Fernandez v. State
| Citation | 36 Misc.3d 1212,957 N.Y.S.2d 264,2011 N.Y. Slip Op. 52516 |
| Parties | Benito FERNANDEZ d/b/a Brooklyn Manor Home for Adults, Claimant, v. STATE OF NEW YORK, Defendant. |
| Decision Date | 30 September 2011 |
| Court | New York Court of Claims |
OPINION TEXT STARTS HERE
O'Connell & Aronowitz, P.C. by Kurt E. Bratten, Esq., Jeffrey J. Sherrin, Esq., for claimant.
Eric T. Schneiderman, Attorney General of the State of New York by Thomas R. Monjeau, Assistant Attorney General, for defendant.
This Decision follows a trial on liability and a series of decisions arising from a claim originally filed in May 2004, an amended claim filed in October 2006 and a second amended claim filed in January 2008.1 Claimant Benito Fernandez owned and operated Brooklyn Manor Home for Adults (hereinafter “Brooklyn Manor”), an adult care facility located in Brooklyn, New York, that provided long-term care to adult residents. Defendant, through the New York State Department of Health (hereinafter “DOH”), regulates adult homes. The second amended claim alleges causes of action sounding in tortious interference with claimant's prospective business relations, defamation and negligence. The claim emanates, in large part, from enforcement actions undertaken by DOH against Brooklyn Manor between December 2003 and June 2005. Briefly stated, claimant avers that facility inspection reports prepared by defendant violated DOH regulations and that these reports formed the basis of allegedly improper enforcement proceedings including, inter alia, the denial of the facility's operating certificate, the attempt to remove the facility's administrator, the suspension of claimant's operating certificate, the appointment of a temporary operator and an attempt to appoint a permanent receiver. Claimant further alleges that the enforcement proceedings were used to divert admissions, deny the facility funding under New York's Quality Incentive Payment Program (hereinafter “QUIP”) and financially ruin claimant and his business.
A bifurcated trial on liability was held between March 17 and March 25, 2010. Claimant called two witnesses, including himself. Defendant called one witness. More than 80 exhibits were received into evidence. An additional day of trial was held on August 11, 2010 to consider the admissibility of over 5,000 pages of transcripts and exhibits from two prior DOH administrative hearings. Requests for additional time to submit post trial memoranda were received and granted.Upon considering the relevant legal principles and their application to the facts underlying this claim, and after weighing the evidence, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds, for the reasons stated below, that claimant has failed to prove by a preponderance of the credible evidence his claim against defendant.
A threshold issue for the Court concerned the admissibility of excerpts from two administrative hearings conducted before DOH, identified at trial as claimant's exhibits 62 and 63. Those hearings are the Matter of Antonia Novello, M.D., M.P.H., Ph. D., as Commissioner of New York State Department of Health to determine the action with respect to Diane Walker, respondent, as Administrator of Brooklyn Manor Home for Adults, (hereinafter “Walker Hearing”) before ALJ John Wiley, and Matter of Antonia Novello, M.D., M.P.H., Ph. D., as Commissioner of New York State Department of Health to determine the action with respect to Benito Fernandez, Respondent, as Operator of Brooklyn Manor Home for Adults (hereinafter “Revocation Hearing”) before ALJ James Horan. At trial, the parties stipulated to the admissibility of the transcripts and exhibits from both of these administrative hearings contained in exhibits 62 and 63. Given the sheer volume of those hearing materials (thousands of transcript pages and hundreds of hearing exhibits), the parties subsequently filed motions seeking to admit excerpts from those two administrative hearings supporting their respective positions.2 On August 11, 2010, the trial resumed and the Court identified claimant's excerpts as claimant's exhibit 78 and defendant's excerpts as defendant's exhibit F. Claimant made specific objections to portions of defendant's excerpts ( see claimant's exhibit 79), and defendant objected to certain parts of claimant's submission ( see defendant's exhibit G). Upon consideration of these submissions and the objections related thereto, and the parties having already stipulated to the admissibility of exhibits 62 and 63, the Court overrules the objections raised by both parties and receives into evidence the administrative hearing excerpts contained in claimant's exhibit 78 and defendant's exhibit F, and the related affirmations from both parties ( see claimant's exhibit 79 and defendant's exhibit G).
Social Services Law § 460 sets forth the State's policy and purpose with respect to residential care programs:
Article 7 of the Social Services Law (SSL § 460 et seq), when first enacted, gave the New York State Department of Social Services the authority to establish regulatory standards for all adult care facilities. In 1997, responsibility for the regulation of adult care facilities was transferred to DOH (L.1997, ch 436, § 122[e] ).
An adult care facility is
“a residence for adults, ... or an adult home, which provides ... residential care and services to adults, who, though not requiring continual medical or nursing care ... are by reason of ... physical ... or mental disabilities or other factors, unable or substantially unable to live independently”
(SSL § 2[21] ). An adult care facility is required to obtain an operating certificate from DOH ( seeSSL § 460–b; 18 NYCRR §§ 485 .1[d], 485.5 and 485.6). DOH is responsible for setting “fiscal, administrative, architectural, safety, nutritional and program standards” for adult care facilities (SSL § 461[1]; see 18 NYCRR §§ 485–491). To ensure compliance with such standards, DOH retains the responsibility “for the inspection and supervision of all adult care facilities” (SSL § 461–a [1]; see 18 NYCRR § 486 .1[b] ), and is given broad authority to work with other state agencies to ensure compliance with regulations and standards of care at such facilities ( see18 NYCRR § 485.3). Inspections may include a review of the physical premises and facility records, private interviews with residents and the collection of written or photographic evidence ( see18 NYCRR §§ 486.2[a] and [h] ). The inspections can take different forms, including, inter alia, complete inspections, partial inspections and complaint inspections ( see18 NYCRR § 486.2[e] ). DOH may also inspect facilities on an unannounced basis ( seeSSL § 461–a [2] ) and may “conduct more than one inspection of an adult care facility, for whatever purpose, as is deemed necessary for ensuring compliance with applicable provisions of law and regulations” (SSL § 461–a [2][e] ).
After an inspection, DOH must issue an inspection report identifying the area of operation in which the adult home has failed to comply with the applicable regulation or requirement ( seeSSL § 461–a [2][c]; 18 NYCRR § 486.2[i][2] ). The inspection report must be sent to the operator and include directions “as may be appropriate” for achieving compliance (18 NYCRR § 486.2[i][3] ). Within 30 days of issuance of the inspection report, the operator must correct the violation or submit a plan for correction ( see18 NYCRR § 486.2[j] ). The operator is also required to post the most recent inspection report “conspicuously in a public area of the facility which is accessible to residents and visitors,” (18 NYCRR § 486.2[l] ), and with the exception of confidential information, make available for review upon request, inspection reports for the most recent two-year period ( see18 NYCRR § 486.2 [m] ).
Based upon violations identified during an inspection, DOH “may undertake enforcement action against any operator of an adult care facility who fails to operate the facility in compliance with applicable provisions of law and regulation” (18 NYCRR § 486.1[d] ). The enforcement mechanisms available to DOH are vast and include, inter alia, conducting hearings; imposing civil penalties after hearing; revoking or suspending an operating certificate after hearing; issuance of a commissioner's order requiring an operator to immediately remedy conditions dangerous to residents; temporarily suspending or limiting an operating certificate upon a finding of imminent danger to residents; and requesting the Attorney General to seek injunctions, civil penalties or criminal prosecution ( seeSSL § 460–d; 18 NYCRR § 486.4[b]; see also18 NYCRR §§ 486.4[c]-[h] ). DOH may also place on a “do not refer list” adult homes that have received written notice of enforcement action or where there is pending enforcement action against the adult home's operating certificate ( seeSSL § 460–d [15] ). Referrals for admissions to facilities on such lists are prohibited ( seeSSL § 460–d [12] ). In addition, where a...
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