Opinion
L T 99064/07.
Decided December 19, 2007.
TO: WHITE, CIRRITO NALLY, LLP BY: JAMES P. NALLY, ESQ, Hempstead, New York, Attorneys for Petitioner.
MFY LEGAL SERVICES, INC., BY: LYCETTE NELSON, New York, NY, Attorney for Respondent.
BACKGROUND
This special proceeding was commenced by SURF MANOR HOME FOR ADULTS, ("Petitioner") seeking to recover possession of Room 223 at 2316 Surf Avenue, Brooklyn, New York, 11224 ("Subject Premises") based on allegations that STUART EDENBAUM, the occupant, ("Respondent") has behaved in a manner which poses imminent risk of serious harm to himself or others, and that his behavior impairs the well being care or safety of other residents or substantially interferes with the orderly operation of the facility.
PROCEDURAL HISTORY
The proceeding was originally returnable on November 13, 2007.On said date MFY Legal Services filed a Notice of Appearance on behalf of Respondent, and the proceeding was adjourned to December 12, 2007 for motion practice, pursuant to a stipulation between the parties.
On December 12, the proceeding was dismissed based on the Petitioner's failure to appear, and the Respondent's motion for dismissal was withdrawn without prejudice. However, the dismissal was vacated and the motion restored by stipulation between the parties on December 17, 2007.
THE MOTION
Respondent moves for dismissal of this proceeding pursuant to CPLR § 3211(a)(7). Respondent claims that the pleadings even when viewed in a light most favorable to Petitioner fail to state a cause of action for termination of an admission agreement under Social Services Law § 461-(g). Preliminarily, the Court's role on a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7) is limited to determining whether a cause of action is stated within the four corners of the pleadings. Franklin v. DaimlerChrysler Corp., 292 AD2d 118. In opposing such a motion, a party is under no obligation to demonstrate that evidence exists to support the allegations in the pleadings Stuart Realty v. Rye Country Store, Inc., 296 AD2d 455. The pleadings must be construed in a light most favorable to the Petitioner, and all factual allegations must be accepted as true. The only issue for the Court to determine on such a motion is whether the factual allegations "manifest a cause of action cognizable at law" Gruen v. County of Suffolk, 187 AD2d 560; Weiner v. Lenox Hill Hospital, 193 AD2d 380.
RPAPL § 713(a) provides for the maintenance of a special proceeding for termination of an admission agreement for residents of an adult home.
Social Services Law § 461-g provides for the basis for such terminations.
Petitioner served Respondent with a Notice of Termination dated August 9, 2007. The Notice provides that termination is warranted in this proceeding pursuant to 18 NYCRR § 487.5(f)(14)(i),(ii), and (iv), and pursuant to Social Services Law § 461(g) and § 461(h).
18 NYCRR § 487.5(f)(14)(i),(ii), and (iv) provide in pertinent part:
No operator shall terminate an admission agreement and involuntarily discharge a resident, except for the following reasons:
(i) the resident requires continual medical or nursing care which the adult facility is not licensed to provide;
(ii) the resident's behavior poses imminent risk of death or imminent risk of serious physical harm to himself or anyone else;
(iv) the resident repeatedly behaves in a manner that directly impairs the well being, care or safety of the resident or any other resident or which substantially interferes with the orderly operation of the facility;
These elements are echoed in § 461(g) of the Social Services Law, which provides for a basis for termination on these same conditions pursuant to subsections 1(a), (b), and (c) thereof.
In addition to citing the statutory basis for the proceeding and specifying the portions of the statute upon which this special proceeding is predicated, the Notice of Termination contains very specific factual allegations of the type of behavior Respondent is alleged to have engaged in. The Notice recites fifteen specific dates on which incidents occurred, and other general repeated and on going behavior which Petitioner alleges fall into the category of establishing a basis for termination under the above cited statutes.
Additionally, the Notice of Termination alleges in particular that a Dr. Momood has already testified, in a previous related proceeding, under oath, that Respondent is a danger to a case worker employed at Surf Manor and that he "poses a serious risk of imminent physical harm" to said worker.
The Court notes that the opposition papers annex as Exhibit "B" some medical records, which include a statement by what appears to be the same psychiatrist, that Respondent, as of July 13, 2007, was "not a danger to self or others" and was mentally suited for care in adult home. This discrepancy however only creates issues of fact requiring a trial for resolution.
Further it is alleged that Respondent is Bi Polar, and not taking required or recommended medication to control his condition.
Respondent argues that the Petition does not allege "repeated" behavior as required by one of three statutory provisions relied upon, that the dates of the incidents alleged are too far removed to constitute "imminent" danger, and that Respondent's complaints to government agencies, even if ongoing and frivolous, do not constitute a basis for termination under the statutory criteria.
For the reasons stated below, the Court denies Respondent's motion and holds that the predicate notice and pleading do state a cause of action upon which relief could be granted at trial depending on the nature of the facts established and the evidence produced at trial. The Court finds that the pleadings herein do satisfy statutory and due process requirements in that they apprise the Respondent in adequate detail of the nature of this proceeding, and the facts upon which it is based. SSL § 461(h). Respondent and his counsel should be able to prepare a defense to the allegations given the specificity of the pleadings. See eg Land . Lopez, 169 Misc.2d 639 (1996)( petition sufficiently alleges the type of conduct and satisfies requirement to state facts upon which the proceeding is based).
Moreover, the types of allegations included in the pleadings herein have been found sufficient to satisfy the statutory criteria for termination of an admission agreement. See e.g. Jagr v. Kubus, 126 Misc 2d 280 (1984)( failure to submit to annual exam interfered with orderly operation of adult home).
Based on the foregoing Respondent's motion is denied. Respondent is directed to serve and file an answer within ten days of receipt of this decision, and the matter is restored to the calendar for trial on January 16, 2008 at 9:30 a.m. Part H, Room 507.
This constitutes the decision and Order of this Court.