Island Assisted Living v Narbone
Annotate this CaseDecided on August 23, 2017
District Court of Nassau County, First District
Island Assisted Living, Petitioner(s)
against
Emma Narbone, "JOHN DOE" and "JANE DOE", Respondent(s).
LT-002104-17
Horing, Welikson & Rosen, P.C., attorneys for Petitioner, 11 Hillside Avenue, Williston Park, New York 11596, (516) 535-1700; Nassau/Suffolk Law Services Committee, Inc., attorneys for Respondents, 1757 Veterans Highway, Suite 50, Islandia, New York 11749, (631) 232-2400, ext. 3325.
Scott Fairgrieve, J.
The following named papers numbered 1 to 3
submitted on this Motion to Dismiss
on July 14, 2017
papers numbered
Notice of Motion and Supporting Documents 1
Order to Show Cause and Supporting Documents
Opposition to Motion 2
Reply Papers to Motion 3
The petitioner, Island Assisted Living, commenced this special proceeding, pursuant to Social Services Law §461-h, seeking to terminate the admission agreement of respondent Emma Narbone, ostensibly upon the ground that Ms. Narbone failed to pay her rent. Ms. Narbone now moves, primarily pursuant to CPLR 3211(a)(7), for an order dismissing the petition for failure to state the facts upon which the petition is based. Specifically, Ms. Narbone contends that neither the Petition nor the Notice of Termination, which is incorporated by reference into the Petition, sufficiently states the reason for the termination such that she can adequately prepare a defense.
The Notice of Petition and Petition, both of which are mislabeled as a "HOLDOVER", have, upon first glance, the appearance of a standard landlord-tenant proceeding brought pursuant to Article 7 of the Real Property Actions and Proceedings Law. In fact, Paragraph 6 of the Petition is the only place in either the Notice of Petition or Petition where there is any reference to SSL §461-h ("[t]he proceeding is brought under Social Services Law Section 461-h"). The proper identification of this proceeding is important. A proceeding to terminate the admission agreement of a resident of an adult home is a special proceeding that carries with it its own set of requirements, which are separate and apart from those delineated specifically for Article 7 RPAPL proceedings (see RPAPL §713-a [stating that such a special proceeding should be brought pursuant to the requirements of SSL §461-h].
Nevertheless, some of those requirements do mirror each other. For example, SSL §461-h(6)(d) states that "[e]very petition shall ... state the facts upon which the special proceeding is based", which is identical to the language of RPAPL §741(4). However, in a SSL §461-h special proceeding, those necessary facts will differ. Pursuant to SSL §461-g(1), an adult home may terminate an admission agreement only based upon certain specific grounds, enumerated in SSL §461-g(1)(a)-(f) and 18 NYCRR §487.5(f)(14)(i)-(iv). Furthermore, SSL §461-g(2)(a)(i) and 18 NYCRR §487.5(f)(3) provide that the adult home, in seeking termination of an admission agreement, must provide a 30-day notice of termination. Such notice of termination must include, among other things, "the reason for the termination of the admission agreement" (SSL §461-g[2][a][ii]; see also 18 NYCRR §487.5[f][4][i]). The reason pertinent to the instant matter is found in SSL §461-g(1)(c), which provides:
"failure of the resident to make timely payment for all authorized charges, expenses and other assessments, if any, for services including use and occupancy of the premises, materials, equipment and food which the resident has agreed to pay pursuant to the resident's admission and services agreement".
Although the instant Petition does not identify the reason itself, it does incorporate by reference the Notice of Termination. The Notice of Termination, which is annexed to the Petition, provides language virtually identical to the statutory language of SSL §461-g(1)(c), as the reason for the termination. The notice gives no further information regarding the respondent's alleged failure to make timely payments.
Without any detail as to amounts owed or when the alleged failure to pay occurred, the court finds that the Petition and the Notice of Termination are insufficient, as they fail to give Ms. Narbone adequate detail to prepare a defense to the allegations (see generally Gables Home for Adults v Dowd, BRLT 895-12, Dist. Court, Suffolk County, 6th Dist., May 16, 2012 [Flanagan, J.] [dismissing petition to terminate adult home agreement where basis for termination was behaviorally based; "lack of specificity as to exact dates within the months of February and March 2012 fails to give the respondent adequate detail to prepare a defense to the allegations"]; Medford Hamlet, LLC v Bonsignore, BRLT 1155-10, Dist. Court, Suffolk County, 6th Dist., June 9, [*2]2010 [Ukeiley, J.] [dismissing petition to terminate an adult home agreement where basis for termination was behaviorally based; notice of termination was insufficient since it failed to identify any specific times and dates that the improper behavior allegedly occurred]; Heartland on the Bay, Inc. v Chatterton, BRLT 3062-07, Dist. Court, Suffolk County, 6th Dist., October 10, 2007 [Spelman, J.] [dismissing petition to terminate an adult home agreement where "[t]he notice to terminate served upon the respondent is conclusory and bereft of any facts upon which petitioner bases this proceeding as it merely paraphrases the language set forth in section 461-g(1)(d) of the Social Services Law"]; cf. Surf Manor Home for Adults v Edenbaum, 18 Misc 3d 1104[A] [Civ Ct Kings Co. 2007] [dismissal of proceeding denied where grounds for dismissal were behaviorally based pursuant to SSL §461-g(1)(b), and (d), and notice of termination contained "very specific factual allegations of the type of behavior Respondent is alleged to have engaged in [including] fifteen specific dates on which incidents occurred, and other general repeated and on going behavior"]).
Accordingly, in the circumstances of the proceeding at bar, the respondent's motion is granted and the petition is dismissed.
In light of the above, the remaining branches of the respondent's motion which, among other things, raise alternate theories for dismissal of the petition, are denied as moot.
The foregoing constitutes the decision and order of the court.
Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:August 23, 2017
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