Berger v. Prospect Park Residence LLC
| Decision Date | 21 July 2017 |
| Docket Number | No. 6639/2014.,6639/2014. |
| Citation | 63 N.Y.S.3d 304 (Table) |
| Parties | Emily BERGER, as Temporary Administrator of the Estate of Mary Berger, Candace Blandford, Deborah Pollack as Temporary Administrator of the Estate of Lillian Guide, Bella Hornung, Myra Melamed, as Temporary Administrator of the Estate of George Melamed, Anne Marie Mogil, Alice Singer, Jennifer Stock, as Temporary Administrator of Jack Stock, Rosalind Blank, Hanna Eskin, Jonathan Marks, as Temporary Administrator of the Estate of Lillian S. Marks, Paula Atlas, Ruth Gurton, Henrietta Hallenborg, Trina Kruger, And Susanna Schrobsdorff, as Temporary Administrator of the Estate of Joachim Schrobsdorff, Plaintiffs, v. PROSPECT PARK RESIDENCE LLC, 1 Prospect Park Residence, LLC, 1 Prospect Park ALF, LLC, Prospect Park Resident Home Health Care, Inc ., Haysha Deitsch, as Owner, Prospect Park Residence for Adults, David Pomerantz, as Administrator and/or Executive Director, Prospect Park Residence for Adults, Sam Zalmanov, as Member, 1 Prospect Park Residence, LLC, New York State Department of Health, Nirav R. Shah MD, MPH, as Commissioner of the New York State Department of Health, and Howard Zucker, MD, as Commissioner of the New York State Department of Health, Defendants. |
| Court | New York Supreme Court |
Fitzpatrick, Cella, Harper & Scinto, New York, Frederick Millett, Esq., The Legal Aide Society, Brooklyn, Aurore DeCarlo, Esq., The Legal Aide Society, New York, Judith Goldiner, Esq., MFY Legal Services, Inc., New York, Kevin Cremin, Esq., Schlam Stone & Dolan, LLP, New York, Bradley Nash, Esq., Dennis Kelly, Esq., Glen Head, for Plaintiffs Attorney.
Clark Gueron Reisbaum, LLP, New York, Emily Reisbaum, Esq., Melissa C. Holsinger, Esq., for Defendant Attorney–New York State.
Defendants, NEW YORK STATE DEPARTMENT OF HEALTH, NIRAV R. SHAH MD, MPH, and HOWARD ZUCKER, MD, ("the NYSDOH Defendants"), have moved pursuant to CPLR 3211(a) and CPLR 7804(f) to dismiss the Consolidated Amended Complaint as moot. The motion having come before the Court on, June 1, 2017, and upon reading the Notice of Motion, dated February 17, 2017, the Affirmation of Kerry–Ann Lawrence, Esq., dated February 16, 2017, and the exhibits annexed thereto; the Memorandum of Law of the NYSDOH Defendants, dated February 17, 2017; the Affidavit of Andrew Kessler sworn to March 20 2017; the Affirmation of Fredrick C Millett Esq., dated March 22, 2017, and the exhibits annexed thereto; Plaintiffs' Memorandum in Opposition, dated March 22, 2017; the NYSDOH Defendants' Reply Memorandum of Law, dated April 10, 2017; the Supplemental Affirmation of Kerry–Ann Lawrence, Esq., dated April 10, 2017, and the exhibit annexed thereto; all the pleadings heretofore had herein; and after argument of counsel and due deliberation thereon, the NYSDOH Defendants' motion is granted in part and denied in part, for the reasons set forth below.
Plaintiffs are former elderly residents of the Prospect Park Residence, (the "Residence"), an adult care facility that was located at 1 Prospect Park West in Park Slope, Brooklyn. The Plaintiffs who resided at the Residence until it closed range in age from 88 years to 99 years old and suffer from various disabilities.
Defendants 1 PROSPECT PARK RESIDENCE, LLC, 1 PROSPECT PARK ALF, LLC, HAYSHA DEITSCH, DAVID POMERANTZ, and SAM ZALMANOV, (the "PPR DEFENDANTS"), were alleged to own and manage the Residence. The PPR DEFENDANTS contend that 1 PROSPECT PARK RESIDENCE, LLC, operated the Residence and that 1 PROSPECT PARK ALF, LLC, was the owner of the property upon which the Residence is located. HAYSHA DEITSCH and SAM ZALMANOV were members of 1 PROSPECT PARK RESIDENCE LLC. DAVID POMERANTZ was the Executive Director of the Residence and an employee of 1 PROSPECT PARK RESIDENCE, LLC.
Defendant NEW YORK STATE DEPARTMENT OF HEALTH ("NYSDOH"), is the State agency that licenses and approves closure plans for adult care facilities, assisted livings facilities, and enhanced assisted living residences in New York. NIRAV R. SHAH MD, MPH, is the former Commissioner of the New York State Department of Health, and HOWARD ZUCKER, MD, is the current Commissioner of the New York State Department of Health.
On September 27, 2013, 1 PROSPECT PARK RESIDENCE LLC ("the Operator") submitted a closure plan, (the First Closure Plan), to NYSDOH for approval. On February 24, 2014, NYSDOH sent the Operator notice that it approved implementation of the Operator's plan to surrender its operating certificate, and close the Residence.
The plan initially set April 30, 2014 as the target closure date for the Residence. At the time the closure plan was approved, there were 130 residents in the facility. NYSDOH required that the application for permission to close be kept secret from the residents until after NYSDOH approval.
After residents were notified that the plan was approved by NYSDOH, two groups of residents filed suits in response to the closure plan and their actions were consolidated by Order of this Court dated November 12, 2014.
Pursuant to this Court's consolidation order, Plaintiffs filed a Consolidated Amended Complaint dated December 11, 2014.
At the request of NYSDOH, the Court appointed a receiver to run the facility by order dated April 10, 2015. Pursuant to his Order of Appointment, the receiver submitted a closure plan (the Second Closure plan), which was approved by NYSDOH on March 1, 2016. Plaintiffs filed a second lawsuit challenging the Second Closure Plan,
On May 31, 2016, the Plaintiffs settled their claims against the PPR Defendants, and discontinued the case as against them. As part of the settlement agreement, the Plaintiffs then remaining in residence moved out of the residence, the receiver appointed by the Court was discharged and the facility was closed. Also as part of the settlement, Plaintiffs agreed not to challenge the Second Closure Plan and their second lawsuit was discontinued by stipulation dated October 27, 2016.
Plaintiffs have not settled or discontinued their claims against the NYSDOH Defendants in this action. The NYSDOH Defendants now seek to dismiss the remaining causes of action against them, on the grounds that the case no longer presents a justiciable controversy because the closure plan that Plaintiffs challenged is moot, as the Plaintiffs have move out, and the facility has been closed.
The Consolidated Amended Complaint is a combined Article 78 and declaratory judgment action that asserts six causes of action against the NYSDOH Defendants.
The first cause of action seeks to annul NYSDOH's approval of the first closure plan pursuant to CPLR section 7801, as arbitrary and capricious and affected by errors of law, because it failed to ensure that each Plaintiff was transferred to a setting which was adequate, appropriate, and consistent with their needs and wishes.
The second cause of action seeks a declaration that the NYSDOH Defendants have violated Social Service Law section 461–a and 10 NYCRR §§ 1001.4(j)(2)(ii), 1001.4(j)(2)(iii) and 1001.4(j)(4), alleging that the NYSDOH Defendants failed to ensure that each Plaintiff was transferred to a setting which was adequate, appropriate, and consistent with their needs and wishes, and failed to ensure that the closure plan was being implemented to ensure adequate continued care for the Plaintiffs.
The third cause of action seeks a declaration that the NYSDOH defendants have violated New York State Public Health Law Article 46–B § 4662, by not ensuring that Plaintiffs were being provided with required services, and by not ensuring that the Plaintiffs were transferred to a setting which is adequate, appropriate and consistent with their wishes.
The fourth cause of action seeks a declaration that the NYSDOH Defendants and PPR Defendants have violated 18 NYCRR § 490.5(f)(19), by failing to ensure that the Operator assisted the Plaintiffs in transferring to a setting which was adequate, appropriate and consistent with their wishes. This cause of action has been discontinued as against the PPR Defendants.
The fifth cause of action seeks a declaration that the NYSDOH Defendants have violated the Americans with Disabilities Act ("ADA") by failing to ensure that New York State's regulations governing the closure of adult care facilities provide that residents are transferred to the most integrated settings appropriate to their needs, and by failing to require the Operator to assist plaintiffs in transferring to the most integrated setting appropriate to their needs. Plaintiffs also seek an injunction barring the NYSDOH Defendants from continuing to violate the ADA.
The sixth cause of action seeks a declaration that the NYSDOH Defendants have violated section 504 of the Rehabilitation Act, 29 USC Sec 794(a), (the "Rehabilitation Act"), by failing to provide that New York State's regulations governing the closure of adult care facilities ensure that residents are transferred to the most integrated settings appropriate to their needs. Plaintiffs also seek an injunction barring the NYSDOH Defendants from continuing to violate the Rehabilitation Act.
The seventh through seventeenth causes of action were pled only against the PPR Defendants and have been discontinued.
Plaintiffs seek three forms of relief against the NYSDOH Defendants: first, to annul NYSDOH's approval of the first closure plan; second, a declaration that the NYSDOH Defendants have violated applicable laws and regulations; and third, an injunction against NYSDOH continuing to violate the ADA and Rehabilitation Acts.
The NYSDOH Defendants had previously moved to dismiss the complaint as against them pursuant to CPLR 3211(a) and 7804(f), arguing that the Plaintiffs lacked standing to challenge the closure plans and NYSDOH's actions in overseeing the implementation of the plan, that there is no private right of action against the NYSDOH Defendants pursuant to the New York State Social Service Law or the New York State Public Health Law, and that Plaintiffs' claims...
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