And v. Sunrise Senior Living, Inc., Civ. No. 12-7240 (KM)

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtDICKINSON R. DEBEVOISE
PartiesHELENA ANDREYKO Individually and as Administratrix of the Estate of PAULINA ANDREYKO Deceased, Plaintiff, v. SUNRISE SENIOR LIVING, INC. (a Virginia Corporation); SUNRISE ASSISTED LIVING MANAGEMENT, INC. (A Virginia Corporation); SUNRISE OF EDGEWATER, LLC (A New Jersey Limited Liability Company); JOHN DOES 1-10, (Being the persons and/or entities responsible for the injuries suffered by plaintiff) Defendants.
Decision Date24 October 2013
Docket NumberCiv. No. 12-7240 (KM)

HELENA ANDREYKO Individually and as Administratrix
of the Estate of PAULINA ANDREYKO Deceased, Plaintiff,
SUNRISE SENIOR LIVING, INC. (a Virginia Corporation);
SUNRISE OF EDGEWATER, LLC (A New Jersey Limited Liability Company);
JOHN DOES 1-10, (Being the persons and/or entities responsible
for the injuries suffered by plaintiff) Defendants.

Civ. No. 12-7240 (KM)


Dated: October 24, 2013



Appearances by:

Gregg D. Trautmann, Esq.
Trautman & Associates, LLC

Attorney for Plaintiff,

Rafael Vergara
White and Williams LLP
One Penn Plaza
New York, NY 110119

Attorney for Defendants.

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DEBEVOISE, Senior District Judge

This case arises out of the alleged beating, mistreatment, and/or neglect suffered by a patient-resident in an assisted living facility in New Jersey. Presently before the Court is a motion to dismiss the parent-corporation as a party to the action and two counts of the complaint. The instant motion arises out of a complaint filed by Plaintiff Helena Andreyko (hereinafter "Plaintiff" or "Helena") individually and as administratrix of the estate of her late mother Paulina Andreyko (hereinafter "Paulina"). Plaintiff alleges breach of contract (count one) and violations of the Nursing Home Responsibilities and Rights of Residents Act, N.J.S.A. 30:13-1 et seq. (count two), against Defendants Sunrise Senior Living, Inc. ("SSLI"), Sunrise Senior Living Management, Inc. ("Sunrise Management") (formerly known as Sunrise Assisted Living Management), Sunrise of Edgewater LLC,1 and John Does 1-10 (collectively referred to as "Defendants"). Sunrise Management manages and operates the Sunrise of Edgewater assisted living facility at issue, and is a wholly owned subsidiary of SSLI. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.


Paulina required assistance in her activities of daily living as a result of dementia. She resided at the Sunrise of Edgewater assisted living facility in Edgewater, New Jersey from about March 2005 until her death on June 25, 2010 at the age of 94. Helena and Paulina entered into a

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Resident Agreement which enrolled Paulina in the "Assisted Living Plus Program." Paulina was to receive assistance including but not limited to physical assistance with bathing or showering, physical assistance with dressing and orientation, physical assistance with eating, and physical assistance with walking. Additionally, she was to receive three "restaurant-style" meals a day. The cost of her residence averaged approximately $5,100 per month.

The crux of this complaint is based on allegations that in 2009, Paulina was beaten, mistreated, and/or neglected by the Sunrise staff.2 On or about January 31, 2009, Helena received a call advising that her mother had allegedly suffered a fall and had a "little bruising over her eye." (See Compl., Ex. A, photograph.) The initial injuries sustained occurred during the evening hours. When Helena went to see her mother, she was shocked at the condition of her mother's face. Purportedly Sunrise did not transport Paulina to the hospital to attend her injuries because she received hospice care. Although Helena requested copies of any reports generated concerning the injuries, she was not provided any such reports.

The following day, Helena again went to visit her mother, and observed additional bruising which was not present the previous day. (See Compl., Ex. B., photograph.) These subsequent injuries also occurred during the evening hours. Helena thereafter arranged for her mother to be brought to the hospital so that her wounds could be treated, and hired private aids to provide for her mother overnight at the facility.

Paulina suffered from dementia and was unable to describe how her face and head had been bruised. Sunrise attempted to explain away the bruising by claiming that Paulina had

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fallen. Helena submits that in order for Paulina to sustain the multitude of bruising, she must have fallen numerous times. However, Helena was never informed that her mother had fallen numerous times.

The Complaint asserts that regardless of whether Paulina was the victim of abuse and neglect or whether Sunrise failed to provide the staffing levels necessary to ensure it met its contractual obligations, Sunrise is liable for the injuries Paulina suffered while a resident there. First, Plaintiff argues that the Defendants are jointly and severally liable for breach of contract pursuant to the written Resident Agreement to provide basic and "Assisted Living Plus" care, and request compensatory damages, cost of suit, attorney fees, and equitable relief. Second, Plaintiff argues that the Defendants violated the New Jersey Nursing Home Resident Rights statute by failing to provide Paulina with a safe and decent living environment that recognizes her dignity and individuality. Plaintiff thus requests compensatory and punitive damages, cost of suit, attorney fees, and such relief which the court deems proper. Plaintiff has also demanded trial by jury.

On November 21, 2012, Defendants SSLI and Sunrise Management petitioned for removal from the Superior Court of New Jersey, Morris County. On December 19, 2012, Defendants filed a motion to dismiss both the breach of contract claim (count one) and the statutory violation claim (count two). First, Defendants contend that the applicable statute of limitations for a personal injury action should be applied, and thus Plaintiffs' breach of contract claim is properly considered as a tort which has a shorter statute of limitations that has expired. Second, Defendants argue that that the Nursing Home Responsibilities and Rights of Residents Act is inapplicable. Third, Defendants submit that SSLI is not liable for any possible negligence because a corporate parent is not liable for the actions of its subsidiary and because Plaintiff has

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not plead sufficient facts to indicate SSLI's involvement. Fourth, Defendants argue that Plaintiff should not be granted leave to amend her complaint to cure any deficiencies.


A. Standard of Review

A motion to dismiss is reviewed pursuant to Federal Rule of Civil Procedure 12(b) (6), which provides for dismissal of a claim for failure to state a claim upon which relief can be granted. When considering a Rule 12(b) (6) motion, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court's inquiry, however, "is not whether the plaintiffs will ultimately prevail in a trial on the merits, but whether they should be afforded an opportunity to offer evidence in support of their claims." In re Rockefeller Ctr. Prop., Inc., 311 F.3d 198, 215 (3d Cir. 2002).

The Supreme Court recently clarified the Rule 12(b) (6) standard in two cases: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). The decisions in those cases abrogated the rule established in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief." In contrast, Twombly held that "[f]actual allegations must be enough to raise a right to relief above the speculative level" and to "state a claim to relief that is plausible on its face." 550 U.S. at 545, 570. The plaintiff must "plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged." Iqbal, 129 S. Ct. at 1949; see also Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008) (In order to survive a motion to dismiss, the factual allegations in a complaint must "raise a reasonable expectation that discovery will reveal evidence of the necessary element," thereby

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justifying the advancement of "the case beyond the pleadings to the next stage of litigation."). This "plausibility" determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (internal citations omitted).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).

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