Berger v. Prospect Park Residence, LLC, 2017-09743

• Decision Date: 28 November 2018
• Docket Number: 2017-09743,Index No. 6639/14
• Citation: 87 N.Y.S.3d 572,166 A.D.3d 937
• Parties: Emily BERGER, etc., et al., Respondents, v. PROSPECT PARK RESIDENCE, LLC, et al., Defendants, New York State Department of Health, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 937
87 N.Y.S.3d 572

Emily BERGER, etc., et al., Respondents,
v.
PROSPECT PARK RESIDENCE, LLC, et al., Defendants,

New York State Department of Health, et al., Appellants.

2017-09743
Index No. 6639/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 17, 2018
November 28, 2018

Clarick Gueron Reisbaum LLP, New York, N.Y. (Emily Reisbaum, Nicole Gueron, and Melissa C. Holsinger of counsel), for appellants.

Fitzpatrick, Cella, Harper & Scinto, New York, N.Y. (Frederick C. Millett and Andrew Kutas of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the New York State Department of

87 N.Y.S.3d 574

Health, Nirav R. Shah, M.D., MPH, as Commissioner of the New York State Department of Health, and Howard Zucker, M.D., as Commissioner of the New York State Department of Health, which were to dismiss, as academic, the causes of action alleging violations of the Americans with Disabilities Act of 1990 ( 42 USC § 12101 et seq. ) and the Rehabilitation Act of 1973 ( 29 USC § 701 et seq. ) insofar as asserted against them are granted.

The plaintiffs/petitioners (hereinafter the plaintiffs) are elderly, disabled former residents of the Prospect Park Residence (hereinafter PPR), an adult care facility operated by the defendant Prospect Park Residence, LLC (hereinafter the LLC). In February 2014, the New York State Department of Health (hereinafter DOH) approved the LLC's plan to close the facility (hereinafter the First Closure Plan). However, a preliminary injunction was obtained that prevented the LLC from involuntarily transferring residents to another facility, constructively evicting them, or diminishing services.

The plaintiffs commenced this hybrid action, inter alia, for declaratory and injunctive relief, and proceeding pursuant to CPLR article 78, alleging violations of state and federal law in connection with the First Closure Plan. A second closure plan (hereinafter the Second Closure Plan) was thereafter approved by the DOH, and the plaintiffs commenced a second action challenging the Second Closure Plan. The plaintiffs subsequently settled their claims against the LLC, the plaintiffs remaining in the facility moved out, the facility was closed, the plaintiffs agreed not to challenge the Second Closure Plan, and the second action was discontinued.

The defendants/respondents New York State Department of Health, Nirav R. Shah, M.D., MPH, as Commissioner of the New York State Department of Health, and Howard Zucker, M.D., as Commissioner of the New York State Department of Health (hereinafter collectively the DOH defendants), then moved to dismiss the instant complaint/petition (hereinafter the complaint) insofar as asserted against them on the ground of mootness. In the order appealed from, the Supreme Court granted the motion in part, directing dismissal of the state law causes of action as moot, but it applied the exception to the mootness doctrine to the causes of action alleging violations of federal law, namely, the Americans with Disabilities Act of 1990 ( 42 USC § 12101 et seq. ; hereinafter ADA) and the Rehabilitation...