Berger v Prospect Park Residence LLC

[*1] Berger v Prospect Park Residence LLC 2017 NY Slip Op 50966(U) Decided on July 21, 2017 Supreme Court, Kings County Saitta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 21, 2017
Supreme Court, Kings County

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,

against

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.



6639 /2014



Plaintiffs Attorney —

Fitzpatrick, Cella, Harper & Scinto

1290 Avenue of the Americas

New York, New York 10104

Frederick Millett, Esq.

The Legal Aide Society

111 Livingston Street

Brooklyn, New York 11201

Aurore DeCarlo, Esq.

The Legal Aide Society

199 Water Street

New York, New York 10038

Judith Goldiner, Esq.

MFY Legal Services, Inc.

299 Broadway, 4th Floor

New York, New York 10007

Kevin Cremin, Esq.

Schlam Stone & Dolan, LLP

26 Broadway

New York, New York 10004

Bradley Nash, Esq.

Dennis Kelly, Esq.

137 Glen Head Road

Glen Head, New York 11545

Defendant Attorney — New York State

Clark Gueron Reisbaum, LLP

220 Fifth Avenue, 14th Floor

New York, New York 10001

(212) 633-4310

Emily Reisbaum, Esq.

Melissa C. Holsinger, Esq.
Wayne P. Saitta, J.

Defendants, NEW YORK STATE DEPARTMENT OF HEALTH, NIRAV R. SHAH [*2]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 [*3]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 were not justiciable because they were speculative and unripe. The motion was denied by decision of this Court dated July 1, 2015.

The NYSDOH Defendants again move to dismiss the Consolidated Amended Complaint, this time, as moot. NYSDOH Defendants argue that because Plaintiffs have moved out of the facility and the facility has closed, Plaintiffs lack standing, that their remaining causes of action are moot and that any determination of those claims would constitute an advisory opinion.

The NYSDOH Defendants argue that claims alleging that the NYSDOH Defendants acted arbitrarily and capriciously, or in violation of federal or state statutes or regulations, in approving the First Closure Plan do not present an actual controversy because the First Closure Plan never went into effect and was superseded by the Second Closure Plan, which Plaintiffs agreed not to challenge as part of their settlement with the PPR Defendants. They contend that Plaintiffs would not be affected by a ruling on the merits of their remaining claims.

Plaintiffs argue that the Court has already determined that they have standing, in its previous decision denying NYSDOH's first motion to dismiss, and that their claims are not moot because they are seeking monetary damages against the NYSDOH Defendants. Plaintiffs also argue that even if their claims were found to be moot, their claims fit within the recognized exceptions to mootness because they present novel and substantial issues that are likely to recur in the future and are likely to evade judicial review.

The question before the Court is not standing or whether Plaintiffs' claims are moot, but whether they fit within the exception to mootness.

The NYSDOH Defendants' argument that Plaintiffs lack standing was already rejected by the Court in its decision of July 1, 2015, which denied the NYSDOH Defendants first motion to dismiss. To the extent that NYSDOH Defendants argue that Plaintiffs failed to retain standing because of their settlement and because the facility is [*4]now closed, the argument, although couched in terms of standing, is an argument that Plaintiffs' claims have become moot, not that they lacked standing when they commended the action.

Standing is determined by a Plaintiff's interest at the time an action is commenced. Davis v Federal Election Comm., 554 US 724, 128 S Ct 2759, (2008); Friends of the Earth, Inc., v Laidlaw Environmental Services Inc., 528 US 167, 120 S Ct 693, (2000).

On the other hand, Plaintiffs' argument that their claims are not moot because they seek monetary damages against the NYSDOH Defendants is similarly unavailing. Plaintiffs seek compensatory damages against the NYSDOH Defendants based on their approval of the First Closure Plan.

As a preliminary matter, the Supreme Court lacks jurisdiction to hear claims for monetary damages against the NYSDOH Defendants who are sued in their capacity as agents of the State of New York. These claims must be brought in the Court of Claims. NY Constitution Article VI Sec 9.

Plaintiffs rely on the decision in Gross v Perales, 72 NY2d 231, 532 N.Y.S.2d 68 (1988) for the proposition that they may seek damages against the State in this action, arguing that the damages they seek are incidental to their Article 78 and equitable claims.

While the Supreme Court does have jurisdiction over claims for monetary relief that are incidental an Article 78 petition, the compensatory damages sought against the NYSDOH Defendants are not incidental to Plaintiffs' Article 78 claims.

To be incidental to an Article 78 proceeding, damages "must be such as might otherwise be recovered on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity". CPLR 7806; see also, Gross v Perales, 72 NY2d 231, 532 N.Y.S.2d 68 (1988).

In Gross v Perales, the City of New York challenged the decision of the NYS Department of Social Services to withhold $20,000,000 in reimbursement from the City as an administrative penalty. The City argued that the Department's decision was based on improper auditing standards. The Court of Appeals held that the Supreme Court had jurisdiction to hear the Article 78 proceeding, and upon finding the Department's decision arbitrary and capricious, had the authority to award the City the $20,000,000 of funds that the State withheld, as incidental damages.

In Gross v Perales, once the Court had determined that the State's decision to withhold $20,000,000 in reimbursement was arbitrary and capricious, it needed to determine no further facts, or make no further inquiry, to award the withheld funds.

Here, Plaintiffs' claims for damages are consequential rather than incidental. The facts which would establish whether the NYSDOH Defendants' actions were arbitrary and capricious or in violation of State or Federal statute or regulation, would not establish whether, Plaintiffs suffered damages or the extent of any damages. There would need to be an entire separate trial to determine what, if any injury Plaintiffs suffered as a result of the NYSDOH Defendants having approved the First Closure Plan.

Claims for compensatory damages against the State are consequential and must be heard in the Court of Claims. Casillas v Perales, 154 AD2d 420, 546 N.Y.S.2d 5 (2nd Dept 1989); Lofton v NYC Department of Social Services, 267 AD2d 78, 699 N.Y.S.2d [*5]682 (1st Dept 1999).

The question before the Court is not whether Plaintiffs' claims are moot but whether they fall within the exception to the mootness doctrine. The exception to the mootness doctrine applies where the issue to be decided (1) is likely to recur either between the parties or among other members of the public; (2) typically evades review; and (3) involves significant or important questions not previously passed upon. Hearst v Cline, 50 NY2d 707, 431 N.Y.S.2d 400, (1980).

Likely to Recur

The first prong of the exception to the mootness doctrine, is whether the issue is likely to recur either between the parties or among other members of the general public. Hearst v Cline, 50 NY2d 714-715, 431 N.Y.S.2d 402, (1980). The NYSDOH Defendant's position that the issued raised by Plaintiffs' claims are not likely to recur because they are related to the specifics of the First Closure Plan is correct as to the Plaintiffs first four causes of action.

The first cause of action seeks to annul NYSDOH's approval of the closure plan pursuant to CPLR section 7801, as arbitrary and capricious because it fails to ensure that each Plaintiff is transferred to a setting which is adequate, appropriate, and consistent with their needs and wishes. This claim is specific to the facts and details of the First Closure Plan and it is not clear that future closure plans approved by the NYSDOH would suffer from the same infirmities alleged in this case.

The second and third causes of action seeking a declaration that the NYSDOH Defendants violated Social Service Law section 461-a, 10 NYCRR §§ 1001.4 (j)(2)(ii), 1001.4(j)(2)(iii) and 1001.4(j)(4), and New York State Public Health Law Article 46-B §4662, by failing to ensure that each Plaintiff is transferred to a setting which is adequate, appropriate, and consistent with their needs and wishes, and ensuring adequate continued care for the Plaintiffs, is fact specific and related to the particulars of the assistance the PPR Defendants gave the residents and to the actions that NYSDOH took or failed to take to ensure continued services to Plaintiffs.

The fourth cause of action seeks a declaration that the NYSDOH Defendants violated 18 NYCRR §490.5(f)(19), by failing to ensure that the Operator assist the Plaintiffs in transferring to a setting which is adequate, appropriate and consistent with their wishes. As with the first three causes of action, this claim is particular to the specific actions that the NYSDOH Defendants took or did not take to ensure that the operator assisted the Plaintiffs in transferring to appropriate alternate facilities.

However, Plaintiffs' fifth and sixth causes of action are not specific to the First Closure Plan or the particulars of the NYSDOH Defendants actions in approving or monitoring the attempted implementation of the closure plan.

The fifth and sixth causes of action seek a declaration that the NYSDOH Defendants have violated the Americans with Disabilities Act, ("ADA"), and section 504 of the Rehabilitation Act, 29 USC Sec 794(a), (the "Rehabilitation Act"), by failing to ensure that New York State's regulations governing the closure of adult care facilities require that residents be transferred to the most integrated settings appropriate to their needs.

Those two causes of action attack not the First Closure Plan, but the regulations governing closure of facilities promulgated by NYSDOH. They are not based on the [*6]specifics of the First Closure Plan or the NYSDOH's actions in overseeing the attempted implementation of the First Closure Plan. The fifth and sixth causes of action challenge alleged deficiencies in the State's regulations governing the closure of adult care facilities. It is probable that these issues will recur in the future as to seniors forced to move because the assisted living facility where they reside is closing. Such seniors will likely face the same alleged deficiencies in the NYS regulations that are being challenged here.

The exception to the mootness doctrine does not require that these Plaintiffs that be likely to face the issues again, only that others are likely to face the same issues. Hearst v Cline, 50 NY2d 707, 431 N.Y.S.2d 400, (1980); Jablonski v Steinhaus 48 AD3d 465, 851 N.Y.S.2d 634, (2nd Dept 2008); Walsh-Tozer v Luis G, 118 AD3d 897, 989 NYS2d 41, (2nd Dept 2014); In re Gail R, 67 AD3d 808, 891 NYS2d 411 (2nd Dept 2009); In re William C., 64 AD3d 277, 880 NYS2d 317, (2nd Dept 2009). The last three of these cases involved challenges to orders that mandated assisted outpatient treatment that were rendered moot when the orders expired by their own terms. The courts held that the cases came within the exception to mootness, in part because they presented issues that were likely to recur between the petitioner and other patients subjected to involuntary assisted outpatient treatment orders.

Similar to the present case is the Court of Appeals decision in McCormick v Axelrod, 59 NY2d 568, 466 NYS2d 277 (1983), a case in which residents of a nursing home challenged an order discharging all patients from a facility that had its license revoked, and sought the appointment of a receiver to operate the facility during the closure process. At issue was whether the NYS Public Health Law required NYSDOH to seek appointment of a receiver for a facility whose license was revoked. The Court of Appeals held that even though all of the residents had been transferred, the case came within the exception for mootness because the interpretation of whether the statute required NYSDOH to seek a receiver, "potentially affects the health and safety of numerous nursing home patients and when a predictably similar situation arises, the need for prompt remedial action would likely deprive this court of an opportunity for meaningful review." Id at 571, 278.

Similar to the statute at issue in McCormick v Axelrod, whether New York State's regulations governing the closure of adult care facilities, challenged by Plaintiffs here, comply with the ADA and the Rehabilitation Act, will likely affect the health and safety of numerous elderly residents of assisted living facilities facing closure of the facilities in which they live in the future.

The NYSDOH Defendants' argument that Plaintiffs' claims of harm from the closure of other facilities are new is incorrect. Although the first four causes of action were based on the First Closure Plan and the PPR Defendants actions, the fifth and sixth causes of action challenge the NYS regulations governing the closure of assisted living facilities as violating federal statutes. These challenges to the regulations are not new, but were pled in the original Consolidated Amended Complaint of December 11, 2014.

Typically evades review

The second prong of the exception to mootness doctrine is that the issue must be one that is likely to evade judicial review in the future because of its transitory nature. The exception does not apply where there is likely to be an opportunity for review [*7]should there be a similar challenge in the future. Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 766 NYS2d 654, (2003); Gold-Greenberger v Human Res. Admin. 77 NY2d 973, 571 NYS2d 897, (1991).

The analysis of whether future cases presenting the same issue are likely to evade judicial review is specific to the issues raised. Cases involving different issues, they may reiterate the requirement to an issue must be one likely to evade judicial review, are of limited usefulness in determining if the issue of whether the NYSDOH regulations violate federal statutes by failing to require transfer to the to the most integrated appropriate setting, is in fact likely to evade future review.

The cases cited above, which held that challenges to expired assisted outpatient treatment orders, presented issues there were likely to evade future review, [Walsh-Tozer v Luis G, 118 AD3d 897, 989 NYS2d 41, (2nd Dept 2014); In re Gail R, 67 AD3d 808, 891 NYS2d 411 (2nd Dept 2009); In re William C., 64 AD3d 277, 880 NYS2d 317, (2nd Dept 2009)], do not provide much guidance as to whether the issues presented by Plaintiffs' fifth and sixth causes of action are likely to evade future review.

Similarly, the decisions cited by NYSDOH in which courts found issues were not likely to evade future judicial review, involved issues that that have little relevance to whether the issues here would evade future review.

NRG Energy Inc v Crotty, 18 AD3d 916, 795 N.Y.S.2d 129, (3rd Dept 2005), involved a challenge to Acid Rain Reduction regulations promulgated by New York State Department of Environmental Protection. The Supreme Court had granted the petition in part, holding that the regulations were invalid to the extent that DEC failed to comply with the deadline for rulemaking contained in State Administrative Procedure Act and that the regulations did not comply with requirements of the NYS Environmental Conservation Law. Following the Supreme Court's decision, DEC promulgated emergency ADRP regulations that expressly repealed the original regulations. The emergency regulations replaced the initial regulations and added, among other things, new provisions that were apparently intended to address some of the defects found by Supreme Court.

Gold-Greenberger v Human Res. Admin. 77 NY2d 973, 571 NYS2d 897, (1991), involved a challenge to a decision by the Human Resources Administration of the City of New York to bar a school board candidate from entering a homeless shelter to collect signatures for his nominating petition. The Court found that there would be an adequate opportunity for review in the event the issues presented recurred in the future.

Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 766 NYS2d 654, (2003), involved a challenge to an agreement governing gaming, entered into by Governor Pataki and the St Regis Mohawk Tribe, without legislative authorization. The Court found that the claims did not fall within the exception to mootness because they were unlikely to recur in the future, not because they were unlikely to evade review.

Matter of Citineighbors Coalition of Historic Carnegie Hill, v New York City Landmarks Preservation Commission et al., 2 NY3d 727, 778 N.Y.S.2d 740, (2004), involved a challenge to a certificate of appropriateness issued by the City's Landmarks Preservation Commission to construct a new building in a landmarked district. The Court in declining to apply the exception to the mootness doctrine stated, "[w]here the change in circumstances involves a construction project, we must consider how far the [*8]work has progressed towards completion. Because a race to completion cannot be determinative, however, other factors bear on mootness in this context as well. Chief among them has been a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation" Id at 729 (citing Mtr of Dreikausen v Zoning Board of Appeals, 98 NY2d 165, 746 NYS2d 429, at 173 (2002).

Sutherland v NYCHDC, 20 Misc 3d 1115(A), 867 N.Y.S.2d 378, (Su Ct NY Co 2008), an unreported disposition, involved a challenge to a determination by NYCHDC that a loan to a developer to reserve a portion of the apartments in a newly constructed building for low income families, did not trigger an environmental review under the New York State Environmental Quality Review Act. The Court in Sutherland cited Mtr of Dreikausen supra, for the proposition that the challengers' failure to seek an injunction is relevant to whether a challenge to a building that has become completed during the course of the challenge is moot. The Court also stated in a SEQRA context, the exception for novel recurrent matters that will evade review can be avoided by a prompt request for injunctive relief. Sutherland supra.

Again, these disparate factual situations are of limited relevance to the question of whether future challenges to the NYSDOH regulations for failing to require residents be transferred to the most integrated appropriate settings will likely evade judicial review.

The Court of Appeals decision in McCormick v Alexrod, 59 NY2d 568, 466 NYS2d 277, (1983), in which residents of a nursing home challenged the NYSDOH for failing to seek the appointment of a receiver to manage a nursing home in the process of closing, is more squarely on point with the situation in the present case.

The trial court, in McCormick, had denied the residents' claims that the statute required NYSDOH to seek the appointment of a receiver to supervise the closure of the facility, and the Appellate Division upheld the denial.

The Court of Appeals issued a stay barring the operator of the residence and NYSDOH from involuntarily transferring the residents pending its determination of the appeal of the Appellate Division's opinion. Despite the stay, the residents were involuntarily transferred and the residence closed while the appeal was pending. Nonetheless, the Court of Appeals held that the appeal fell within the exception to mootness, finding that the issues presented would likely evade review in the future. The Court reversed the Appellate Division and granted judgment declaring that the Public Health Law required the Commissioner of NYSDOH to apply to the Supreme Court for a receiver to supervise the closing of a residential health care facility whose operating certificate has been revoked by NYSDOH. Id.

The Court of Appeals held,

"Despite the fact that this proceeding is moot because all patients residing in Beth Rifka Nursing Home have been discharged and transferred, the issue is reviewable. The interpretation given the statute potentially affects the health and safety of numerous nursing home patients, and, when a predictably similar situation arises, the need for prompt remedial action would likely deprive this court of an opportunity for meaningful review." McCormick supra at 571, 279.

Similar to the situation in the present case, the McCormick residents' application [*9]for a receiver was mooted by the closure of the facility. While the Court of Appeals could no longer appoint a receiver, it chose to treat the application as one seeking declaratory relief that the statute required the NYSDOH to seek a receiver, and held that such declaratory relief was likely to evade future review.

In terms of whether a claim is likely to evade future review, a cause of action for statutory interpretation by residents of a nursing home facing closure is the more closely analogous to Plaintiffs' causes of action for statutory interpretation.

In the present case although Plaintiffs' challenges to the first closure plan were mooted by the closure of the facility, their challenges to the NYSDOH regulations as violating federal statutes are likely the evade future review because of the short notice residents of assisted living facilities are given of an impending closure.

Although NYSDOH argues that the availability of an injunction to prevent closure will prevent future challenges to the validity of NYSDOH's closure regulations from evading review, an injunction is not as effective a remedy in cases involving long term care facility closures as it may be in construction cases.

Significantly, the Court of Appeals in McCormick, granted the residents' application for an injunction against involuntary transfer, but the residents were involuntarily transferred and the facility closed in violation of the injunction. The Court of Appeals held the Commissioner of NYSDOH and several of his staff in contempt of its injunction, and fined them for their contempt.

The Court accepted the findings of Judge Gagliardi, who conducted a framed hearing on the contempt motion, that NYSDOH facilitated and participated in the patients' transfers after obtaining knowledge that the patients had obtained a stay. McCormick v Alexrod, 59 NY2d 574, 582, 466 N.Y.S.2d 279, 283 (1983). Not only did NYSDOH not protect the elderly residents of Beth Rifka, but it aided and abetted in their involuntary transfer, in violation of the order of the Court of Appeals.

Additionally, the residents of facilities such as these are extremely elderly and vulnerable, and often do not have family members close enough to assist them. They will often not be in a position to secure the kind of legal assistance needed to timely obtain and enforce an injunction.

Also, this vulnerable population is faced with tremendous pressure to quickly find a new home when faced with a closure, rather than try to remain to litigate the validity of the regulations governing the closure. Although the residents in this case were given 90 days' notice, the state regulations only require 30 days' notice to residents that a facility is closing. The shortness of the notice is exacerbated by NYSDOH's policy of requiring that the application for permission to close the facility be kept secret from the residents. This extraordinary policy deprives residents of many months that they could use to locate an appropriate facility to which to transfer.

The NYSDOH policies create a situation in which elderly people in need of assistance in the activities of daily living are faced with an extremely short period of time to find new homes, and at the same time try to obtain an injunction to be able to challenge the manner in which the closure is carried out.

It must be remembered that the residents cannot prevent the closure of a facility but can only insist that the closure be conducted in compliance with the regulations and statutes. Even if they prevail on their claims they will still be forced from their homes [*10]and must still navigate a byzantine eldercare environment to find an appropriate facility to make their new home. There is great pressure to find and move to a new residence as soon as possible.

The harsh reality of assisted living closures, and the pressures on residents to find new facilities quickly, make it likely that residents will move before any of their challenges to the statutes and regulations governing closures will be finally adjudicated.

Lastly, the fifth and sixth causes of action, which seek a declaration that the NYSDOH regulations violate the ADA and the Rehabilitation Act, present issues that are substantial, as they directly affect the health and wellbeing of vulnerable elderly citizens, and that are novel as these questions have not yet been passed upon in any reported decision.

By reason for the foregoing, Plaintiffs' fifth and sixth causes of action come within the exception to mootness doctrine as they are likely to recur either between the parties or among other members of the public, they are likely to evade future review, and they involve significant or important questions not previously passed upon.

WHEREFORE, the NYSDOH Defendants' motion to dismiss should be granted as to Plaintiffs' first four causes of action, and should be denied as to Plaintiffs' fifth and sixth causes action; and it is hereby,

ORDERED that the first through fourth causes of action in Plaintiffs' Consolidated Amended Complaint are dismissed. This constitutes the decision and order of this Court.

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