Court of the state of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the ist day of July, 2015. PRESENT: Hon. Wayne P. Saitta, Justice. Index No.:6639 /2014 EMILY BERGER, as Temporary Administrator of the Estate of MARY BERGER, CANDACE BLANDFORD, LILLIAN GUIDE, BELLA HORNAUNG, GEORGE MELAMED, ANNE MARIE MOGIL, ALICE SINGER, JENNIFER STOCK, as Temporary Administrator of JACK STOCK, ROSALIND BLANK, HANNA ESKIN, JONATHAN MARKS, as Temporary Administrator of the Estate of LILLIAN S. MARKS, PAULA ATLAS, RUTH GURTON, HENRIETTA IALLENBORG, TRINA KRUGER, AND JOACHIM SCHROBSDORFF, DECISION AND ORDER Plaintiffs, -against- PROSPECT PARK RESIDENCE LLC, 1 PROSPECT PARK RESIDENCE, LLC, 1 PROSPECT PARK ALF, LLC, PROSPECT PARK RESIDENT HOME HEALTH CARE, INC, HAYSHA DEITSCH, as Owner, Prospect Park Residence for Adults, DAVID POMERANTZ, as Administrator and/or Executive Director, Prospect Park Residence for Adults, SAM ZALMANOV, as Member, 1 Prospect Park Residence, LLC, NEW YORK STATE DEPARTMENT OF HEALTH, NIRAV R. SHAH MD, MPH, as Commissioner of the New York State Department of Health, and HOWARD ZUCKER, MD, as Commissioner of the New York State Department of Health, Defendants. -X Defendants 1 PROSPECT PARK RESIDENCE, LLC, 1 PROSPECT PARK ALF, LLC, HAYSHA DEITSCH, DAVID POMERANTZ, and SAM ZALMANOV (hereinafter collectively “the PPR Defendants”), move pursuant to CPLR 3211(a) to dismiss the Consolidated Amended Complaint against them.Upon reading the Notice of Motion to Dismiss dated August 15, 2014, the Affirmation in Support of Joel A Drucker Esq., attorney for the PPR Defendants, dated August 15, 2014, and the exhibits annexed thereto, the PPR Defendants’ Memorandum of Law in Support, dated August 15, 2014; Plaintiffs’ Opposition dated September 5, 2014, the Affirmation of Jason E. Johnson Esq., of Fitzpatrick, Cella, Harper, Scinto, attorneys for the BERGER Plaintiffs, dated September 5, 2014, and the exhibits annexed thereto; the PPR Defendants’ Reply Memorandum of Law, dated September 12, 2014; the Supplemental Affirmation in Support of Joel A Drucker, Esq., dated October 3, 2014, the Affirmation of Lori A Sievers, isq., dated October 2, 2014, and the exhibit annexed thereto; Plaintiffs’ Reply Memorandum dated October 17, 2014; the Reply Memorandum of the New York State Department of Health Defendants dated, October 17, 2014; the Consolidated Amended Complaint, dated December 11, 2014; the letter of Bradley J. Nash, Esq., of Schlam, Stone & Dolan, attorneys for the MARKS Plaintiffs, dated December 12, 2014; the Response of Joel A Drucker Esq., dated December 29, 2014; all the pleadings had herein; and after argument of counsel and due deliberation thereon, the PPR Defendants’ motion is granted in part and denied in part for the reasons set forth below. Plaintiffs in this action are current and former elderly residents of the Prospect Park Residence, (“the Residence”), an adult care facility located at One Prospect Park t in Park Slope, Brooklyn, New York. ‘The Plaintiffs who remain at the Residence w range in age from 88 to 99 years of age and suffer from various disabilit Plaintiffs’ action is brought against both the New York State Department of Health, NYSDOH”) challenging its approval of a plan to close the Residence, and against various companies and private individuals involved in the Residence. 2The Consolidated Amended Complaint names as Defendants four entities, 1 PROSPECT PARK RESIDENCE, LLC; 1 PROSPECT PARK ALF, LLC; PROSPECT PARK RESIDENCE, LLC; and PROSPECT PARK RESIDENCE HOME HEALTH CARE, INC. 1 PROSPECT PARK RESIDENCE, LLC is the operator of the facility at issue in this action. It is an adult care facility as well as being certified as an assisted living facility and an enhanced assisted living residence. the owner of the building where the facility is 1 PROSPECT PARK ALF, LLC, located. Defendants PROSPECT PARK LLC and PROSPECT PARK RESIDENCE HOME HEALTH CARE have not appeared in this action. ‘The complaint also names as Defendants three individuals, HAYSHA DEITSCH, SAM ZALMANOV and DAVID POMERANTZ. HAYSHA DEITSCH and SAM ZALMANOV are members of 1 PROSPECT PARK RESIDENCE, LLC. DAVD POMERANTZ is the former Executive Director of the Residence and a former employee of 1 PROSPECT PARK RESIDENCE, LLC. The Plaintiffs’ consolidated action alleges several causes of action against the PPR Defendants. Plaintifis allege, in causes of action four, seven, eight, nine, ten, eleven and twelve that PPR Defendants violated various sections of the Social Services Law, Public Health Law and implementing regulations, by failing to provide Plaintiffs required services, by improperly terminating their residency agreements, and by failing to assist residents in finding placement in appropriate placements consistent with their preferences.Plaintiffs allege in causes of action thirteen and fourteen that the PPR Defendants breached the Plaintiffs’ residency agreements, and breached the leases of Plaintiffs MELAMED and BLANK. Plaintiffs allege in cause of action fifteen that the PPR Defendants breached their fiduciary duty to the Plaintiffs, by failing to disclose their intention to close the Residence, by falscly representing to Plaintiffs that they would be able to age in place at the Residence when they intended to close the Residence, by failing to provide adequate services to Plaintiffs. Plaintiffs allege in cause of action sixteen that the PPR Defendants negligently inflicted emotional distress upon the Plaintiffs by announcing and implementing the closure plan in. manner calculated to cause severe emotional distress to the Plaintiffs and their familic Plaintiffs allege in cause of action seventeen that the PPR Defendants engaged in deceptive business practices, in violation of General Business Law §349, by deliberately giving Plaintiffs the false impression that they would being to age in place at the Residence, while failing to disclose that they actually intended to close the Residence. Ona motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a), the sole criterion is whether the complaint states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail. The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference. Kopelowitz & Cov Mann, 83 A.D.3d 793, 796-97, 921 N.Y.S.2d 108 (2"4 Dept 2011).‘The PPR Defendants make four basic arguments that apply to several of the causes of action against them. Fir , the PPR Defendants argue that the causes of action relating to inadequate provision of services, relocation assistance, and breach of the residency agreements have been rendered moot by the joint stipulations entered into by the parties. Second, the PPR Defendants argue that the Plaintiffs have no private cause of action for violation of the Social Services Law, the Public Health Law or implementing regulations Third, the PPR Defendants argue that all causes of action against 1 PROSPECT PARK ALF LLC, and the individual defendants should be dismissed because only 1 PROSPECT PARK RESIDENCE LLC, is the operator of the Residence and there is no basis to pierce the corporate veil and hold any other PPR Defendants liable for the actions of the operator or for violations relating to the operation of the Residence. Fourth, the PPR Defendants argue that they cannot be held liable for admitting residents without informing them that they intended to close the facility, because they were required by Department of Health regulations to continue to admit residents until the closure plan was approved. Additionally the PPR Defendants argue that the eighth cause of action based on Social Services Law §461-L should be dismissed because that section applies to assisted living programs and the Residence is not an assisted living program. ‘The PPR Defendants also argue that the sixteenth cause of action, for negligent infliction of emotional distress, should be dismissed because Plaintiffs have failed to allege facts to support all of the elements of that cause of action.The joint stipulation ‘The PPR Defendants argue that the causes of action 4, 7, 8, 10, 11, 12, 13 and 14, which relate to inadequate provision of services, relocation assistance, and breach of the residency agreements have been rendered moot by the joint stipulation entered into by the parties on June 18, 2014. ‘The June 18, 2014, stipulation provides that pending resolution of this action, the operator and its agents will provide the full services required by the Residency agreements and Social Services Law. The stipulation further provides that pending the resolution of this action the PPR Defendants will not involuntarily transfer any Plaintiff. ‘The stipulation also provides that the stipulation shall not prevent the PPR Defendants from commencing special proceeding to remove the Plaintiffs. However, the Court stayed the Defendants from commencing special proceedings in a subsequent order. To begin with, as the terms of the stipulation are in effect only during the pendency of the action, they do not moot Plaintiffs underlying claims. Further, paragraph (1)(e) of the stipulation, specifically provides in that the terms of the stipulation are not to be determinative of claims raised in the complaint. It further provides in paragraph (3) that no party waived any defense or claim in the underlying action. While the joint stipulation provides temporary relief during the pendency of the action it neither grants any permanent relief, nor determines any of the Plaintiffs claims. It therefore provides no basis to dismiss any of the causes of action.Private right of action The PPR Defendants argue that the causes of action 4, 7, 8, 10, 11, 12, which relate to inadequate provision of services and relocation assistance should be dismissed, because have no private right of action to enforce the Social Services Law, the Public Plaint Health Law or the implementing regulations. Plaintiffs argue that applicable case law provides for such a private right even though the statute does not expressly provide for it, because Plaintiffs are persons that statutes were intended to protect, and that private right of action would not be inconsistent with the legislative enforcement scheme. Plaintiffs also argue that their residency agreements require the Operator to provide care and services required by the regulations, and that gives Plaintiffs an independent right to enforce compliance with the regulations as a term of the residency agreement. ‘Where not explicitly provided in a statute, a private cause of action for violation of the statute can be implied where, (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose; and (3) creation of a such a right would be consistent with the legislative purpose. Maimonides Med Center v First United American Life Ins. Co., 116 AD3d 207, 981 NYS2d 739 (2 Dept 2014); Henry v Isaac, 214 ADad 188, 63: YS2d 169 (2° Dept 1995). PPR Defendants cite as authority Sheehy v Big Flats Community Day Inc., 73 NY2d 629, 543 NYS2d 18 (1989) and Flagstar Bank FSB v State of New York, 114 AD34 138, 978 N.Y.S.2d 266, (2 Dept 2013). Sheehy involved the issue of whether there was a private right of action, pursuant to Penal Law § 260.20 (4), against an entity that sold aleohol to minor, by that minor, who was injured while intoxicated. ‘The court held that 7no private right of action could be implied because it would be inconsistent with the legislative purpose, where there was a clear legislative intent not to allow a private right of action by a minor who became intoxicated by their own irresponsible action. Here there is no showing of a legislative intent to prevent residents of assisted living residences from seeking damages from operators for violations of the Social Service law and implementing regulations. Flagstar was a case in which a Plaintiff sought damages against the State where a county clerk negligently misdocketed a judgment, which allowed a judgment debtor to alienate property without the judgment appearing as a lien. The Court in Flagstar held that even though the docketing was a ministerial duty, the State was not liable becauise it owed the Plaintiff no special duty. ‘That question of whether a governmental agency has a special duty to a plaintiff, has no relevance to whether Plaintiffs here have a right of action against private defendants. More relevant, is the case of Carrier v Salvation Army, 88 NY2d 298, 644. NLY.S.2d 678 (1996), which was cited by the NYSDOH, in its motion to dismiss, for the proposition that the Social Services Law gives exclusive enforeement powers to NYSDOH, and that a private cause of action is not consistent with the statutory scheme to regulate adult care facilities. Carrier involved an action by certain residents of an adult care facility to seek the appointment of a receiver to operate the facility in which they resided. The Court of Appeals held that the residents had no private right of action to seek a receiver. The Court held that statutory enforcement authority under Social Service Law §460-d was expressly vested exclusively in the Department of Health,‘The Plaintiffs in this action, on the other hand, rely on the Second Department decision in Henry v Isaac, 214 AD2d 188, 632 NYS2d 169 (2 Dept 1995). Henry v Isaac involved a suit brought by residents of an adult care facility against the operator of a facility for failure to provide services required under Article 7 of the Social Services Law and related regulations, ‘The Court in Henry, held that the residents had an implied private right of action under the Social Services Law, even though the Statute and regulations did not provide an express private right of action, ‘The Court held that a private right of action by facility residents to enforce the statute and regulations would be consistent with the legislative purposes of the statute, which was to ensure adequate services to residents. Id. ‘The Court pointed out that Article 7 of the Social Services Law and implementing regulations “are not simply remedial in nature, but afford the residents various rights and impose an affirmative duty on the operators of adult care facilities to provide specified services and care.” Jd at 193. The Court also noted that, “[rJecognition of a private right of action pursuant to which individual residents can seek redress for wrongs personally suffered would augment the existing enforcement devices and enhance a legislative scheme which, in part, imposes affirmative duties for the protection of those very individuals.” Jd at 193. Plaintiffs also cite the Second Department decision in Maimonides Med Center v First United American Life Ins Co., 116 AD3d 207, 981 NYS2d 739 (2"¢ Dept 2014), decided subsequent to Carrier, which cites and reaffirms its holding in Henry v Isaac. Maimonides involved a claim by a medical provider against an insurer pursuant to the Prompt Pay Law. The Second Department held that the provider had a private right of action under the statute stating “[s]upport for the conclusion that the Prompt Pay Law 9affords an implied private right of action to patients and health care providers is provided by this Court's decision in Henry v Isaac.” Maimonides Med Center v First United American Life Ins. Co., supra at 214. The reasoning of the Second Department in Henry and Maimonides is more applicable to the facts of the present case than that of Carrier. In Carrier the specific remedy that the plaintiffs were seeking, the appointment of a receiver, was a significant basis for the Court's holding. In finding no private right of action to seck a receiver, the Court noted “It would be particularly inappropriate under these circumstances to imply a private cause of action to seek appointment of a temporary receiver to operate the facility, a remedy that affects the rights of other residents in addition to the plaintiffs seeking such relief.” Carrier v Salvation Army, supra, at 303, 680. ‘The Court, in Carrier, did not reject the holding in Henry but distinguished it from the case before it, because the plaintifis in the case before it were seeking a different remedy. The Court in Carrier, stated, “Henry v Isaac, [cite omitted] upon which plaintiffs place heavy reliance, provides no support for their position as it does not address the remedy sought here”. Carrier v Salvation Army, supra, at 304, 681. The plaintiffs in Henry, like the Plaintiffs in this case, seek to enforce their rights under Article 7 of the Social Services law to be provided with a level of services required under the law and applicable regulations. Further, in Maimonides, the Second Department, citing its decision in Henry, explained that Article 7 of the Social Services Law and its implementing regulations, ‘were not simply remedial in nature, but afforded the residents various rights and imposed an affirmative duty on operators to provide specified services. It reasoned that, 10the remedies available to the Department of Social Services did not adequately address the harm that a particular resident might suffer, and therefore recognition of a private right of action would augment the existing enforcement devices and enhance a legislative scheme which, in part, imposes affirmative duties for the protection of those very individuals. Maimonides Med Center v First United American Life Ins. Co. supra, at 215. Additionally, Plaintifis’ residency agreements incorporate the requirement to comply with the NYSDOH regulations. Section XIII(E) of the Plaintiffs’ residency agreements provide, “While legal action is in progress, the operator must not seek to amend the Residency Agreement in effect as of the date of the notice of termination, fail to provide any of the care and services required by the Department regulations and the Residency Agreement, or engage in any action to intimidate or harass You.” ‘Thus, as provision of services required by the regulations are incorporated as a term of Residency agreements, the agreements provide an independent basis for Plaintiffs to assert a private of action for violation of the statutes and regulations. Pie ig the corporate veil The PPR Defendants allege that causes of action four, ten, eleven, twelve, thirteen and fourteen must be dismissed as to Defendants DEITSCH, ZALAMOV and POMERANTZ as the Plaintiffs have failed to allege facts necessary to pierce the corporate veil to hold the individual Defendants liable. The PPR Defendants also argue that the thirteenth and fourteenth causes of action should be dismissed as to the individual defendants because those causes of action are based on alleged breaches of residency agreements, to which only 1 Prospect Park Residence LLC is a party. cre‘The Plaintiffs counter that they have pled sufficient facts to support piercing the corporate veil to hold all the PPR Defendants liable for the actions of the Operator. ‘The general rule is that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability. However, equity will intervene to pierce the corporate veil and permit the imposition of personal liability in order to avoid fraud or injustice. A party seeking to pierce the corporate veil must establish that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury. Superior Transcribing Serv., LLC v. Paul, 72. A.D.34 675, 898 N.Y.S.2d 234, (2" Dept 2010); E Hampton Union Free Sch Dist v Sandpebble Builders, Inc, 66 AD3d 122, 884 NYS2d 94 (2"¢ Dept 2009) aff'd. 16 NY3d 775, (2011). “In determining whether an owner bas abused the privilege of doing business in the corporate form, a court may consider, inter alia, whether there was a failure to adhere to. corporate formalities, inadequate capitalization, comingling of assets, and use of corporate funds for personal use”. Queens West Development Corp, v Nixbot Realty Associates, 121 A.D.3d 903, 995 N.Y.S.2d 84 (2 Dept 2014); E Hampton Union Free Sch Dist v Sandpebble Builders, Inc, 66 AD3d 122, 884 NYS2d 94 (2™4 Dept 2009) aff'd, 16 NY3d.775, (2011). The PPR Defendants argue that none of the individual Defendants, DEITSCH, ZALMANOV or POMERANTZ, has any liability, because DEITSCH and ZALMANOV cannot be held liable merely as members of the Limited Liability Company (LLC) which is the Operator of the Residence, and because POMERANTZ was only an employee. They cite section 609 of the Limited Liability Law which provides that a member of a 12LLC cannot be held liable for any debts, obligations or liabilities of the limited liability company solely on the basis of being a member. However, New York courts have held that the doctrine of piercing the corporate veil is applicable to LLCs. Retropolis, Inc. v. 14th Street Development LLC, 17 A.D.34 209, 797 N.Y.S.24 1, (1% Dept 2005); Williams Oil Co., Inc. v. Randy Luce E-Z Mart One, LLC, 302 A.D.2d 736, 757 N.Y.S.2d 341 (3d Dep't 2003). This part of the PPR Defendants’ motion is premature as there has been no discovery yet, and the information necessary to establish the extent that the individual Defendants exercised dominion over 1 Prospect Park Residence LLC, or comingled assets is in the exclusive control of the PPR Defendants. Similarly, to what extent the Operator is undercapitalized or whether it has observed the proper corporate procedures and requisites is information solely in Defendants’ possession and which Plaintiffs can only obtain through disclosure. Continuing to admit residents The PPR Defendants argue that those causes of action that relate to PPR admitting residents, without informing them that they intended to close the facility, should be dismissed because the operator was required by law to continue to admit new residents and to not disclose that it planned to close until its closure plan was approved. Several of Plaintiffs’ causes of action are based on the PPR Defendants admitting Plaintiffs without informing them that the Defendants planned to close the facility. The ninth cause of action alleges that PPR Defendants violated Public Health Law §4657 by admitting Plaintiffs with long term care needs when they planned to close the facility. 13‘The eleventh cause of action alleges that the PPR Defendants violated Public Health Law §4660 which requires that prospective residents be provided with sufficient information to make and an informed choice about whether to move in to the Residence, because they did not inform Plaintiffs that they intended to close the facil ‘The seventeenth cause of action alleges that the PPR Defendants engaged in deceptive business practices by deliberately giving prospective residents the impression that they could age in place, when the PPR Defendants intended to close the facility. The PPR Defendants argue that to inform prospective residents that the operator was attempting to close the facility would have violated 18 NYCRR § 485.5()\(3) and 10 NYCRR § 1001.4(/)(3). Both 18 NYCRR § 485.5 (j)(3) and 10 NYCRR § 1001.4())(3) provide that in the event that an operator elects to close a facility and to surrender its, operating certificate, the operator shall take no action to close the facility prior to department approval of the plan for closure. The PPR Defendants submit the affirmation of Lori A, Sievers, Esq., an attorney who represents PPR, in which she claims that the NYSDOH has interpreted the regulations to mean that an operator cannot disclose to the public or the residents that it is planning to close a facility. Sievers further claims that the operator was obligated to continue to accept new residents until the closure plan was approved, Sievers also opines that to do otherwise would have violated the prohibition of 18 NYCRR § 485.5({)(3) and 10 NYCRR § 1001.4(}) against taking any actions related to the proposed closure. ‘The NYSDOH Defendants submitted a Memorandum of Law in response to Lori Sievers’ affirmation, which stated, that while the Department interprets the regulations as prohibiting an operator from informing residents that they plan to close a facility, 14“{n]either the regulations nor the guidelines however, obligate an operator to continue to admit residents while it awaits Department approval of a proposed closure plan.” The NYSDOH Defendants’ memo further states that nothing in the regulations or guidelines “suggests that a facility must continue to admit new residents, or that it may not simply cease admissions”. ‘The NYSDOH facility closure plan guidelines do advise that the potential closure cannot be disclosed to the public or residents, and that no announcements related to the proposed closure may be made. The guidelines do not prohibit an Operator from. admitting residents while it is planning to close the facility. However, the guidelines do not require an Operator to continue to admit Residents after it has applied to close the facility. Nothing in 18 NYCRR § 485.5()(2)G) or 10 NYCRR § 1001.4()) specifically prohibits an operator from notifying residents that it has applied to close the facility ‘Those sections merely require the closure plan to include a timetable for notifying the residents of the closure. Further, the regulations contain no specific requirement that an operator continue to admit residents while its closure application is pending. Assisted Living Program Plaintiffs allege in their eighth cause of action that the PPR Defendants violated Social Services Law section 461-L, which regulates assisted living programs. Defendants argue that they are an assisted living residence but not a not an “assisted living program”, Accordingly they are not subject to Social Services Law section 461-L, and therefore the eighth cause of action should be dismissed. 15Plaintiffs counter that the PPR Defendants have adduced no documentary evidence demonstrating that they are not an assisted living program. ‘The complaint alleges that the PPR Defendants operate an assisted living residence that is authorized to operate a special needs assisted living program. Defendants moving papers do not directly address the allegation that they operate an assisted living residence that is authorized to operate a special needs assisted living program. Further, the PPR Defendants have put in no documentary evidence to disprove the allegations. The mere claim that the statute is not applicable to them, without any documentary evidence, is insufficient to dismiss the cause of action. “To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim”. Summer v. Severance, 85 A.D.34 1011, 1012, 925 N.Y.S.2d 627, 628 (2"4 Dept 2013). No fiduciary relationship Plaintiffs’ fifteenth cause of action alleges that the PPR Defendants breached their fiduciary duty to the Plaintiffs by failing to disclose that they planned to close the facility, by failing to provide adequate services and by failing to assist Plaintifis in finding suitable facilities to relocate to. The PPR Defendants argue that this cause of action should be dismissed because as a matter of law, an operator of an assisted living residence does not have a fiduciary relationship with the residents of the facility. 16“The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduet”, Rut v. Young Adult Inst., Inc., 74 AD3d 776, 901 NYS2d 715 (2"4 Dept 2010). To make out a cause of action for a beach of a fiduciary duty, Plaintiffs must establish that there was a fiduciary relationship between the Plaintiffs and the PPR Defendants, A fiduciary relationship arises between two persons when one of them is under a duty to act for or to give advice for the benefit of another, on matters within the scope of the relationship. Put differently, a fiduciary relationship exists when confidence is, reposed on one side and there is resulting superiority and influence on the other. Ascertaining the existence of such a relationship inevitably requires a fact-specific inquiry. Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 883 NYS2d 147 (2009). ‘The PPR Defendants cite Dembeck v 220 Central Park South, LLC, 33 AD3d 491, 823 NYSad 45 (1** Dept 2006) for the proposition that Plaintiffs, as residents of an assisted living facility, are not owed a fiduciary duty by the PPR Defendants. However, Dembeck is distinguishable from the facts in this case. The Dembeck Court held that no fiduciary relationship exists between a landlord and tenant. ‘The plaintiff was a residential tenant who sued her landlord for failing to disclose the need for repairs to an elevator in the luxury building where she was a tenant. In that case, the Court found that the rental of the unit to the plaintiff was an 7arm's length transaction and that the landlord had no duty to disclose plans to make any systems repairs in the building, However, in this case, the PPR Defendants and Plaintiffs do not have a landlord and tenant relationship. The Operator is obligated to provide the Plaintiffs’ meals and ‘ongoing supportive services, which creates more than an arm’s length relationship, and correspondingly, a greater duty of duty of care owed to the Plaintifls. The PPR Defendants argue that there is no reported decision in the State of New y has been found to owe a resident a York wherein an operator of an assisted living fa fiduciary duty. Conversely, there is no case which states an operator of an assisted living facility does not owe a fiduciary duty to a resident. It has been held that a fiduciary relationship may arise in the context of a nursing home, where the home assumes care and responsibility for its residents. When an institution accepts “such responsibility with respect to the aged and infirm who, for substantial consideration availed themselves of the custodial care offered by the institution, [it results] in the creation of a fiduciary relationship”. Gordon v Bialystoker Ctr & Bikur Cholim, Inc, 45 N.Y.2d 692, 698, 412 NYS2d 593 (1978). Plaintiffs allege in their fifteenth cause of action that pursuant to 18 NYCRR section 487.3, the PPR Defendants are requited to provide the Plaintiffs with a program of supervision, care and services. Section 487.3 requires that the supervision, care and services “assure the protection of resident rights” and “promotes the social, physical and mental well-being of the residents”. 18 NYCRR 487.3(a)(2)& (3). 18Plaintiffs in this action are in their late 80s and gos and many of them have disabilities such as dementia. ‘They moved into the residence because they were no longer capable of performing several instrumental activities of daily living such as cooking and cleaning, Although this level of case may not rise to the level of complete control as in a nursing home, the determination of whether there is a fiduciary relationship between the Plaintiffs and PPR Defendants is fact specific. EBC I, Ine. v Goldman, Sachs & Co., 5 NY3d 11, 19, 799 NYS2d 170 (2005). On a CPLR 3211 motion to dismiss, the complaint must be given a liberal construction, the allegations accepted as true and plaintiffs provided with the benefit of every favorable inference. Indeed, the question of “{wJhether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” Roni LLC v. Arfa, 18 N-Y.3d 846, 848, 939 NYS2d 746 (2011). Tt cannot be said that an operator of an assistant living facility does not owe a fiduciary duty to the residents of its facility, as a matter of law. Therefore dismissal of Plaintiffs’ fifteenth cause of action is not warranted. Negligent Infliction of emotional distress Plaintiffs allege in their sixteenth cause of action a claim for the negligent and reckless infliction of emotional distress. Plaintiffs allege that the closure of the facility was a devastating development for the Plaintiffs, Plaintiffs further allege that after the closure plan was approved, the PPR Defendants cut services to the Plaintiffs, which included loss of staff, reduction in services, including turning off the air conditioning in 19the hallways, failure to bathe residents, reduction in housekeeping services and failure to pay home health aides. Plaintiffs allege that the announcement of the closure plan, on only 90 days’ notice to the Plaintiffs, was timed by the PPR Defendants to pressure the residents to leave quickly. Plaintiffs state that this pressure, caused approximately 100 residents to leave, some to facilities that do not provide all of the services they require. Plaintiffs allege that the quality of services at the Residence have been decreasing rapidly, including the termination of essential services involving personal hygiene, housekeeping, and food quality. Plaintiffs allege that the manner in which the PPR Defendants have announced and carried out their plan to close the facility, and their reduction of services to the Residents of the facility, was intended to cause severe emotional distress, to force the Residents to leave the premises. ‘The PPR Defendants argue that Plaintiffs failed to state a cause of action for negligent infliction of emotional distress, because they did not allege conduet which were extreme and outrageous, or allege conduct which unreasonably endangered the residents’ physical safety or caused plaintiffs’ to fear for their physical safety. Although, Plaintiffs plead the sixteenth cause of action as a claim of both reckles: and negligent infliction of emotional distress, they are two distinct causes of action. While extreme and outrageous conduct is an element of the tort of intentional infliction of emotion distress, itis not an element of negligent infliction of emotional distress. Taggart v Costabile, 2015 WL 3875003, 2015 NY Slip Op 05464 (24 Dept 2015); Ornstein v New York City Health and Hospitals Corporation, 10 NY3d 1, 852 20NYS2d 1 (2008); Kennedy v McKesson Co., 58 NY2d 500, 462 N.Y.S.2d 421 (1983). s as opposed to A cause of action based on negligent infliction of emotional dist intentional infliction “generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety”. Santana v Leith, 117 AD34 711, 712, 985 N.Y.S.2d 147, 149 (2" Dept 2014). ‘The mental injury must be a direct rather than a consequential result of the negligence. Ornstein v New York City Health and Hospitals Corporation, 10 NY3d 1, 852 NYS2d 1 (2008); Kennedy v McKesson Co., 58 NY2d 500, 462 N.Y.S.2d 421 (1983). The cireumstances under which recovery may be had for negligence that causes purely emotional harm are extremely limited and, a cause of action seeking such recovery must generally be premised upon a breach of a duty owed to the plaintiff which directly either endangered the plaintiff's physical safety or caused the plaintiff fear for his or her own physical safety. Jason v Krey, 60 A.D.34 735, 875 N.Y.S.2d 194, (2"¢ Dept d 151 (2% Dept 1993). 2009); Creed v United Hosp., 190 AD2d 489, 600 N: Plaintiffs allege a course of conduct by PPR Defendants designed to pressure a vulnerable population to move out of their homes quickly. However, Plaintiffs do not allege in the complaint, that Defendants actions endangered their physical safety or caused them to fear for their physical safety. Therefore that part of Plaintiffs’ sixteenth. cause of action for negligent infliction of emotion distress must be dismissed sufficient to make out a cause of action for reckless However, the complain infliction of emotional distress. Reckless inflection of emotion distress is encompassed in the tort of intentional infliction of emotional distress. Dana v Oak Park Marina Inc, 2a230 AD2d 204, 660 NYS2d 906 (4 Dept 1997); Murphy v American Home Prods. Corp., 58 NY2d 293 461 N.Y.S.2d 232 (1983). ‘The tort has four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” Howell v New York Post Co., 81 NY2d 115, 121, 596 N.Y.S.2d 350 (1998). Plaintiffs have alleged that the PPR Defendants have waged a campaign of harassment against those Plaintiffs who have opposed their closure plan to force them to leave quickly. For the purposes of this CPLR 3211 motion, the Plaintiffs’ allegations must be assumed to be true, ‘The short notice of the plan to close, by itself, would not constitute extreme and outrageous conduct. However, Plaintiffs also allege that the PPR Defendants have made cuts in services, such as failure to bathe residents on a routine basis, failure to pay home health aides, closing of commons rooms, reduction of housekeeping services, inadequate meals, and elimination of air conditioning. This conduct toward Plaintiffs, who rely on these services because they are no longer capable of performing many instrumental activities of daily living on their own, could be found by a trier of fact to constitute extreme and outrageous conduct and to have caused severe emotional distress to these vulnerable Plaintiffs. Similarly a trier of fact could reasonably find that PPR Defendants’ actions where done without regard to whether they would cause severe emotional distress to the Plaintiffs. Therefore, that part of the sixteenth cause of action for reckless infliction of emotional distress should not be dismissed. 22General Business Law section 349 Plaintiffs allege in the seventeenth cause of action that the PPR Defendants engaged in deceptive business practices by marketing the facility as a place where residents could age in place, at a time when they were intending on closing the facility. residents could ‘The PPR Defendants argue that representations that prospecti age in place were not misleading because the representations were not understood to mean that the facility would remain open for the duration of a resident's life, and because the residency agreements provided that they could be terminated if the Operator surrendered it license. The PPR Defendants further argue that they were not permitted by NYSDOH to disclose to potential residents that they had submitted a plan toclose. In order to state a cause of action for damages for the violation of General Business Law §349, a plaintiff must allege that the defendant has engaged “in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof.” Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 161-62, 893, N.Y.S.2d 208, 214 (24 Dept 2010), internal citation omitted. Specifically, a plaintiff must “allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice”, City of New York v, Smokes-Spirits.Com, Ine., 12 N.Y.3d 616, 621, 883 NYS2d 772 (2009). In their Consolidated Amended Complaint, Plaintiffs allege that the PPR Defendants engaged in consumer oriented conduct when they misrepresented to the 23public that the Residence was a facility in which a resident could “age in place”, when their intention was in fact to close the facility. Plaintiffs allege these misrepresentations ‘were material and caused injury to the residents because they would net have moved into the Residence had they been told the Operator intended to close it. Itis true that the residency agreement provides that the agreement may be terminated in the event the Operator surrenders its license, and that the representation that a resident could age in place is not a promise that the facility will never close. However, it is not Plaintiffs’ contention that that Defendants’ representations that residents could age in place meant that Defendants could not decide to close the facility. The deception alleged is that they made the representations ata time they had already decided to close the facility, and also that they did not tell prospective residents that they intended to close. Representing to prospective residents that they could age place without disclosing that the Operator had already decided to close the facility is a deceptive practice. Such a misrepresentation is clearly material to a potential resident's decision as to whether to move into the facility. As discussed more fully above, the PPR Defendants’ argument that they were legally obligated to continue to admit residents while they were intending to close the facility is without merit. WHEREFORE, that part of the PPR Defendants’ motion to dismiss that part of the sixteenth cause of action for negligent infliction of emotional distress, only, is granted, that part of the motion that seeks to dismiss the complaint as to the individual defendants is denied as premature, without prejudice to renewal after completion of 24disclosure, and the remainder of the PPR Defendants’ motion to dismiss is denied, and itis hereby ORDERED, that that part of Plaintiffs’ sixteenth cause of action for negligent infliction of emotional distress is dismissed, and it is further ORDERED, that the PPR Defendants time to serve an answer is extended until ten days after service of this Decision and Order with notice of entry. This constitutes the decision and order of this Court. ENTER 25Court of the state of New York, held in and for the County of Kings, at the Courthouse, at360 Adams Street, Brooklyn, New York, on the 1st day of July, 2015. PRESENT: Hon. Wayne P. Saitta, Justice. x Index No.:6639 /2014 EMILY BERGER, as Temporary Administrator of the Estate of MARY BERGER, CANDACE BLANDFORD, LILLIAN GUIDE, BELLA HORNAUNG, GEORGE MELAMED, ANNE MARIE MOGIL, ALICE SINGER, JENNIFER STOCK, as Temporary Administrator of JACK STOCK, ROSALIND BLANK, ANNA ESKIN, JONATHAN MARKS, as Temporary Administrator of the Estate of LILLIAN S. MARKS, PAULA ATLAS, RUTH GURTON, HENRIETTA HALLENBORG, TRINA KRUGER, AND JOACHIM SCHROBSDORFF, DECISION AND ORDER Plaintiffs, -against- PROSPECT PARK RESIDENCE LLC, 1 PROSPECT PARK RESIDENCE, LLC, 1 PROSPECT PARK ALF, LLC, PROSPECT PARK RESIDENT HOME HEALTH CARE, INC., HAYSHA DEITSCH, as Owner, Prospect Park Residence for Adults, DAVID POMERANTZ, as Administrator and/or Executive Director, Prospect Park Residence for Adults, SAM ZALMANOV, as Member, 1 Prospect Park Residence, LLC, NEW YORK STATE DEPARTMENT OF HEALTH, NIRAV R. SHAH MD, MPH, as Commissioner of the w York State Department of Health, and HOWARD ZUCKER, MD, as Commissioner of the New York State Department of Health, Defendants. es x Defendants, NEW YORK STATE DEPARTMENT OF HEALTH, NIRAV R. SHAH MD, MPH, and HOWARD ZUCKER, MD, (“the NYSDOH Defendants"), have moved pursuant to CPLR 3211(a) and CPLR 7804(f) to dismiss the Consolidated AmendedComplaint as against them. The motion having come before the Court on, July 17, 2014, and upon reading the Notice of Motion, dated June 24, 2014, the Affirmation of J. Mark Noordsy, Esq., dated June 23, 2014, and the exhibit annexed thereto; the Memorandum of Law of the NYSDOH Defendants, dated June 24, 2014; Plaintiffs’ Memorandum in Opposition, dated July 3, 2014; the NYSDOH Defendants’ Reply Memorandum of Law, dated July 10, 2014; the NYSDOH Defendants’ Supplemental Reply Memorandum of Law, dated September 12, 2014, and Affirmation of Mark Noordsy Esq., dated September 12, 2014; the Consolidated Amended Complaint, dated December 11, 2014; the letter of Bradley J. Nash, Esq., of Schlam, Stone & Dolan, attorneys for the MARKS Plaintiffs, dated December 12, 2014; all the pleadings heretofore had herein; and after argument of counsel and due deliberation thereon, the NYSDOH Defendants’ motion is denied for the reasons set forth below. Plaintiffs in the actions are current and former elderly residents of the Prospect Park Residence, (the “Residence”), an adult care facility located at 1 Prospect Park West in Park Slope, Brooklyn. The Residence has additional certifications as an assisted living facility and an enhanced assisted living residence. The Plaintiff who still reside at the Residence range in age from 88 years to 99 years old and suffer from various disabilities. Defendants 1 PROSPECT PARK RESIDENCE, LLC, 1 PROSPECT PARK ALF, LLC, HAYSHA DEITSCH, DAVID POMERANTZ, and SAM ZALMANOY, (the “PPR DEFENDANTS”) are alleged by Plaintiffs to own or manage the Residence. The PPR DEFENDANTS contend that 1 PROSPECT PARK RESIDENCE, LLC operates the Residence and that 1 PROSPECT PARK ALF, LLC, is the owner of the property upon which the Residence is located. HAYSHA DEITSCH and SAM ZALMANOV are members 2of 1 PROSPECT PARK RESIDENCE LLC. DAVID POMERANTZ was the Executive Director of the Residence and an employee of 1 PROSPECT PARK RESIDENCE, LLC. Defendant NEW YORK STATE DEPARTMENT OF HEALTH (“NYSDOH”), is the State agency that licenses and approves closure plans for adult care facilities, assisted. livings facilities, and enhanced assisted living residences in New York. NIRAV R. SHAH MD, MPH, is the former Commissioner of the New York State Department of Health, and HOWARD ZUCKER, MD, is the current Commissioner of the New York State Department of Health. On September 27, 2013, 1 PROSPECT PARK RESIDENCE LLC (“the Operator”) submitted a closure plan to NYSDOH for approval. On February 24, 2014, NYSDOH sent the Operator notice that it approved implementation of the Operator's plan to surrender its operating certificate, and close the Residence. ‘The plan initially set April 30, 2014 as the target closure date for the Residence. At the time the closure plan was approved there were 130 residents in the facility. At this time, seven residents still reside at the facility. NYSDOH required that the application for permission to close be kept secret from the residents until after NYSDOH approval. After residents were notified that the plan was approved by NYSDOH, two groups ions were of residents filed suits in response to the closure plan and their consolidated by Order of this Court dated November 12, 2014. NYSDOH had originally moved to dismiss the First Amended Complaint filed in the first of the two actions. Pursuant to this Court's consolidation order, Plaintiffs filed a Consolidated Amended Complaint dated December 11, 2014. The consolidation order provided that the Defendants’ motions to dismiss the First Amended Complaint would be deemed to apply to the Consolidated Amended Complaint. 3‘The Consolidated Amended Complaint is a combined declaratory judgment action and Article 78 proceeding and asserts six causes of action against the NYSDOH Defendants, and several causes of action against the PPR Defendants. The first cause of action seeks to annul NYSDOH’s approval of the closure plan pursuant to CPLR section 7801, on the grounds that it was arbitrary and capricious and affected by errors of law because it fails to ensure that each Plaintiff is transferred toa setting which is adequate, appropriate, and consistent with their needs and wishes. ‘The second cause of action seeks a declaration that the NYSDOH Defendants have violated Social Service Law section 461-a and 10 NYCRR §§ 1001.4 (j)(2)(i), 1001.4G)(2)(iii) and 1001.4()(4), alleging that the NYSDOH Defendants have failed to ensure that each Plaintiff is transferred to a setting which is adequate, appropriate, and consistent with their needs and wishes, and failed to ensure that the closure plan is being implemented to ensure adequate continued care for the Plaintitts. The third cause of action seeks a declaration that the NYSDOH defendants have violated New York State Public Health Law Article 46-B $4662, by not ensuring that Plaintiffs are being provided with required services, and by not ensuring that the Plaintiffs are transferred to a setting which is adequate, appropriate and consistent with their wishes. The fourth cause of action seeks a declaration that the NYSDOH Defendants have violated 18 NYCRR §490.5(£)(19), by failing to ensure that the Operator assist the Plaintiffs in transferring to a setting which is adequate, appropriate and consistent with their wishes. The fifth cause of action seeks a declaration that the NYSDOH Defendants have violated the Americans with Disabilities Act (“ADA”) by failing to ensure that New York 4State’s regulations governing the closure of adult care facilities provide that residents are transferred to the most integrated settings appropriate to their needs and by failing to require the Operator to assist plaintiffs in transferring to the most integrated setting appropriate to their needs, Plaintiffs also seek an injunction barring the NYSDOH Defendants from continuing to violate the ADA. ‘The sixth cause of action seeks a declaration that the NYSDOH Defendants have violated section 504 of the Rehabilitation Act, 29 USC Sec 794(a) (the “Rehabilitation Act”), by failing to provide that New York State’s regulations governing the closure of adult care facilities ensure that residents are transferred to the most integrated settings appropriate to their needs. Plaintiffs also seek an injunction barring the NYSDOH Defendants from continuing to violate the Rehabilitation Act. ‘The crux of Plaintiffs’ complaint is that the NYSDOH Defendants have violated the above mentioned statutes and regulations because they failed to ensure that the Plaintiffs are transferred to an appropriate, least restrictive setting, consistent with their needs and wishes, and have failed to ensure that services will be maintained during the implementation of the closure plan. The Consolidated Amended Complaint alleges that the NYSDOH Defendants have violated the statutes and regulations, both by approving a deficient closure plan, and in the manner in which they have allowed the Operator to implement the plan. The fifth and sixth causes of action state that the NYSDOH Defendants have violated the ADA and the Rehabilitation Act because the regulations it promulgated do not require that transfers of residents comply with the requirements contained in those acts, specifically that residents be transferred to the most integrated settling consistent with their needs.Plaintiffs seek three forms of relief against the NYSDOH Defendants: first, to annul NYSDOH's approval of the closure plan; second, a declaration that the NYSDOH Defendants have violated applicable laws and regulations; and third, an injunction against continuing to violate the ADA and Rehabilitation Acts. The complaint also seeks a preliminary injunction barring the NYSDOH Defendants from involuntarily transferring the Plaintiffs without a court order. However, this Court has already issued a preliminary injunction against removing the Plaintiffs pursuant to a separate motion. ‘The NYSDOH Defendants have moved to dismiss the complaint as against them pursuant to CPLR 3211(a) and 7804(f). The NYSDOH Defendants make four basic arguments. First, that Plaintiffs lack standing to challenge the closure plans and NYSDOH!s actions in overseeing the implementation of the plan by the Operator. Second, that there is no private right of action against the NYSDOH Defendants pursuant to the New York State Social Service Law, the New York State Public Health Law or the various implementing regulations. Third, that NYSDOH’s approval of the closure plan was not arbitrary and capricious, Fourth, that Plaintiffs’ claims are not justiciable because they are speculative and unripe. Plaintiffs counter that approval of the plan was arbitrary and capricious, and that, as residents who would be forced to move under the plan, they have standing to challenge the approval of the plan. They also argue that an implied private right of action exists under the state statutes and regulations. Lastly, they argue that because their needs have not been assessed, they have not been given assistance in transferring to an appropriate facility, and because they have already suffered a deterioration in care since the closure plan was approved, their claims are neither speculative nor unripe. 6First Cause of Action As to Plaintiffs’ first cause of action to annul NYSDOH’s approval of the closure plan pursuant to CPLR 7801, the Court must first determine whether Plaintiffs have standing to challenge the approval. Standing is a threshold requirement for a plaintiff seeking to challenge a governmental action. ‘The two-part test for determining standing is first, a plaintiff must show “injury trative in fact,” meaning that plaintiff will actually be harmed by the challenged admini action; and second, the injury a plaintiff asserts must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the Anesthetists v Novello, 2 N.Y.3d 207, agency has acted w York State Assn. of Nurs 778 NY8.24 123 (2004); Society of Plastics Indus. v County of Suffolk, 77 N.Y.24761, 570 N.Y.8.24, 778 (1991). ‘To establish “injury in fact,” a plaintiff must show that they will actually be harmed by the challenged administrative action. New York State Assn. of Nurse Anesthetists v Novello, 2 N.Y.3d 207, 778 N.Y.S.2d 123, (2004); Society of Plastics Indus. v County of Suffolk, 77 N.Y.24 761, 570 N.Y.S.2d 778, (1991). To have standing to challenge an administrative action a petitioner must articulate an interest distinct from that of the general public. Save the Pine Bush Inc., ¥ Common Council of the City of Albany, 13 NY¥3d 297, 890 NYS2d 405 (2009). In considering standing one must keep in mind what plaintiffs are actually challenging. Plaintiffs are not challenging whether the Operator can close the facility but the manner in which it will be closed, specifically whether the closure plan complies 7with the statutory and regulatory safeguards concerning transfers to appropriate facilities and maintenance of services during the closure process. Plaintiffs have not claimed that they have already been transferred to inappropriate or more restrictive setting. Rather, Plaintiffs allege that the closure plan and the actions of the NYSDOH Defendants do not comply with the statutory and regulatory protections they are entitled to during the closure process, and which are designed to ensure that they are not transferred to inappropriate facilities. NYSDOH Defendants concede that the NYSDOH is “tasked with ensuring that, when an operator has elected to close a facility and surrender its operating certificate voluntarily, the closure proceeds in a safe and orderly manner that ensures the appropriate relocation of the facility's residents.” NYSDOH Memorandum of Law, June 24, 2104, p. 3. The relevant state regulations require that an operator seeking to close a regulated facility must submit a closure plan for approval by NYSDOH. The closure plan must provide timetables for the closure and detail the procedures and actions the operator will take to “(i) notify residents of the closure, including provisions for termination of admission agreements and involuntary discharge; (Ii) assess the needs and preferences of individual residents; (iii) assist residents in locating and transferring to appropriate alternative settings; and (iv) maintain compliance with these regulations until all residents have relocated.” 18 NYCRR § 485.5(3)(2); 10 NYCRR §1001.4())(2) Additionally paragraph 12 of the NYSDOH Closure plan Guidelines require that the plan include: “The process to identify appropriate placement for current patients/residents. The process should include assessing the needs of the patients/residents, making determinations regarding bed availability at other area 8facilities, providing information _ about _— other _—_facilities. to patients/residents/families, insuring that the wishes of current, patients/residents/families are respected when placement decisions are made; and insuring that concern such as geographic location, public transportation, type of facility /provider, medical care ete. are addressed in identifying future placement options for residents/patients.” Specifically, Plaintiffs claim that the closure plan does not require that their preferences for relocation be assessed by the Operator. Plaintiffs also allege that the closure plan does not adequately detail the actions the Operator will take to assess their needs, to assist them in locating appropriate alternate facilities, and to ensure their services will be maintained. For the purposes of deciding a motion to dismiss, pursuant to CPLR 3211 the Court must accept these allegations in the complaint as true. Further, the plan does not notify the residents of the provisions for termination of admission agreements and for involuntary discharge, as required by 18 NYCRR § 485.5())(2)(i) and 10 NYCRR §1001.4()(2)(0. ‘The fact that the Plaintiffs have not yet been forced to accept inappropriate transfers does not mean that they have not suffered an injury. Plaintiffs allege that they have been injured because, due to the defects in the closure plan, their needs and preferences have not been assessed, they have not been assisted in finding appropriate relocation, and the services to which they are entitled have not been maintained since the closure plan was approved. ‘The regulations do not merely require that residents be transferred to appropriate facilities, ‘The regulations impose upon the Operator the duty to maintain services during the closure process, and to take actions to ensure appropriate transfers and to detail those actions in the closure plan. Residents are in fact injured at the pointthat NYSDOH approves a closure plan which does not adequately detail the actions that an Operator will take to ensure appropriate transfers and maintenance of services. The injuries alleged in the complaint are clearly within the zone of interests that 18 NYCRR § 485.5(i)(2); 10 NYCRR §1001.4())(2) were intended to protect. ‘The closure of the facility itself is an indirect, rather than a direct injury to the Plaintiffs. O'Bannon v Town Court Nursing Ct, 447 US 773, 100 S.Ct 2467 (1980). O'Bannon involved a challenge to a revocation of a nursing home's certification to receive Medicaid reimbursement by residents who were Medicaid recipients. The residents in O'Bannon argued that they had a due process right to an evidentiary hearing on the merits of the revocation. The Supreme Court held that the residents did not have a constitutional right to a hearing on the revocation because the residents’ Medicaid benefits did not guarantee them the right to remain in a particular residence. The Court also held that the government's action did not cause them any direct injury since their benefits were not reduced, and the fact that they would have to move was an indirect effect of the government's action. The decision in O'Bannon, did not deal with standing but constitutional due process. However, the holding that a governmental decision to decertify a residence causes only indirect injury to residents who must relocate, is not the determinative issue in this case. Here, NYSDOH is not revoking the facility's certificate. The decision to close the residence is the Operator's, not New York State’s. What Plaintiffs are challenging, is NYSDOH's approval of the plan that Plaintiffs allege contains deficiencies relating to the manner in which the facility will be closed and the residents will be relocated. 's v Novello, 2 N.Y.3 207, ‘The case of New York State Assn. of Nurse Anesthet 778 N.Y.S.2d 123, (2004), relied on by NYSDOH to demonstrate that the Plaintiffs lack 10standing, is distinguishable from this case. Novello involved a challlenge by a nurses association to state guidelines that required nurses who administer anesthesia in an office setting be supervised by a physician. The Court of Appeals dismissed their action for lack of standing, holding that the nurses association had not shown an injury in faet because the guidelines did not preclude them from administering anesthesia, and because their claim that physicians would not employ nurses if the physicians had to supervise the nurses’ administration of anesthesia was speculative. fs’ claimed injuries are not only that they might be forced into Here, Plainti inappropriate facilities, but that their needs and preferences as to relocation have not been assessed, and that they are not currently being given assistance in finding appropriate relocation. Plaintiffs further allege that currently they are not being provided required services. These injuries are not speculative but are alleged to have occurred and presently continue to occur. For the purpose of determining standing and justiciability, the Court must assume the allegations in the complaint to be true. As the purpose of the approved closure plan is to protect the residents and provide relocation assistance during the closure process, the Plaintiffs have an interest in the plan distinct from that of the general public, and that interest is within the zone of interest sought to be protected by the statutory provisions under which NYSDOH v Novello, approved the closure plan, see New York State Assn. of Nurse Anesthet supra. Plaintiffs’ allegations that the closure plan does not adequately specify what actions will be taken during the closure process to assess the Plaintiffs’ needs and preferences, to assist Plaintiffs in locating an appropriate facilities to which to transfer, and to ensure that required services are continued, do allege injuries in fact that are 1within the zone of interests protected by the relevant regulations. The allegations that the closure plan, which governs how the Operator will manage the closure, fails to provide the safeguards required under the regulations, do articulate a claim that the 1e benefits approval of the plan itself constitutes a direct injury to the Plaintiffs derived from the Social Services Law and the duties it imposes on operators of adult care facilities, inure directly and personally to the individual residents. Henry v Isaae, 214 AD2d 188, 632 NYS2d 169 (2*4 Dept 1995). Therefore Plaintiffs have demonstrated that they have standing to challenge NYSDOH’s approval of the closure plan. NYSDOH also argues that even if Plaintiffs have standing to challenge the approval of the closure plan, the approval was neither arbitrary nor capricious. he first defect, is that the plan does not Plaintiffs cite specific defects in the plan call for the Operator to assess Plaintiffs’ preferences as part of the process of locating appropriate facilities to which to transfer the Plaintiffs, Pursuant to the regulations, a ss the needs and closure plan must detail what actions an Operator will take to ass preferences of the residents. 18 NYCRR § 485.5())(2)(ii); 10 NYCRR §1001.4())(2)(ii). ‘The second defect alleged by Plaintiffs is that the plan does not describe in any detail the actions the Operator will take to assist residents in locating and transferring to appropriate alternative settings, as required by 18 NYCRR § 485.5()(2){iii); 10 NYCRR §1001.4())(2)(iii) ‘The third defect alleged is that the plan does not detail the actions that the Operator will take to maintain compliance with these regulations in terms of continued services until all residents have relocated. 18 NYCRR § 485.5(j)(2)(iv); 10 NYCRR §1001.4())(2)(iv). 12‘The fourth defect is that the plan was kept secret from the residence until it was approved, depriving them of several months when they could have looked for alternate residences that met their needs. Defendants’ assertion that approval of the plan was not arbitrary is not a point of law. Rather, it contests Plaintifis’ challenge to the approval of the plan on the merits. Even if the Court were to treat Plaintifis cause of action challenging the plan as an aetion rather than an Article 78 proceeding, Defendants’ contention that the approval was not arbitrary and capricious would not constitute a ground to dismiss pursuant to CPLR 32ii(a). NYSDOH Defendants’ claim that their approval of the closure plan was not arbitrary, is properly raised in an answer, rather than in a motion to dismiss. Further, to the extent the NYSDOH argues that it has provided documentary evidence demonstrating that the Plaintiffs’ complaints concerning inadequate services are untrue, the Noordsy affirmation and the e-mails of NYSDOH personnel do not constitute documentary evidence pursuant to CPLR 3211(a). Second, Third, and Fourth Causes of Action The NYSDOH Defendants also seek to dismiss Plaintiffs’ second, third and fourth causes of action on the grounds that none of the statutes or regulations upon which those causes of action are based give Plaintiffs a private right of action against the Department of Health. The second cause of action alleges that the NYSDOH Defendants violated NYS Social Services Law §461-a and 10 NYCRR §1001.4 by failing to ensure that the Operator hi intiffs’ needs and preferences for alternate facilities, has assisted sssessed PI Plaintiffs in transferring to appropriate facilities, and has continued to provide required services. 13The third cause of action alleges that the NYSDOH Defendants violated NYS Public Health Law Article 46-B §4662 by failing to ensure that the Operator has assisted the Plaintiffs in locating and transferring to appropriate facilities and has continued to provide required services. The fourth cause of action alleges that the NYSDOH Defendants have violated 18 NYCRR §490.5(0)(19) by failing to ensure that the Operator has assisted Plaintiffs in ‘ies which meet their needs and locating and transferring to appropriate faci preferences. It is not contested that the cited statutes and regulations do not contain an explicit authorization of a private cause of action for residents to enforce their provisions. Also, both Plaintiffs and Defendants agree that where not explicitly provided, a private cause of action can be implied where, (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose; (3) creation of a such a right would be consistent with the legislative purpose. Sheehy v Big Flats Community Day Inc., 73 NY2d 629, 543 NYS2d 18 (1989); Maimonides Med Center v First United American Life Ins. Co., 116 AD3d 207, 981 NYS2d 739 (24 Dept 2014); Henry v Isaac, 214 ADad 188, 632 NYSad 169 (2 Dept 1995). NYSDOH cites Carrier v Salvation Army, 88 NY2d 298, 644 N.Y.S.2d 678 (1996), for the proposition that the Social] Services Law gives exclusive enforcement powers to the Department and that a private cause of action is not consistent with the statutory scheme to regulate adult care facilities. Carrier involved an action by certain residents of an adult care facility to seek the appointment of a receiver to operate the facility in which they resided. The Court of Appeals held that the residents had no 14private right of action to seek a receiver. The Court held that statutory enforcement authority under Social Service Law §460-d was expressly vested only in the Department of Health. The Court of Appeals stated, “It would be particularly inappropriate under these circumstances to imply a private cause of action to seek appointment of a temporary receiver to operate the facility, a remedy that affects the rights of other residents in addition to the plaintiffs seeking such relief”. Id 303. Plaintiffs, on the other hand, rely on the Second Department decision in Henry v Isaac, 214 AD2d 188, 632 NYS2d 169 (2 Dept 1995). Henry v Isaac involved a suit brought by residents of an adult care facility against the operator of a facility for failure to provide services required under Article 7 of the Social Services Law, and related regulations. ‘The Court in Henry, held that the residents had an implied private right of action under the Social Services Law, even though the Statute and regulations did not provide an express private right of action. The Court held that a private right of action by residents of a facility to enforce the statute and regulations is consistent with the legislative purposes of the statute, which were to ensure adequate services to residents. Id. ‘The Court pointed out that Article 7 of the Social Services Law, and implementing regulations, “are not simply remedial in nature, but afford the residents various rights and impose an affirmative duty on the operators of adult care facilities to provide specified services and care.” Id at 193. The Court also noted that, “[rlecognition of a private right of action pursuant to which individual residents can seek redress for ‘wrongs personally suffered would augment the existing enforcement devices and. 15enhance a legislative scheme which, in part, imposes affirmative duties for the protection of those very individuals.” Id at 193. NYSDOH argues that this Court should not follow the holding in Henry because it is at odds with the subsequent decision of the Court of Appeals in Carrier, supra. In response Plaintiffs cite the Second Department decision in Maimonides Med Center v First United American Life Ins Co., 116 AD3d 207, 981 NYS2d 739 (2"4 Dept 2014), decided subsequent to Carrier, which cites and reaffirms its holding in Henry. Maimonides involved a claim by a medical provider against an insurer pursuant to the Prompt Pay Law. The Second Department held that the provider had a private right of action under the law stating “[s]upport for the conclusion that the Prompt Pay Law affords an implied private right of action to patients and health care providers is provided by this Court's decision in Henry v Isaac.” Maimonides Med Center v First United American Life Ins. Co., supra, at 214. ‘The reasoning of the Second Department in Henry and Maimonides is more applicable to the facts of the present case than that of Carri In Carrier the specific remedy that the plaintiffs were seeking, the appointment of a receiver, was a significant basis for the Court's holding. In finding no private right of action to seek a receiver, the Court noted “{i]t would be particularly inappropriate under these circumstances to imply a private cause of action to seek appointment of a temporary receiver to operate the facility, a remedy that affects the rights of other residents in addition to the plaintiffs secking such relief.” Carrier v Salvation Army, supra, at 303, 680, ‘The Court of Appeals, in Carrier, did not reject the holding in Henry but distinguished it from the case before it, because the plaintiffs in the case before it were 16seeking a different remedy. 'The Court in Carrier, stated, “Henry v Isaac, [cite omitted] upon which plaintiffs place heavy reliance, provides no support for their position as it does not address the remedy sought here”. Carrier v Salvation Army, supra at 304. ‘The plaintiffs in Henry, like the Plaintiffs in this case, seek to enforce their rights under Article 7 of the Social Services law to be provided with a level of services required under the law and applicable regulations. Further, in Maimonides, the Second Department, citing its decision in Henry, explained that Article 7 of the Social Services Law and its implementing regulations, were not simply remedial in nature, but afforded the residents various rights and imposed an affirmative duty on operators to provide specified services. It reasoned that the remedies available to the Department of Social Services did not adequately address the harm that a particular resident might suffer, and therefore recognition of a private right of action would augment the existing enforcement devices and enhance a legislative scheme which, imposes affirmative duties for the protection of those very individuals. Maimonides Med Center v First United Amer. Life Ins. Co. supra, at 215. In this case Plaintiffs seek to assert a private right of action against the governmental department charged with enforcing the regulations as well as against the Operator. In Henry the Plaintiffs asserted a cause of action against the private operator not against a state agency. In Maimonides, the Plaintiff's complaint was against an insurer. In Carrier the Plaintiffs brought an action against the private operator of a facility for a receiver, not an action against a state agency to compel it to seek a receiver. However, the test for whether there is a private right of action against a governmental agency is the same as against a private agency. In determining whether a there is a private right of action for violation of a state statute, the Court must determine 7whether the plaintiff is of the class or persons for whose benefit the statute was enacted, whether recognition of a private right of action would promote legislative purposes, and whether creation of a private right would be consistent with the legislative scheme. Mark G. v Sabol, 93 N¥2d 710, 695 NYS2d 730 (1999). While the discretionary acts of a governmental agency may not be a basis for liability in tort or for monetary damages, even where the agency's conductiis negligent MeLean v City of New York, 12 NY3d 194, 878 NYS2d 238, (2009); Lauer v City of New York, 95 N¥2d 95, 711 NYS2d 112 (2000), None of Plaintiffs’ second, third or fourth causes of action are not based in tort. Further, Plaintiffs do not seck monetary damages against the NYSDOH Defendants. The second, third and fourth causes of action are based on statute and regulation, and seek only declaratory and injunctive relief requiring the NYSDOH Defendants to act in accordance with the statutory requitements. Discretionary actions of governmental agencies may be challenged where those actions violate statute, or constitute an abuse of discretion. Lastly, the NYSDOH Defendants seck to dismiss Plaintiffs’ fifth and sixth causes of action which seek declarations that the NYSDOH Defendants have violated the federal Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, and seck to enjoin them from further violation of the acts, Plaintiffs allege that the NYSDOH Defendants have violated both Acts by failing to require that New York State regulations, policies and procedures ensure that residents are transferred to the most integrated setting appropriate to their needs. Plaintiffs argue that pursuant to the Supreme Court decision in Olmstead v LC, 527 US 4581, 119 S.Ct. 2176 (1999), public entities are prohibited from pursuing policies that place individuals at risk of unnecessary institutionalization. 18NYSDOH argues that these two causes of action are speculative as no decision to transfer the Plaintiffs has yet been made, and that none of the non-party former residents of the facility who have transferred have complained that they were transferred to inappropriate facilities. Plaintiffs argue that they are currently at risk of being placed in unnecessarily restrictive settings such as nursing homes. Plaintiffs further argue that they do not have to wait until they are actually placed in an unnecessarily restrictive setting before asserting an Olmstead claim, citing, Fisher v Oklahoma, 335 F3d 1175 (10'» Cir. 2003); Marlo v Cansler, 679 F Supp 2d 635 (EDNC 2010); Cota v Maxwell- Jolly, 688 F Supp 2d 980 (ND Cal 2010); VL v Wagner, 669 F Supp 2d 1106 (ND Cal 2009). In Fisher v Oklahoma, the 10" Circuit Court of Appeals reversed a decision dismissing a challenge to a state's decision to cease providing unlimited prescriptions to disabled persons in community-based programs, while continuing to provide such benefits to those who had been institutionalized. The Court of Appeals held that disabled persons who, by reason of change in state policy, stand imperiled with segregation in an institution may bring a challenge to that state policy under the integration mandate of the ADA without necessity of first submitting to institutionalization. The Court reasoned that the ADA “protections would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation”. Fisher, supra, at 1181 Marlo v Cansier, supra, involved a challenge to cuts in government aid for in home services, which plaintiffs alleged would force them into institutional settings that were not necessitated by the conditions. The cases of Cota v Maxwell-Jolly, supra and 19VL v Wagner, supra, involved allegations that changes in state eligibility criteria for in home assistance would force them into more restrictive settings. In all three of these cases, the Court granted preliminary injunctions before the plaintiffs entered more restrictive settings. The violations of the ADA and Rehabilitation Act alleged in the fifth and sixth causes of action are that the NYSDOH Defendants failed to enact policies that require closure plans to ensure that residents are transferred to the most integrated settings. Here, NYSDOH guidelines do not contain a requirement that a closure plan require residents to be transferred to the most integrated setting. The closure plan which NYSDOH approved, and which is currently being implemented, contains no provision for requiring that Plaintifis be transferred to the most integrated setting. Nor does it contain any provision to prevent Plaintiffs, whose disabilities do not require it, from being transferred to a nursing home. Where the Plaintiffs are being forced to transfer because the Operator is choosing to close the facility, NYSDOH has an obligation to ensure that the Operator assesses the Plaintiffs’ needs and assists the Plaintiffs in locating the most integrated reoleative setting during the closure period. NYSDOH’s obligations to enact policies that protect residents’ right to live in the ent with their needs, are separate from and in addition to most integrated setting consi a resident's right to challenge a specific transfer in a special proceeding to remove them. NYSDOH’s alleged failure to meet these obligations constitutes an actual injury, even before a Plaintiff is transferred to an unnecessarily restrictive facility. Therefore, Plaintiffs’ fifth and sixth causes of action are neither premature nor speculative. 20WHEREFORE, NYSDOI!’s motion to dismiss is denied and it is hereby, ORDERED, that the NYSDOH Defendants’ time to serve an answer is extended until ten days after service of this Decision and Order with notice of entry. ‘This constitutes the decision and order of this Court. ENTER XN JSC HON. WAYNE P. SAITTA ISL. 21