SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

351 

CA 13-01103 

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ. 

 

IN THE MATTER OF SMALL SMILES LITIGATION 

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KELLY VARANO, AS PARENT AND NATURAL GUARDIAN OF 

INFANT JEREMY BOHN, SHANNON FROIO, AS PARENT AND 

NATURAL GUARDIAN OF INFANT SHAWN DARLING, BRENDA 

FORTINO, AS PARENT AND NATURAL GUARDIAN OF INFANT 

JULIE FORTINO, MARIE MARTIN, AS PARENT AND NATURAL 

GUARDIAN OF INFANT KENNETH KENYON, JENNY LYNN 

COWHERM, AS PARENT AND NATURAL GUARDIAN OF INFANT 

WILLIAM MARTIN, HOLLAN CRIPPEN, AS PARENT AND 

NATURAL GUARDIAN OF INFANT DEVAN MATHEWS, JESSICA 

RECORE, AS PARENT AND NATURAL GUARDIAN OF INFANT 

SAMANTHA MCLOUGHLIN, LAURIE RIZZO AND DOMINICK 

RIZZO, AS LEGAL CUSTODIANS OF INFANT JACOB 

MCMAHON, JASON MONTANYE, AS PARENT AND NATURAL 

GUARDIAN OF INFANT KADEM MONTANYE, AND FRANCES 

SHELLINGS, AS PARENT AND NATURAL GUARDIAN OF 

INFANT RAYNE SHELLINGS, PLAINTIFFS-RESPONDENTS, 

 

 MEMORANDUM AND ORDER

V

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET 

HEALTH MANAGEMENT, LLC, ET AL., 

DEFENDANTS-APPELLANTS,

ET AL., DEFENDANTS.

(ACTION NO. 1.) 

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SHANTEL JOHNSON, AS PARENT AND NATURAL GUARDIAN 

OF INFANT KEVIN BUTLER, VERONICA ROBINSON, AS 

PARENT AND NATURAL GUARDIAN OF INFANT ARIANA 

FLORES, DEMITA GARRETT, AS PARENT AND NATURAL 

GUARDIAN OF INFANT I’YANA GARCIA SANTOS, KATHRYN 

JUSTICE, AS PARENT AND NATURAL GUARDIAN OF INFANT 

BREYONNA HOWARD, ELIZABETH LORRAINE, AS PARENT 

AND NATURAL GUARDIAN OF INFANT SHILOH LORRAINE, JR., 

LAPORSHA SHAW, AS PARENT AND NATURAL GUARDIAN OF 

INFANT ALEXIS PARKER, ROBERT RALSTON, AS PARENT AND 

NATURAL GUARDIAN OF INFANT BRANDIE RALSTON, KATRICE 

MARSHALL, AS PARENT AND NATURAL GUARDIAN OF INFANT 

LESANA ROSS, TIFFANY HENTON, AS PARENT AND NATURAL 

GUARDIAN OF INFANT COREY SMITH, AND JANET TABER, AS 

PARENT AND NATURAL GUARDIAN OF INFANT JON TABER, 

PLAINTIFFS-RESPONDENTS,

V

 
-2- 351 

CA 13-01103 

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET HEALTH 

MANAGEMENT, LLC, ET AL., DEFENDANTS-APPELLANTS,

ET AL., DEFENDANTS. 

(ACTION NO. 2.) 

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TIMOTHY ANGUS, AS PARENT AND NATURAL GUARDIAN OF 

INFANT JACOB ANGUS, JESSALYNN PURCELL, AS PARENT 

AND NATURAL GUARDIAN OF INFANT ISAIAH BERG, BRIAN 

CARTER, AS PARENT AND NATURAL GUARDIAN OF INFANT 

BRIANA CARTER, APRIL FERGUSON, AS PARENT AND 

NATURAL GUARDIAN OF INFANT JOSEPH FERGUSON, SHERAIN 

RIVERA, AS PARENT AND NATURAL GUARDIAN OF INFANT 

SHADAYA GILMORE, TONYA POTTER, AS PARENT AND NATURAL 

GUARDIAN OF INFANT DESIRAEE HAGER, NANCY WARD, LEGAL 

CUSTODIAN OF INFANT AALYIAROSE LABOMBARD-BLACK, 

NANCY WARD, AS LEGAL CUSTODIAN OF INFANT MANUEL 

LABORDE JR., JENNIFER BACON, AS PARENT AND NATURAL 

GUARDIAN OF INFANT ASHLEY PARKER, COURTNEY CONRAD, 

AS PARENT AND NATURAL GUARDIAN OF INFANT ZAKARY 

WILSON, PLAINTIFFS-RESPONDENTS,

V

 

FORBA HOLDINGS, LLC, NOW KNOWN AS CHURCH STREET 

HEALTH MANAGEMENT, LLC, ET AL.,

DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANTS. 

(ACTION NO. 3.) 

 

DENTONS US LLP, WASHINGTON, D.C. (DAVID I. ACKERMAN OF COUNSEL), AND

SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE, FOR

DEFENDANTS-APPELLANTS. 

POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Onondaga County

(Deborah H. Karalunas, J.), entered May 29, 2013. The order, insofar

as appealed from, granted that part of plaintiffs’ motion seeking to

compel production of corporate integrity documents and denied that

part of defendants-appellants’ cross motion for a protective order

with respect to those documents. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, that part of the motion

seeking to compel production of the corporate integrity documents is

denied, and that part of the cross motion seeking a protective order

with respect to those documents is granted. 

Memorandum: Plaintiffs commenced these three actions alleging,

inter alia, fraud and dental malpractice. Although there are four

groups of defendants involved in the three actions (Matter of Small
-3- 351 

CA 13-01103 

Smiles Litig., 109 AD3d 1212, 1212-1213), the only group relevant to

the instant appeal is Forba Holdings, LLC, now known as Church Street

Health Management, LLC, et al. (New FORBA). Plaintiffs moved, inter

alia, to compel New FORBA to produce documents associated with two

corporate integrity agreements (corporate integrity documents), and

New FORBA cross-moved for a protective order with respect thereto. 

Supreme Court granted plaintiffs’ motion and denied New FORBA’s cross

motion. We reverse the order insofar as appealed from, deny that part

of the motion seeking to compel production of the corporate integrity

documents, and grant that part of the cross motion seeking a

protective order with respect to those documents.

We conclude that the court erred in determining that the 

requested corporate integrity documents were not privileged under

Education Law § 6527 (3). New FORBA met its burden of establishing

that the corporate integrity documents sought by plaintiffs were

related to the “performance of a medical or a quality assurance review

function or participation in a medical and dental malpractice

prevention program” (id.; see Slayton v Kolli, 111 AD3d 1314, 1314;

Learned v Faxton-St. Luke’s Healthcare, 70 AD3d 1398, 1399; Aldridge v

Brodman, 49 AD3d 1192, 1193). Specifically, New FORBA established

that the corporate integrity documents were prepared pursuant to state

and federal corporate integrity agreements, which set forth procedures

for the review and monitoring of the quality of care of the dental

clinics. Thus, New FORBA established “ ‘that it has a review

procedure and that the [corporate integrity documents] for which the

[privilege] is claimed [were] obtained or maintained in accordance

with that review procedure’ ” (Kivlehan v Waltner, 36 AD3d 597, 599;

see Learned, 70 AD3d at 1398). Contrary to plaintiffs’ contention,

there is nothing in the language of section 6527 (3) limiting

applicability of the privilege to agencies located in New York or

records prepared in the state (see id.; Little v Hicks, 236 AD2d 794,

795).

We reject plaintiffs’ contention that New FORBA waived the

statutory privilege when it disclosed the corporate integrity

documents in a bankruptcy proceeding in a different jurisdiction. As

an initial matter, we note that plaintiffs failed to establish which

of the requested corporate integrity documents it alleges were

disclosed in the bankruptcy proceeding and, in any event, the record

establishes that any disclosed documents were subject to a protective

order in that proceeding. We therefore conclude that New FORBA

intended to retain the confidentiality of the corporate integrity

documents and took reasonable precautions to prevent further

disclosure of them (see Baliva v State Farm Mut. Auto. Ins. Co., 275

AD2d 1030, 1031-1032; see also Campbell v Aerospace Prods. Intl.

[appeal No. 2], 37 AD3d 1156, 1157). 

Entered: May 2, 2014 Frances E. Cafarell

Clerk of the Court