business record data that
7
Resident names and other Patient Health Information are identifying information that is abbreviated for compliance
with the Health Insurance Portability & Accountability Act of 1996.
8
The E&I Subpoena also requested contracts by and between E&I and Van Duyn, as well as all user manuals,
training manuals, and/or guidelines issued by E&I and utilized by Van Duyn.
7
reflects the actual times and dates that staff logged in and created entries of their purported timely
administration of medication and services to a resident. (Id. at footnote 9.)
The return date for the E&I Subpoena was originally September 2, 2021. 9 To date, E&I’s
compliance has been categorically deficient. E&I only produced video tutorials for requested
trainings and manuals, and failed to produce any contracts between E&I and Van Duyn. E&I also
failed to produce a complete and clear medical chart for resident L.C.1 Specifically, E&I failed to
produce its records containing electronically stored information reflecting the purported recorded
times at which Van Duyn staff allegedly administered medications and services to resident L.C.1
on specific dates. 10 This failure to produce Van Duyn’s complete medical records was by design,
as discussed below.
After E&I refused to produce the complete medical information that the Attorney General
properly subpoenaed regarding Van Duyn’s care of resident L.C.1, MFCU conducted an Executive
Law § 63(12) examination of E&I Chief Financial Officer Efraim Lemberger on September 30,
2021, who testified that in 2020 Van Duyn made the decision to replace its prior medical records
software with a customized EMR system. (See Bardot Aff. at ¶ 59.) Notably, under its prior
medical records system, Van Duyn had previously produced to the Attorney General complete
MARs and TARs information for specific residents, in grid format, which included all of the
requested types of information identified in the Subpoenas.
Mr. Lemberger testified that Van Duyn’s EMR software contains the type of information
that the Attorney General has subpoenaed regarding the medical care that Van Duyn was required
to provide to its residents, including the dates and times behind these entries. (See Bardot Aff. at
9
This date was extended several times, as indicated in the Bardot Affirmation.
10
E&I only produced a portion of L.C.’s medical chart, which included some resident care, facility notes,
physicians’ orders, and medical information created within the facility or received from third parties.
8
¶ 59.) His testimony confirmed that the EMR system allows for Van Duyn staff to electronically
input resident health information into medical records. These electronic records include, but are
not limited to, MARs, TARs, CNA records, A&I reports, and 24-Hour Reports.
Despite Van Duyn’s and E&I’s possession of all of this relevant data, including the
metadata, Van Duyn and E&I have refused to produce it. Without these records, the Attorney
General is unable to conduct a thorough review of the electronic records that actually reflect the
specific times and dates that Van Duyn staff made entries into the EMR system, and, as a result,
is unable to determine whether the care provided to residents was “timely, consistent, safe,
adequate, and appropriate.” (10 NYCRR § 81.1[c]).
3. Van Duyn’s Refusal to Produce 24-Hour Reports and A&I Records is Without
Merit and These Records Are Necessary for a Meaningful Review of Resident
Medical Records
The Attorney General’s Subpoenas that were issued in March 2022 included requests for
24-Hour Reports and A&I records. (See Bardot Aff. at ¶¶ 5, 15, 24.) To date, Van Duyn has
refused to produce the 24-Hour Reports or A&I records. (See Bardot Aff. at ¶ 25.) As Van Duyn
well understands, as a result of its incomplete production, the Attorney General is unable to
conduct a meaningful review of the requested medical records to determine whether Van Duyn
violated its obligations to provide the required care to its resident in a “timely, consistent, safe,
adequate, and appropriate” manner, in accordance with the residents’ care plans. (See 10 NYCRR
§ 81.1[c]).
III. Respondents’ Assertions of the QA Privilege Are Wholly Without Merit
In order to encourage candid discussions that ultimately benefit patients, the scope of the
QA privilege has been recognized as narrow and only protecting those records created by or at the
behest of a nursing home’s quality assurance committee for quality assurance purposes—and only
9
when those records are not otherwise required by law to be maintained. (See In re Subpoena Duces
Tecum to Jane Doe, Esq., 99 NY2d 434, 440-41 [2003].) It is therefore unsurprising that the QA
privilege has never been recognized by any court as protecting from disclosure to a law
enforcement agency the basic documentary evidence from medical records that a nursing home is
required to maintain and that reflects whether it actually provided, on a timely basis, the medication
and treatment that it was required to provide to its residents. Nor has the QA privilege been
recognized by any court as shielding a nursing home from having to disclose to a law enforcement
agency investigating neglect the metadata behind the nursing home’s medical records—especially
when the metadata contains stored information as to the actual dates and times that its staff logged
into the facility’s electronic medical records system and created entries that purport to record the
medication, services, and treatments administered to a resident.
Nonetheless, without any legal basis, on September 14, 2021, in response to the Van Duyn
subpoena the Attorney General issued on August 26, 2021, Van Duyn asserted that the QA
privilege protected from disclosure the Attorney General’s requested production of “grid format”
records that would show the times Van Duyn staff provided treatments, as well as the times that
Van Duyn staff provided services and administered medications. Thereafter, by way of letter dated
September 24, 2021 (the “September 24 Letter”), Van Duyn again invoked the QA privilege—this
time, in an attempt to block production of the specific data regarding care Van Duyn provided, or
failed to provide, and to modify the E&I Subpoena (see Bardot Aff. Ex. 54). Specifically, Van
Duyn claimed that the QA privilege extends to “metadata and/or information relating to precise
times of data entry into [Van Duyn’s] EMR system with respect to MARs and TARs” because this
information constitutes “business records” created in the ordinary course of business. Additionally,
by way of the September 24 Letter, Van Duyn contended that the E&I Subpoena was issued by
10
the Attorney General in an attempt to make an “end run” around previously asserted baseless
objections made by Van Duyn.
To date, Van Duyn and E&I have repeatedly relied on these meritless arguments in an
attempt to withhold critical information from the Attorney General, including but not limited to
MARs, TARs, CNA records, A&I reports, 24-Hour Reports, and the corresponding metadata, to
delay her investigation. (See Bardot Aff. at ¶¶ 15, 64). Respondents’ non-compliance with the
Subpoenas is compromising the Attorney General’s ability to protect the well-being and safety of
Van Duyn’s residents.
ARGUMENT
I. The Van Duyn and E&I Subpoenas Are Lawful Under the Attorney General’s
Broad Investigative Authority Pursuant to Executive Law § 63(12)
The Court should grant the Petitioner’s motion to compel compliance with the Subpoenas
because the Subpoenas seek information that is essential to the Attorney General’s mission to
protect nursing home residents from abuse and neglect, and request documents that Respondents
are required by law to maintain and produce to law enforcement agencies.
A. The Attorney General’s Broad Authority Under Executive Law § 63(12)
Executive Law § 63(12) allows the Attorney General to bring a proceeding “[w]henever
any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent
fraud or illegality in the carrying on, conducting or transaction of business.”
In keeping with the important mandate of Executive Law § 63(12), its provisions have been
liberally construed by the courts. The term “fraud” is “given a wide meaning so as to embrace all
deceitful practices contrary to the plain rules of common honesty, including all acts, even though
not originating in any actual evil design to perpetrate fraud or injury upon others, which do tend
11
to deceive or mislead.” (People ex rel. Cuomo v Greenberg, 95 AD3d 474, 483 [1st Dept 2012],
quoting People v Lexington Sixty-First Assoc., 38 NY2d 588, 595 [1976]). Similarly, the term
“illegality,” as used in § 63(12), encompasses a violation of any federal, state, or local law or
regulation. (People v Applied Card Sys., Inc., 27 AD3d 104, 109 [3d Dep’t 2005], affd on other
grounds, 11 NY3d 105 [2008]; see also Oncor Commc’ns, Inc. v State, 165 Misc 2d 262, 267 [Sup
Ct, Albany County 1995], affd, 218 AD2d 60 [3d Dept 1996]). The requirement to show
“persistent” or “repeated” acts is met by, among other things, a showing of “separate and distinct
fraudulent or illegal acts which affected more than one individual.” (People v 21st Century Leisure
Spa Int’l Ltd., 153 Misc 2d 938, 944 [Sup Ct, NY County 1991]; see also State of New York v
Wolowitz, 96 AD2d 47, 61 [2d Dept 1983] [recognizing that Executive Law § 63(12) allows “the
Attorney-General (sic) to bring a proceeding when the respondent was guilty of only one act of
alleged misconduct, providing it affected more than one person”]).
Moreover, it is settled law in New York that the Attorney General has the authority under
Executive Law § 63(12) to issue and compel compliance with subpoenas. In investigations into
potential fraud or illegality, “the Attorney General is authorized to take proof and make a
determination of the relevant facts, and to issue subpoenas in accordance with the civil practice
law and rules.” (Exec. Law § 63[12]). As courts have long recognized, this statute grants the
Attorney General “broad” investigative authority to issue subpoenas to “conduct investigations
into possible violations of the law.” (Am. Dental Coop., Inc. v Attorney-General, 127 AD2d 274,
279 [1st Dept 1987] [emphasis added]). All the Attorney General is required to show in support
of a subpoena issued pursuant to her investigatory authority is that the records and testimony
sought bear “a reasonable relation to the subject-matter under investigation and to the public
12
purpose to be achieved.” (Matter of LaBelle Creole Int’l v Attorney General, 10 NY2d 192, 196
[1961], quoting Carlisle v Bennett, 268 NY 212, 217 [1935]).
Notably, even a single complaint may be sufficient grounds for an investigatory subpoena.
(See, e.g., Levin v Murawski, 59 NY2d 35, 38 [1983] [investigatory subpoena may be triggered by
receipt of a single complaint that possesses the authenticity and reliability to justify the
investigation]). The Attorney General is not required to further enumerate these complaints,
disclose the details of its investigation, or set forth probable cause for its inquiry to justify its right
to exercise its powers under Executive Law § 63(12). (See Am. Dental, 127 AD2d at 283). The
Attorney General merely needs to set forth some factual basis for her inquiry, which has been done
here. As the Appellate Division has explained, “[t]he reason for this standard is obvious. An
investigation would be stymied at the outset if law enforcement officials had to pinpoint exactly
what the subpoenaed materials were expected to reveal.” (Id.)
Therefore, courts will sustain an Executive Law § 63(12) subpoena unless it seeks
“documents which are utterly irrelevant to any proper inquiry,” or its “futility . . . to uncover
anything legitimate is inevitable or obvious.” (LaBelle, at 196 [citations omitted]). Further, “in
evaluating the Attorney General’s justification for the issuance of a subpoena, there is a
presumption that [s]he is acting in good faith.” (Am. Dental, 127 AD2d at 283).
The instant Subpoenas are clearly justified in light of the broad powers conferred by
Executive Law § 63(12) and the many troubling factual allegations involving resident care and
neglect at Van Duyn. Van Duyn has been the subject of numerous complaints and news reports,
some of which involve resident deaths. Moreover, the Attorney General’s investigation includes
indications that the owners regularly operated Van Duyn with staffing that was insufficient to
provide the residents with the care required by law, because the owners instead diverted through
13
related party transactions—for purposes of personal profit—substantial Medicaid funds that were
intended for resident care. It is challenging to envision a situation where the Attorney General’s
investigatory powers are more appropriate and necessary than in the present matter.
B. The Subpoenas Request Documents and Records that Van Duyn is

Required by Law to Maintain and Disclose to the Attorney General
Respondents are obstructing the Attorney General’s lawful investigation by failing to
comply with the Subpoenas, which seek information that Van Duyn is required by law to maintain
and to which the Attorney General is entitled in order to fulfill her law enforcement duty.
In fact, skilled nursing facilities such as Van Duyn are required, by virtue of their Medicaid
enrollment, to permit audits by MFCU of all books and records relating to services furnished and
payments received under the Medicaid program, including patient histories, case files and patient-
specific data. “By enrolling [in the Medicaid program,] the provider agrees: (a) to prepare and to
maintain contemporaneous records demonstrating its right to receive payment under the
[Medicaid] program and to keep . . . all records necessary to disclose the nature and extent of
services furnished and all information regarding claims for payment submitted by, or on behalf of,
the provider and to furnish such records and information, upon request, to the . . . Deputy Attorney
General for Medicaid Fraud Control and the New York State Department of Health.” (See 18
NYCRR § 504.3[a]).
In addition, nursing home providers, such as Van Duyn, must maintain “complete,”
“accurately documented,” “readily accessible,” and “systemically organized” medical records for
“law enforcement purposes,” among others. (See 42 CFR § 483.70[i][1]-[2]). Such records may
be disclosed to a health oversight agency, such as MFCU, for “oversight activities authorized by
law, including audits; [and] civil, administrative, or criminal investigations.” (See 45 CFR §
164.512[d]). Moreover, 45 CFR § 170.210 requires that providers’ metadata be made available
14
for disclosure and review.
In keeping with the critical obligations of skilled nursing facilities, and the need to ensure
these obligations are met, New York regulations also require that A&I records, including
investigative reports of accidents and incidents, shall be produced “immediately upon request.”
(10 NYCRR § 415.30[f]; see also In re Subpoena Duces Tecum to Jane Doe, Esq., 99 NY2d 434,
440 [2003] [holding that accident and incident records must be produced as they are requirements
that “are imposed on nursing homes generally and have no express relationship to quality
assurance procedures.”]).
The information sought by the Attorney General’s Subpoenas is plainly relevant to the
investigation of Van Duyn and consists exactly of the types of documents Van Duyn is mandated
to retain and to disclose to law enforcement authorities. Without doubt, Respondents’ sole purpose
in refusing to comply with the Subpoenas is to obstruct the Attorney General’s investigation.
II. The Respondents Unlawfully Failed to Comply with the Attorney General’s
Subpoenas
The Court should grant the Petitioner’s motion to compel compliance with the Subpoenas
because Respondents’ main offered rationale for non-compliance is a baseless assertion of the QA
privilege, which amounts to obstruction of the Attorney General’s lawful investigation.
A. The Quality Assurance Privilege Does Not Justify Withholding the Documents
at Issue
1. Legal Standard
Pursuant to the Federal Nursing Home Reform Act, nursing homes “must care for [their]
residents in such a manner and . . . environment” as will maintain and promote their quality of life
(42 USC § 1396r[b][1][A]). To ensure compliance with this mandate, nursing homes must
maintain a quality assessment and assurance committee which, inter alia, develops and
15
implements appropriate plans of action to correct identified quality deficiencies (42 USC §
1396r[b][1][B]). Similarly, New York State regulations require nursing homes to have a “quality
assessment and assurance program which integrates the review activities of all nursing home
programs and services to enhance . . . quality of life and resident care and treatment,” including a
quality assurance committee comprised of a group of specific individuals. (10 NYCRR §
415.27[b]). The committee is required to meet regularly to review the workings of the nursing
home, identify problems, and propose solutions. During the quality assurance review process, the
committee can produce documents, or request that certain information be compiled for quality
assurance purposes.
In order not to compromise the quality assurance process, the legislature and the courts
have afforded a limited privilege from mandated disclosure for certain documents related to quality
assurance. (Educ. Law § 6527[3] [“Neither the proceedings nor the records relating to
performance of a medical or quality assurance review function or participation in a medical and
dental malpractice prevention program . . . shall be subject to disclosure under article thirty-one of
the civil practice law and rules”]; see also, 42 U.S.C. § 1396r[b][1][B] [“A State or the Secretary
may not require disclosure of the records of [a quality assurance] committee except insofar as such
disclosure is related to the compliance of such committee with the requirements of this
subparagraph.”]). The limited QA privilege was designed to encourage candid and thorough peer
review by a quality assurance committee in a confidential manner, and without fear of litigation
resulting from the committee having raised concerns or identified internal, facility problems. (See
Katherine F. v State of New York, 94 NY2d 200, 204 [1999] [explaining that Education Law §
6527(3) exempts three categories of documents from disclosure under CPLR Article 31, all in
circumstances inapplicable to the instant case, such as “records relating to medical review and
16
quality assurance functions; records reflecting ‘participation in a medical and dental malpractice
prevention program;’ and reports required by the Department of Health pursuant to Public Health
Law § 2805-l, including incident reports prepared pursuant to Mental Hygiene Law § 29.29.”]; 11
see also, Logue v Velez, 92 NY2d 13, 18 [1998] [holding that physicians’ applications to perform
certain procedures were protected by the QA privilege as the “pertinent information . . . was
specifically and expressly compiled by the Hospital to comply with the statutory requirements of
the Public Health Law,” which mandated periodic review of physicians’ credentials for the purpose
of preventing malpractice.]). The QA privilege is clearly not designed to shield medical records
from law enforcement review that the nursing home is otherwise required to preserve.
Accordingly, courts interpret the scope of the QA privilege narrowly and only protect those
records created by or at the behest of the quality assurance committee for quality assurance
purposes, and only when those records are not otherwise required by law to be maintained. (See
In re Subpoena Duces Tecum to Jane Doe, Esq., 99 NY2d 434, 440-41 [2003] [holding that federal
law only protects from disclosure those records created for quality assurance purposes and not
medical records otherwise required by regulation to be maintained that may have been reviewed
by a quality assurance committee]; see also, Clement v Kateri Residence, 60 AD3d 527, 527 [1st
Dept 2009] [holding that “negative outcome and incident reports involving conditions and
occurrences . . . are not protected by the quality assurance privilege, since such reports, although
utilized by defendant’s quality assurance committee, were not prepared by or at the behest of such
committee, but rather were of the type routinely prepared and maintained pursuant to” state
regulatory provisions]; Sanchez v Kateri Residence, 79 AD3d 492 [1st Dept 2010]; Spakoski v
11
Education Law § 6527(3) expressly provides that any protection from disclosure in the context of CPLR Article
31 is circumscribed “by any other provision of law,” as is the case of the disclosure requirements of 10 NYCRR §
415.30(f). Further, CPLR Article 31 governs litigation-related disclosures and does not apply to the instant
investigation and the Attorney General’s broad powers under Executive Law § 63(12).
17
Amsterdam Mem. Hosp. Skilled Nursing Home, 6 Misc 3d 757, 759 [Sup Ct, Mont. County 2005]
[holding that an “Occurrence Capture Worksheet” was not protected by the QA privilege even
though it “was part of” defendant’s quality assurance program, because it “was not completed
solely for quality assurance purposes, but was required by” state regulation that was a “requirement
. . . imposed on nursing homes generally and has no express relationship to quality assurance
procedures”]).
Some federal courts have adopted an even narrower approach, interpreting the privilege to
extend only to the committee’s own records, including its minutes, internal working papers, and
statements of conclusions, but not to documents generated outside the committee and submitted to
the committee for its review. (See Jewish Home of E. Pa. v Ctrs. For Medicare & Medicaid
Servs., 693 F3d 359, 362 [3d Cir 2012] [holding that incident reports were not minutes, internal
papers, or conclusions generated by the committee and therefore not privileged]); Brown v Sun
Healthcare Group, No. 3:06-CV-24022575/05, 2008 WL 1751675, at *5 [ED Tenn, April 14,
2008] [noting that only internal committee documents are privileged]).
Undoubtedly, medical records, such as those sought by the Subpoenas, are required for the
care of Van Duyn’s residents and independently required per the aforementioned laws and
regulations (see supra IB). As such, it is undeniable that the records were not created solely by or
at the behest of the quality assurance committee for quality assurance purposes, and therefore must
be produced forthwith.
2. Respondents Have Made Baseless Assertions of the Quality Assurance Privilege
To date, Respondents have willfully and unlawfully refused to comply with the Subpoenas,
relying on Van Duyn’s baseless assertions of the QA privilege. Appellate Division courts have
made it clear that “[i]t is the burden of the entity seeking to invoke the privilege to establish that
18
the documents sought were prepared in accordance with the relevant statutes.” (Marte v Brooklyn
Hosp. Ctr., 9 AD3d 41, 46 [2d Dept. 2004]; see also Orner v Mount Sinai Hosp., 305 AD2d 307,
310 [1st Dept 2003]). At no time has Van Duyn provided a comprehensible, legally supported
argument for its invocation of the privilege. In fact, because there is no legal basis for its
invocation of the QA privilege, Van Duyn supports its position solely with tangential public policy
arguments. 12 Further, Van Duyn has increasingly asserted the QA privilege in a selective matter,
so as to shield only certain clinical treatment records from production and scrutiny that MFCU has
the well-founded authority to examine.
The main case Respondent Van Duyn does rely on—In re Subpoena Duces Tecum to Jane
Doe, Esq., 99 NY2d 434 (2003)—clearly holds that clinical treatment records, such as those sought
by MFCU, do not fall within the protective ambit of the QA privilege. Indeed, the parties in In re
Subpoena Duces Tecum agreed that the clinical records of the nursing homes’ residents were not
protected by the QA privilege. (Id. at 439). As made clear above, the Court determined that only
those records that had been created “by or at the behest of a quality assurance committee for quality
assurance purposes” are entitled to QA privilege protection. (Id. at 441).
The records sought by the Subpoenas—including the MARs, TARs, Resident CNA
Documentation, the 24-Hour Reports, and A&I records—are precisely the kinds of clinical records
that are excluded from the protection of the QA privilege. Notably, until Van Duyn’s assertion of
the QA privilege in 2021, which it repeated in its objections to production, and its request that the
Attorney General modify her 21 subpoenas issued in March 2022, Van Duyn had produced the
same types of records that it now claims are shielded by the QA privilege. (See Bardot Aff. at ¶
56.) Van Duyn made these productions in response to prior demands made by the Attorney General
12
See The September 24 Letter (Bardot Aff., Exhibit 54).
19
through MFCU (see Bardot Aff. at ¶¶ 27, 29). Significantly, while such an assertion would lack
credibility, at no point has Van Duyn made any assertion that the records at issue were created by
or at the behest of its quality assurance committee. Moreover, at no point has Van Duyn even
alleged that the documents the Attorney General seeks were even reviewed by Van Duyn’s quality
assurance committee. However, even if it could be demonstrated that the quality assurance
committee reviewed these records, it would still fail to serve as a legitimate basis for the assertion
of the privilege. As the Court in Jane Doe noted, “(w)here facilities are compelled by a statutory
or regulatory dictate to maintain a particular record or report that is not expressly related
to quality assurance, the fact that a quality assurance committee reviews such information
for quality assurance purposes does not change the essential purpose of the document. A facility
may not create a privilege where none would otherwise exist merely by assigning the duty for
compliance or compilation to a quality assurance committee.” (In re Subpoena Duces Tecum to
Jane Doe, at 440).
In addition, the purpose of the 24-Hour Report is to create a record that enables nursing
home staff to monitor the needs of residents and to communicate, between shifts and between the
interdisciplinary team, any changes in residents’ conditions. (Bardot Aff. at footnote 8.) The 24-
Hour Report is commonly used by the outgoing nursing shift to communicate resident problems
and changes in condition to the oncoming nursing shift. (Id.) The 24-Hour Report is not prepared
for Quality Assurance review purposes, and Van Duyn’s purported assertion of the QA privilege
as protecting the 24-Hour Reports from production to the Attorney General is without legal basis.
Similarly, Van Duyn’s baseless assertion that its A&I records are protected by the QA
privilege also fails as New York regulations require that A&I records, including investigative
20
reports of accidents and incidents, shall be produced “immediately upon request.” (10 NYCRR §
415.30[f]; see also In re Subpoena Duces Tecum to Jane Doe, Esq., 99 NY2d at 440).
Finally, Van Duyn’s assertion that the metadata and information relating to the precise
times of data entry into Van Duyn’s EMR system are “business records” generated by Van Duyn
staff in Van Duyn’s normal course of business fails to confer QA privilege protection upon these
otherwise non-privileged records. To the contrary, inasmuch as these records are generated in the
ordinary course of Van Duyn’s stated business—providing resident care—these documents are
properly discoverable, and should be produced forthwith.
3. Van Duyn Has Waived Any Assertions of the Quality Assurance Privilege for the
Subpoenaed Records
Even if privilege ever existed in relation to the documents at issue—which it absolutely
does not—Van Duyn waived that protection by virtue of its selective disclosures of similar records
to the Attorney General’s MFCU. (See Ambac Assurance Corp. v Countrywide Home Loans, Inc.,
27 NY3d 616, 624 [2016] [establishing that privilege is waived if an initially confidential
communication is “subsequently revealed to a third party.”]). Van Duyn bears the burden of
showing that privilege has not been waived. (Ambac, 27 NY3d at 624; Nab-Tern-Betts v City of
New York, 209 AD2d 223, 224 [1st Dept 1994]).
Privilege may not be used as a “sword and shield” via selective disclosure, including to a
governmental agency. (See People v Greenberg, 50 AD3d 195, 202-03 [1st Dept 2008] [stating
that voluntary production to the Securities and Exchange Commission resulted in a “complete
waiver of the privilege”]). A party’s affirmative acts to place privileged material at issue and to
selectively disclose such information effects a subject matter waiver. (Insurance Co. v U.S. Fid.
& Guar. Co., 40 AD3d 486, 492 [1st Dept 2007]).
21
Indeed, on July 25, 2021, in response to a 18 NYCRR § 504.3 demand letter dated July 19,
2021 for the medical records of Van Duyn resident, “R.H.,” Van Duyn provided the MARs, TARs,
and Resident CNA Documentation in grid format, without asserting the QA privilege (see Bardot
Aff. at footnote 15). In addition, on April 8, 2021, in response to a 18 NYCRR § 504.3 demand
letter dated March 2, 2021, Van Duyn provided the 24-Hour Report for resident “P.G.” (See
Bardot Aff. at footnote 13.) Van Duyn’s inconsistent assertion of the QA privilege for the same
requested documents and data reinforces that Van Duyn’s assertion of the privilege is unfounded.
Further, a party may not release information ostensibly favorable to its position, but “withhold[]
the raw data that might be prone to scrutiny” from an adversary. (See In re N.Y. City Asbestos
Litig., 109 AD3d 7, 14 [1st Dept 2013]; accord Nab-Tern-Betts, 209 AD2d at 224). Accordingly,
if ever there had been any applicable privilege over the disputed materials at issue, and there was
not, Van Duyn waived that privilege. 13
Respondents’ willful non-compliance with the Attorney General’s Subpoenas is no more
than an effort to obstruct and delay MFCU’s investigation and has caused Petitioner to needlessly
expend time and resources, delaying a critical investigation into potential harm to Van Duyn’s
residents. Respondents’ reliance on the QA privilege has no support in law, and any privilege that
may have existed has undoubtedly been waived. Therefore, to prevent further delay of the
Attorney General’s investigation, Petitioner respectfully requests that the Court order Respondents
to comply with the two August 26, 2021 subpoenas, the six March 7, 2022 subpoenas, the six
March 14, 2022 subpoenas, and the nine March 21, 2022 subpoenas, by producing all responsive
documents, records, and metadata in its possession, within seven (7) days of entry of the Court’s
Order, or such other date as directed by the Court.
13
Further, on September 28, 2021, E&I produced metadata, albeit without time information, without invoking the
QA privilege. (See Bardot Aff. at ¶ 57.)
22
CONCLUSION
For all of the foregoing reasons, Petitioner’s Motion to compel should be granted.
DATED: New York, NY

March 28, 2022 Respectfully Submitted,
LETITIA JAMES
By: /s/ Elizabeth Silverman

Elizabeth Silverman
28 Liberty Street
Irene Bardot
Attorneys for Petitioner
23
CERTIFICATION PURSUANT TO RULE 202.8-b
I, Elizabeth Silverman, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby certify that this Memorandum of Law complies with the word count
limit set forth in Rule 202.8-b as it contains 6,639 words, excluding the parts of the Memorandum
explicitly exempted by Rule. In preparing this certification, I have relied on the word count of the
word processing system used to prepare this Memorandum of Law.
DATED: New York, NY

March 28, 2022 Respectfully Submitted,
LETITIA JAMES
By: /s/ Elizabeth Silverman

Elizabeth Silverman
28 Liberty Street
Irene Bardot
Attorneys for Petitioner
24

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CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.

INDEX NO. UNASSIGNED

SUPREME COURT OF THE STATE OF NEW YORK

In the Matter of the Application of:

For an order pursuant to CPLR § 2308(b) to compel

VDRNC, LLC, doing business as Van Duyn Center

PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION BY

I. The Attorney General’s Van Duyn Investigation…………………………………………5

II. Respondents’ Inadequate Production in Response to the Attorney General’s Subpoenas

A. The Attorney General’s Broad Authority Under Executive Law § 63(12)………….11

2. Respondents Have Made Baseless Assertions of the Quality Assurance

Am. Dental Coop., Inc. v Attorney-General,

Ambac Assurance Corp. v Countrywide Home Loans, Inc.,

Brown v Sun Healthcare Group,

Clement v Kateri Residence,

In re N.Y. City Asbestos Litig.,

In re Subpoena Duces Tecum to Jane Doe, Esq.,

Insurance Co. v U.S. Fid. & Guar. Co.,

Jewish Home of E. Pa. v Ctrs. For Medicare & Medicaid Servs.,

Katherine F. v State of New York,

Marte v Brooklyn Hosp. Ctr.,

Matter of LaBelle Creole Int’l v Attorney General,

Nab-Tern-Betts v City of New York,

Oncor Commc’ns, Inc. v State,

Orner v Mount Sinai Hosp.,

People ex rel. Cuomo v Greenberg,

People v 21st Century Leisure Spa Int’l Ltd.,

People v Applied Card Sys., Inc.,

People v Lexington Sixty-First Assoc.,

Sanchez v Kateri Residence,

Spakoski v Amsterdam Mem. Hosp. Skilled Nursing Home,

State of New York v Wolowitz,

Mental Hygiene Law

Public Health Law

Federal Nursing Home Reform Act ...............................................................................................21

Health Insurance Portability & Accountability Act of 1996 .........................................................10

CPLR 403(d) and 2308(b)(1) ...........................................................................................................1

“Petitioner”) respectfully submits this Memorandum of Law, the accompanying Affirmation of

the Court deems appropriate.

diversion of such funds from the intended purpose of resident care.

provide adequate care.” (10 NYCRR § 415.26 [i][1][ii]).

In service of MFCU’s mission, the Attorney General has an active confidential

involving resident neglect and deaths.

Executive Law § 63(12).

documents at issue. This baseless non-compliance amounts to obstruction of the Attorney

by the Subpoenas forthwith.

I. The Attorney General’s Van Duyn Investigation

II. Respondents’ Inadequate Production in Response to the Attorney General’s

Subpoenas demanded that Respondents produce certain documents relevant to MFCU’s

investigation. (See Bardot Aff. at ¶¶ 23-28.)

Specifically, the Subpoenas requested, among other things, Medication Administration

To date, Respondent has refused to produce the complete medical information

administration of medication and services to a resident. (Id. at footnote 9.)

requested types of information identified in the Subpoenas.

adequate, and appropriate.” (10 NYCRR § 81.1[c]).

III. Respondents’ Assertions of the QA Privilege Are Wholly Without Merit

medication, services, and treatments administered to a resident.