RESIDENTS OF A NURSING HOME ALLEGING INADEQUATE STAFFING, UNPALATABLE FOOD, MEDICATION DELAYS, INJURIES DUE TO INSUFFICIENT SUPERVISION, AND ALLOWING RESIDENTS TO SIT IN THEIR OWN WASTE, WERE PROPERY CERTIFIED AS A CLASS IN THIS PUBLIC HEALTH LAW 2801-D ACTION (SECOND DEPT).

The Second Department, in an extensive full-fledged opinion by Justice Ford, distinguishing a prior ruling involving similar issues, determined Supreme Court properly certified nursing-home patients at defendant’s facility as a class in this suit alleging substandard care:

The issue presented on this appeal is whether the Supreme Court properly granted the plaintiffs’ motion for class certification in this putative class action alleging a violation of Public Health Law § 2801-d. … [W]e distinguish our precedent in Olmann v Willoughby Rehabilitation & Health Care Ctr., LLC (186 AD3d 837) and determine that the court properly held … that the plaintiffs established the commonality and superiority requirements of CPLR 901(a) and, thus, correctly granted plaintiffs’ motion for class certification. * * *

… [T]he New York State Department of Health issued a report that revealed multiple issues within Sapphire, including rooms in disrepair, improper food monitoring, late medications, and insufficient staffing. Specifically, the report found, inter alia, that “[b]ased on observation, interview and record review during a recertification survey, the facility did not ensure that sufficient nursing staff were available to provide the services necessary to attain the highest practicable physical, mental and psychosocial well-being of the resident population . . . in accordance with resident needs identified in the facility assessment.” …

The plaintiffs’ motion … included multiple affidavits of family members of residents and former residents …, as well as the affidavit of a former resident, in support of the allegation that [the facility] was insufficiently staffed. These affidavits contained … allegations of unpalatable food, medication delays, injuries due to insufficient supervision, and instances of residents sitting in their own waste for hours at a time. Jenack v Goshen Operations, LLC, 2023 NY Slip Op 05495, First Dept 11-1-23

Practice Point: Here residents of a nursing home alleging substandard care in violation of Public Health Law 2801-d were properly certified as a class. The court distinguished a prior ruling where the action sounded in both negligence and violation of the Public Health Law.