FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`MONROE COUNTY CLERK’S OFFICE
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`RECEIVED NYSCEF: 01/11/2023
`THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
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`INDEX NO. E2023000307
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`Receipt # 3305019
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`Book Page CIVIL
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`No. Pages: 50
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`Instrument: EFILING INDEX NUMBER
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`Control #:
`Index #:
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`202301110263
`E2023000307
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`Date: 01/11/2023
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`Time: 9:18:13 AM
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`Return To:
`JOSEPH LEONARD CIACCIO
`400 Broadhollow Road - Suite 305
`Melville, NY 11747
`
` Truman, The Estate of Roy
`
` Genesee Valley Presbyterian Nursing Center
` ABC Corporation
` ABC Partnership
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` State Fee Index Number
` County Fee Index Number
` State Fee Cultural Education
` State Fee Records
`Management
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`Total Fees Paid:
`
`$165.00
`$26.00
`$14.25
`$4.75
`
`$210.00
`
`Employee: CW
`
`State of New York
`
`MONROE COUNTY CLERK’S OFFICE
`WARNING – THIS SHEET CONSTITUTES THE CLERKS
`ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
`SECTION 319 OF THE REAL PROPERTY LAW OF THE
`STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
`
`JAMIE ROMEO
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`MONROE COUNTY CLERK
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`1 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
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`RECEIVED NYSCEF: 01/11/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF MONROE
`
`
`
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`THE ESTATE OF ROY TRUMAN, by his Administrator,
`JANET ELLIOTT,
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` Plaintiff(s),
` -against-
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`GENESEE VALLEY PRESBYTERIAN NURSING
`CENTER d/b/a KIRKHAVEN; ABC CORPORATION;
`ABC PARTNERSHIP,
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` Defendant(s),
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`SUMMONS
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`Index No.:
`Date Purchased:
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`Plaintiff designates MONROE
`County as the place of trial
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`The basis of venue is defendant
`KIRKHAVEN’s address:
`254 Alexander Street
`Rochester, New York 14607
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`
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`To the above-named Defendants:
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`YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
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`a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
`appearance, on the Plaintiff's attorney within 20 days after the service of this Summons, exclusive
`of the day of service (or within 30 days after the service is complete if this summons is not
`personally delivered to you within the State of New York); and in case of your failure to appear or
`answer, judgment will be taken against you by default for the relief demanded in the complaint.
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`Dated: Melville, New York
`January 11, 2023
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`NAPOLI SHKOLNIK, PLLC
`Attorneys for Plaintiff
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`By: __________________________
`Joseph Ciaccio, Esq.
`400 Broadhollow Road, Suite 305
`Melville, New York 11747
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`
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`Defendant’s Address:
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`GENESEE VALLEY PRESBYTERIAN NURSING CENTER d/b/a KIRKHAVEN
`254 Alexander Street, Rochester, NY 14607
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`2 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF MONROE
`
`THE ESTATE OF ROY TRUMAN, by his Administrator,
`JANET ELLIOTT,
`
` Plaintiff(s),
` -against-
`
`GENESEE VALLEY PRESBYTERIAN NURSING
`CENTER d/b/a KIRKHAVEN; ABC CORPORATION;
`ABC PARTNERSHIP,
`
` Defendant(s)
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`
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`Index No:
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`VERIFIED
`COMPLAINT
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`Plaintiff demands
`a Jury Trial
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`Plaintiff, by her attorneys, NAPOLI SHKOLNIK PLLC, complaining of the defendants,
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`respectfully alleges upon information and belief:
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`a. Plaintiff
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`I.
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`THE PARTIES
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`1.
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`That at all times hereinafter mentioned, plaintiff JANET ELLIOTT, is the daughter of the
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`decedent, ROY TRUMAN, and is a resident of the State of New York, County of Monroe.
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`2.
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`That at all times hereinafter mentioned, plaintiff’s decedent, ROY TRUMAN, was a
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`resident of the County of Monroe, State of New York.
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`3.
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`That on January 11, 2021, plaintiff’s decedent, ROY TRUMAN, died at KIRKHAVEN, in
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`the County of Monroe, State of New York.
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`4.
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`That on July 5, 2022, Letters of Administration were granted by the Surrogate’s Court,
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`State of New York, to plaintiff JANET ELLIOTT.
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`5.
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`That at all times hereinafter mentioned, ROY TRUMAN and his next of kin are represented
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`in this action by his daughter, JANET ELLIOTT, as Administrator of his Estate.
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`6.
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`This action falls within one or more exceptions as set forth in N.Y. Civil Practice Laws and
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`Rules (“C.P.L.R.”) Article 16.
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`b. Defendant Genesee Valley Presbyterian Nursing Center d/b/a Kirkhaven
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`3 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
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`RECEIVED NYSCEF: 01/11/2023
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`7.
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`According to the New York Department of Health, defendant GENESEE VALLEY
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`PRESBYTERIAN NURSING CENTER is the owner and operator of KIRKHAVEN, which is located
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`at 254 Alexander Street, Rochester, NY 14607.
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`8.
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`That at all times relevant hereto, the term “nursing home” shall refer to and include
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`defendants GENESEE VALLEY PRESBYTERIAN NURSING CENTER d/b/a KIRKHAVEN,
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`ABC CORPORATION and/or ABC PARTNERSHIP, the owner(s) and operator(s) of same, as well as any
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`agents, representatives, employees, care givers, nurses, directors, doctors, physician’s assistants, or staff
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`members of said facility or corporations.
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`9.
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`Defendant GENESEE VALLEY PRESBYTERIAN NURSING CENTER d/b/a
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`KIRKHAVEN (hereinafter, “KIRKHAVEN”) is located at 254 Alexander Street, Rochester, NY 14607.
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`10.
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`That at all times hereinafter mentioned, upon information and belief, defendant
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`KIRKHAVEN was and still is a domestic corporation, duly organized under and existing by virtue of the
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`laws of the State of New York.
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`11.
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`That at all times hereinafter mentioned, upon information and belief, the defendant,
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`KIRKHAVEN, was and still is a business entity doing business within the State of New York.
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`12.
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`That at all times hereinafter mentioned, upon information and belief, defendant
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`KIRKHAVEN maintained its principal place of business in the County of Monroe, State of New York.
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`13.
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`Prior to and at all times hereinafter mentioned, defendant GENESEE VALLEY
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`PRESBYTERIAN NURSING CENTER was authorized to do business and to operate a nursing home
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`facility located at 254 Alexander Street, Rochester, NY 14607, County of Monroe, State of New York,
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`known as KIRKHAVEN.
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`14.
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`Prior to and at all times hereinafter mentioned, defendant GENESEE VALLEY
`
`PRESBYTERIAN NURSING CENTER was and is the owner of a certain nursing home facility located
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`at 254 Alexander Street, Rochester, NY 14607, County of Monroe, State of New York, known as
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`KIRKHAVEN.
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`4 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
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`RECEIVED NYSCEF: 01/11/2023
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`15.
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`That at all times hereinafter mentioned, upon information and belief, defendant
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`KIRKHAVEN was the lessor of the aforesaid nursing home facility.
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`16.
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`That at all times hereinafter mentioned, upon information and belief, defendant
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`KIRKHAVEN was the lessee of the aforesaid nursing home facility.
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`17.
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`That at all times hereinafter mentioned, upon information and belief, defendant
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`KIRKHAVEN maintained, managed, operated, controlled, supervised, and inspected the aforesaid nursing
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`home facility.
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`18.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN had possession
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`and control of the building and facilities where the aforesaid nursing home facility is located.
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`19.
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`That at all times relevant hereto, upon information and belief, defendant KIRKHAVEN
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`owned the premises and appurtenances and fixtures thereto, located at 254 Alexander Street, Rochester,
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`NY 14607, County of Monroe, State of New York.
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`20.
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`Prior to and at all times hereinafter mentioned, the defendant, GENESEE VALLEY
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`PRESBYTERIAN NURSING CENTER, was and still remains engaged in conducting and operating a
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`nursing home facility known as KIRKHAVEN, located at 254 Alexander Street, Rochester, NY 14607,
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`County of Monroe, State of New York, and holds itself out to the general public as a facility providing
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`such care and accommodations where patients can be treated by competent and skilled physicians and
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`nursing staff to care for those who are ill.
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`21.
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`Prior to and at all times hereinafter mentioned, the defendant, GENESEE VALLEY
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`PRESBYTERIAN NURSING CENTER, was and still remains engaged in conducting and operating a
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`nursing home facility for nursing care known as KIRKHAVEN, located at 254 Alexander Street, Rochester,
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`NY 14607, County of Monroe, State of New York, and holds itself out to the general public as a facility
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`providing such care and accommodations where patients can be treated by competent and skilled physicians
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`and nursing staff to care for those who are ill.
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`5 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
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`22.
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`Prior to and at all times hereinafter mentioned, the defendant, GENESEE VALLEY
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`PRESBYTERIAN NURSING CENTER, was and still remains engaged in conducting and operating a
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`nursing home facility for the rehabilitation care of ill and injured persons known as KIRKHAVEN, located
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`at 254 Alexander Street, Rochester, NY 14607, County of Monroe , State of New York, and holds itself
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`out to the general public as a facility providing such care and accommodations where patients can be treated
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`by competent and skilled physicians and nursing staff.
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`23.
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`That at all times relevant hereto, defendant KIRKHAVEN claimed to provide for the
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`proper care and safety of the residents at their nursing home facility, claimed to provide personnel, including
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`doctors, nurses, attendants, assistance and others for the proper, safety and good treatment of its patients
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`and residents, and held itself out to the general public as furnishing treatment facilities where patients and
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`residents, including plaintiff’s decedent, ROY TRUMAN, could be provided with proper care and safety.
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`24.
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`That at all times hereinafter mentioned, defendant KIRKHAVEN represented that its
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`nursing home, located at 254 Alexander Street, Rochester, NY 14607, County of Monroe, State of New
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`York, was competent to perform and render all the resident care, medical care, treatment, services and
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`advice required by plaintiff’s decedent, ROY TRUMAN.
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`25.
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`That at all times relevant hereto, defendant KIRKHAVEN was operating a nursing home
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`in the State of New York within the meaning of Article 28 of the Public Health Law and at all times relevant
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`hereto, defendant was under a duty to comply with all duties set forth in that chapter.
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`26.
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`That at all times relevant hereto, nursing homes in the State of New York must comply
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`with all pertinent Federal, State and local laws, regulations, codes, standards and principals, pursuant to the
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`New York Code, Rules and Regulations (NYCRR), 10 NYCRR 415.1 (b)(4).
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`27.
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`That at all times relevant hereto, nursing homes in the State of New York are required to
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`provide care and services in a manner and quality consistent with generally accepted standards of practice
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`pursuant to 10 NYCRR 415.1(b)(1).
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`6 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
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`RECEIVED NYSCEF: 01/11/2023
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`28.
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`That at all times relevant hereto, the nursing home of defendant KIRKHAVEN was and
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`still is a participant in Medicare and Medicaid.
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`29.
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`That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs,
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`the nursing home of defendant KIRKHAVEN was required to be in compliance with the Federal
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`requirements for long-term care as prescribed in the U.S. Code of Federal Regulations, 42 C.F.R. §483.
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`30.
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`That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs,
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`the nursing home of defendant KIRKHAVEN was and still is aware that it is required to be in compliance
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`with the Federal requirements for long-term care as prescribed in the U.S. Code of Federal Regulations, 42
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`C.F.R. §483.
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`31.
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`That under the Code of Federal Regulations, the nursing home facility of defendant
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`KIRKHAVEN, must:
`
`
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`a. have sufficient nursing staff to provide nursing and related
`services to attain and maintain the highest practicable physical,
`mental, and psycho- social well-being of each resident (42 C.F.R.
`§483.30); and,
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`b. provide, if a resident is unable to carry out activities of daily
`living, the necessary services to maintain good nutrition,
`grooming, and personal and oral hygiene (42 C.F.R. §483.25);
`and,
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`c. ensure that the resident’s environment remains free of accident
`hazards (42 C.F.R. §483.25(h)(1)); and,
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`d. ensure that each resident receives adequate supervision and
`assistance devices to prevent accidents (42 C.F.R. §483.25(h)(2));
`and,
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`e. ensure that a resident maintains acceptable parameters of
`nutritional status such as body weight and protein levels (42
`C.F.R. §483.25); and,
`
`f. provide an appropriate assessment of each resident entering a
`certified nursing home and the development and implementation
`of an appropriate care plan so that each resident is allowed to
`attain and maintain the highest practicable mental, physical and
`psycho-social well-being (42 C.F.R. §483.1); and,
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`g. ensure that the facility protects the resident from unnecessary
`falls and accidents (42 C.F.R. §483.25(h)); and,
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`7 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
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`h. conduct an initial assessment to determine the resident’s risks
`of falling and develop a care plan that is tailored to address the
`resident’s needs (42 C.F.R. §483.20); and,
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`i. report any resident falls to the attending physician and also to
`the responsible party for the resident and to monitor the resident’s
`complications from the fall; and,
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`j. the nursing home facility further has an obligation to investigate
`the cause of all falls and develop a plan to protect
`the resident from future falls (42 C.F.R. §483.10(10)); and
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`k. conduct initially (no later than 14 days after admission) and
`periodically (after a significant change in the resident’s physical
`or mental condition and in no case, less often than once every 12
`months) a comprehensive, accurate, standardized, reproducible
`assessment of each resident’s functional capacity (42 C.F.R.
`§483.20); and,
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`l. develop a comprehensive care plan for each resident that
`includes measurable objectives and timetables to meet a resident’s
`medical, nursing, and mental and psycho-social needs that are
`identified in the comprehensive assessment. The care plan must
`be developed within 7 days after completion of the comprehensive
`assessment and describe the services that are to be furnished. Also,
`the care plan must be periodically reviewed and revised by a team
`of qualified persons after each assessment (42 C.F.R. §483.20);
`and,
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`m. prevent the deterioration of a resident’s ability to bathe, dress,
`groom, transfer and ambulate, toilet, eat, and to use speech,
`language or other functional communication systems (42 C.F.R.
`§483.25); and,
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`n. ensure that residents receive proper treatment and assistive
`devices to maintain vision and hearing abilities (42 C.F.R.
`§483.25); and,
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`o. ensure that residents do not develop [pressure sores and, if a
`resident has pressure sores, must provide the necessary treatment
`and services to promote healing (42 C.F.R. §483.25); and,
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`p. provide appropriate treatment and services to incontinent
`residents to restore as much normal bladder functioning as
`possible and prevent injury tract infections (42 C.F.R. §483.25);
`and,
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`q. provide each resident with sufficient fluid intake to maintain
`proper hydration and health (42 C.F.R. §483.25); and,
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`8 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
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`r. ensure that residents are free of any significant medication errors
`(42 C.F.R. §483.25); and,
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`s. care for its residents in a manner and in an environment that
`promotes maintenance or enhancement of each resident’s quality
`of life (42 C.F.R. §483.15); and,
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`t. promote care for residents in a manner and in an environment
`that maintains or enhances each resident’s dignity and respect in
`full recognition of his or her individuality (42 C.F.R. §483.15);
`and,
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`u. ensure that the resident has the right to chose activities
`schedules, and health care consistent with his or her interests,
`assessments, and plan of care (42 C.F.R. §483.15); and,
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`v. ensure that the medical care of each resident is supervised by a
`physician and must provide or arrange for the provision of
`physician services 24 hours per day, in case of an emergency (42
`C.F.R. §483.40); and,
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`w. provide pharmaceutical services (including procedures that
`assure
`the accurate acquiring, receiving, dispensing, and
`administering of all drugs and biologicals) to meet the needs of
`each resident (42 C.F.R. §483.75); and,
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`x. be administered in a manner that enables it to use its resources
`effectively and efficiently to attain or maintain the highest
`practicable physical, mental and psychosocial well-being of each
`resident (42 C.F.R. §483.75); and,
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`y. maintain clinical records on each resident in accordance
`with accepted professional standards and practices that
`are complete, accurately documented, readily accessible,
`and systematically organized (42 C.F.R. §483.75).
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`That at all times relevant hereto, defendant KIRKHAVEN had the duty to properly
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`
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`32.
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`complete a comprehensive assessment for plaintiff’s decedent ROY TRUMAN
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`33.
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`That at all times relevant hereto, defendant KIRKHAVEN had the duty to update a
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`comprehensive assessment for plaintiff’s decedent ROY TRUMAN and to keep it current.
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`34.
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`That at all times relevant hereto, defendant KIRKHAVEN had the duty to properly
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`complete a comprehensive care plan for plaintiff’s decedent ROY TRUMAN.
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`35.
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`That at all times relevant hereto, defendant KIRKHAVEN had the duty to update a
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`comprehensive care plan for plaintiff’s decedent ROY TRUMAN and to keep it current.
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`9 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
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`36.
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`That at all times relevant hereto, defendant KIRKHAVEN, by its officers, employees,
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`agents and/or servants, under OBRA 42 C.F.R. §483.25 and New York State rules and regulations, had the
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`duty to ensure that each resident must receive and the facility must provide the necessary care and services
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`to attain or maintain the highest practicable physical, mental and psycho-social well-being, in accordance
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`with the comprehensive assessment and care plan.
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`37.
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`Prior to and at all times relevant hereto, defendant KIRKHAVEN conducted business as a
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`nursing home facility located at 254 Alexander Street, Rochester, NY 14607, County of Monroe, State of
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`New York, as licensed and defined under New York Public Health Law Section 2801(2).
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`38.
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`Prior to and at all times relevant hereto, defendant KIRKHAVEN conducted business as a
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`residential health care facility located at 254 Alexander Street, Rochester, NY 14607, County of Monroe,
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`State of New York, as licensed and defined under New York Public Health Law Section 2801(3).
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`39.
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`Prior to and at all times hereinafter mentioned, the defendant, KIRKHAVEN, conducted
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`business as an adult care facility located at 254 Alexander Street, Rochester, NY 14607, County of Monroe,
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`State of New York, as licensed and defined under New York Public Health Law Section 2801(2).
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`40.
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`That at all times hereinafter mentioned, defendant KIRKHAVEN was subject to the
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`provisions of New York Public Health Law Section 2801-c.
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`41.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN was a nursing
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`home facility providing therein nursing care to sick, invalid, infirm, disabled or convalescent persons in
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`addition to lodging and board or health related services pursuant to New York Public Health Law Section
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`2801(2).
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`42.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN is a nursing home
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`as within the meaning of Public Health Law Section 2801(2).
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`43.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN is a residential
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`health care facility within the meaning of Public Health Law Section 2801(3).
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`44.
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`Prior to and at all times relevant hereto, defendant KIRKHAVEN was a facility subject to
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`the provisions of New York Public Health Law Section 2801-d.
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`10 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
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`RECEIVED NYSCEF: 01/11/2023
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`45.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN was a facility
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`subject to the provisions of New York Public Health Law Section 2803-c.
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`46.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN was a facility
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`subject to the-provisions of Public Health Law Section 42 U.S.C. Section 1395(i) et seq.
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`47.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN was a facility
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`subject to the provisions of Public Health Law Section 1396(r) (1990) et seq. as amended by the Omnibus
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`Budget Reconciliation Act of 1987 (OBRA Regulations).
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`48.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN was a facility
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`subject to the provisions of Public Health Law Section 42 Code of Federal Regulations Parts 483, setting
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`Medicare and Medicaid Requirements for long term facilities ("OBRA" regulations) as effective October
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`1, 1990.
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`49.
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`Prior to and at all times hereinafter mentioned, the nursing home operated by defendant
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`KIRKHAVEN was a "nursing facility" as defined by 42 U.S.C.A. Section 1396(r).
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`50.
`
`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN is a licensed
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`nursing home as such term is understood in law.
`
`51.
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`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN is a nursing home
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`certified for participation in the Medicare and Medicaid program as an intermediate skilled care facility.
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`52.
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`Prior to and at all times hereinafter mentioned, by reason of selection to participate as a
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`long-term care provider, defendant KIRKHAVEN was able to enjoy substantial revenues paid for by tax
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`fare funded government programs.
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`53.
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`Prior to and at all times hereinafter mentioned, the aforementioned government programs
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`provided defendant KIRKHAVEN with a guaranteed source of income and a continual flow of residents
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`whose care was paid for by the Medicare and Medicaid program or some other taxpayer funded program.
`
`54.
`
`Prior to and at all times hereinafter mentioned, plaintiff-decedent, was the type of resident
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`whose care was paid for by the government and was the type of resident defendant KIRKHAVEN actively
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`sought in order to fill their empty beds, increase their rate of occupancy, and overall revenues.
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
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`55.
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`At all times relevant to this Complaint, defendant KIRKHAVEN was a proprietary
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`corporation engaged in the for-profit operation of a nursing home, which claimed to “specialize” in the care
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`of helpless individuals who are chronically infirm, mentally dysfunctional and/or in need of nursing care
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`and treatment.
`
`56.
`
`Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff-
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`decedent and other patients whose care was funded by the government were placed at their nursing home,
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`defendant KIRKHAVEN held itself out to the New York Department of Health, the New York Department
`
`of Social Services and the public at large as being skilled in the performance of nursing, and other medical
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`support services.
`
`57.
`
`Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff-
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`decedent and other patients whose care was funded by the government were placed at their nursing home,
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`defendant KIRKHAVEN held itself out to the New York Department of Health, the New York Department
`
`of Social Services and the public at large as being properly staffed, supervised and equipped to meet the
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`total needs of their nursing home residents.
`
`58.
`
`Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff-
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`decedent and other patients whose care was funded by the government were placed at their nursing home,
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`defendant KIRKHAVEN held itself out to the New York Department of Health, the New York Department
`
`of Social Services, and the public at large as being able to specifically meet the total nursing, medical and
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`physical therapy needs of plaintiff’s decedent and other residents like him.
`
`59.
`
`Prior to and at all times hereinafter mentioned, defendant KIRKHAVEN, its principals,
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`supervisors, agents, officers, employees, independent medical personnel, independent contractors, and/or
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`Administrator; Assistant Administrator; Director of Nursing; Assistant Director of Nursing; Medical
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`Director; Assistant Medical Director, or any or all of its corporate defendant stockholders, employees,
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`independent medical personnel and/or independent contractors, or those of its nursing home, and all staff
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`and personnel affiliated with defendant, were all well aware of the medical conditions and the care that
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`
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
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`plaintiff’s decedent required, represented that they could adequately care for his needs, and persuaded the
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`plaintiff’s decedent and decedent's family to that effect.
`
`60.
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`That at all times relevant hereto, plaintiff’s decedent, ROY TRUMAN, was a resident at
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`defendant’s facility located at 254 Alexander Street, Rochester, NY 14607, County of Monroe, State of
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`New York, and was under the care and management of defendant KIRKHAVEN.
`
`61.
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`That at all times relevant hereto, defendant KIRKHAVEN stood in such a relationship with
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`plaintiff’s decedent ROY TRUMAN, as to make it liable for the acts and omissions of its doctors, nurses,
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`staff and employees.
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`c. Defendants ABC Corporation and ABC Partnership
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`62. That at all times hereinafter mentioned, upon information and belief, defendant ABC
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`CORPORATION was and still is a foreign or domestic corporation, duly organized under and existing by
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`virtue of the laws of the State of New York. ABC CORPORATION is designated with a fictitious name
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`because its identity and legal name is unknown to plaintiff at this time.
`
`63.
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` That at all times hereinafter mentioned, upon information and belief, defendants ABC
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`PARTNERSHIP was and still is a foreign or domestic partnership, duly organized under and existing by
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`virtue of the laws of the State of New York. ABC PARTNERSHIP is designated with a fictitious name
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`because its identity and legal name is unknown to plaintiff at this time.
`
`64.
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` Based on information and belief, defendant GENESEE VALLEY PRESBYTERIAN
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`NURSING CENTER d/b/a KIRKHAVEN is owned and operated by defendant ABC CORPORATION
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`and/or ABC PARTNERSHIP, individually, jointly, severally, and in the alternative.
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`STATEMENT OF FACTS COMMON TO ALL CAUSES OF ACTION
`
`65.
`
`On December 31, 2019, the World Health Organization (herein after referred to as “WHO”)
`
`China Country Office was informed of dozens of cases of pneumonia of unknown etiology detected in
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`Wuhan City, Hubei Province of China.
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`13 of 50
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
`
`66.
`
`In or around January 2020, Defendants were made aware of severe acute respiratory
`
`syndrome coronavirus 2 (SARS-CoV-2) spreading world-wide and nationally, known colloquially as the
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`coronavirus, that caused severe medical distress and death in individuals who caught the disease, especially,
`
`the elderly.
`
`67.
`
`On January 7, 2020, the viral outbreak in Wuhan, China was identified as a new type/strain
`
`of coronavirus, 2019-nCoV (hereinafter referred to as “novel coronavirus”).
`
`68.
`
`SARS-CoV-2 is known and documented to cause a debilitating and deadly disease, the
`
`Coronavirus disease 2019(hereinafter, “COVID-19”).
`
`69.
`
`On January 11, 2020, Chinese state media reported its first known death from the novel
`
`coronavirus.
`
`70.
`
`On January 12, 2020, China shared the genetic sequence of the novel coronavirus for
`
`countries to use in developing specific diagnostic kits.
`
`71.
`
`On January 20, 2020, Japan, South Korea and Thailand reported their first confirmed cases
`
`of the novel coronavirus. On that same day, the head of a Chinese government coronavirus team confirmed
`
`that the novel coronavirus outbreak was transmitted by human-to-human contact, which was a development
`
`that put medical facilities, institutions, and long-term skilled nursing facilities on notice of the possibility
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`that the novel corona virus could spread quickly and widely.
`
`72.
`
`On January 23, 2020, the United States and WHO confirmed its first case of the novel
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`coronavirus in the State of Washington.
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`73.
`
`On February 11, 2020, the WHO announced “COVID-19” as the shortened name of the
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`novel “coronavirus disease 2019”.
`
`74.
`
`On February 13, 2020, the U.S. Director of The Centers for Disease Control and Prevention
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`(hereinafter referred to as “CDC”) announced that COVID-19 will likely become a community virus and
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`remain beyond this current season.
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`01/11/2023 09:18:13 AM
`202301110263
`FILED: MONROE COUNTY CLERK 01/11/2023 09:00 AM
`NYSCEF DOC. NO. 1
`
`CIVIL202301110263
`INDEX NO. E2023000307
`
`RECEIVED NYSCEF: 01/11/2023
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`75.
`
`On February 25, 2020, the CDC issued a warning that spread of the virus to the United
`
`States is likely and that people should prepare; and U.S. senators receive a classified briefing on the Trump
`
`administration’s coronavirus response.
`
`76.
`
`COVID-19 can and has spread rapidly in long-term residential care facilities and persons
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`with chronic underlying medical conditions are at greater risk for COVID-19.
`
`77.
`
`On February 28, 2020, a case of the novel coronavirus disease was identified and confirmed
`
`in a woman resident of a long-term care skilled nursing facility in King County, Washington. A subsequent
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`epidemiologic investigation identified 129 cases of COVID-19, including 81 residents (over 62% of the
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`resident population), 34 staff members, and 14 visitors. 1
`
`78.
`
`These residents and/or patients there were the first in the nation to suffer from and die as a
`
`result of the COVID-19 virus, and news of the dire situation and the first deaths in the United States at the
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`Life Care Center in Kirkland, Washington was widespread all throughout the United States and was known
`
`to all nursing homes.
`
`79.
`
`On February 29, 2020, the United States instituted “do not travel warnings” for affected
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`areas including Italy and South Korea.
`
`80.
`
`On February 29, 2020, the CDC posted “Healthcare Facilities: Preparing for Community
`
`Transmission” with the following specific instructions to nursing homes:
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` Limit visitors to the facility.
` Post visual alerts (signs, posters) at entrances and in strategic places providing instruction
`on hand hygiene, respiratory hygiene, and cough etiquette.
` Ensure supplies are available (tissues, waste receptacles, alcohol-based hand sanitizer).
` Take steps to prevent known or suspected COVID-19 patients from exposing other
`patients.
` Limit the movement of COVID-19 patients (e.g. keep them in their rooms)
`
`Identify dedicated staff to care for COVID-19 patients.
` Observe newly arriving patients/residents for development of res