`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ROCKLAND
`
`THE NEW VILLAGE SP LLC, EVERGREEN COURT
`HOME FOR ADULTS SP LLC, JOSEPH
`SCHONBERGER, STEVEN SCHONBERGER and
`JEFFREY SCHONBERGER,
`
`Petitioners-Plaintiffs,
`
`
`– against –
`
`
`HOWARD ZUCKER, as Commissioner of Health of the
`State of New York,
`
`Respondents-Defendants.
`
`
`
`
`
`
`
`
`
`Index No.
`
`VERIFIED PETITION
`AND COMPLAINT
`
`
`Petitioners-Plaintiffs The New Village SP LLC (“New Village”), Evergreen Court Home
`
`for Adults SP LLC (“Evergreen”), Joseph Schonberger, Steven Schonberger and Jeffrey
`
`Schonberger (collectively, “Plaintiffs”), by their attorneys, Abrams, Fensterman, Fensterman,
`
`Eisman, Formato, Ferrara, Wolf & Carone, LLP, as and for their petition and complaint, allege as
`
`follows.
`
`Introduction
`
`1.
`
`This is a proceeding pursuant to CPLR article 78 to set aside two arbitrary and
`
`capricious determinations made by Dr. Howard Zucker, as Commissioner of the New York State
`
`Department of Health (“DOH”).
`
`2.
`
`The first decision suspended the license of a fully operational adult care facility,
`
`effectively shutting it down, because of the purported “immediate danger” to the residents, even
`
`though the inspections which were the purported basis for the decision had been conducted more
`
`than a year earlier and Plaintiffs had remediated any immediate health and safety issues at the
`
`facility. A copy of the order is attached as Exhibit A. The DOH then compounded its error by
`
`
`
`1
`
`1 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`moving the residents of that facility to other, unrelated facilities, even though Plaintiffs had already
`
`completed a brand new facility, adjacent to the existing facility, for which they had a temporary
`
`certificate of occupancy that could have been occupied by the relocated residents if the DOH had
`
`only completed the final inspection that Plaintiffs had been requesting for two months.
`
`3.
`
`The second decision “withdrew,” i.e., effectively denied, Plaintiffs application for
`
`a permit to rebuild a facility that was destroyed by fire. A copy is attached as Exhibit B. The
`
`“withdrawal” was based on alleged, unspecified character deficiencies on the part of the individual
`
`plaintiffs, who are the principals of the entity. The individual plaintiffs, however, do not suffer
`
`from any character deficiencies that would relate to their competence to own and operate an adult
`
`care facility. But even if they did, the character of a licensed operator seeking to rebuild a licensed
`
`facility that was destroyed by fire is not a legitimate consideration in determining whether to grant
`
`a permit to rebuild. The DOH’s decision, therefore, was illegal, arbitrary and capricious and not
`
`based on substantial evidence.
`
`4.
`
`The actions of the DOH have had a serious, deleterious impact on Plaintiffs. The
`
`two businesses in issue have been destroyed, causing Plaintiffs millions of dollars in economic
`
`injury. And by implicating the character of the individual plaintiffs, the DOH has put other licenses
`
`they hold at risk and put them in the position where they may no longer be able to engage in the
`
`business of operating adult care facilities. As a result, this action also seeks to recover money
`
`damages for the reputational damages suffered by the individual plaintiffs and the deprivation of
`
`their federal and state constitutional rights to due process of law, compensation for the deprivation
`
`of their property and to be free from the impairment of their contracts caused by those
`
`determinations.
`
`5.
`
`As set forth below, the DOH’s determinations were based on nothing other than
`
`
`
`2
`
`2 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`raw, uninformed emotion and political will and lack any rational basis in fact or in law.
`
`Specifically, to the extent that the plaintiffs have been able to ascertain the basis for the
`
`determinations, it appears that they are the products of DOH’s visceral disdain for Plaintiffs due
`
`to a tragic fire at Plaintiffs’ Evergreen facility—despite the fact that Plaintiffs neither caused nor
`
`exacerbated the fire. There is no legitimate reason for DOH to punish New Village and Evergreen
`
`for this unfortunate incident.
`
`6.
`
`New Village owns and, until June 4, 2021, when DOH suspended its operating
`
`certificate, operated an adult home and assisted living program located at 1 Grove Street, Highland,
`
`Ulster County, New York.
`
`7.
`
`8.
`
`New Village had a property interest in its operating certificate.
`
`Evergreen owns and, until it was destroyed by fire on March 23, 2021, operated an
`
`adult home and assisted living program known as “Evergreen Court,” which was located at 65
`
`Lafayette Street, Spring Valley, Rockland County, New York.
`
`9.
`
`10.
`
`Evergreen had a property interest in its operating certificate.
`
`New Village and Evergreen are owned by plaintiffs Joseph Schonberger, Shabsi
`
`(“Steven”) Schonberger, Jeffrey Schonberger [and Phillip Schonberger] (the “individual
`
`plaintiffs”).
`
`11.
`
`Venue for this hybrid proceeding/action is proper in Rockland County pursuant to
`
`CPLR 503(a) and 506(b) because Evergreen is a resident of Rockland County and Rockland
`
`County is a county in which the material events took place.
`
`12.
`
`On March 23, 2021, Evergreen Court was substantially damaged by fire. Neither
`
`Evergreen nor its employees or agents were responsible for the fire. The fire blazed out of control
`
`because the water pressure in the public hydrants near the site was insufficient to fight it. Evergreen
`
`
`
`3
`
`3 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`safely evacuated all of its patients and relocated them to other facilities. Tragically, a firefighter
`
`died in the fire and one resident died later at the hospital.
`
`13.
`
`Since the fire, the DOH has refused to consider Evergreen’s proper applications for
`
`approvals to which it is entitled, suspended New Village’s operating certificate immediately and
`
`without any opportunity to be heard based on alleged deficiencies that DOH had ignored for years
`
`and prohibited New Village from opening the brand new facility that New Village had constructed
`
`with DOH’s approval by refusing to conduct a final inspection.
`
`14.
`
`Two months after the fire, Evergreen applied to the DOH for approval to
`
`reconstruct the facility, which it had the right to do as the owner of a facility destroyed by fire. But
`
`by letter dated June 7, 2021, the DOH advised Evergreen that it was refusing to consider the
`
`application due to unspecified “non-compliance involving matters of resident health and safety.”
`
`No such matters were identified in the letter or had ever been brought to Evergreen’s attention.
`
`15.
`
`The DOH’s refusal to consider Evergreen’s application was clearly pretextual. The
`
`regulations on which the DOH predicated its refusal—18 NYCRR § 485.6(a)(1) and 18 NYCRR
`
`§ 485.6(b)(2)—require the DOH to consider the character and competence of the proposed
`
`operator because they relate to an application for approval to operate an adult care facility. But
`
`those sections had no relevance to Evergreen’s application because Evergreen had already been
`
`approved to operate an adult care facility and was seeking only to rebuild its building—an
`
`application that is governed by 18 NYCRR § 487.11. An application to rebuild under 18 NYCRR
`
`§ 487.11 does not require a satisfactory review of the principals’ or the applicants’ character,
`
`standing, or competence. Moreover, the provisions cited by DOH address the “moral character and
`
`standing” and “character and competence” of the applicant, but DOH has never made any negative
`
`finding regarding the “moral character and standing” and “character and competence” of the
`
`
`
`4
`
`4 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`individual plaintiffs.
`
`16.
`
`By refusing to consider Evergreen’s application to rebuild, the DOH effectively
`
`revoked Evergreen’s operating certificate. Social Services Law § 460-d(4)(b) prohibits the DOH
`
`from revoking, suspending or limiting and operating certificate without a hearing. (“No operating
`
`certificate shall be revoked, suspended or limited without a hearing.”) There was no hearing here.
`
`The DOH’s decision, therefore, was illegal.
`
`17.
`
`Further, the grounds on which the DOH appears to be basing its actions, i.e. the
`
`applicant’s character, standing, and competence, are not grounds for revocation as they are
`
`predicated on the operations of other facilities and not the operations of Evergreen. Accordingly,
`
`the DOH has not only denied the plaintiffs their right to a hearing, it has also deprived them of an
`
`operating certificate without any reasonable basis for its actions.
`
`18.
`
`At around the same time as DOH denied Evergreen’s application, on Friday, June
`
`4, 2021, the DOH issued an order—purportedly due to alleged “imminent danger,” and without
`
`affording New Village due process—immediately suspending New Village’s operating certificate.
`
`But the supposed “deficiencies” listed in the order had been the subject of an inspection report
`
`three years earlier, had been corrected, and had never been the subject of DOH interest again until
`
`the June 4, 2021 order. Thus, DOH could not have truly believed that any of the issues referenced
`
`in the order threatened “imminent danger.”
`
`19.
`
`DOH was not content, however, merely to suspend the operating certificate. It also
`
`directed New Village to relocate all of the patients in the facility by noon on Monday, June 7,
`
`2021—only two and a half days later. At the time that DOH made that direction, it was well aware
`
`that New Village had already spent $3 million to build a new facility on an adjacent property, for
`
`which the Town of Lloyd had issued a temporary certificate of occupancy on March 23, 2021. The
`
`
`
`5
`
`5 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`new facility was therefore ready to receive the patients that the DOH had ordered New Village to
`
`relocate. The only reason the patients could not be moved to the new building was that the DOH
`
`had inexplicably refused to complete its final inspection, even though New Village had been
`
`repeatedly asking the DOH to conduct inspection for two months.
`
`20.
`
`Upon receiving the June 4th order, New Village immediately began attempting to
`
`make alternate arrangements for its residents. But the DOH was not content with enforcing its
`
`order to relocate by the noon on the following Monday. Just hours after issuing the order, DOH
`
`suddenly intervened affirmatively in the relocation process by contacting competing facilities and
`
`arranging for them to take and transport the New Village residents. The residents were moved out
`
`without even the opportunity to pack and inventory their personal belongings.
`
`21.
`
`In sum, in addition to refusing to consider Evergreen’s application to rebuild, the
`
`DOH refused to inspect New Village’s new facility, suspended New Village’s operating
`
`certificate, refused to allow New Village to relocate its residents to its new facility and
`
`affirmatively acted to relocate those residents itself because it wrongly blames Evergreen and,
`
`consequently, its principals, for the Evergreen fire.
`
`22.
`
`There is no basis in law or fact for DOH’s malicious actions, which have caused
`
`Plaintiffs to suffer staggering losses that continue to accrue daily. By reason of DOH’s conduct,
`
`New Village and Evergreen are entitled to the relief requested in this petition/complaint.
`
`A.
`
`Background
`
`Facts
`
`23.
`
`Prior to the incidents which are the basis for this petition/complaint, New Village
`
`had been operating an adult home and assisted living program pursuant to an operating certificate
`
`issued by the DOH since November 2015, and Evergreen had also been operating an adult home
`
`
`
`6
`
`6 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`and assisted living program pursuant to an operating certificate issued by the DOH since
`
`November 2015.
`
`24.
`
`On December 20, 2012 the DOH granted New Village View contingent approval
`
`for an additional 34 Assisted Living Program (“ALP”) beds.
`
`25.
`
`In July 2014, the DOH issued an operating certificate increasing New Village’s bed
`
`capacity from 46 ALP beds to 80 ALP beds. Exercising its rights under that certificate, New
`
`Village began in June 2018 to construct a new building on property it had purchased next to the
`
`original facility with the intention of connecting the original facility to the new building upon
`
`completion. The total bed capacity would be 80 beds.
`
`26.
`
`It later became apparent that the DOH should have required that New Village file
`
`an Adult Care Facility/Assisted Living Program (“ALP”) Certificate of Need application (“CON
`
`application”) before issuing the operating certificate. The DOH requested that New Village return
`
`that operating certificate until the CON application and related paperwork had been completed,
`
`after which a new operating certificate would be issued. New Village agreed to this request and
`
`returned its operating certificate. The DOH issued a revised operating certificate decreasing New
`
`Village’s permitted capacity from 80 ALP beds to 46 ALP beds.
`
`B. The DOH waits more than two and a half years after inspecting New Village to claim
`an “imminent danger” to residents.
`
`27.
`
`On November 27, 2018, New Village submitted an application to construct a new
`
`facility on property next to the original facility and to connect the original facility to it upon
`
`completion.
`
`28.
`
`In 2018, despite having visited the facility numerous times without comment, the
`
`DOH first raised the possibility that there were issues with constructing the new building.
`
`29.
`
`The DOH began an inspection of the original New Village facility on November 8,
`
`
`
`7
`
`7 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`2018. It completed that inspection on June 11, 2019.
`
`30.
`
`In November 2019, New Village received an initial approval for its plan to connect
`
`the original building to the new building and to remove the kitchen in the original building.
`
`31.
`
`On December 9, 2019, more than a year after the DOH first began its inspection of
`
`New Village on November 8, 2018, the DOH issued a citation alleging several issues that arose
`
`from the inspection. Due to the extensive delay from the dates of the two inspections until the
`
`DOH issued its citation on December 9, 2019, the citation was based upon severely outdated
`
`information. In fact, New Village had already addressed a majority of the issues in the citation.
`
`32.
`
`Specifically, the December 9, 2019 citation alleged that New Village “began major
`
`renovations and additions to the Facility without having first received from the Department
`
`approval for the Respondent’s plans and specifications for construction” and that New Village
`
`“failed to ensure the continued maintenance of the facility, that building and grounds were
`
`maintained in a clean, orderly condition and in good repair.”
`
`33.
`
`The citation ignored the fact that New Village had already received approval from
`
`the DOH in November of 2019 to connect the original building to the new facility building, remove
`
`the kitchen in the original building, expand the lobby and recreation area in the original facility,
`
`pave the parking area, and complete landscaping. Under this plan, the residents in the original
`
`building were to be transferred to the new building, during which time renovations and repair work
`
`could be performed in the original building. The plan was intended to minimize disruption to
`
`residents by utilizing the new building for the residents while such renovations occurred.
`
`34.
`
`The December 9, 2019 citation also alleged that New Village “failed to maintain a
`
`record of all fire drills, including the date and time of the drill, a description of the drill.” But New
`
`Village had addressed that issue even before the inspection by retaining Croker Fire Drill
`
`
`
`8
`
`8 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`Corporation in 2016, a respected company in the field, to assist with conducting fire drills and
`
`maintaining all such records related to fire drills.
`
`C. The DOH allows New Village to proceed with its new facility and New Village obtains
`a temporary certificate of occupancy from the Town of Lloyd.
`
`35.
`
`In January 2020, the DOH approved the final construction drawings for the plan to
`
`connect the original building to the new building, and to remove the kitchen in the original
`
`building.
`
`36.
`
`In November 2020, the DOH advised that the financial component of the
`
`application had been completed.
`
`37.
`
`Beginning on March 1, 2021, the DOH conducted another inspection of New
`
`Village.
`
`38.
`
`On March 23, 2021, New Village received a temporary Certificate of Occupancy
`
`for the facility, with an expiration date of July 23, 2021.
`
`D. The Fire At Evergreen Court.
`
`39.
`
`On March 23, 2021, a fire broke out at Evergreen Court and the building burned to
`
`the ground.
`
`40.
`
`Neither Evergreen nor its employees or agents were responsible for the fire.
`
`Evergreen’s fire alarms were working properly, the fire department was timely notified and the
`
`residents were successfully alerted to the fire inside the building.
`
`41.
`
`The fire was substantially worsened by, among other issues, a lack of adequate
`
`water pressure in the public hydrants near the site, which made it difficult for firefighters to control
`
`the blaze.
`
`42.
`
`Tragically, the fire resulted in the death of a heroic firefighter and one resident.
`
`
`
`9
`
`9 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`E. The DOH targets Plaintiffs after the fire at Evergreen Court.
`
`43.
`
`After the fire at Evergreen Court, DOH made a series of unfounded claims and
`
`baseless determinations designed to hamper—and ultimately, destroy—Plaintiffs’ operations.
`
`44.
`
`On March 28, 2021, DOH completed the inspection of New Village that had begun
`
`on March 1, 2021.
`
`45.
`
`46.
`
`On April 28, 2021, the DOH issued a citation based on its inspection.
`
`The April 28, 2021 citation alleged for the first time that “the Facility’s evacuation
`
`plan did not reference that at least one resident is hard-of-hearing and cannot hear fire alarms, and
`
`another resident is unable to evacuate without assistance due to a visual impairment.”
`
`47.
`
`On May 19, 2021, New Village submitted a detailed plan of correction regarding
`
`this issue. The hard-of-hearing resident was, in fact, documented on New Village’s emergency
`
`disaster plan. Regarding the resident described by the citation as having a “visual impairment,” as
`
`part of its plan of correction, New Village attached documents demonstrating that the resident in
`
`question had no history of blindness and that a recent examination by an ophthalmologist had
`
`documented no findings of any such visual impairment.
`
`48.
`
`The April 28, 2021 citation also alleged that the DOH had “received reports that
`
`the local fire department had responded to an emergency alarm and there was no staff in charge of
`
`the facility when they arrived.” But that portion of the April 28, 2021 citation describing the reports
`
`from the local fire department mischaracterized the DOH’s own findings with respect to this
`
`concern.
`
`49.
`
`The DOH’s follow-up interviews and investigations with respect to its findings
`
`regarding the issue of there being “no staff in charge” revealed that there was an initial interview
`
`with a staff member who stated she was not sure who was “in-charge,” but believed it to be another
`
`staff member. That staff member, when interviewed by the DOH, then confirmed she was in
`
`
`
`10
`
`10 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`charge. Thus, the issue was resolved by DOH’s own findings based upon its interviews of the
`
`facility staff.
`
`50.
`
`The April 28, 2021 citation also alleged that New Village “did not have an operating
`
`kitchen.”
`
`51.
`
`This claim was false. As mentioned previously, New Village had obtained a
`
`temporary certificate of occupancy on March 23, 2021, and New Village had attempted to
`
`communicate with the DOH several times to arrange a pre-opening inspection of the kitchen,
`
`whether virtual or otherwise, to address this very issue and allow New Village to use the kitchen
`
`in the new building for the residents in the original building.
`
`52.
`
`In fact, after emails from New Village’s consultant on April 6, April 14, April 15,
`
`and April 22, the DOH finally responded by simply stating that “This application is under review.
`
`We must confirm that all conditions for licensure have been met,” without providing any further
`
`clarification as to how to address this issue, despite a clear plan put forth by New Village.
`
`F. The DOH issues the June 4th order to New Village based on false and pretextual
`claims.
`
`53.
`
`On June 4, 2021, the DOH issued an order immediately suspending New Village’s
`
`operating certificate.
`
`54.
`
`The June 4th order was issued without any opportunity to be heard, purportedly due
`
`to “imminent danger to the health, safety and welfare of facility residents.”
`
`55.
`
`The June 4th order falsely alleges that:
`
`a. New Village failed a “Fire Prevention Inspection” conducted by the Town of
`Lloyd Building Department on March 23, 2021;
`
`b. “on June 3, 2021, the Facility failed a Fire Prevention Inspection conducted by
`the Town of Lloyd Building Department”;
`
`c. that “a fire alarm system malfunction that resulted in the annunciator panel
`incorrectly identifying the room in which a sounding fire alarm was located”;
`
`
`
`11
`
`11 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`d. “an electrical junction box improperly buried in the ceiling”;
`
`e. “ceiling mold from a water leak”;
`
`f. “a seized ceiling fan motor that was still running”;
`
`g. “a broken electric eating element and a stopped second fan motor”;
`
`h. “a smoke detector that had been covered up in a room where a resident was
`smoking”;
`
`Each of these allegations is demonstrably meritless.
`
`The DOH claims that “on June 3, 2021, the Facility failed a Fire Prevention
`
`56.
`
`57.
`
`Inspection conducted by the Town of Lloyd Building Department, based on the findings set forth
`
`in the preceding paragraph.” New Village has no knowledge of any such inspection. The Town of
`
`Lloyd Building Department had conducted a building inspection on March 23, 2021, not a “Fire
`
`Prevention Inspection,” and it issued a temporary certificate of occupancy that same day.
`
`58.
`
`Local fire department personnel did respond to a smoke detector fire alarm at New
`
`Village on June 1, 2021, as a result of which the fire department raised several issues which New
`
`Village addressed immediately. New Village immediately retained life safety consultant John
`
`Kerney, of JFK Safety Consultants, Inc. Mr. Kerney conducted a full inspection and walkthrough
`
`of the facility on June 3, 2021 to address the issues, as well as to conduct a general fire safety
`
`assessment of the facility. Mr. Kerney observed and inspected the sprinkler heads, the smoke
`
`detectors, and windows in the facility. He also observed and inspected the facility to ensure there
`
`were no missing cover plates, no bare fixtures, and no exposed wiring that needed to be addressed.
`
`He was satisfied that there were no fire safety issues that needed to be addressed and nothing that
`
`would endanger the health and safety of residents or staff.
`
`59. With respect to the claimed “fire alarm system malfunction that resulted in the
`
`annunciator panel incorrectly identifying the room in which a sounding fire alarm was located,”
`
`
`
`12
`
`12 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`Mr. Kerney inspected the annunciator panel and fire alarm system. By that time, Prime Security
`
`(the company which provided fire alarm services for the facility) had addressed the issue by
`
`digitally reprogramming the fire system to confirm that it correctly identified the room in which a
`
`fire alarm was located. To ensure that the issue had been completely resolved, Mr. Kerney also
`
`observed Prime Security conduct an additional test of the system, was satisfied that it was
`
`functioning properly, and therefore found that this issue had been corrected and completely
`
`resolved, posing no danger to residents or staff.
`
`60.
`
`Regarding the second issue, “an electrical junction box improperly buried in the
`
`ceiling,” Mr. Kerney inspected the area where the junction box was located, and the plaster
`
`material that covered it had already been completely removed. Mr. Kerney was fully satisfied that
`
`this issue had been corrected and completely resolved.
`
`61. With respect to third issue, “ceiling mold from a water leak,” Mr. Kerney inspected
`
`the area where the mold was located, and the ceiling patchwork and repair was being performed
`
`while he was there; the sheetrock that had exhibited mold had been completely removed and the
`
`East Gate Group (the company which was performing construction and renovation work at the
`
`facility) was in the process of compounding seams to finalize the work. Mr. Kerney was fully
`
`satisfied that this issue was being addressed and would be completely resolved, posing no danger
`
`to residents or staff.
`
`62.
`
`After conducting a walkthrough and general fire safety inspection of the entire
`
`facility, Mr. Kerney was completely satisfied that there were no fire safety issues at the facility
`
`that endangered the health, safety, or welfare of residents or staff.
`
`63.
`
`Issues five and six, “a seized ceiling fan motor” and “broken electric heating
`
`element and a stopped second fan motor,” concerned a single location. They were addressed
`
`
`
`13
`
`13 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`temporarily by disconnecting the power to the area, thereby preventing any possible safety issues
`
`from arising.
`
`64.
`
`The eighth issue, “a smoke detector that had been covered up in a room where a
`
`resident was smoking,” was addressed by removing the covering that had been put up.
`
`65.
`
`The June 4th order also alleged that New Village failed to submit an “acceptable”
`
`plan of correction in response to the December 9, 2019 citations. New Village did submit a plan
`
`of correction addressing a majority of the issues that were stated. The remaining issues were
`
`addressed when New Village received approval to connect the new building to the existing
`
`building.
`
`66.
`
`Further, in order to address the possibility that the issues stemming from the June
`
`1, 2021 incident may be present in other portions of the original building, in an abundance of
`
`caution, New Village proposed multiple plans to allow the current residents be transitioned to a
`
`temporary facility where they would be treated with the same standards of care they had received,
`
`while maintaining the ties to the community that are crucial for their wellbeing.
`
`67.
`
`Specifically, New Village proposed either that the current residents be transferred
`
`to the new building, which already had a temporary certificate of occupancy, or that the residents
`
`be transferred to a hotel in the area, so that staff would be able to travel there, and there would not
`
`be as great a disruption as being in a facility in an entirely new area.
`
`68.
`
`The DOH summarily rejected these concrete and reasonable proposals without any
`
`apparent reason and, instead, plowed ahead sending New Village residents to other facilities.
`
`G. The DOH improperly rejects Evergreen’s application to rebuild its facility based
`upon inapplicable regulations.
`
`69.
`
`On May 19, 2021, Evergreen applied to DOH for approval to reconstruct the
`
`facility.
`
`
`
`14
`
`14 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`70.
`
`On June 7, 2021, the DOH issued a letter stating that it was refusing to consider
`
`Evergreen’s application due to unspecified “non-compliance involving matters of resident health
`
`and safety,” at other facilities operated by members of Evergreen. The DOH’s refusal to consider
`
`the application was not based upon the operations of Evergreen but, rather, on the other facilities
`
`owned by the members of Evergreen.
`
`71.
`
`The June 7, 2021 letter from the DOH stated that its denial was based on
`
`18 NYCRR § 485.6(a)(1) and 18 NYCRR § 485.6(b)(2)—provisions that relate to an application
`
`for approval to operate an adult care facility.
`
`72.
`
`Those sections had no relevance to Evergreen’s application because Evergreen had
`
`already been approved to operate an adult care facility and was seeking only to rebuild its facility.
`
`73. Moreover, the provisions cited by the DOH address the “moral character and
`
`standing” and “character and competence” of the applicant. But an application to rebuild under 18
`
`NYCRR § 487.11 does not require a satisfactory review of the principals’ or the applicants’
`
`character, standing, or competence. Additionally, these are not grounds for a refusal to consider
`
`an application, as they are predicated on the operations of other facilities and not the operations of
`
`Evergreen. The DOH’s refusal to even consider Evergreen’s application to rebuild is a constructive
`
`revocation of its operating certificate and denied the plaintiffs’ right to a hearing before such a
`
`revocation, pursuant to Social Services Law § 460-d(4)(b).
`
`74.
`
`The June 7 letter from DOH states “effective immediately, Application Number
`
`210070 will be closed, and the status changed to ‘Withdrawn.’”
`
`75.
`
`Title 18 of the Administrative Code vests the DOH with the authority to accept
`
`applications, to review applications, and to either grant or deny them. It does not grant the DOH
`
`the authority to “withdraw” applications, as the DOH did in its June 7, 2021 letter.
`
`
`
`15
`
`15 of 25
`
`
`
`FILED: ROCKLAND COUNTY CLERK 06/30/2021 04:30 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 033595/2021
`
`RECEIVED NYSCEF: 06/30/2021
`
`76.
`
`There is no legal or regulatory authority for DOH to “close” or “withdraw”
`
`Evergreen’s application to rebuild its facility.
`
`77.
`
`By “closing” or “withdrawing” the application, the DOH effectively denied the
`
`application illegally, arbitrarily and capriciously and without substantial evidence.
`
`As and for a First Cause of Action
`(CPLR article 78—New Village)
`
`78.
`
`Petitioners-Plaintiffs repeat and reallege all of the allegations set forth in paragraphs
`
`1 through 77 with the same force and effect as if fully set forth in this paragraph.
`
`79.
`
`The DOH’s June 4, 2021 order suspending New Village’s operating license is
`
`invalid because it was arbitrary and capricious, erroneous as a matter of law and not based upon
`
`substantial evidence.
`
`80.
`
`Any factual basis the DOH may have had for its order as a result of the inspection
`
`initiated on November 8, 2018 and completed on June 11, 2019 is a legally insufficient basis for
`
`finding “imminent danger” because of the passage of time—two years and six months since the
`
`inspection was begun and nearly a year since it was completed—the factual errors in the inspection
`
`report and the corrective measures New Village had already undertaken.
`
`81.
`
`The April 28, 2021 citation similarly fails to provide a lawful basis for a finding of
`
`“imminent danger” because of the passage of time—more than a month since the inspection—and
`
`the factual errors in the inspection report and the corrective measures New Village had already
`
`under