Defendant, WOODBURY CENTER FOR HEALTH CARE s/h/a WOODBURY NURSING HOME, A PARTNERSHIP (hereinafter referred to as "WOODBURY"), moves for an order, pursuant to CPLR §3025 and Public Health Law §2801-d, permitting WOODBURY to amend its answer to include an affirmative defense under Public Health Law §2801-d, and deeming the amended answer served. An Affidavit of Service reflects that counsel for all of the parties were served with the instant motion on May 8, 2007, but only counsel for plaintiff, JOSEPH MARSHALL, Individually and as Administrator of the Estate if CLARICE MARSHALL, Deceased, submits partial opposition to the motion and cross-moves for an order compelling WOODBURY to serve a bill of particulars on the newly asserted affirmative defense sought to be interposed. The [*2]motion and cross-motion are determined as follows:

In this medical malpractice action, alleging defendants' negligence in caring for plaintiff's decedent, CLARICE MARSHALL, which led to, inter alia, severe decubitis ulcers and death, plaintiffs stipulated to and the Court ordered the service of a Supplemental Bill of Particulars with separate negligence paragraphs for each defendant. On April 9, 2007, plaintiffs supplemented the negligence paragraph against WOODBURY by listing violations to rules and regulations, statutes, policies and procedures that were not previously part of the bill of particulars, including claimed violations to Public Health Law §2801-d. Counsel for WOODBURY states that, if a PHL §2801-d claim is made against an entity,"no person who pleads and proves, as an affirmative defense, that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted shall be liable under this section". Therefore, WOODBURY now seeks to amend their answer to include such an affirmative defense "[t]hat the answering defendant exercised all care reasonably necessary to prevent and limit any claimed deprivation and/or injury to the patient". Counsel states that, although the case has been certified for trial, leave to amend a pleading should be freely given, particularly in light of the recently served supplemental bill of particulars.

Plaintiff does not oppose the proposed amended answer with the newly asserted affirmative defense but, in connection with said amendment, cross-moves for an order directing that WOODBURY serve a bill of particulars with respect thereto. Counsel for plaintiffs states that he had already agreed to sign a stipulation permitting the new affirmative defense in exchange for WOODBURY's agreement to include the service of a bill of particulars in the stipulation, however, WOODBURY's counsel objected and asserted that they were not required to serve such a pleading. Plaintiffs' counsel argues that defendant has the burden of proof on this affirmative defense, as on all others, and must plead and prove reasonable conduct on their behalf. PHL §2801-d. Plaintiffs' counsel claims that when culpable conduct is alleged as an affirmative defense, a bill of particulars is required, citing Saint v Westeroff, 89 Misc 2d 179, 391 NYS2d 790 (Supreme Nassau Co. 1976).

In reply, counsel for WOODBURY contends that a bill of particulars is improper when it calls for evidentiary matter or for claims on which the adverse party bears the burden of proof, citing Bharnwani v Del Rosario, 180 AD2d 704, 579 NYS2d 727 (2nd Dept. 1992). It is WOODBURY's belief that plaintiffs have the burden of proving the deprivation by the health care facility of a standard of care prescribed by law for the patients well being, and that affirmative defenses that are statutory in nature require no amplification, citing Arnold v Siegel, 296 AD2d 363, 745 NYS2d 431 (2nd Dept. 2002).

It is clear that an affirmative defense is intended to define issues and give notice to a party to insure that they will not be taken by surprise at trial. Therefore, new matter constituting a defense must be pleaded in an affirmative defense. See, Ensign v Klekosky, 28 Misc 2d 536, 208 NYS2d 490 (Supreme Madison County, 1959); Saint v Westhoff, 89 Misc 2d 179, 391 NYS2d 790 (Supreme Nassau County 1976). Certainly, a party would be entitled to a bill of particulars on an affirmative defense of "culpable conduct" by the plaintiff. See, Saint v Westhoff, supra ; Fernandez v Vikosan, 108 Misc 2d 48, 436 NYS2d 919 (Supreme New York County 1980); O'Keef v Young and Rubicam, 257 AD 141, 12 NYS2d 31 (1st Dept. 1939). However, here WOODBURY is compelled to put in an affirmative defense by statutory construction and to assert, in essence, that they did not deprive plaintiff of any mandated level of care, in fact a denial of plaintiffs' claim and not a defense of [*3]culpable conduct on the part of plaintiff.

PHL §2801-d provides a private right of action to nursing home patients injured as a result of a deprivation of any right or benefit established for the patient's well being by contract or state or federal statute, code rule or regulation, and is in addition and cumulative to other remedies available to the plaintiff at law or in equity or in an administrative proceeding ( PHL §2801-d[4]). Morisette v Terrence Cardinal Cooke Health Care Center, 8 Misc 3d 506, 797 NYS2d 856 (Supreme New York County, 2005); see also, Pasqua v Bon Secours NY Health System, Inc., 13 Misc 3d 1036, 827 NYS2d 548 (Supreme Bronx County 2006); Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178, 753 NYS2d 450 (1st Dept. 2002). The Health Law requires nursing homes to adopt and make public a Statement of Rights and Responsibilities of the patients in such facility (PHL §2803-c) and to treat such patients in accordance with such statement. The rights include the "right to adequate medical care" and the purpose of the law was to set certain minimum standards that did not exist in the contract between the nursing home and the patient. Morisette v Terrence Cardinal Cooke Health Care Center, supra . The Health Law recognizes that most persons in nursing homes have minimum financial resources and was legislated as an incentive to the private bar to handle meritorious suits and enable the Courts to award compensatory damages, and where appropriate, punitive damages and counsel fees. The Legislative History reflects that the law was intended to provide an additional avenue of relief to the vulnerable nursing home population to insure that their rights are enforced. Morisette v Terrence Cardinal Cooke Health Care Center, supra .

An action under PHL §2801-d is available even if plaintiff has asserted a claim in negligence and medical malpractice and the burden of proofs vary. Under PHL §2801-d, plaintiff must prove a deprivation by the residential health care facility of any right or benefit created or established by law for a patient's well being, by statute, code, rule, regulation or contract. On a negligence claim, plaintiff must prove a duty, breach, injury and proximate cause. A plaintiff may succeed in one action and not in the other. Pasqua v Bon Secours NY Health System, Inc., supra .

After a careful reading of the submissions herein, it is the judgment of the Court that to direct that WOODBURY serve a bill of particulars would be requiring the alleged tort feasor to demonstrate in a pleading, with evidentiary material, that they are not liable. In this Court's view, PHL §2801-d was intended to give a patient another avenue to pursue damages for alleged injuries, but was not intended to change the burden of proof. It is the Court's position that questions relating to how WOODBURY was NOT negligent are beyond the scope of a bill of particulars and more in the realm of other disclosure devices not addressed herein. After a careful reading of the submissions herein, it is hereby

ORDERED, that WOODBURY's motion, pursuant to CPLR §3025(b), to amend its answer is granted, on consent, and the proposed amended answer with a FIFTTH Affirmative Defense under Public Health Law §2801-d is deemed served; and it is furtherORDERED, that plaintiffs' cross-motion for an order directing WOODBURY to serve a bill of particulars with respect the FIFTH Affirmative Defense is denied.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: August 28, 2007

________________________ [*4]

WILLIAM R. LaMARCA, J.S.C.