The following papers numbered 1 to 7 read herein:Papers Numbered

In this nursing-home neglect action, the plaintiff Eileen Davis Garafano (plaintiff), individually and as the administratrix of the estate of Murray Davis (the decedent), moves in Seq. No. 3 to strike those portions of the answer of the defendant St. Jerome's Health Services Corporation, d/b/a Holy Family Home (defendant), interposed in opposition to her claims for negligence, gross negligence, and negligent hiring/supervision/retention (collectively, the negligence claim), as alleged in the second through fourth causes of action of her complaint. Plaintiff contends that defendant spoliated certain records central to her case and that she was prejudiced by the purported loss of this evidence. Defendant opposes the motion and cross-moves in Seq. No. 4 for sanctions. For the reasons stated below, plaintiff is granted a conditional order of preclusion, allowing defendant one final opportunity either to produce the documents or provide an adequate explanation of their non-production. Defendant's cross motion is denied as unwarranted.

Between Feb. 10, 2009, and until his death on Apr. 13, 2009, the decedent, a former truck driver of 85 years of age, resided at defendant's nursing home at 1740 84th Street in Brooklyn, New York (the nursing home), with the exception of his outside hospitalization between Feb. 21, 2009, and Mar. 3, 2009, at Maimonides Medical Center (Maimonides), which is the defendant in a separate lawsuit that is pending under index No. 3530/12.

On Oct. 12, 2009, plaintiff submitted to defendant an Authorization for Release or Request of Medical Records with respect to the decedent. In that form, she requested the decedent's complete medical records, together with "other information," which she listed as "what happened on the day of death" and "[the] day before he died," "time paramedics[,] 911 was called," and the "cause of death." She indicated on the authorization form that the purpose of her request was "Legal." After a full year-long delay, defendant responded by providing the decedent's chart to her subsequently retained counsel.^[FN1]

In the meantime, on Apr. 14, 2010, defendant and certain of its affiliates (collectively, the debtors) filed for liquidation under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (lead case No. 10-11963). On Aug. 10, 2011, the debtors obtained from the bankruptcy court an order which, inter alia, (1) authorized them to enter into an information management-services agreement with Iron Mountain Information Management, Inc. (Iron Mountain) and an information-management services and trust agreement [*2]with MetalQuest-SVCMC Trust, LLC, d/b/a MetalQuest (MetalQuest), and (2) approved the document retention and destruction plan set forth therein (the records-retention order).^[FN2] The records-retention order approved the debtors' record storage in paper form with Iron Mountain and their electronic record storage with MetalQuest.

In the debtors' motion for the issuance of the records-retention order, they represented that Iron Mountain and MetalQuest "will be retaining the Records[^[FN3] ] for the required statutory periods under applicable laws" (Motion Supplement ¶ 9).

By stipulation "so ordered" on Nov. 30, 2011, the debtors consented to the modification of the automatic stay to the extent that plaintiff could commence and prosecute this action against defendant for monetary damages within the insurance-coverage limits. Although the stipulation has paved the way for this action to proceed, it has not abrogated defendant's status as one of the debtors in the bankruptcy cases. Thus, this action and the debtors' bankruptcy cases have proceeded concurrently.

On Dec. 6, 2011, plaintiff commenced this action, asserting, inter alia, the aforementioned negligence claim. On Jan. 9, 2012, defendant joined issue. On Feb. 7, 2012, plaintiff served, inter alia, a Notice for Discovery and Inspection (the D & I Notice). In the interim, on June 29, 2012, the bankruptcy court confirmed the debtors' amended joint chapter 11 plan, which went effective the same day. The chapter 11 plan preserved the terms of the records-retention order, as follows:

Now back to this action and plaintiff's discovery demands. On Sept. 4, 2012, the PC order directed (in ¶ IX.6) that defendant respond to plaintiff's outstanding discovery demands within 30 days. On Jan. 9, 2013, defendant reported that it was investigating whether the requested documents existed. On Feb. 26, 2013, the CC order directed that defendant report on the results of its investigation by Apr. 1, 2013. On Apr. 24, 2013, defendant informed plaintiff that:

Plaintiff now seeks to strike those portions of defendant's answer insofar as they relate to her negligence claim, however it is denominated in her complaint. She contends that she will be unable to prove her negligence claim in light of defendant's failure to produce any of the following documents:

Shift-to-shift reports and notes, daily staffing records, staffing pattern data and notes, staffing sheets, schedule sheets, and census condition reports, in each instance, for the decedent's entire stay at the nursing home (D & I Notice ¶¶ 13, 25-27, 29, and 33).

Names and last known addresses of (1) all doctors, RNs, LPNs, CNAs, dieticians, and other health-care providers who treated the decedent while he resided in the nursing home, and (2) defendant's administrator(s), medical director(s), director(s) of nursing, and assistant director(s) for the period of the decedent's residence in the nursing home (D & I Notice ¶¶ 17-18).

A code sheet for the signatures and handwriting of all of the decedent's care givers (D & I Notice ¶ 19).

Defendant's policies, procedures, protocols, manuals, and guidelines in effect for the decedent's entire stay at the nursing home for physicians, nurses, CNAs, aides, dieticians, and therapists regarding (1) decubiti, bedsores, pressure sores, pressure ulcers, ulcer care, prevention of ulcers, ulcer risk assessments, ulcer care planning, tracking of ulcers, ulcer reporting, turning and positioning, keeping a resident dry and clean, and ulcer rounds, (2) incontinence, (3) nutrition and [*4]dieticians, (4) hydration, (5) supervision and observation of residents, (6) MDS (minimum data set) assessments, (7) RAP (resident assessment protocol) guidelines for RAP problem areas — pressure ulcers, incontinence, and nutritional status, and (8) nurse and CNA activities, chores, duties, and job descriptions and expectations (D & I Notice ¶ 21).

Visitor sign-in logs related to the decedent (D & I Notice ¶ 30).

Plaintiff posits that she needs the aforementioned documents because the decedent's chart, in and of itself, is inadequate to prove her negligence claim. According to plaintiff, the nursing home was allegedly understaffed, in that (1) the chart's orders that the decedent be periodically turned over and repositioned were not implemented, and (2) the nursing home staff failed to ensure that the decedent ate his meals. Further, the decedent's chart is allegedly inaccurate and incomplete. For example, when plaintiff last visited the decedent the night before his death, she asked that he be transferred to Maimonides to reduce his then-exceedingly high blood-glucose level. However, plaintiff's request, which was not honored, was never noted in the decedent's chart.

CPLR 3101 (a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action" (emphasis added). The words "material and necessary" are "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" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]). Here, plaintiff's demands as to, inter alia, defendant's staff policies as well as the name and last known address of each individual who cared for the decedent while he resided in the nursing home are material and necessary, and are not overly broad or unduly burdensome (see Grant v PALJR, LLC, 64 AD3d 750, 751 [2d Dept 2009]; Clement v Kateri Residence, 60 AD3d 527, 528 [1st Dept 2009]).

In opposition, defendant maintains that the only documents to which it currently has access are the charts of its former residents and that all other documents have been destroyed as part of its bankruptcy case. In support of its position, defendant offers an affidavit of Carmen Martinez, Senior Risk Analyst in the Risk Management Department at Saint Vincent Catholic Medical Centers of New York, dated May 28, 2013. There, Ms. Martinez avers that:

As part of the liquidation and winding down of defendant and the other debtors, "all records were moved to Iron Mountain storage locations" (¶ 4).

To locate the documents sought by defense counsel regarding this action, she "did a thorough search of the materials in [the] corporate office and contacted Iron Mountain for any materials which may be in storage. [She] was informed by Iron Mountain that the only items still available in storage are medical records, i.e., resident and patient charts" (¶ 11 [emphasis added]).

"[She] followed up on [defense counsel's requests], did a thorough investigation, and determined that the following items, if ever in existence, are no longer in existence: . . . (b) Any [*5]accident, incident, occurrences, complaints, investigations referencing [the decedent]; . . . (d) Shift-to-shift reports and notes during [the decedent's] residency; (e) A code sheet for the signatures and handwriting of all [decedent's] care givers [as they appear in his medical chart]; (f) Policies, procedures, protocols, manuals, and guidelines in effect during [the decedent's] residency concerning: (i) Decubiti and pressure ulcers; (ii) Incontinence; (iii) Nutrition and dieticians; (iv) Hydration . . .; (g) Any statements given by or for [the decedent]; (h) Daily staffing records for [defendant] during [the decedent's] residency; (i) Staffing pattern data during [the decedent's] residency; (j) Staffing/schedule sheets and assignments during [the decedent's] residency; (k) Visitor Logs pertaining to [the decedent]; [and] (l) Census Condition Reports during [the decedent's] residency. . . ." (¶ 12).

The Court finds that Ms. Martinez's affidavit is insufficient to excuse defendant's non-production of the requested documents. The reason is four-fold. First, Ms. Martinez's rendition of what an unidentified individual at Iron Mountain allegedly told her is inadmissible hearsay. Defendant has submitted no affidavit from a person, employed by Iron Mountain, with knowledge of defendant's records and who conducted a search for the requested documents. Second, her affidavit is silent about MetalQuest, which keeps defendant's electronic records, and whether MetalQuest searched for an electronic version of the requested documents. Third, her affidavit fails to explain why defendant has not responded to plaintiff's demand for the names and last known addresses of defendant's administrator(s), medical director(s), director(s) of nursing, and assistant director(s) for the duration of the decedent's residence in the nursing home. This failure to respond strikes the Court as odd in light of Ms. Martinez's concession in ¶ 5 of her affidavit that the Risk Management Department at which she is employed keeps "the list . . . of all persons who provided treatment and/or labor at [the nursing home]." Finally, her affidavit makes no reference to the records-retention order which was incorporated into, and has survived the confirmation of, the chapter 11 plan; more particularly, whether the alleged wholesale destruction of defendant's records (other than the residents' charts) was permitted by the records-retention order.

The Court notes that, although more than three years have elapsed since the commencement of this action and although two orders directing disclosure have been issued, the answer to the fundamental question of whether defendant possesses the requested documents remains unanswered. Instead, the Court is presented with a mixed bag of confusing information: (1) defendant's explanation dodging responsibility for its failure to produce the requested documents, while appealing for pity on account of the liquidation of its business, (2) the bankruptcy court's records-retention order requiring that defendant preserve its records by storing them either with Iron Mountain in paper form or with MetalQuest in electronic form, (3) a hearsay statement from an unidentified individual at Iron Mountain indicating that the latter continues to store the residents' paper charts (but nothing else), thus posing the question, assuming the truth of this statement, whether the requested paper documents were destroyed before or after defendant had notice of plaintiff's claim, (4) unexplained silence from MetalQuest as to whether it continues to store any of the requested records in electronic form, and (5) a conclusory statement from Ms. Martinez that, in her search for the requested documents, she "did a thorough investigation," albeit without identifying the places which she allegedly searched.

To advance this discovery dispute to a resolution, the Court grants plaintiff's motion to the [*6]extent that defendant is given one final opportunity either to produce the requested documents (subject to the limitation set forth in the margin ^[FN4] ) or provide a competent explanation of their non-production by a person or persons with knowledge of the specific search efforts made and the search results; such response must be provided by no later than sixty days after service of this decision and order with notice of entry on defense counsel by plaintiff's counsel. Subject to further order of the Court, defendant's failure to timely and fully comply may result in the imposition of sanctions, including the striking of its answer and/or preclusion of evidence, insofar as such failure relates to plaintiff's negligence claim (see generally Huezo v Silvercrest, 68 AD3d 820, 821 [2d Dept 2009]).

Defendant's cross motion for sanctions against plaintiff's counsel for serving the motion to strike is denied in the Court's discretion (see S & B Petroleum, Inc. v Gizem Realty Corp., 8 AD3d 550 [2d Dept 2004]). The Court's short-form order, dated Sept. 19, 2013, explicitly granted plaintiff leave to serve her motion by a date certain, and the same was served before that date. The Court urges the parties' counsel to find a common ground, rather than waste limited judicial resources on discovery disputes. Moreover, this Court is not the only arena left in which to seek disclosure. Nothing herein precludes plaintiff from, inter alia, moving to compel disclosure of the requested documents in defendant's still-open bankruptcy case.^[FN5]

The parties are reminded that the next Note of Issue/No Appearance date is Oct. 17, 2014.

The foregoing constitutes the Decision and Order of this Court.

Plaintiff's counsel shall serve defense counsel with a copy of this Decision and Order with notice of entry and shall file an affidavit of said service with the County Clerk.