On June 14, 2021 a
Motion-Secondary
was filed
involving a dispute between
Albert Young Individually And As Executor Of The Estate Of Lula Stevens,
Albert Young
Individually And As Executor Of The Estate Of Lula Stevens,
Ardith E Bulmahn Individually And As Administratix Of The Estate Of Lula Stevens,
Ardith E Bulmahn
Individually And As Administratix Of The Estate Of Lula Stevens,
Brenda Barnes Individually And As Administratix Of The Estate Of John Anthony Dobbins,
Brenda Barnes
Individually And As Administratix Of The Estate Of John Anthony Dobbins,
David Janusz Individually And As Co-Executor Of The Estate Of Leocadia Franusiak,
David Janusz
Individually And As Co-Executor Of The Estate Of Leocadia Franusiak,
Denise Clay Individually And As Administratix Of The Estate Of Randall Clay,
Denise Clay
Individually And As Administratix Of The Estate Of Randall Clay,
Diane Antkowiak Individually And As Co-Executor Of The Estate Of Leocadia Franusiak,
Diane Antkowiak
Individually And As Co-Executor Of The Estate Of Leocadia Franusiak,
Thaddeus C Tomaka Individually And As Executor Of The Estate Of Randall Clay,
Thaddeus C Tomaka
Individually And As Executor Of The Estate Of Randall Clay,
Thaddeus C Tomaka
Individually And Executor Of The Estate Of Lillian Tomaka,
Velpo Johnson Iii Individually And As Executor Of The Estate Of Willie Lee Stewart,
Velpo Johnson Iii
Individually And As Executor Of The Estate Of Willie Lee Stewart,
and
Aryeh Richard Platschek,
Golden Living Centers Llc,
Jennifer G. Flannery, Erie County Public Administrator Of The Estate Of Wendy Hammond A K A Wendy Zacher Hammond A K A Wendy Zacher-Schmidt,
John Does 1-200,
Judy Landa,
Laura Zacher Otterbein,
Legacy Health Care Llc,
Moshe Steinberg,
Ridge View Manor Llc,
Robert Schuck,
Safire Care, Llc,
Safire Nursing And Rehabilitation Care Of Amherst, Llc,
Safire Rehabilitation Of Amherst, Llc,
Sheridan Manor Llc,
Solomon Abramczyk,
Williamsville Suburban Llc,
W Richard Zacher,
W Richard Zacher A K A Richard Zacher,
for Commercial - Contract
in the District Court of Erie County.
Preview
FILED: ERIE COUNTY CLERK 07/09/2021 09:32 AM INDEX NO. 003907/2010
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/09/2021
PRESENT: HON. FREDERICK J. MARSHALL, J.S.C.
STATE OF NEW YORK :
SUPREME COURT : COUNTY OF ERIE
DENISE CLAY, Individually and as Administratrix of the Estate of ATTORNEY'S
RANDALL CLAY; THADDEUS C. TOMAKA, Individually and AFFIRMATION
as Executor of the Estate of LILLIAN TOMAKA; ALBERT YOUNG,
Individually and as Executor of the Estate of LULA STEVENS; BRENDA Action #1
BARNES, Individually and as Administratrix De Bonis Non of the Estate Index No. 12010/3907
of JOHN ANTHONY DOBBINS; VELPO JOHNSON, Ill,Individually
and as Executor of the Estate of WILLIE LEE STEWART; DIANE
ANTKOWIAK and DAVID JANUSZ, Individually and as Co-Executors
of the Estate of LEOCADIA FRANUSIAK; and on behalf of all others
similarly situated,
Plaintiffs
RIDGE VIEW MANOR, LLC; WILLIAMSVILLE SUBURBAN, LLC;
LEGACY HEALTH CARE, LLC; W. RICHARD ZACHER; and
JOHN DOES 1-200
Defendants
ALBERT YOUNG , Individually and as Executor of the Estate of
LULA STEVENS; and on behalf of allothers similarly situated,
Plaintiffs, Action #2
vs. Index No. 8001 14/2016
WILLIAMSVILLE SUBURBAN, LLC; LEGACY HEALTH CARE, LLC;
W. RICHARD ZACHER; GOLDEN LIVING CENTERS, LLC; SAFIRE
REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND
REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC;
SOLOMON ABRAMCZYK; JUDY LANDA; LAURA ZACHER
OTTERBEIN; ARYEH RICHARD PLATSCHEK; JENNIFER G.
FLANNERY, Erie County Public Administrator of the ESTATE OF
WENDY HAMMOND a/k/a WENDY ZACHER HAMMOND a/k/a
WENDY ZACHER-SCHMIDT; ROBERT SCHUCK; MOSHE
STEINBERG; and JOHN DOES 1-200
Defendants.
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Nicole T.C. Marques, affirms the following subject to penalties of perjury pursuant to
CPLR §2106:
1. I am an attorney duly licensed to practice law in the State of New York and a
member of the law firm of BROWN CHIARI LLP, 2470 Walden Avenue, Buffalo, New York,
14225-4751, attorneys for the plaintiff in the above matter.
defendants'
2. I submit this affirmation in opposition to amended motion to dismiss
the complaint, pursuant to CPLR 3211(a)(4), based on a prior pending action, and in support of
Plaintiff's cross-motion to consolidate the present matter with the action pending under Index
Number I2010/3907, pursuant to CPLR § 602(a), as well as for authorization to convert that action
(Index Number I2010/3907) to an e-file case for use of the New York State Courts Electronic
Filing System ("NYSCEF").
3. In order to avoid unnecessary duplication before the Court, the exhibits attached to
the Amended Attorney Affidavit of Jessica M. DeMichiel, Esq., dated, August 9, 2016
(hereinafter, "Def. Exhibit") are incorporated herein by reference.
4. Plaintiff's decedent, Lula Stevens, was a resident of Williamsville Suburban,
located at 193 South Union Road, Williamsville, New York 14221, from on or about March 20,
2009 to her death on April 20, 2017.
5. This action was commenced by filing of a Summons and Complaint, Index No.
800114/2016, in the Erie County Clerk's Office on January 5, 2016 (hereinafter "Action No. 2").
See Def. Exhibit A.
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6. There are fourteen (14) named defendants in this action: 1) Williamsville Suburban,
LLC; 2) Legacy Health Care, LLC; 3) W. Richard Zacher; 4) Golden Living Centers, LLC; 5)
Safire Nursing & Rehabilitation Care of Amherst, LLC; 6) Safire Care, LLC; 7) Solomon
Abramczyk; 8) Judy Landa; 9) Laura Zacher Otterbein; 10) Aryeh Richard Platschek; 11) Wendy
Zacher Schmidt; 12) Robert Schuck; 13) Moshe Steinberg; and 14) John Does 1-200.
7. The instant pre-answer motion to dismiss is filed on behalf of only nine (9) of the
defendants: 1) Williamsville Suburban, LLC; 4) Golden Living Centers, LLC; 5) Safire Nursing
& Rehabilitation Care of Amherst, LLC; 6) Safire Care, LLC; 7) Solomon Abramczyk; 8) Judy
Landa; 10) Aryeh Richard Platschek; 12) Robert Schuck; and 13) Moshe Steinberg (hereinafter,
"Moving Defendants").
8. The Moving Defendants seek to dismiss the complaint as against them, on the basis
of a prior pending action pursuant to CPLR 3211(a)(4). However, eight (8) of the nine (9) Moving
Defendants are not named in any prior action by Plaintiff.
9. Plaintiff acknowledges that Lula Stevens is a named plaintiff in an action seeking
class certification under Index Number I2010/3907 (hereinafter, "Action No. 1"). See Def. Exhibit
B.
10. The named defendants in Action No. 1 include only one (1) of the Moving
Defendants - to Williamsville LLC.
wit, Suburban,
11. The remaining defendants are not named and have no causes of action against them
in Action No. 1. On this basis alone, the instant motion should be denied, in its entirety, as to the
Moving Defendants.
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12. Both Action No. 1 and Action No. 2 seek compensatory and punitive damages
defendants'
incurred as a result of deprivation of rights and benefits to which plaintiff(s), and all
others similarly situated, were entitled by the terms of contract, state statue, code, rule or
regulation, and include the following causes of action:
a. Violation of §2801-d of the New York State Public Health Law;
b. Breach of Contract; and
c. Negligence
13. Additionally, the complaint in Action No. 2 alleges that the individually-named
persons"
defendants are "controlling under N.Y. Public Health Law § 2808-a, such allegations are
not present in Action No. 1, and, again, the moving individually-named defendants are not
included therein as defendants.
14. Both actions seek class certification. There has been limited discovery related to
class certification, performed in Action No. 1. There has been no discovery of any kind in the
present action. No depositions have taken place in either action.
15. Upon information and belief, the Moving Defendants obtained or otherwise became
involved in the ownership, control, administration and management of the facility, Williamsville
Suburban, LLC, at some time after the filing of Action No. 1.
Defendants'
16. Based upon Moving concession that the class defined in Action No. 1
class"
is "not a closed (See DeMichiel Aff., ¶ 12; see also, Amended Memorandum of Law in
Defendants'
Support of Motion to Dismiss Pursuant to CPLR 3211(a)(4) (hereinafter, "Def.
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MOL"), p. 6), Plaintiff cross-moves to consolidate Action No. 1 and Action No. 2, because the
proceedings and actions involve common questions of law and fact, pursuant to CPLR § 602(a).
17. Consolidation will save the time of the court, the parties and witnesses, and would
serve the convenience of all concemed. Further, the requested consolidation results in no prejudice
to the parties, as Action No. 1 and Action No. 2 are already being conferenced jointly by the Court;
and have been since at least April 2017.
18. Finally, Plaintiff makes application to the Court, as a party in Action No. 1, for
authorization to use the New York State Courts Electronic Filing System ("NYSCEF") in the
consolidated case under Index Number I2010/3907, and to direct the County Clerk to convert the
matter to electronic form pursuant to 202.5-b(b)(2)(iv) of the Uniform Rules of the Trial Courts.
defendants'
WHEREFORE, Plaintiff respectfully requests an Order denying motion to
dismiss the complaint in its entirety; granting Plaintiff's cross-motion to consolidate the present
action, Index Number 800114/2016, with Action No. 1, Index Number I2010/3907, under the
Index No. I2010/3907; authorizing the use of the New York State Courts Electronic Filing System
("NYSCEF") in the matter under Index Number I2010/3907, and directing the County Clerk to
convert the matter under Index Number I2010/3907 to electronic form pursuant to 202.5-
b(b)(2)(iv) of the Uniform Rules of the Trial Courts; and for such other and further relief as the
Court deems just and proper.
DATED: June 9, 2021
Buffalo, New York
Nicole T.C. ar 's
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WORD COUNT CERTIFICATION
PURSUANT TO 22 N.Y.C.R.R. 6 202.8-b(c)
Total Word Count: 977
Certification: Counsel hereby certifies that the total number of words, as calculated by the word
processing system used to prepare the affidavit, excluding the caption and signature block, is in
compliance with the word count limit as defined under 22 N.Y.C.R.R. § 202.8-b(a)(i).
.
Niod T.C. Marques
BROWN CHIARI LLP
Attorneys for Petitioner
2470 Walden Avenue
Buffalo, New York 14225-4751
(716) 681-7190
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Preview
FILED: ERIE COUNTY CLERK 07/09/2021 09:32 AM INDEX NO. 003907/2010 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/09/2021 PRESENT: HON. FREDERICK J. MARSHALL, J.S.C. STATE OF NEW YORK : SUPREME COURT : COUNTY OF ERIE DENISE CLAY, Individually and as Administratrix of the Estate of ATTORNEY'S RANDALL CLAY; THADDEUS C. TOMAKA, Individually and AFFIRMATION as Executor of the Estate of LILLIAN TOMAKA; ALBERT YOUNG, Individually and as Executor of the Estate of LULA STEVENS; BRENDA Action #1 BARNES, Individually and as Administratrix De Bonis Non of the Estate Index No. 12010/3907 of JOHN ANTHONY DOBBINS; VELPO JOHNSON, Ill,Individually and as Executor of the Estate of WILLIE LEE STEWART; DIANE ANTKOWIAK and DAVID JANUSZ, Individually and as Co-Executors of the Estate of LEOCADIA FRANUSIAK; and on behalf of all others similarly situated, Plaintiffs RIDGE VIEW MANOR, LLC; WILLIAMSVILLE SUBURBAN, LLC; LEGACY HEALTH CARE, LLC; W. RICHARD ZACHER; and JOHN DOES 1-200 Defendants ALBERT YOUNG , Individually and as Executor of the Estate of LULA STEVENS; and on behalf of allothers similarly situated, Plaintiffs, Action #2 vs. Index No. 8001 14/2016 WILLIAMSVILLE SUBURBAN, LLC; LEGACY HEALTH CARE, LLC; W. RICHARD ZACHER; GOLDEN LIVING CENTERS, LLC; SAFIRE REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; LAURA ZACHER OTTERBEIN; ARYEH RICHARD PLATSCHEK; JENNIFER G. FLANNERY, Erie County Public Administrator of the ESTATE OF WENDY HAMMOND a/k/a WENDY ZACHER HAMMOND a/k/a WENDY ZACHER-SCHMIDT; ROBERT SCHUCK; MOSHE STEINBERG; and JOHN DOES 1-200 Defendants. -BROWN CHIARI n - 1 of 6 FILED: ERIE COUNTY CLERK 07/09/2021 09:32 AM INDEX NO. 003907/2010 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/09/2021 - Page 2 - Nicole T.C. Marques, affirms the following subject to penalties of perjury pursuant to CPLR §2106: 1. I am an attorney duly licensed to practice law in the State of New York and a member of the law firm of BROWN CHIARI LLP, 2470 Walden Avenue, Buffalo, New York, 14225-4751, attorneys for the plaintiff in the above matter. defendants' 2. I submit this affirmation in opposition to amended motion to dismiss the complaint, pursuant to CPLR 3211(a)(4), based on a prior pending action, and in support of Plaintiff's cross-motion to consolidate the present matter with the action pending under Index Number I2010/3907, pursuant to CPLR § 602(a), as well as for authorization to convert that action (Index Number I2010/3907) to an e-file case for use of the New York State Courts Electronic Filing System ("NYSCEF"). 3. In order to avoid unnecessary duplication before the Court, the exhibits attached to the Amended Attorney Affidavit of Jessica M. DeMichiel, Esq., dated, August 9, 2016 (hereinafter, "Def. Exhibit") are incorporated herein by reference. 4. Plaintiff's decedent, Lula Stevens, was a resident of Williamsville Suburban, located at 193 South Union Road, Williamsville, New York 14221, from on or about March 20, 2009 to her death on April 20, 2017. 5. This action was commenced by filing of a Summons and Complaint, Index No. 800114/2016, in the Erie County Clerk's Office on January 5, 2016 (hereinafter "Action No. 2"). See Def. Exhibit A. - BROWN CHIARI up - 2 of 6 FILED: ERIE COUNTY CLERK 07/09/2021 09:32 AM INDEX NO. 003907/2010 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/09/2021 - Page 3 - 6. There are fourteen (14) named defendants in this action: 1) Williamsville Suburban, LLC; 2) Legacy Health Care, LLC; 3) W. Richard Zacher; 4) Golden Living Centers, LLC; 5) Safire Nursing & Rehabilitation Care of Amherst, LLC; 6) Safire Care, LLC; 7) Solomon Abramczyk; 8) Judy Landa; 9) Laura Zacher Otterbein; 10) Aryeh Richard Platschek; 11) Wendy Zacher Schmidt; 12) Robert Schuck; 13) Moshe Steinberg; and 14) John Does 1-200. 7. The instant pre-answer motion to dismiss is filed on behalf of only nine (9) of the defendants: 1) Williamsville Suburban, LLC; 4) Golden Living Centers, LLC; 5) Safire Nursing & Rehabilitation Care of Amherst, LLC; 6) Safire Care, LLC; 7) Solomon Abramczyk; 8) Judy Landa; 10) Aryeh Richard Platschek; 12) Robert Schuck; and 13) Moshe Steinberg (hereinafter, "Moving Defendants"). 8. The Moving Defendants seek to dismiss the complaint as against them, on the basis of a prior pending action pursuant to CPLR 3211(a)(4). However, eight (8) of the nine (9) Moving Defendants are not named in any prior action by Plaintiff. 9. Plaintiff acknowledges that Lula Stevens is a named plaintiff in an action seeking class certification under Index Number I2010/3907 (hereinafter, "Action No. 1"). See Def. Exhibit B. 10. The named defendants in Action No. 1 include only one (1) of the Moving Defendants - to Williamsville LLC. wit, Suburban, 11. The remaining defendants are not named and have no causes of action against them in Action No. 1. On this basis alone, the instant motion should be denied, in its entirety, as to the Moving Defendants. - BROWN CHIARI up - 3 of 6 FILED: ERIE COUNTY CLERK 07/09/2021 09:32 AM INDEX NO. 003907/2010 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/09/2021 - Page 4 - 12. Both Action No. 1 and Action No. 2 seek compensatory and punitive damages defendants' incurred as a result of deprivation of rights and benefits to which plaintiff(s), and all others similarly situated, were entitled by the terms of contract, state statue, code, rule or regulation, and include the following causes of action: a. Violation of §2801-d of the New York State Public Health Law; b. Breach of Contract; and c. Negligence 13. Additionally, the complaint in Action No. 2 alleges that the individually-named persons" defendants are "controlling under N.Y. Public Health Law § 2808-a, such allegations are not present in Action No. 1, and, again, the moving individually-named defendants are not included therein as defendants. 14. Both actions seek class certification. There has been limited discovery related to class certification, performed in Action No. 1. There has been no discovery of any kind in the present action. No depositions have taken place in either action. 15. Upon information and belief, the Moving Defendants obtained or otherwise became involved in the ownership, control, administration and management of the facility, Williamsville Suburban, LLC, at some time after the filing of Action No. 1. Defendants' 16. Based upon Moving concession that the class defined in Action No. 1 class" is "not a closed (See DeMichiel Aff., ¶ 12; see also, Amended Memorandum of Law in Defendants' Support of Motion to Dismiss Pursuant to CPLR 3211(a)(4) (hereinafter, "Def. - BROWN CHIARI u, - 4 of 6 FILED: ERIE COUNTY CLERK 07/09/2021 09:32 AM INDEX NO. 003907/2010 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/09/2021 - Page 5 - MOL"), p. 6), Plaintiff cross-moves to consolidate Action No. 1 and Action No. 2, because the proceedings and actions involve common questions of law and fact, pursuant to CPLR § 602(a). 17. Consolidation will save the time of the court, the parties and witnesses, and would serve the convenience of all concemed. Further, the requested consolidation results in no prejudice to the parties, as Action No. 1 and Action No. 2 are already being conferenced jointly by the Court; and have been since at least April 2017. 18. Finally, Plaintiff makes application to the Court, as a party in Action No. 1, for authorization to use the New York State Courts Electronic Filing System ("NYSCEF") in the consolidated case under Index Number I2010/3907, and to direct the County Clerk to convert the matter to electronic form pursuant to 202.5-b(b)(2)(iv) of the Uniform Rules of the Trial Courts. defendants' WHEREFORE, Plaintiff respectfully requests an Order denying motion to dismiss the complaint in its entirety; granting Plaintiff's cross-motion to consolidate the present action, Index Number 800114/2016, with Action No. 1, Index Number I2010/3907, under the Index No. I2010/3907; authorizing the use of the New York State Courts Electronic Filing System ("NYSCEF") in the matter under Index Number I2010/3907, and directing the County Clerk to convert the matter under Index Number I2010/3907 to electronic form pursuant to 202.5- b(b)(2)(iv) of the Uniform Rules of the Trial Courts; and for such other and further relief as the Court deems just and proper. DATED: June 9, 2021 Buffalo, New York Nicole T.C. ar 's - BROWN CHIARI us - 5 of 6 FILED: ERIE COUNTY CLERK 07/09/2021 09:32 AM INDEX NO. 003907/2010 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/09/2021 - Page 6 - WORD COUNT CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. 6 202.8-b(c) Total Word Count: 977 Certification: Counsel hereby certifies that the total number of words, as calculated by the word processing system used to prepare the affidavit, excluding the caption and signature block, is in compliance with the word count limit as defined under 22 N.Y.C.R.R. § 202.8-b(a)(i). . Niod T.C. Marques BROWN CHIARI LLP Attorneys for Petitioner 2470 Walden Avenue Buffalo, New York 14225-4751 (716) 681-7190 -BROWN CHIARI um - 6 of 6