Rehabilitation Center: Arguing with a nursing home administrator is like wrestling with a pig in the mud: After a few minutes, you realize the pig likes it.

Woman with white hair and pink smock holding hands in front of face, illustrating article by Richard Klass about nursing homes and rehabilitation centers

She had to convalesce in a rehabilitation center for comprehensive (sub-acute) in-patient care following illness. Upon admission, the resident was presented with the facility’s admission agreement for her to sign. The agreement provided that, in exchange for payment through Medicaid, Medicare, insurance or direct pay, the facility would provide all of the patient’s basic and routine services, including lodging and boarding and professional nursing care.

The agreement specified that the resident anticipated paying the costs of care through her managed care organization (MCO) (which contracts through a network or group for the delivery of health care). However, the agreement left the section for private payment rates for daily charges blank.

Motion to Dismiss the Facility’s Case

Post-discharge, the rehabilitation facility brought an action against the former resident, alleging that she obligated herself to pay for the room, board, nursing and health care services but failed to made payment. To mount the best defense possible, the former resident retained Richard A. Klass, Esq., Your Court Street Lawyer, who immediately moved to dismiss the case.

In the Complaint, the facility alleged that it was a corporation duly organized and existing under and by virtue of the laws of the State of New York. Based upon a search of the New York State Department of State online records, there was no corporation with the plaintiff’s name registered to do business in New York State. Business Corporation Law § 301(a)(1) specifies that the name of a domestic or foreign corporation “shall contain the word ‘corporation’, ‘incorporated’ or ‘limited’, or an abbreviation of one of such words; or, in the case of a foreign corporation, it shall, for use in this state, add at the end of its name one of such words or an abbreviation thereof.” There was no such designation in its name in the Summons or Complaint. To the extent that the facility may have claimed it was suing under an assumed name, General Business Law § 130(1) provides that there are certain requirements to be met.

Consumer credit transaction

The pending motion to dismiss set up settlement discussions about the procedural and substantive defenses to the facility’s case. As to the procedural aspect, the next line of defense was to threaten dismissal of the lawsuit on jurisdictional grounds.

The Summons failed to prominently display at the top the words “Consumer Credit Transaction.” CPLR 305(a) specifies that the Summons must have those words on the top where the court held that the debt on an obligation of a consumer to pay money arising out of a transaction in which the services which are the subject of the transaction are primarily for personal, family or household purposes. In Jack Mailman & Leonard Flug DDS, PC v. Whaley, 2002 WL 31988623 [Civil Court, Richmond Co. 2002], the court held that medical debts were deemed consumer debts.

Residential Care Facilities – Residents’ Rights

Nursing facilities, including nursing homes and rehabilitation centers

Nursing facilities, including nursing homes and rehabilitation centers, that accept residents whose charges will be paid in whole or in part by Medicaid are governed by the federal Nursing Home Reform Act (42  USC §1396r) and federal and state regulations (42 CFR §483; and 10 NYCRR §415).

Through these enactments, there was the creation of a so-called residential care patient’s “Bill of Rights.” These “Rights” include the rights to freedom from abuse, mistreatment and neglect; privacy; accommodation for mental, physical, psychological and emotional needs; treatment with dignity; and being fully informed and participating in one’s care.[1]

Financial obligation rights

Among residents’ rights are those relating to financial obligations to the facility, including informing the resident of those services and items that the facility offers for which the resident may be charged. 10 NYCRR §415(h). These laws and regulations govern nursing facility admission agreements. See, Prospect Park Nursing Home v. Goutier, 824 NYS2d 770 [Civil Court, Kings Co. 2006].

The resident did not read or write in the English language. The admission agreement was not translated for her. The resident alleged that when she asked what she was signing, she was told that her MCO would be paying the costs, not her. The “Anticipated Payor” section indicated that an insurer would be paying. The “Private Payment” section (including costs per day) was left blank. The resident alleged that she was never informed of the rates or charges. It was claimed that the facility’s representatives engaged in wrongful conduct and misrepresentation concerning the execution of the agreement. See, Nerey v. Greenpoint Mortgage Funding, Inc., 144 AD3d 646 (2d Dept. 2016).

Rehabilitation Center

Quality of Life: The right to adequate and appropriate care

The regulations emphasize that a resident has the right to receive from the facility “the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.” 42 CFR §483.24.

The resident alleged she received inadequate care at the facility, including that she had to wait many hours for the bedpan to be changed; lack of bathing; unavailability of staff when needed and for necessary help and activities. In light of the vigorous defense advocated by Your Court Street Lawyer, the facility agreed to significantly reduce the bill for rehabilitation services and settle the case with the former resident on very favorable terms.

[1] https://www.aarp.org/home-garden/livable-communities/info-2001/the_1987_nursing_home_reform_act.html

R. A. Klass
Your Court Street Lawyer

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keywords: Nursing facility, nursing home, rehabilitation center

Scales of justice

Plaintiffs’ Judiciary Law Section 487 cause of action was properly dismissed.

In dismissing the plaintiff’s claim against an attorney for violating Judiciary Law Section 487, the New York State Court of Appeals held:

Here, viewing the facts in the light most favorable to plaintiffs (see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]), defendants established prima facie entitlement to judgment as a matter of law on the Judiciary Law Section 487 (1) claim by demonstrating that plaintiffs failed to allege that defendants engaged in deceit or collusion during the course of the underlying federal intellectual property lawsuit against GM and EMI [FN2]. In response, plaintiffs failed to satisfy their burden to establish material, triable issues of fact (id.). The affidavits plaintiffs submitted in opposition to summary judgment did not allege that defendants committed any acts of deceit or collusion during the pendency of the underlying federal lawsuit. To the extent defendants were alleged to have made deceitful statements, plaintiffs’ allegation that defendants induced them to file a meritless lawsuit based on misleading legal advice preceding commencement of the lawsuit is not meaningfully distinguishable from the conduct we deemed insufficient to state a viable attorney deceit claim in Looff (97 NY at 482). The statute does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments, as such statements cannot support a claim under the statute [FN3]. Similarly, even assuming it constituted deceit or collusion, defendants’ alleged months-long delay in informing plaintiffs that their federal lawsuit had been dismissed occurred after the litigation had ended and therefore falls outside the scope of Judiciary Law Section 487 (1). Thus, plaintiffs’ Judiciary Law Section 487 cause of action was properly dismissed.

Bill Birds, Inc. v Stein Law Firm, P.C. 2020 NY Slip Op 02125 Decided on March 31, 2020 Court of Appeals DiFiore, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law Section 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 31, 2020
No. 19

[*1]Bill Birds, Inc. et al., Appellants,
v
Stein Law Firm, P.C. et al., Respondents.

R. A. Klass
Your Court Street Lawyer

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Appeals court reverses dismissal of action in personal injury case. Proposal to install elevator gate was the smoking “gate”.

Scan of redacted proposal, with words in bold saying, about an elevator that lacked a gate on the inside of the elevator platform, "this is extremely dangerous, someone could get hurt." This image illustrates an article by Richard Klass discussing a personal injury case.

The company’s porter was operating a manually-controlled freight elevator in a large Manhattan industrial building owned by the defendants. The porter, who was employed by a tenant of the building, was in the process of bringing the elevator up to the eighth floor at the time of the accident. According to him, the heel of his left foot became caught between the fourth floor landing and the moving elevator. The elevator did not have a gate separating the interior side of the elevator cab from the elevator shaft. The porter allegedly sustained severe injuries to his left foot and ankle as a result of the accident, which, unfortunately, may later lead to the amputation of his foot.

The porter came to Richard A. Klass, Your Court Street Lawyer, to sue the building’s owners for his severe personal injuries. Mr. Klass brought in the preeminent personal injury firm, Stefano A. Filippazzo, P.C., to pursue and litigate the porter’s case.

Elevator in compliance – when installed over 80 years ago!

This industrial building was built pre-war. The freight elevator was installed a very long time ago yet remained in operation through at least the time of the porter’s accident in 2009. It was undisputed that the elevator was in compliance with all applicable rules, regulations, and codes at the time of its installation. The building owners moved for summary judgment dismissing the complaint against them on this basis.

Proposal: “This is extremely dangerous”

Two years before this terrible accident, the building’s owners received a proposal from their elevator service company to install a new manual gate with guide tracks and chains, which would allow for the smooth operation of the elevator with minimal risk of injury to its operator. The proposal stated: “Presently there are no gates on inside of elevator platform, building personnel are leaning over platform, this is extremely dangerous, someone could get hurt” (bold added for emphasis).

Appeals court reverses dismissal of action.

Shockingly, the trial court dismissed the porter’s lawsuit, relying on the building owners’ argument that, since the elevator was in code compliance when it was installed (despite that being a very long time ago), there could be no liability for there being no gate installed. Stefano A. Filippazzo could not give up on the case, believing that the judge got it 100% wrong! The porter appealed the dismissal, arguing that the owners’ failure to install a gate on the interior side of the freight elevator constituted a serious, defective condition.

In reversing the dismissal, the appellate court held that:

“[T]he plaintiff raised a triable issue of fact as to whether the defendants were negligent. The plaintiff submitted evidence demonstrating that prior to the accident, the defendants were on notice of the dangerous condition of the elevator when they were provided with proposals from their own elevator service company, which proposals stated that because there was no gate on the inside of the elevator platform, an extremely dangerous condition existed (see DeCarlo v Vacchio, 147 AD3d at 725).”

No proof of code violations does not doom negligence claim.

Recognizing that the elevator was in code compliance, the appellate court was unwilling to come to the same conclusion as the trial court that there could be no personal injury claim. Rather, the court held that a trial court consider the absence of code violations in the context of the overall situation. In Romero v Waterfront N.Y., 168 AD3d 1012 [2d Dept 2019], the court opined:

However, “the absence of a violation of a specific code or ordinance is not dispositive of a plaintiff’s allegations based on common-law negligence principles” (Alexis v Motel Oasis, 143 AD3d 926, 927 [2016]; see DeCarlo v Vacchio, 147 AD3d 724, 725 [2017]; Zebzda v Hudson St., LLC, 72 AD3d 679, 680-681 [2010]). Accordingly, a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances (see Zebzda v Hudson St., LLC, 72 AD3d at 680-681).

Based upon the appellate court’s reversal, the personal injury claim was remanded back to the trial court. When faced with both the porter’s substantial, lifetime injuries and the actual notice received from the elevator service company of the existence of a dangerous, defective condition, the building owners settled the personal injury lawsuit.

R. A. Klass
Your Court Street Lawyer

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