At an IAS Term, Part 29 of the Supreme

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 21st day of November, 2014.
P R E S E N T:
Hon. Wayne P. Saitta, Justice.
---------------------------------------------------------------------X
MARY BERGER, CANDACE BLANDFORD, LILLIAN
GUIDE, BELLA HORNAUNG, GEORGE MELAMED,
DECISION and ORDER
ANNE MARIE MOGIL, ALICE SINGER and JENNIFER
STOCK, as Temporary Administrator of JACK STOCK,
Index No. 6639/2014
Plaintiffs,
Action #1
-againstPROSPECT 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
LILLIAN S. MARKS, PAULA ATLAS,
RUTH GURTON, HENRIETTA HALLENBORG,
TRINA KRUGER, AND JOACHIM SCHROBSDORFF,
Plaintiffs,
Index No.9578 /2014
Action #2

-againstPROSPECT PARK RESIDENCE LLC, 1 PROSPECT PARK

RESIDENCE, LLC, 1 PROSPECT PARK ALF, LLC,
PROSPECT PARK RESIDENT HOME HEALTH CARE, INC.,
HAYSHA DEITSCH, and SAM ZALMANOV,
Defendants.
----------------------------------------------------------------------X
1

Plaintiffs in Action #1 have moved by Order to Show Cause, to amend the

complaint to add two additional Plaintiffs, to punish Defendants for contempt, for the
appointment of a special master, and for a preliminary injunction enjoining 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, and 1 Prospect Park Residence, LLC from commencing
special proceedings to terminate Plaintiffs residencies and remove them from their
residences, during the pendency of this action.
The motion having come before the Court on November 19, 2014, and upon
reading the Order to Show Cause dated, October 3, 2014, and Affirmation of Jason E.
Johnson Esq., dated September 24, 2014, and the memorandum of law, and exhibits
attached thereto; the Affidavit of Linda Fine, sworn to October 21, 2014, the Affidavit of
Mark Moskowitz sworn to October 21, 2014, and the exhibits annexed thereto; the
Memorandum of Law in Opposition of Joel Drucker Esq., dated October 22, 2014;
Plaintiffs Memorandum of Law in Response dated November 5, 2014,and exhibits
annexed thereto, the Affidavit of Deborah Pollack, sworn to November 4, 2014; the
Affidavit of ANNEMARIE MOGIL, sworn to November 4, 2014, the Affidavit of Arlene
Glotzer, sworn to November 4, 2014, the Affidavit of Myra Melamed, sworn to
November 3, 2014, the Affidavit of Joyce Singer, sworn to November 4, 2014; the
Affidavit of ANDREW KEESLER, sworn to November 4, 2014, the Affidavit of ELLEN
2

EHRLICH, sworn to November 4, 2014; and after argument of counsel and due
deliberation thereon, those parts of Plaintiffs motion which seek to amend the
complaint to add ROSALIND BLANK and HANNA ESKIN as Plaintiffs and which seek a
preliminary injunction is granted for the reasons set forth below. The Court reserves
decision on the remaining portions of the motion which seek the appointment of a
special master and contempt penalties.
Plaintiffs in Action #2 have moved by Notice of Motion, to consolidate that action
with Action #1, and for a preliminary injunction enjoining PROSPECT PARK
RESIDENCE LLC, 1 PROSPECT PARK RESIDENCE, LLC, 1 PROSPECT PARK ALF,
LLC, PROSPECT PARK RESIDENT HOME HEALTH CARE, INC., HAYSHA DEITSCH,
and SAM ZALMANOV, from commencing special proceedings to terminate Plaintiffs
residency agreements and remove them from their residences.
That motion having come before the Court on November 19, 2014, and upon
reading the Notice of Motion dated, November 4, 2014, and Affirmation of Bradley J.
Nash Esq., dated November 4, 2014, and the exhibits attached thereto; the Affirmation
in Opposition of Joel Drucker Esq., dated November 10, 2014, and after argument of
counsel and due deliberation thereon that part of Plaintiffs motion which seeks to
consolidate the action is granted, and that part which seeks a preliminary injunction is
granted for the reasons set forth below.
Plaintiffs in both actions are current and former elderly residents of the Prospect
Park Residence (the Residence), an assisted living facility located at 1 Prospect Park
West in Park Slope, Brooklyn. The Plaintiffs who still reside at the residence range in
age from 88 years to 99 years old and suffer from various disabilities.

LILLIAN GUIDE, is 97 years old suffers from dementia and receives

chemotherapy treatment twice a year.
GEORGE MELAMED, is a 97 year old holocaust survivor, who suffers from
dementia.
BELLA HORNUNG, is a 91 year old holocaust survivor who suffers from
dementia.
ANNE MARIE MOGIL, is 92 years old and needs to use a walker.
ALICE SINGER, is 90 years old, and suffers from diabetes, seizure disorder and
severe osteoarthritis.
ROSALIND BLANK, is 99 years old and has been in hospice care for two years.
HANNA ESKIN, is 91 years old, suffers from dementia and is blind.
PAULA ATLAS, is an elderly resident of the facility.
HENRIETTA HALLENBORG, suffers from dementia.
PROSPECT PARK RESIDENCE, LLC, 1 PROSPECT PARK ALF, LLC, HAYSHA
DEITSCH, DAVID POMERANTZ, and SAM ZALMANOV, (the PROSPECT
DEFEDANTS) have appeared in this action. The PROSPECT DEFENDANTS are
alleged by Plaintiffs to own or manage the Residence. The PROSEPCT DEFENDANTS
contend that only, PROSPECT PARK RESIDENCE, LLC, operates the Residence and
that 1 PROSPECT PARK RESIDENCE, LLC, is the owner of the property on which the
Residence is located. HAYSHA DEITSCH AND SAM ZALMANOV are members 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 (DOH), is the
State agency that licenses and approves closure plans for assisted livings facilities in
4

New York. NIRAV R. SHAH MD, MPH, is 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 February 24, 2014, DOH sent PROSPECT PARK RESIDENCE notice that it
approved its plan to surrender its operating certificate, and close the Residence and
convert it to unregulated residential apartments.
The plan initially set April 30, 2014 as the target closure date for the Residence.
At this time eight residents still reside at the facility. The Plaintiffs in Action #1 seek in
part to annul DOHs approval of the PROSPECT DEFENDANTS closing plan on the
grounds that the plan fails to adequately ensure that the Plaintiffs will be transferred to
appropriate alternative facilities, and that the Plaintiffs needs and preferences for an
alternate facility will be adequately assessed. While Plaintiffs in Action #2 do not seek to
annul the plan they make similar allegations regarding the closure plan. Plaintiffs argue
that it is the PROSPECT DEFENDANTS responsibility to assess the Plaintiffs needs and
preferences and find adequate alternative facilities to which they can be transferred.
Plaintiffs claim that they are being forced to transfer to facilities that are not appropriate
given their needs.
PROSPECT DEFENDANTS argue that Plaintiffs have not cooperated with their
relocation efforts and that there is no evidence that any of the residents have yet been
transferred to inappropriate facilities.
Pursuant to Section 461-g(2)(a) of the Social Services Law, the operator of an
assisted living facility must commence a special proceeding to terminate a residency
agreement or remove a resident of an assisted living facility.

Defendant 1 PROSPECT PARK RESIDENCE, LLC, has sent notices of

termination to the Plaintiffs terminating their residency agreements on the grounds that
it intends to surrender its operating certificate, and stating that if the Plaintiffs do not
vacate the Residence by the end of October that the operator will commence special
proceedings to remove them.
Plaintiffs seek a preliminary injunction enjoining Defendants from commencing
any special proceeding to remove the Plaintiffs until there is a determination in this
action, as to the validity of DOHs approval of the closure plan. After service of the Order
to Show Cause, the PROSPECT DEFENDANTS agreed not to commence special
proceedings until November 24, 2014.
Plaintiffs argue that they will be irreparably harmed if they are removed from
their homes through a special proceeding before there is a determination of their claims
that the approval of the closure plan was improper.
Defendants argue that there is no need for a preliminary injunction at this point
because even if the special proceedings are commenced, it may be some time before
there would be any order of removal in the Housing Court. Defendants do not oppose
amending the summons and complaint to add the two additional residents.
Plaintiffs counter that they will be irreparably harmed just by commencement of
the case because they would be subject to a blacklist which is kept of any tenants
involved in a proceeding in Housing Court which would greatly impair their ability to
lease alternate housing.
To obtain a preliminary injunction the movant must demonstrate irreparable
harm, a likelihood of success, no adequate remedy at law, and a balancing of the equities
in their favor.
6

Plaintiffs have demonstrated both that they face irreparable harm if the
injunction is not issued, and that they do not have an adequate remedy at law. Without
a preliminary injunction, the Plaintiffs, who are in their nineties and suffer from severe
disabilities, face the loss of their homes. Given their advanced age and infirmities, the
disruption and harm that Plaintiffs would suffer if they were removed would be
devastating, and no remedy at law would afford them adequate redress.
Defendants argument that it should be able to commence the special proceedings
because the Plaintiffs would not be subject to removal for some time is without merit.
To begin with, the special proceeding is noticed to be heard within five to twelve
days of service of the notice of petition upon the residents, and adjournments are
limited to 10 days. Social Services Law 461-h (4) and (9).
Further, in a special proceeding, the Plaintiffs would not be able to challenge the
validity of DOHs approval of the closure plan. DOH is not a party to the special
proceeding and its determination to approve the plan cannot be attacked collaterally.
Watergate II Apartments v Buffalo Sewer Authority, 46 NY2d 52, 412 NYS2d 821
(1978), Joseph v Roldan, 289 AD2d 243, 733 N.Y.S.2d 721 (2nd Dept., 2001) City of New
York v East New York Wrecking Corp., 161 AD2D 469, 555 N.Y.S.2d 755 (1st Dept.,
1990). The only avenue for Plaintiffs to challenge DOHs approval of the closure plan is
through this current Article 78 proceeding in Supreme Court.
The situation is analogous to the procedure to evict a Housing Authority tenant
for reasons other than non-payment of rent. The tenant must first challenge the
Housing Authoritys decision to terminate their tenancy through an Article 78, and if
they do not do so, they cannot challenge the termination of their tenancy in the eviction
proceeding in Housing Court.
7

Further, Plaintiffs have demonstrated that even commencing the proceeding in

Housing Court would subject the Plaintiffs to a blacklist used to screen potential
tenants, compiled from information made available by the Office of Court
Administration. The information provided by the Office of Court Administration
includes anyone who merely named a respondent in a Housing Court proceeding. Once
the special proceeding is commenced, the Plaintiffs would remain on the blacklist,
regardless of the disposition of the proceeding or this case.
Plaintiffs have also demonstrated a sufficient likelihood of success on the merits
of those claims which are relevant to the granting of a preliminary injunction staying the
commencement of special proceedings to remove them.
The commencement of special proceedings is premature because the operator
has not surrendered its operating certificate. Pursuant to Social Services Law Section
461-g (1) (e) an operator voluntarily closing their facility cannot terminate a residency
agreement until it has surrendered the operating certificate for the facility. Similarly,
18 NYCRR 487.5 (f) (14) (v) and 18 NYCRR 490.5 (f) (3) (v) provide that an operator
may terminate an admission agreement when it has voluntarily surrendered the
operating certificate of the facility to the department. Both the statute and regulation
clearly and unambiguously provide for termination of residency agreements only after
the operating certificate has been surrendered.
Mark Noordsy, an attorney with the DOH, sent a letter to Defendants dated
August 8, 2014, stating that he believed that surrender of the operating license was not a
prerequisite for commencing a special proceeding pursuant to Social Services Law
Section 461-h. However, he cites no statutory authority for this opinion which
contradicts the clear language of the statute.
8

The only authority cited in Noordsys letter is a single Bronx Civil Court case from
1983, Braker Memorial Home v White, 121 Misc 2d 544 (Civil Ct, Bx 1983). The Court
in Braker held that statutory requirements that the operator surrender their operating
certificate before commencing a special proceeding are apparently in conflict with
Subdivision 1 of section 460-b, section 460-d (subd 9, par [a]) and section 460-f of the
Social Services Law which impose civil and criminal sanctions for surrendering the
certificate while the facility remains in operation. id at 546.
However, the statutory sections cited by the court in Braker, do not in fact
provide for any sanctions for surrendering the certificate while a facility remains in
operation. Sections 460-b and 460-d (9) (a) prohibit an operator from operating a
facility without a certificate, which is a different matter.
There is in fact no catch 22 or inconsistency in the statute. In the event that an
operator surrenders their certificate, which must be done pursuant to a closure plan
approved by DOH, and there are still residents in the facility, then DOH could appoint a
temporary administrator or receiver to operate the facility, just as it would if it
suspended or revoke an operators certificate. Social Services Law 461-f (2) 460-d (4)
[c](ii), 18 NYCRR 485.9. Such temporary operator or receiver would provide for the
orderly transfer of all residents in the facility to other facilities appropriate to their
needs, or make other provisions for their continued safety and care. 18 NYCRR
485.9(a)(4)(i).
DOH does not have the authority to waive the statutory requirement that the
operator surrender its certificate before terminating Plaintiffs residency agreements or
commencing special proceedings to remove them. As demonstrated in this present case,
the public policy reasons for not relying on an operator to continue provide services to
9

vulnerable elderly residents who it is seeking to remove, are too obvious to require
further elaboration.
Further, the Plaintiffs claim that the closure plan does not adequately ensure
that they will be transferred to appropriate facilities and that adequate services will
continued to be provided during the closure process. While, the operator has a right to
surrender its certificate, the statute requires DOH to approve and supervise a closure
plan that ensures that the residents are transferred to facilities that are appropriate for
their individual needs and that services be continued during the closure process.
To begin with, the closure plan failed to provide for the situation that the parties
now face, in which several residents remain and are contesting the validity of the plan.
In fact, because this is apparently a case of first impression, neither the PROSPECT
DEFENDANTS or DOH had considered the possibility that Defendants would have to
commence special proceedings in order to close the facility, much less consider who
would operate the facility while special proceedings were ongoing.
The Noordsy letter, written six months after the approval of the plan, was in
response to a request by the operator to be allowed to continue operating the facility
after surrendering its certificate. PROSPECT DEFENDANTS counsel had correctly
interpreted the relevant statutes and regulations to require surrender of the certificate
before special proceedings could be commenced.
The Plaintiffs have also challenged the approval of the plan on the grounds that it
did not adequately set forth or describe the procedures and actions that the operator will
take to assist residents in relocating and to assess the needs and preferences of the
residents, as required by 18 NYCRR 485.5(j)(2). Section 485.5(j)(2) requires that a
closure plan include timetables and describe the procedures and actions the operator
10

will take to assist residents in relocation and assess their needs and preferences.
The closure plan approved by DOH does not give a timetable or list the
procedures the operator would take to relocate residents, but merely states, All
residents will be relocated to appropriate facilities. Staff will find appropriate facilities,
and arrange for the relocation of each resident. Every effort will be made to work with
the residents and families to find the best facilities. The statement simply paraphrases
the language of the statute but provides no specifics or timetables.
Similarly, instead of detailing the timetables and procedures for assessing the
needs and preferences of the residents in terms of relocation, the plan simply states that
An assessment of each residents needs will be completed by the case manager or her
designee by reviewing and updating the residents ISP. The Plaintiffs still in residence
are in their nineties, two are holocaust survivors, several suffer from dementia, and all
have severe infirmities. Assessing their individual needs in order to find an appropriate
placement is not a mere technicality.
In addition to these deficiencies on the face of the plan, there has not been any
evidence produced that the operator has assessed the Plaintiffs individual needs and
preferences or has found facilities that are appropriate given the Plaintiffs individual
needs and preferences.
The fact that the operator has not surrendered its certificate, together with the
plans failure to provide for another operator in the event the operator commenced
special proceedings, its lack of a description of assessment and relocation procedures,
and the absence of any evidence that assessment were in fact done or that appropriate
relocative facilities have be found, demonstrate a sufficient likelihood Plaintiffs will
succeed on the merits of those claims relevant to the requested preliminary injunction.
11

Lastly, the balancing of equities in granting the preliminary injunction weigh in

the Plaintiffs favor. Without a preliminary injunction Plaintiffs face eviction or forced
transfer to facilities that may not be appropriate. The burden that an injunction would
impose on the operator is not onerous. Temporary continued operation of the facility
pending determination of this action does not impose an undue hardship on the
operator. The operator seeks to voluntarily surrender its certificate, not because of any
financial difficulty in operating the facility, but in order to sell the building to an entity
that will convert the building to unregulated housing.
By reason of the foregoing, Plaintiffs have demonstrated entitlement to a
preliminary judgment staying the commencement of summary proceedings to evict
them.
With respect to the amount of the undertaking in the instant action, the purpose
of an undertaking is to ensure that the Plaintiffs will reimburse the Defendants for
damages sustained if it is later finally determined that they were not entitled to the
preliminary injunction CPLR 6312(b), Margolies v Encounter, Inc., 42 NY2d 475 (1977);
Lelekakis v Kamamis, 103 AD3d 693, 962 NYS2d 143, (2nd Dept 2103)
The amount of undertaking should be rationally related to the amount of the
defendant's potential damages in the event it is determined that the plaintiff was not
entitled to the preliminary injunction. Clover Street Associates v. Nillson, 244 AD2d 312
665, NYS2d 537 (2d Dept 1997); 84-85 Garden Owners Corp., v 84-12 35th Ave
Apartment Corp., 91 AD3d 702, 937 NYS2d 107 (2nd Dept 2012).
Courts, in exercising their discretion, have set nominal undertakings in cases in
which the defendant's potential damages, if the defendant prevails, are minimal and/or
the plaintiff lacks sufficient financial resources. Daytop Village, Inc. v. Consolidated
12

Edison Co., of New York, Inc., 61 AD2d 933, 403 NYS2d 222, (1st Dept 1978), Wuertz
v. Cowne, 64 AD2d528, 409 NYS2d 232 (1st Dept 1978 ), Wright v Lewis, 21 Misc3d
1120(A), 873 NYS2d 516, (Su Ct Kings Co 2008); Valdez v. Northeast Brooklyn Housing
Development Corp. (8 Misc.3d 1008[A], 2005 N.Y. Slip Op 50986[U] [Sup Ct, Kings
County 2005] ).
Given that the injunction is one to stay commencement of proceedings to remove
the residents, it is appropriate to condition the injunction on continuation of payment of
residency fees, together with a nominal undertaking.
{ "pageset": "Scfb

Therefore, in exercising sound discretion, this Court conditions the

preliminary injunction on Plaintiffs continuing to pay their residency fees to

PROSPECT PARK RESIDENCE, LLC and giving an undertaking in amount of $100 per
Plaintiff, to be filed with the Kings County Clerk, as Clerk of the Supreme Court, Kings
County.
WHEREFORE, those portions of the Berger Plaintiffs motion for to amend the
complaint to add ROSALIND BLANK and HANNA ESKIN as Plaintiffs and for a
preliminary injunction are granted and decision on the remainder of the motion is
reserved, and the motion of the Plaintiffs in action #2, to consolidate and for a
preliminary injunction is granted and it is hereby,
ORDERED, that actions Index No. 6639/2014 and action Index No. 9578/2014
are consolidated for all purposes and it is further,
ORDERED that the Clerk of Kings County is directed to consolidate the file of
Index No. 9578/2014 into Index no. 6639/2014 and it is further,
ORDERED that the pleadings in each action shall stand as the pleadings in the
13

consolidated action; and it is further,

ORDERED, that ROSALIND BLANK and HANNA ESKIN are added as Plaintiffs
and the caption of the consolidated action shall read as follows:
---------------------------------------------------------------------X
Index No.:6639 /2014
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, LILLIAN S. MARKS,
PAULA ATLAS, RUTH GURTON, HENRIETTA HALLENBORG,
TRINA KRUGER, AND JOACHIM SCHROBSDORFF,
Plaintiffs,
-againstPROSPECT 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
and it is further,
ORDERED that Plaintiffs serve a consolidated amended complaint within 20
days, and is it further,
ORDERED that the motions to dismiss Action #1, by the DOH Defendants and by

14

the PROSPECT DEFENDANTS, currently sub judice, are deemed to apply to the
consolidated amended complaint and it is further,

ORDERED, that Plaintiffs ATLAS, GURTON, HALLENBORG, KRUGER, and

SCHROBSDORFF, shall submit any opposition to the above motions to dismiss by
December 12, 2014, and the Defendants shall submit their replies, if any, by December
29, 2014, and it is further,
ORDERED, that conditioned on the Plaintiffs continuing to pay to Defendant
PROSPECT PARK RESIDENCE, LLC, the fees set forth in their residency agreements,
and giving an undertaking of $100 for each Plaintiff, Defendants are enjoined from
commencing or maintaining special proceedings to evict or remove the Plaintiffs
LILLIAN GUIDE, GEORGE MELAMED, ANNEMAIRE MOGIL, ALICE SINGER,
ROSALIND BLANK, HANNA ESKIN, PAULA ATLAS or HENRIETTA HALLENBORG
during the pendency of this action, and it is further,
ORDERED, that Defendants are temporarily restrained from commencing any
special proceedings until December 2, 2014, to allow Plaintiffs an opportunity to file the
above undertaking.
This constitutes the decision and order of this Court.
E N T E R:

JSC

15