Schumacher v. Sunrise Senior Living

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KRIS A. SCHUMACHER, as Executor of the

Estate of George H. Schumacher, deceased,

Plaintiff,

MEMORANDUM & ORDER

-against- 19-CV-5744(JS)(SIL)

SUNRISE SENIOR LIVING MANAGEMENT, INC.,

Defendant.

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APPEARANCES

For Plaintiff: Jennifer Ann Spellman, Esq.

Law Office of Kujawski & Kujawski

1637 Deer Park Avenue, PO Box 661

Deer Park, New York 11729

For Defendant: Rafael Vergara, Esq.

White and Williams, LLP

7 Times Square, Suite 2900

New York, New York 10036

SEYBERT, District Judge:

Plaintiff Kris A. Schumacher (“Plaintiff”), as Executor

of the Estate of George H. Schumacher (“Decedent”), commenced this

action against defendant Sunrise Senior Living Management, Inc.

(“Sunrise” or “Defendant”) after Decedent’s injury and death at a

Sunrise entity.1 (Compl., D.E. 1-3.)2 Before the Court is

Defendants’ motion to dismiss the first cause of action for

violation of New York State Public Health Law (N.Y. PUB. HEALTH

§ 2801) (Def. Mot., D.E. 10; Def. Br., D.E. 10-1; Pl. Opp., D.E.

11; Def. Reply, D.E. 13.) For the reasons that follow, Defendant’s

partial motion is DENIED.

BACKGROUND3

Plaintiff alleges that Sunrise is a “nursing home which

claims proper care and safety to residents.” (Compl. ¶ 4.) On

May 19, 2019, Decedent, a resident of Sunrise Senior Living of

West Babylon, fell, suffered severe and permanent injuries, and

died. Plaintiff alleges that Decedent’s injuries were caused by

Sunrise’s inadequate supervision. (Compl. ¶¶ 19-21.) Plaintiff’s

first cause of action alleges that Sunrise violated New York Public

Health Law Article 28 by failing to properly operate the facility

and rendering improper care to Decedent. (Compl. ¶¶ 22-29.)

1 The Complaint names “Sunrise Senior Living” in addition to

“Sunrise Senior Living Management, Inc.” (See Compl. at 1.)

Defendant notes that “Sunrise Senior Living” is not a legal

entity capable of being sued. Rather, it is merely a common

name by which “the assisted living community is known.” (Def.

Mot. at 1 n.1.)

2 Plaintiff commenced the action in New York State Court.

Defendants removed the action to this Court on the basis of

diversity. (Notice of Removal, D.E. 1, at ¶ 3.)

3 The following facts are drawn from the Complaint and are

assumed to be true for purposes of this Memorandum and Order.

Plaintiff also brings claims of negligence per se, medical

malpractice, common law negligence, and wrongful death. (See

Compl. ¶¶ 30-46.)

In moving to dismiss the first claim, Sunrise argues

that the Public Health Law is inapplicable because it is not a

residential health care facility but rather an assisted living

community. (Def. Br. at 1-2.) In support, Sunrise asks this Court

to consider several documents attached as exhibits to its motion:

(1) the residency agreement between Sunrise and Decedent (D.E. 10-

3); (2) a state medical form completed by Decedent’s doctor prior

to his admittance to Sunrise (D.E. 10-4); and (3) Sunrise’s

operating certificate (D.E. 10-6). Plaintiff opposes

consideration of these documents, contending they are outside the

scope of her Complaint. (Pl. Opp. at 1-3.)

ANALYSIS

I. Legal Standard

To withstand a motion to dismiss, a complaint must

contain factual allegations that “‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

1974, 167 L. Ed. 2d 929 (2007)). This plausibility standard is

not a “probability requirement” and requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (internal

quotation marks and citation omitted).

In deciding a motion to dismiss, the Court is confined

to “the allegations contained within the four corners of [the]

complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71

(2d Cir. 1998), but this has been interpreted broadly to include

any document attached to the complaint, any statements or documents

incorporated in the complaint by reference, any document on which

the complaint heavily relies, and anything of which judicial notice

may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147,

152–52 (2d Cir. 2002). As relevant here,

In considering a motion to dismiss for failure

to state a claim under FED. R. CIV. P. 12(b)(6),

a district court must limit itself to facts

stated in the complaint or in documents

attached to the complaint as exhibits or

incorporated in the complaint by reference. Of

course, it may also consider matters of which

judicial notice may be taken under FED. R. EVID.

201. If a district court wishes to consider

additional material, Rule 12(b) requires it to

treat the motion as one for summary judgment

under Rule 56, giving the party opposing the

motion notice and an opportunity to conduct

necessary discovery and to submit pertinent

material.

Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991).

II. Discussion

Defendant moves to dismiss only Plaintiff’s public

health law claim, arguing that Sunrise is not a residential health

care facility as defined by, and required by, Article 28, making

it inapplicable. (Def. Br. at 1-2). Plaintiff primarily responds

that Defendant’s motion is based upon documents outside the scope

of her Complaint (Pl. Opp. at 1-3) and, on the merits, that

Decedent fell while being supervised shaving in the bathroom, a

supervised hygienic service rendering Article 28 applicable (Pl.

Opp. at 4).

A. New York Public Health Law Article 28

New York’s Public Health Law Article 28 creates a private

right of action for “patients of residential health care

facilities.” N.Y. PUB. HEALTH § 2801-d. “Any residential health

care facility that deprives any patient . . . of any right or

benefit . . . [meaning] any right or benefit created or established

for the well-being of the patient by the terms of any contract, by

any state statute, code, rule or regulation or by any applicable

federal statute, code, rule or regulation” can be liable. Id.

§ 2801-d(1).

A residential health care facility is defined as (1) “a

nursing home or [(2)] a facility providing health-related

service.” N.Y. PUB. HEALTH § 2801(3). The statute further defines

a “nursing home” as:

a facility providing therein nursing care to

sick, invalid, infirm, disabled or

convalescent persons in addition to lodging

and board or health-related service, or any

combination of the foregoing, and in addition

thereto, providing nursing care and health-

related service, or either of them, to persons

who are not occupants of the facility.

Id. § 2801(2). And “‘health-related service’ means service in a

facility or facilities which provide or offer lodging, board and

physical care including, but not limited to, the recording of

health information, dietary supervision and supervised hygienic

services incident to such service.” Id. § 2801(4)(b).

B. Extrinsic Documents

Defendant argues that the residency agreement, the

medical form, and the operating license are incorporated by

reference in the Complaint, integral to the Complaint, and

appropriate for consideration in support of its motion to dismiss.

(Def. Reply at 4.) The Court disagrees. The Complaint alleges

that Decedent “was a resident in Sunrise Senior Living . . . under

the care and management of Defendant[ ].” (Compl. ¶ 19.) It

further alleges that Sunrise was “a nursing home” (see, e.g. Compl.

¶ 4) and that Decedent received improper care in violation of state

and federal statutes and his “contract of admission” (Compl. ¶ 23).

“To the extent that [Sunrise] seeks to use these

extrinsic materials to rebut the allegations in the Complaint, it

may not do so on a motion to dismiss: The fact that evidence is

inconsistent with a complaint’s allegation is not a reason to

consider it on a motion to dismiss.” Powell v. Merrick Acad.

Charter Sch., No. 16-CV-5315, 2018 WL 1135551, at *4 (E.D.N.Y.

Feb. 28, 2018) (internal quotation marks and citation omitted).

“Federal courts have complete discretion to determine whether or

not to accept the submission of any material beyond the pleadings

offered in conjunction with a Rule 12(b)(6) motion . . . .”

Stephens v. Bayview Nursing & Rehab. Ctr., No. 07-CV-0596, 2008

WL 728896, at *2 (E.D.N.Y. Mar. 17, 2008) (internal quotation

marks and citation omitted).

Here, the crux of the issue, clearly disputed by the

parties, is whether Sunrise is a nursing home or an assisted

living community. While the documents proffered by Sunrise may

ultimately become relevant to this issue, the Complaint does not

heavily rely upon them and its “passing references” to a contract

of admission is not “sufficient to incorporate them by reference”

at this juncture. Powell, 2018 WL 1135551 at *4. The issue is

more properly resolved after discovery. See Boykin v. 1 Prospect

Park ALF, LLC, 993 F. Supp. 2d 264, 272-275(E.D.N.Y. 2014) (on

summary judgment, discussing the differences between residential

care facilities and assisted living facilities and the varying

schemes of New York Public Health Law Article 28 and Article 46).

Accordingly, the Court does not consider the documents.

Further, the Court declines to convert the motion into

one for summary judgment. There are several other causes of

action that Sunrise has not moved to dismiss and will proceed and

require discovery. The Court finds that it is more prudent, and

more efficient, to consider any applications regarding the public

health claim after discovery.

C. The Merits Application

The Court notes that aside from its position that Sunrise

is not a nursing home, Defendant does not otherwise challenge the

sufficiency of the factual allegations underlying this claim.4 On

its face, the Complaint plausibly alleges a violation of Public

Health Law Article 28. It alleges that Sunrise was a nursing home

subject to several federal, state, and county regulatory and

licensing schemes (see Compl. ¶¶ 12-18) that it did not comply

with when caring for Decedent (Compl. ¶¶ 20-21, 23-24). It further

alleges that as a result of this non-compliance, Sunrise caused

Decedent’s injury and death. Thus, the Complaint plausibly alleges

an Article 28 violation. Accordingly, Defendant’s motion to

dismiss the New York State Public Health Law Article 28 claim is

DENIED.

4 The Court will not pass on Plaintiff’s alternative argument,

that Decedent fell while shaving in the bathroom under

supervision, a “supervised hygienic service.” (Pl. Opp. at 4.)

These factual allegations do not appear in the Complaint, nor

was the public health claim based on this theory in the

Complaint. (See D’Alessandro v. City of N.Y., 713 F. App'x 1,

11 n.12 (2d Cir. 2017) (“a party is not entitled to amend its

complaint through statements made in motion papers”); Peacock

v. Suffolk Bus Corp., 100 F. Supp. 3d 225, 231 (E.D.N.Y. 2015)

(“It is well-settled that a plaintiff cannot amend his complaint

by asserting new facts or theories for the first time in

opposition to a motion to dismiss.”).

CONCLUSION

Defendant’s partial motion to dismiss (D.E. 10) is

DENIED. The parties shall adhere to all discovery deadlines set

by Magistrate Judge Stephen I. Locke.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: May _ 6 , 2020

Central Islip, New York