        SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

568
CA 14-01849
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


NANCY BURKHART, SISTER AND LEGAL GUARDIAN FOR
BRIAN BURKHART, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PEOPLE, INC., ELISA SMITH, KATELYNNE COLEMAN,
AMY MAZURKIEWICZ, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


DAMON MOREY LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

CONNORS & VILARDO, LLP, BUFFALO (JOSEPH D. MORATH, JR., OF COUNSEL),
AND CLAUDE A. JOERG, LOCKPORT, FOR PLAINTIFF-RESPONDENT.

PAUL R. KIETZMAN, DELMAR, FOR NYSARC, INC., AMICUS CURIAE.


     Appeal from an order of the Supreme Court, Niagara County
(Catherine R. Nugent Panepinto, J.), entered February 18, 2014. The
order denied the motion of defendants People, Inc., Elisa Smith,
Katelynne Coleman and Amy Mazurkiewicz for summary judgment dismissing
the seventh, eighth, ninth and fourteenth causes of action.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and plaintiff’s 7th, 8th, 9th, and 14th causes of action are dismissed.

     Memorandum: Plaintiff commenced this action on behalf of her
brother, Brian Burkhart (Brian), a developmentally disabled individual
residing in a group home owned and operated by People, Inc.
(defendant). The complaint alleges two instances of negligence
involving defendant. The first instance relates to the allegedly
inadequate response of defendant’s employees, defendants Elisa Smith
and Amy Mazurkiewicz, to seizures suffered by Brian on January 12,
2008. The second instance relates to an incident on January 17, 2008
in which Brian, on an outing at a local movie theater under the
supervision of defendant’s employee, defendant Katelynne Coleman, was
allowed to wander from the theater and onto a busy nearby roadway,
where he was struck by a vehicle driven by defendant Lucian Visone and
owned by defendant Lakefront Construction, Inc. Brian allegedly
suffered serious injuries as a result of that accident.

     The complaint asserts causes of action based on, inter alia,
defendant’s alleged violation of Public Health Law § 2801-d, which
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                                                         CA 14-01849

allows a patient of a “residential health care facility” to maintain a
private action against the facility when the facility deprives him or
her of “any right or benefit created or established for the well-being
of the patient by the terms of any contract, by any state statute,
code, rule or regulation or by any applicable federal statute, code,
rule or regulation” (§ 2801-d [1]). Defendant and its employee
defendants moved for summary judgment dismissing the causes of action
based on section 2801-d, contending that the statute does not apply to
group homes such as the one operated by defendant. Supreme Court
denied the motion, holding that, because the group home provides some
“health-related service” to its residents, it qualifies as a
“residential health care facility” to which the statute applies. We
now reverse.

     Pursuant to Public Health Law § 2801 (3), a “ ‘[r]esidential
health care facility’ means a nursing home or a facility providing
health-related service.” The parties agree that the group home
operated by defendant does not qualify as a nursing home. Rather, the
issue on appeal is whether the group home is a residential health care
facility because it provides “health-related service,” which is
defined as “service in a facility or facilities which provide or offer
lodging, board and physical care including, but not limited to, the
recording of health information, dietary supervision and supervised
hygienic services incident to such service” (§ 2801 [4] [b] [emphasis
added]). We conclude that defendant’s group home is not a residential
health care facility.

     Although the group home provides some “physical care” to its
residents in addition to lodging and board, as plaintiff points out,
it does not necessarily follow that it provides a “health-related
service” and is therefore a residential health care facility under
Public Health Law § 2801-d. We note that Public Health Law article 28
applies to institutions “serving principally as facilities . . . for
the rendering of health-related service” (§ 2800 [emphasis added]),
and the provisions of the article relate specifically to hospitals and
nursing homes, institutions that clearly serve principally as
facilities for the provision of health-related service (see §§ 2801-
2826). Indeed, section 2801-d (2) awards compensation to plaintiffs
for violations of the statute based in part on the daily per-patient
rate established in section 2807, which pertains to “hospital
reimbursement” for “hospital service and health-related service.”

     In addition, plaintiff premises the alleged violation of Public
Health Law § 2801-d in part on alleged violations of 10 NYCRR 415.11
and 415.12, regulations that relate to the minimum standards
applicable to nursing homes and that deal specifically with assessment
and care planning (see 10 NYCRR 415.11), and quality of care (see 10
NYCRR 415.12), for nursing home residents. In fact, 10 NYCRR part 415
uses the term “[n]ursing home” interchangeably with the term
“residential health care facility” (10 NYCRR 415.2 [k]).

     The legislative history of the statute reinforces our conclusion
that the term “residential health care facility” is meant to apply to
nursing homes and similar facilities that are governed by the Public
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                                                         CA 14-01849

Health Law. Section 2801-d was enacted “to redress the abuse of
patients in nursing homes” (Doe v Westfall Health Care Ctr., 303 AD2d
102, 112), and “the term ‘residential health care facility’ was
intentionally used by the Legislature in an effort to curb abuses in
the nursing home industry and provide a more flexible penalty system
against nursing homes than was previously available” (Town of Massena
v Whalen, 72 AD2d 838, 839). We therefore conclude that the cause of
action provided by section 2801-d was intended to apply to nursing
homes, and other facilities such as assisted living facilities,
operated by entities in the “nursing home industry.”

     In contrast to a hospital or nursing home, the group home owned
and operated by defendant is governed by the Mental Hygiene Law and
regulated by the Office for People with Developmental Disabilities
(OPWDD), and operates pursuant to a certificate issued by the
Commissioner of OPWDD (see Mental Hygiene Law article 16; 14 NYCRR
part 686; see also Mental Hygiene Law § 13.07). The group home is
classified as an “individualized residential alternative” community
residence, defined as “a facility providing room, board, and
individualized protective oversight” for “persons who are
developmentally disabled and who, in addition to these basic
requirements, need supportive interpersonal relationships,
supervision, and training assistance in the activities of daily
living” (14 NYCRR 686.99 [l] [2] [iii]). Under the plain language of
the regulations governing it, the group home does not serve
“principally” as a facility “for the rendering of health-related
service” governed by Public Health Law article 28 (§ 2800).

     Thus, notwithstanding that the group home may provide some
“physical care” to residents such as Brian incident to its provision
of “individualized protective oversight,” we conclude that the group
home is not a “residential health care facility” subject to the
private right of action available under Public Health Law § 2801-d,
and the court therefore erred in denying the motion for summary
judgment dismissing plaintiff’s causes of action based on that
statute.




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
