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