Second Department Finds Potentially Inflammatory Language Relevant to Matter in Brooklyn Nursing Home Action

A case recently decided by the Supreme Court Appellate Division, Second Department, shines some light on the extent that a nursing home defendant will go in order to have language excised from a lawsuit that is not to its liking. The Appellate Court denied them the opportunity to strike the language, but it is a case worth reviewing a bit more detail.

The case at issue is Irving v. Four Seasons Nursing & Rehabilitation Center, 2014 NY Slip Op 07330, a Kings County action containing some serious allegations against a Brooklyn nursing home and adult day care center. Specifically the complaint – filed in 2009 and currently ongoing – alleges claims of personal injury, violations of resident rights, intentional infliction of emotional distress, and medical malpractice.

The language that Four Seasons argued was inflammatory and prejudicial was contained in the bill of particulars. A bill of particulars, served during discovery after a demand is made by either side, adds detail to a complaint, which often contains the barest facts and legal theories underlying the action. In the bill of particulars, the party provides more specific information demanded by its adversary, and supplies more specific information regarding the facts and underlying theories (in a plaintiff’s bill of particulars), or the facts and more specific theories of defense (in a defendant’s bill of particulars). Here, the plaintiff’s bill of particulars specifically alleged that Four Seasons had engaged in “recklessness/reckless, intentional and malicious conduct, gross negligence” and “blatantly illegal conduct/illegal conduct.”

The motion by Four Seasons was not trying to get an actual cause of action – which could subject them to liability and damages – dismissed; it was only trying to have certain language struck. Inflammatory language in a complaint can be prejudicial, and that’s why the law allows for motions like the one Four Seasons made. But the law also specifies that such language can only be struck when it has no significant relationship to the underlying complaint. An easy example would be accusing someone of tax fraud during a breach of contract lawsuit – one has nothing to do with the other, and such an accusation is inflammatory and potentially prejudicial.

The lower court sided with Four Seasons – the judge ordered the language to be removed. At the appellate level, however, the Court reversed, deciding that the language was related to very serious and grave allegations at the heart of the complaint.

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