FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`
`
`
`
`THE ESTATE OF STANISLAWA KOCHANOWSKA, by her
`VERIFIED
`Administrator, JOHN COSTA,
`AMENDED COMPLAINT
`
`
` Plaintiff(s),
`
`
` -against-
`
`
`Index No. 500030/2023
`d/b/a
`INC.
`CARE,
`COMMONS
`FULTON
`
`INC.;
`CENTER,
`CARE
`COMMONS
`FULTON
`
`MOSHE KALTER; FRADY KALTER; AARON FOGEL;
`Plaintiff demands
`CORPORATION;
`ESTHER
`FOGEL;
`ABC
`a Jury Trial
`ABC PARTNERSHIP,
`
` Defendant(s).
`
`
`
`Plaintiff, by his attorneys, NAPOLI SHKOLNIK PLLC, complaining of the Defendants,
`
`respectfully alleges upon information and belief:
`
`I.
`
`THE PARTIES
`
`a. Plaintiff
`
`
`
`1.
`
`That at all times hereinafter mentioned, plaintiff JOHN COSTA, is the son and next of kin
`
`of the decedent, STANISLAWA KOCHANOWSKA, and is a resident of the State of Florida.
`
`2.
`
`That
`
`at
`
`all
`
`times
`
`hereinafter
`
`mentioned,
`
`plaintiff’s
`
`decedent,
`
`STANISLAWA KOCHANOWSKA, was a resident of the County of Nassau, State of New York.
`
`3.
`
`That on April 10, 2020, plaintiff’s decedent, STANISLAWA KOCHANOWSKA,
`
`died while in the care of FULTON COMMONS CARE CENTER, INC. in the County of Nassau, State of
`
`New York.
`
`4.
`
`That on April 5, 2024, the Nassau County Surrogate’s Court issued a Decree Granting
`
`Administration appointing JOHN COSTA as Administrator of STANISLAWA KOCHANOWSKA’s
`
`estate.
`
`5.
`
`That at all times hereinafter mentioned, STANISLAWA KOCHANOWSKA is represented
`
`in this action by her son and next of kin, JOHN COSTA, as Administrator of her Estate.
`
`
`
`1 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`6.
`
`This action falls within one or more exceptions as set forth in N.Y. Civil Practice Laws and
`
`Rules (“C.P.L.R.”) Article 16.
`
`b. Defendant Fulton Commons Care, Inc. d/b/a Fulton Commons Care Center, Inc.
`
`7.
`
`Defendant FULTON COMMONS CARE, INC. is located at 60 Merrick Ave,
`
`East Meadows, NY 11554, County of Nassau.
`
`8.
`
`According to the New York Department of Health, defendant FULTON COMMONS
`
`CARE, INC. is the owner and operator of the nursing home facility known as FULTON COMMONS CARE
`
`CENTER, INC., which is located at 60 Merrick Ave, East Meadows, NY 11554.
`
`9.
`
`Upon information and belief, defendants MOSHE KALTER, FRADY KALTER,
`
`AARON FOGEL and ESTHER FOGEL own the majority of FULTON COMMONS CARE, INC.
`
`(hereinafter referred to as “DEFENDANT OWNERS”).
`
`10.
`
`Upon information and belief, DEFENDANT OWNERS were under investigation and now
`
`have pending litigation against them filed by the New York State Attorney General’s Office related to their
`
`ownership of another nursing home, FULTON COMMONS CARE, INC. (Index No. 617687/2022).
`
`11.
`
`In sum, the findings of the New York State Attorney General’s Office are that each of the
`
`DEFENDANT OWNERS engaged in a scheme to convert millions of dollars of profits from Medicaid and
`
`Medicare while at the same time intentionally providing inadequate treatment and conditions in their
`
`nursing home. The New York State Attorney General’s Office has found that DEFENDANT OWNERS, in
`
`relation to their ownership of FULTON COMMONS CARE, INC., “Allegedly $14,913,403 Million was
`
`diverted as up-front profit for Kalter, Fogel, Fulton Realty LO, and Fulton Realty Inc. and $1,056,990.79
`
`as salaries paid to the Kalter -1% Owners for no-show jobs”1.
`
`
`
`
`1 “Up-front profit” refers to the practice of making payments from the nursing home to Respondents under the guise of pre-determined and self-
`negotiated “expenses” and other transfers of funds, as a priority over, and without regard to, ensuring that the nursing home has used the public
`funds it received to meet the nursing home’s duty to provide required care, with sufficient staffing to render such care, to its residents is referred
`to herein as “up-front profit.” See infra, ¶¶ 7-8.
`
`
`
`2 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`12.
`
`The New York State Attorney General’s Office also found that DEFENDANT OWNERS,
`
`allegedly in relation to their ownership of nursing homes: “Long before the Covid-19 pandemic, the owners
`
`repeatedly cut staffing at (Fulton Commons Care Inc.) which created poor working conditions, and
`
`endangered residents”. Id. With regard to the DEFENDANT OWNERS, Attorney General Letisha James
`
`has stated that they have “put profits over patient care and left vulnerable New Yorkers to live in
`
`heartbreaking and inhumane conditions”. Id.
`
`13.
`
`Additionally, the Attorney General’s lawsuit “alleges that the owners and operators of
`
`Fulton Commons engaged in fraudulent financial schemes that violated numerous laws designed to protect
`
`nursing home residents, resulting in preventable neglect and harm.” Id.
`
`14.
`
`Upon information and belief, DEFENDANT OWNERS, through their ownership and
`
`management of FULTON COMMONS CARE, INC., engaged in these same practices and conduct,
`
`including seeking and taking profits at the expense of providing appropriate treatment, care, and conditions
`
`to the residents of FULTON COMMONS CARE CENTER INC., including plaintiff’s decedent,
`
`STANISLAWA KOCHANOWSKA.
`
`15.
`
`That at all times relevant hereto, the term “nursing home” shall refer to and include
`
`defendants FULTON COMMONS CARE, INC. d/b/a FULTON COMMONS CARE CENTER, INC.,
`
`ABC CORPORATION and/or ABC PARTNERSHIP, the owner(s) and operator(s) of same, as well as any
`
`agents, representatives, employees, care givers, nurses, directors, doctors, physician’s assistants, or staff
`
`members of said facility or corporations.
`
`16.
`
`That at all times hereinafter mentioned, upon information and belief, defendant FULTON
`
`COMMONS CARE, INC. was and still is a domestic limited liability company, duly organized under and
`
`existing by virtue of the laws of the State of New York.
`
`17.
`
`That at all times hereinafter mentioned, upon information and belief, the defendant,
`
`FULTON COMMONS CARE, INC., was and still is a business entity doing business within the State of
`
`New York.
`
`
`
`3 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
`
`18.
`
`That at all times hereinafter mentioned, upon information and belief, defendant FULTON
`
`COMMONS CARE, INC. maintained its principal place of business in the County of Nassau, State of New
`
`York.
`
`19.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. was authorized to do business and to operate a nursing home facility located at 60 Merrick Ave,
`
`East Meadows, NY 11554.
`
`20.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. was and is the owner of a certain nursing home facility located at 60 Merrick Ave, East Meadows,
`
`NY 11554.
`
`21.
`
`That at all times hereinafter mentioned, upon information and belief, defendant FULTON
`
`COMMONS CARE, INC. was the lessor of the aforesaid nursing home facility.
`
`22.
`
`That at all times hereinafter mentioned, upon information and belief, defendant FULTON
`
`COMMONS CARE, INC. was the lessee of the aforesaid nursing home facility.
`
`23.
`
`That at all times hereinafter mentioned, upon information and belief, defendant FULTON
`
`COMMONS CARE, INC. maintained, managed, operated, controlled, supervised, and inspected the
`
`aforesaid nursing home facility.
`
`24.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC had possession and control of the building and facilities where the aforesaid nursing home facility is
`
`located.
`
`25.
`
`That at all times relevant hereto, upon information and belief, defendant FULTON
`
`COMMONS CARE, INC owned the premises and appurtenances and fixtures thereto, located at 60 Merrick
`
`Ave, East Meadows, NY 11554.
`
`26.
`
`Prior to and at all times hereinafter mentioned, the defendant, FULTON COMMONS
`
`CARE, INC. was and still remains engaged in conducting and operating a nursing home facility known as
`
`FULTON COMMONS CARE CENTER INC., located at 60 Merrick Ave, East Meadows, NY 11554,
`
`County of Nassau, State of New York, and holds itself out to the general public as a facility providing such
`
`
`
`4 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`care and accommodations where patients can be treated by competent and skilled physicians and nursing
`
`staff to care for those who are ill.
`
`27.
`
`Prior to and at all times hereinafter mentioned, the defendant, FULTON COMMONS
`
`CARE, INC., was and still remains engaged in conducting and operating a nursing home facility for nursing
`
`care known as FULTON COMMONS CARE CENTER INC., located at 60 Merrick Ave, East Meadows,
`
`NY 11554, County of Nassau, State of New York, and holds itself out to the general public as a facility
`
`providing such care and accommodations where patients can be treated by competent and skilled physicians
`
`and nursing staff to care for those who are ill.
`
`28.
`
`Prior to and at all times hereinafter mentioned, the defendant, FULTON COMMONS
`
`CARE, INC., was and still remains engaged in conducting and operating a nursing home facility for the
`
`rehabilitation care of ill and injured persons known as FULTON COMMONS CARE CENTER INC.,
`
`located at 60 Merrick Ave, East Meadows, NY 11554, County of Nassau, State of New York, and holds
`
`itself out to the general public as a facility providing such care and accommodations where patients can be
`
`treated by competent and skilled physicians and nursing staff.
`
`29.
`
`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC. claimed
`
`to provide for the proper care and safety of the residents at their nursing home facility, claimed to provide
`
`personnel, including doctors, nurses, attendants, assistance and others for the proper, safety and good
`
`treatment of its patients and residents, and held itself out to the general public as furnishing treatment
`
`facilities where patients and residents, including plaintiff’s decedent, STANISLAWA KOCHANOWSKA,
`
`could be provided with proper care and safety.
`
`30.
`
`That at all times hereinafter mentioned, defendant FULTON COMMONS CARE, INC.
`
`represented that its nursing home, located at 60 Merrick Ave, East Meadows, NY 11554, was competent to
`
`perform and render all the resident care, medical care, treatment, services and advice required by plaintiff’s
`
`decedent, STANISLAWA KOCHANOWSKA.
`
`
`
`
`
`5 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
`
`31.
`
`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC. was
`
`operating a nursing home in the State of New York within the meaning of Article 28 of the Public Health
`
`Law and at all times relevant hereto, defendant was under a duty to comply with all duties set forth in that
`
`chapter.
`
`32.
`
`That at all times relevant hereto, nursing homes in the State of New York must comply
`
`with all pertinent Federal, State and local laws, regulations, codes, standards and principals, pursuant to the
`
`New York Code, Rules and Regulations (NYCRR), 10 NYCRR 415.1 (b)(4).
`
`33.
`
`That at all times relevant hereto, nursing homes in the State of New York are required to
`
`provide care and services in a manner and quality consistent with generally accepted standards of practice
`
`pursuant to 10 NYCRR 415.1(b)(1).
`
`34.
`
`That at all times relevant hereto, the nursing home of defendant FULTON COMMONS
`
`CARE, INC. was and still is a participant in Medicare and Medicaid.
`
`35.
`
`That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs,
`
`the nursing home of defendant FULTON COMMONS CARE, INC. was required to be in compliance with
`
`the Federal requirements for long-term care as prescribed in the U.S. Code of Federal Regulations, 42
`
`C.F.R. §483.
`
`36.
`
`That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs,
`
`the nursing home of defendant FULTON COMMONS CARE, INC. was and still is aware that it is required
`
`to be in compliance with the Federal requirements for long-term care as prescribed in the U.S. Code of
`
`Federal Regulations, 42 C.F.R. §483.
`
`37.
`
`That under the Code of Federal Regulations, the nursing home facility of defendant
`
`FULTON COMMONS CARE, INC, must be in compliance with the following standards and directives:
`
` 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,
`
`
`
`
`
`
`
`6 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
`
`RECEIVED NYSCEF: 04/05/2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`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,
`
`c. ensure that the resident’s environment remains free of accident
`hazards (42 C.F.R. §483.25(h)(1)); and,
`
`d. ensure that each resident receives adequate supervision and
`assistance devices to prevent accidents (42 C.F.R. §483.25(h)(2));
`and,
`
`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,
`
`g. ensure that the facility protects the resident from unnecessary
`falls and accidents (42 C.F.R. §483.25(h)); and,
`
`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,
`
`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,
`
`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
`
`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,
`
`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
`
`
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`7 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
`
`RECEIVED NYSCEF: 04/05/2024
`
`a team of qualified persons after each assessment (42 C.F.R.
`§483.20); and,
`
`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,
`
`n. ensure that residents receive proper treatment and assistive
`devices to maintain vision and hearing abilities (42 C.F.R.
`§483.25); and,
`
`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,
`
`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,
`
`q. provide each resident with sufficient fluid intake to maintain
`proper hydration and health (42 C.F.R. §483.25); and,
`
`r. ensure that residents are free of any significant medication errors
`(42 C.F.R. §483.25); and,
`
`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,
`
`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,
`
`u. ensure that the resident has the right to choose activities
`schedules, and health care consistent with his or her interests,
`assessments, and plan of care (42 C.F.R. §483.15); and,
`
`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,
`
`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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`
`
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`8 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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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,
`
`
`
`38.
`
`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).
`
`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC. d/b/a
`
`FULTON COMMONS CARE CENTER INC. had the duty to properly complete a comprehensive
`
`assessment for plaintiff’s decedent STANISLAWA KOCHANOWSKA.
`
`39.
`
`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC. d/b/a
`
`FULTON COMMONS CARE CENTER, INC. had the duty to update a comprehensive assessment for
`
`plaintiff’s decedent STANISLAWA KOCHANOWSKA and to keep it current.
`
`40.
`
`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC. d/b/a
`
`FULTON COMMONS CARE CENTER, INC. had the duty to properly complete a comprehensive care
`
`plan for plaintiff’s decedent STANISLAWA KOCHANOWSKA.
`
`41.
`
`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC. d/b/a
`
`FULTON COMMONS CARE CENTER, INC. had the duty to update a comprehensive care plan for
`
`plaintiff’s decedent STANISLAWA KOCHANOWSKA and to keep it current.
`
`42.
`
`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC., by its
`
`officers, employees, agents and/or servants, under OBRA 42 C.F.R. §483.25 and New York State rules and
`
`regulations, had the duty to ensure that each resident receive, and the facility must provide, the necessary
`
`care and services to attain or maintain the highest practicable physical, mental and psycho-social well-being
`
`of their residents, in accordance with the comprehensive assessment and care plan.
`
`43.
`
`Prior to and at all times relevant hereto, defendant FULTON COMMONS CARE, INC.
`
`conducted business as a nursing home facility located at One Greenwich Street, Hempstead, NY 11550,
`
`County of Nassau, State of New York, as licensed and defined under New York Public Health Law Section
`
`2801(2).
`
`
`
`9 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
`
`44.
`
`Prior to and at all times relevant hereto, defendant FULTON COMMONS CARE, INC.
`
`conducted business as a residential health care facility located at 60 Merrick Ave, East Meadows,
`
`NY 11554, County of Nassau, State of New York, as licensed and defined under New York Public Health
`
`Law Section 2801(3).
`
`45.
`
`Prior to and at all times hereinafter mentioned, the defendant, FULTON COMMONS
`
`CARE, INC., conducted business as an adult care facility located at 60 Merrick Ave, East Meadows,
`
`NY 11554, County of Nassau, State of New York, as licensed and defined under New York Public Health
`
`Law Section 2801(2).
`
`46.
`
`That at all times hereinafter mentioned, defendant FULTON COMMONS CARE, INC.
`
`was subject to the provisions of New York Public Health Law Section 2801-c.
`
`47.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. d/b/a FULTON COMMONS CARE CENTER, INC. was a nursing home facility providing therein
`
`nursing care to sick, invalid, infirm, disabled or convalescent persons in addition to lodging and board or
`
`health related services pursuant to New York Public Health Law Section 2801(2).
`
`48.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. d/b/a FULTON COMMONS CARE CENTER, INC. is a nursing home as within the meaning of
`
`Public Health Law Section 2801(2).
`
`49.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. d/b/a FULTON COMMONS CARE CENTER, INC. is a residential health care facility within the
`
`meaning of Public Health Law Section 2801(3).
`
`50.
`
`Prior to and at all times relevant hereto, defendant FULTON COMMONS CARE, INC.
`
`d/b/a FULTON COMMONS CARE CENTER, INC. was a facility subject to the provisions of New York
`
`Public Health Law Section 2801-d.
`
`51.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. d/b/a FULTON COMMONS CARE CENTER, INC. was a facility subject to the provisions of New
`
`York Public Health Law Section 2803-c.
`
`
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`10 of 60
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`FILED: NASSAU COUNTY CLERK 04/05/2024 03:25 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
`
`52.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. d/b/a FULTON COMMONS CARE CENTER, INC. was a facility subject to the-provisions of Public
`
`Health Law Section 42 U.S.C. Section 1395(i) et seq.
`
`53.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
`
`INC. d/b/a FULTON COMMONS CARE CENTER, INC. was a facility subject to the provisions of Public
`
`Health Law Section 1396(r) (1990) et seq. as amended by the Omnibus Budget Reconciliation Act of 1987
`
`(OBRA Regulations).
`
`54.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
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`INC. d/b/a FULTON COMMONS CARE CENTER, INC. was a facility subject to the provisions of Public
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`Health Law Section 42 Code of Federal Regulations Parts 483, setting Medicare and Medicaid
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`Requirements for long-term facilities (“OBRA” regulations) as effective October 1, 1990.
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`55.
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`Prior to and at all times hereinafter mentioned, the nursing home operated by defendant
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`FULTON COMMONS CARE, INC was a “nursing facility” as defined by 42 U.S.C.A. Section 1396(r).
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`56.
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`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
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`INC. d/b/a FULTON COMMONS CARE CENTER, INC. is a licensed nursing home as such term is
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`understood in law.
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`57.
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`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
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`INC. d/b/a FULTON COMMONS CARE CENTER, INC. is a nursing home certified for participation in
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`the Medicare and Medicaid program as an intermediate skilled care facility.
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`58.
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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 FULTON COMMONS CARE, INC. was able to enjoy substantial
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`revenues paid for by tax fare funded government programs.
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`59.
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`Prior to and at all times hereinafter mentioned, the aforementioned government programs
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`provided defendant FULTON COMMONS CARE, INC. with a guaranteed source of income and a
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`continual flow of residents whose care was paid for by the Medicare and Medicaid program or some other
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`taxpayer funded program.
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`60.
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`Prior to and at all times hereinafter mentioned, plaintiff-decedent STANISLAWA
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`KOCHANOWSKA, was the type of resident whose care was paid for by the government and was the type
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`of resident defendant FULTON COMMONS CARE, INC. actively sought in order to fill their empty beds,
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`increase their rate of occupancy, and overall revenues.
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`61.
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`At all times relevant to this Amended Complaint, defendant FULTON COMMONS
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`CARE, INC. was a proprietary corporation engaged in the for-profit operation of a nursing home,
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`which claimed to “specialize” in the care of helpless individuals who are chronically infirm,
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`mentally dysfunctional and/or in need of nursing care and treatment.
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`62.
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`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 FULTON COMMONS CARE, INC. held itself out to the New York Department of Health,
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`the New York Department of Social Services and the public at large as being skilled in the performance of
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`nursing, and other medical support services.
`
`63.
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`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 FULTON COMMONS CARE, INC. held itself out to the New York Department of Health,
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`the New York Department of Social Services and the public at large as being properly staffed,
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`supervised and equipped to meet the total needs of their nursing home residents.
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`64.
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`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 FULTON COMMONS CARE, INC. held itself out to the New York Department of Health,
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`the New York Department of Social Services, and the public at large as being able to specifically meet the
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`total nursing, medical and physical therapy needs of plaintiff’s decedent and other residents like her.
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`65.
`
`Prior to and at all times hereinafter mentioned, defendant FULTON COMMONS CARE,
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`INC. d/b/a FULTON COMMONS CARE CENTER, INC., its principals, supervisors, agents, officers,
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`employees,
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`independent medical personnel,
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`independent contractors, and/or Administrator;
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`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`Assistant Administrator; Director of Nursing; Assistant Director of Nursing; Medical Director;
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`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
`
`and personnel affiliated with defendant, were all well aware of the medical conditions and the care that
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`plaintiff’s decedent STANISLAWA KOCHANOWSKA required, represented that they could adequately
`
`care for her needs, and persuaded the plaintiff’s decedent and decedent’s family to that effect.
`
`66.
`
`That commencing during the period of admission until on or about April 10, 2020,
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`plaintiff’s decedent STANISLAWA KOCHANOWSKA was a patient and resident of the nursing home
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`facility known as FULTON COMMONS CARE CENTER, INC., located at 60 Merrick Ave,
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`East Meadows, NY 11554, owned and operated by FULTON COMMONS CARE, INC., and was under
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`their care and management.
`
`67.
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`That commencing during the period of admission until on or about April 10, 2020,
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`plaintiff’s decedent STANISLAWA KOCHANOWSKA sought the professional care of defendant
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`FULTON COMMONS CARE, INC. at its facility for rehabilitation and for nursing home care,
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`and defendant, by its agents, servants and/or employees, agreed to and undertook the responsibility of
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`rendering medical and nursing care, diagnosis, treatment, and services to plaintiff’s decedent.
`
`68.
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`At all times relevant to the Amended Complaint therein, Defendant FULTON COMMONS
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`CARE, INC. d/b/a FULTON COMMONS CARE CENTER, INC. by and through its employees, personnel,
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`physicians, nurses, assistants, agents and/or partners, controlled the care of plaintiff’s decedent
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`STANISLAWA KOCHANOWSKA.
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`69.
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`That at all times relevant hereto, defendant FULTON COMMONS CARE, INC d/b/a
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`FULTON COMMONS CARE CENTER INC stood in such a relationship with plaintiff’s decedent
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`STANISLAWA KOCHANOWSKA, 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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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`70. While under the treatment and care of defendant FULTON COMMONS CARE, INC. d/b/a
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`FULTON COMMONS CARE CENTER, INC., plaintiff’s decedent STANISLAWA KOCHANOWSKA,
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`among other things, respiratory distress, fever, shortness of breath, new or change in cough and sore throat,
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`all of which caused her extensive conscious pain and suffering right up until her death, on April 10, 2020.
`
`71.
`
`On April 2020, plaintiff’s decedent STANISLAWA KOCHANOWSKA contracted
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`COVID-19 at FULTON COMMONS CARE CENTER, INC. As a result, on April 10, 2020,
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`STANISLAWA KOCHANOWSKA died from cardiopulmonary arrest due to COVID-19 infection.
`
`c. Defendant Moshe Kalter
`
`72.
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`Based upon information and belief, defendant MOSHE KALTER was or is the co-owner,
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`manager, shareholder and operator of FULTON COMMONS CARE, INC., entity that owns and operates
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`FULTON COMMONS CARE CENTER, INC., a nursing home facility located at 60 Merrick Ave.,
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`East Meadows, NY 11554, County of Nassau.
`
`73.
`
`That at all times hereinafter mentioned, upon information and belief, defendant MOSHE
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`KALTER was the lessor of FULTON COMMONS CARE, INC. d/b/a FULTON COMMONS CARE
`
`CENTER, INC.
`
`74.
`
`That at all times hereinafter mentioned, upon information and belief, defendant MOSHE
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`KALTER was the lessee of FULTON COMMONS CARE, INC. d/b/a FULTON COMMONS CARE
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`CENTER, INC.
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`75.
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`That at all times hereinafter mentioned, upon information and belief, defendant MOSHE
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`KALTER maintained, managed, operated, controlled, supervised, and inspected FULTON COMMONS
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`CARE, INC. d/b/a FULTON COMMONS CARE CENTER, INC.
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`76.
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`Prior to and at all times hereinafter mentioned, the defendant MOSHE KALTER had
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`possession and control of the building, facilities, and equipment where FULTON COMMONS CARE, INC.
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`d/b/a FULTON COMMONS CARE CENTER, INC. is located.
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`14 of 60
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`NYSCEF DOC. NO. 13
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`INDEX NO. 500030/2023
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`RECEIVED NYSCEF: 04/05/2024
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`77.
`
`That at all times relevant hereto, upon information and belief, defendant MOSHE
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`KALTER owned the premises and appurtenances and fixtures thereto, located at 60 Merrick Ave,
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`East Meadows, NY 11554.
`
`78.
`
`That at all times hereinafter mentioned, upon information and belief, defendant MOSHE
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`KALTER made financial, management and operational decisions related to FULTON COMMONS CARE,
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`INC. d/b/a FULTON COMMONS CARE CENTER, INC., including finances, staffing and other decisions
`
`related to the resources available to the nursing home and care provided to its residents.
`
`79.
`
`Defendant MOSHE KALTER intentionally, knowingly, and willingly deprived FULTON
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`COMMONS CARE, INC. d/b/a FULTON COMMONS CARE CENTER, INC. of resources such as
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`money, supplies, and staffing in the interest of his own financial gain.
`
`80.
`
`Upon information and belief, that decisions made by defendant MOSHE KALTER to put
`
`his own financial interests and profits over the ne