You are here: / / THE COMPLAINT DID NOT SUFFICIIENTLY ALLEGE DEFENDANT ASSISTED LIVING FACILITY...
,

THE COMPLAINT DID NOT SUFFICIIENTLY ALLEGE DEFENDANT ASSISTED LIVING FACILITY FUNCTIONED AS A DE FACTO RESIDENTIAL HEALTH CARE FACILITY BY PROVIDING HEALTH-RELATED SERVICES; THEREFORE THE PUBLIC HEALTH LAW CAUSES OF ACTION, AVAILABLE ONLY FOR SUITS AGAINST RESIDENTIAL HEALTH CARE FACILITIES, SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the allegations in the complaint did not sufficiently allege that defendant assisted living facility operated as a de facto residential health care facility. Therefore the Public Health Law causes of action, which are available only for suits against residential health care facilities, should have been dismissed. The concurring justices argued that the case which allowed assisted living facilities to be considered de facto residential health care facilities if they provide health-related services should be overruled:

… Supreme Court erred in denying their motion with respect to the second and third causes of action. We have held that an assisted living facility licensed pursuant to Public Health Law article 46-B … could operate as a de facto residential health care facility subject to liability under Public Health Law article 28 if it provides health-related services (see Cunningham v Mary Agnes Manor Mgt., L.L.C., 188 AD3d 1560, 1562 [4th Dept …]. We conclude that, unlike the complaint in Cunningham, the complaint here failed to “sufficiently allege[ ] facts to overcome defendants’ argument that the facility is an assisted living facility and not subject to . . . sections [2801-d and 2803-c] of the Public Health Law” … .

From the concurrence:

… [W]e would overrule our prior decision in Cunningham to the extent that it authorizes a cause of action under article 28 of the Public Health Law against an assisted living facility indisputably licensed pursuant to article 46-B of the Public Health Law … . Kingston v Tennyson Ct., 2025 NY Slip Op 01522, Fourth Dept 3-14-25

Practice Point: Private causes of action pursuant to the Public Health Law are available only for suits against residential health care facilities, and not suits against assisted living facilities. In the Fourth Department, however, the Public Health Law causes of action can be viable against an assistant living facility if the facility offers health-related services. The two concurring justices in the instant decision would overrule that “assisted living facility” caveat. which conflicts with rulings in other appellate division departments.

 

You might also like
TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE, TWO-JUSTICE DISSENT (FOURTH DEPT).
DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL.
Warrantless Arrest in Home in Absence of Exigent Circumstances Mandated Suppression; Package from Paraguay Addressed to Defendant Properly Opened as a “Border Search”
References to Fingerprint Evidence Processed by Non-testifying Technician Did Not Violate Right to Confrontation
1/2 to 3/4 Inch Defect in Sidewalk Not Trivial As a Matter of Law
THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT).
MALICIOUS PROSECUTION AND ABUSE OF PROCESS CAUSES OF ACTION NOT SUFFICIENTLY PLED.
Fall Into a Three-to-Four-Foot-Deep Hole Is Not an Elevation-Related Event Under Labor Law 240(1)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THE DEFENDANT STATE PAROLE OFFICER WAS DRIVING A STATE-OWNED VEHICLE... THE MAJORITY CONCLUDED THE HEARSAY ALLEGATIONS IN THE SEARCH WARRANT APPLICATION...