Preview
FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021
Exhibit A
FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021
STATE OF NEW YORK ¯
SUPREME COURT ¯ COUNTY OF ERIE
RANDALL CLAY, and on behalf of all others similarly
situated
104 Admiral Road
Buffalo, New York 14216
Plaintiff,
SUMMONS
VS. Served with Complaint
Index #
RIDGE VIEW MANOR NURSING HOME
300 Dorrance Avenue
Buffalo, NY 14220
WILLIAMSVILLE SUBURBAN, LLC
193 South Union Road
Williamsville, NY 14221
WILLIAMSVILLE VIEW MANOR NURSING HOME
165 South Union Road
Williamsville, NY 14221
SHERIDAN MANOR, LLC
2799 Sheridan Drive
Tonawanda, NY 14150
LEGACY HEALTH CARE, LLC
193 South Union Road
Williamsville, NY 14221
RICK ZACHER
193 South Union Road
Williamville, NY 14221
JOHN DOES 1-200
Defendants.
- BROWN CHIARI LLP -
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To the above named Defendants:
YOU ARE HEREBY SUMMONED AND REQUIRED to serve upon the Plaintiffs
attorneys, at the address stated below, a written Answer to the attached Complaint.
If this Summons is served upon you within the State of New York by personal service
you must respond within TWENTY (20) days after service, not counting the day of service. If
this Summons is not personally delivered to you within the State of New York you must respond
within THIRTY (30) days after service is completed, as provided by law.
If you do not respond to the attached Complaint within the applicable time limitation
stated above, a Judgment will be entered against you, by default; for the relief demanded in the
Complaint, without further notice to you.
This action is brought in the County of Erie because of."
[X ] Plaintiffs residence or place of business;
[ ] Defendants’ residence; or
[ ] Designation made by Plaintiff.
DATED: Lancaster, New York
April 13, 2010
Chiari, t- for
BROWN CHIARI LLP
Attorneys for Plaintiff
5775 Broadway
Lancaster, New York 14086-2360
(716) 681-7190
- BROWN CHIARI LLP -
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STATE OF NEW YORK "
SUPREME COURT ¯ COUNTY OF ERIE
RANDALL CLAY, and on behalf of all others similarly
situated
Plaimiffs
VS. COMPLAINT
Index #
RIDGEVIEW MANOR NURSING HOME, LLC,
WILLIAMSVILLE SUBURBAN, LLC,
WILLIAMSVILLE VIEW MANOR NURSING HOMEI
SHERIDAN MANOR NURSING HOME, LLC, LEGACY
HEALTH CARE, LLC, RICK ZACHER, and JOHN
DOES 1-200
Defendants
PLAINTIFF, by his attorneys, BROWN CHIARI ~LV, for his Complaint in the above-
entitled action, states as follows:
1. RANDALL CLAY, and on behalf of all others similarly situated, as the plaintiff
files this class action versus RIDGEVIEW MANOR NURSING HOME, LLC,
WILLIAMSVILLE SUBURBAN, LLC, WILLIAMSVILLE VIEW MANOR NURSING
HOME, SHERIDAN MANOR, NURSING HOME, LLC, RICK ZACHER, LEGACY HEALTH
CARE, LLC, and JOHN DOES 1-200 (hereinafter collectively referred to as "Defendants"), for
damages sustained as a result of Defendants’ violations of New York State Public Health Law
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§§2801-d, et. seq., violations of General Business Law §349, fraud, breach of contract, and
negligence.
2. Plaintiff RANDALL CLAY, at all times hereinafter mentioned has been a
resident of County of Erie, State of New York.
3. Upon informationand belief, Defendant RIDGEVIEW MANOR NURSING
HOME, LLC, was a participant in Medicaid and Medicare programs and, as such, was required
to be in compliance with the federal requirements for long-term care as prescribed in the U.S.
Code of Federal Regulations, 42 CFR §483.
4. Upon information and belief, Defendant RIDGEVIEW MANOR NURSING
HOME, LLC is a domestic limited liability company, incorporated under the laws of the State of
New York, with offices at least at 300 Dorrance Avenue, Buffalo, New York 14220.
5. Upon information and belief, Defendant RIDGEVIEW MANOR NURSING
HOME, LLC was and still is a nursing home facility and/or domestic limited liability company,
duly organized and existing by virtue of the laws of the State of New York, with offices for the
transaction of business located at 300 Dorrance Avenue, Buffalo, New York 14220
6. Upon information and belief, Defendant WILLIAMSVILLE SUBURBAN, LLC
was a participant in Medicaid and Medicare programs and, as such, was required to be in
compliance with the federal requirements for 10ng~term Care as prescribed in the U.S. Code of
Federal Regulations, 42 CFR §483.
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7. Upon information and belief, Defendant WILLIAMSVILLE SUBURBAN, LLC
is a domestic limited liability company, incorporated under the laws of the State of New York,
with offices at least at 193 South Union Road, Williamsville, New York 14221.
8. Upon information and belief, Defendant WILLIAMSVILLE SUBURBAN, LLC
was and still is a nursing home facility and/or domestic limited liability company, duly organized
and existing by virtue of the laws of the State of New York, with offices for the transaction of
business located at 193 South Union Road, Williamsville, New York 14221.
9. Upon information and beliei’, Defendant WILLIAMSVILLE VIEW MANOR
NURSING HOME was a participant in Medicaid and Medicare programs and, as such, was
required to be in compliance with the federal requirements for long-term care as prescribed in the
U.S. Code of Federal Regulations, 42 CFR §483.
10. Upon information and belief, Defendant WILLIAMSVILLE VIEW MANOR
NURSING HOME was and still is a nursing home facility and/or domestic limited liability .
company, duly organized and existing by Virtue of the laws of the State of New York, with
offices for the transaction of business located at 165 South Union Road, Williamsville, New
York 14221.
11. Upon information and belief, Defendant SHERIDAN MANOR NURSING
HOME, LLC was a participant in Medicaid and Medicare programs and, as guch, was required to
be in compliance with the federal requirements for long-term care as prescribed in the U.S. Code
of Federal Regulations, 42 CFR §483.
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12. Upon information and belief, Defendant SHERIDAN MANOR NURSING
HOME, LLC is a domestic limited liability company, incorporated under the laws of the State of
New York, with offices at least at 2799 Sheridan Drive, Tonawanda, New York 14150.
13. Upon information and belief, Defendant SHERIAN MANOR, NURSING HOME
LLC was and still is a nursing home facility and/or domestic limited liability company, duly
organized and existing by virtue of the laws of the State of New York, with offices for the
transaction of business .located at 2799 Sheridan Drive, Tonawanda, New York 14150.
14. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC was a
participant in Medicaid and Medicare programs and, as such, was .required to be in compliance
with the federal requirements for long-term care as prescribed in the U.S. Code of Federal
Regulations, 42 CFR §483.
15. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC is a
domestic limited liability company, incorporated under the laws of the State of New York, with
offices at least at 193 South Union Road, Williamsville, New York 14221.
16, Upon information and belief, at all times mentioned herein, Defendant LEGACY
HEALTH CARI~., LLC was doing business as RIDGEVIEW MANOR NURSING HOME, LLC
17. Upon information and belief, at all times mentioned herein, Defendant LEGACY
HEALTH CARE, LLC was doing business as WILLIAMSVILLE SUBURBAN, LLC.
18. Upon information and belief, at all times mentioned herein, Defendant LEGACY
HEALTH CARE, LLC was doing business as WILLIAMSVILLE VIEW MANOR NURSING
HOME.
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19. Upon information and belief, at all times mentioned herein, Defendant LEGACY
HEALTH CARE, LLC was doing business as SHERIDAN MANOR, LLC.
20. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC
owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing
home facility doing business as RIDGEVIEW MANOR NURSING HOME, LLC, its agents,
servants, employees, and/or other resident care personnel.
21. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC
owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing
home facility doing business as WILLIAMSVILLE SUBURBAN, LLC, its agents, servants,
employees, and/or other resident care personnel.
22. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC
owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing
home facility doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its
agents, servants, employees, and/or other resident care personnel.
23. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC
owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing
home facility doing business as SHERIDAN MANOR NURSING HOME, LLC, its agents,
servants, employees, and/or other resident care personnel.
24. Defendant RICK ZACHER is the current president of LEGACY HEALTH
CARE, LLC.
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25. At various times hereinafter mentioned, WILLIAM ZACHER was the president
of LEGACY HEALTH CARE, LLC.
26. Upon information and belief, Defendant RICK ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as RIDGEVIEW MANOR NURSING HOME, LLC, its agents, servants, employees,
and/or other resident care personnel.
27. Upon information and belief, Defendant RICK ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as WILLIAMSVILLE SUBURBAN, LLC, its agents, servants, employees, and/or other
resident care personnel.
28. Upon information and belief, Defendant RICK ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servants,
employees, and/or other resident care personnel.
29. Upon information and belief, Defendant RICK ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as SHERIDAN MANOR NURSING HOME, LLC, its agents, servants, employees,
andi0r other resident care personnel.
30. Upon information and belief, Defendant WILLIAM ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
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business as RIDGEVIEW MANOR NURSING HOME, LLC, its agents, servants, employees,
and/or other resident care personnel.
31. Upon information and belief, Defendant WILLIAM ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as WILLIAMSVILLE SUBURBAN, LLC, its agents, servants, employees, and/or other
resident care personnel.
32. Upon information and belief, Defendant WILLIAM ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servants,
employees, and/or other resident care personnel.
33. Upon information and belief, Defendant WILLIAM ZACHER owned, operated,
managed, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as SHERIDAN MANOR NURSING HOME, LLC, its agents, servants, employees,
and/or other resident care personnel.
34. Defendant JOHN DOE 1-200 are those persons and/or entities who were and may
continue to be agents, servants, employees of one or more of the above named defendants, and
whose conduct caused the injuries alleged herein to plaintiff and all those similarly situated.
35. Defendant JOHN DOE 1-200 are persons and/or entities whose relationships to
the named defendants, or whose acts or omissions, give rise to legal responsibility for damages
incurred by Plaintiff and by all those similarly situated, but whose true identities, at the present
time, areunknown to plaintiff. These persons are hereby notified of plaintiff’s intention to join
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them as defendants, if and when, additional investigation or discovery reveals the
appropriateness of such joinder. (Hereinafter, all cumulative references to Defendants are in
reference to all Defendants in this action, including John Doe’s 1-200).
36. This action is brought by Plaintiff RANDALL CLAY, as a class action, and on
behalf of all others similarly situated, under the provisions of §901 of the Civil Practice Law and
Rules and pursuant to §2801-d of the New York State Public Health Law seeking compensatory
and punitive damages on behalf of plaintiff and all others similarly situated as a result of
deprivations by defendants of the rights and benefits to which plaintiff and others similarly
situated were entitled by the terms of contract, state statute, code, rule or regulation, and by any
applicable federal statute, code, rule or regulation:
37. This action is brought on behalf of the named plaintiff identified above and all
other similarly situated New York Residents initially defined as:
a. Facility Resident Class - All persons who resided at a defendant facility from
May 1, 2004 through the present ("Class Period").
i. Facility Resident Private Pay Subclass - All persons Who are members
of the Facility :Resident Class and who made payments to the defendants,
or any of them, through private pay funds and/or privately acquired
insurance during the Class Period.
ii, Facility Public Pay Subclass - all persons who are members of the
Facility Resident Class and on whose behalf payments were made to the
Defendants through public funds (Medicare and Medicaid) during the
Class Period.
b. Family Member Class - All persons who are related to any Facility Resident
Class Member by blood, marriage, or legal relationship and paid monies to any
defendant for services rendered at a facility to any Facility Resident Class
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Member during the Class Period. The following causes of action are hereby
asserted on behalf of this Subclass: second and third causes of action.
c. Excluded from the above-referenced classes and subclasses are:
i. The defendants, any entity in which the defendants have controlling
interest, the officers, directors, and employees of any defendant, and legal
representatives, heirs, successors, and assigns of the defendant; (ii) any
judge assigned to hear the case (or any spouse or family member of any
assigned judge); or (iii) any juror selected to hear the case.
38. Members of the class are so numerous that their individual j oinder or
hearing is impractical. The precise number of members and their addresses are presently
unknown to plaintiff. The precise number of persons in the class and their entities and addresses
may be ascertained from defendants’ records. If deemed necessary by the Court, members of the
class may be notified of the pendency of this action by mail, supplemented by published notice.
39. There are common questions of law and fact in this action that relate to and~affect
the parties to be represented. These common questions of law and fact exist as to all members of
the class and predominate over the questions affecting only individual members of the class.
These common legal and factual questions include without limitation:
a. Whether all or some of the facilities failed to comply with §2801-d of the New
York State Public Health Law during the Class Period;
b. ’ Whether defendants engi~ged in a pattern or practice of unfair and deceptive
¯ conduct in connection with their management, administration and operation of the
facilities;
c. Whether defendants failed to employ an adequate number of qualified personnel.
to carry out all the functions of their facilities in violation of §2801-d and related
statutes, codes, rules and regulations;. ¯
d. Whether defendants’ conduct violates General Business Law §349;
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e. Whether defendants’ conduct was fraudulent;
f. Whether defendants’ conduct allowed for a pattern of deficiencies for quality of
care issues;
g. Whether defendants failed to advance and support environments that promoted
resident dignity and quality of care; and
h. Whether defendants engaged in a pattern of failing to provide appropriate and
adequate resources for facility staff, facility maintenance, facility supplies, and
staff training. ¯
40. The claims and named plaintiff are typical of the claims of the Facility Resident
Classes. Upon information and belief, the named plaintiff and Facility Resident Class Members
resided at one or more of the facilities during times where the facility failed to comply §2801d of
the New York State Public Health Law, and other state statutes, codes, rules, and regulations.
AS AND FOR A FIRST CAUSE OF ACTION
FOR VIOLATION OF ~2801-d OF THE NEW YORK STATE PUBLIC HEALTH LAW,
PLAINTIFF ALLEGES:
41. Plaintiff refers to and incorporates herein by reference paragraphs 1-40 above.
42. New York State Public Law Health §2801-d provides that "any residential health
care facility that deprives any patient of said facility of any right or benefit.., shall be liable to
said patient for injuries suffered as a result of said deprivation..."
43. Section 2801-d of the New York State Public Health Law defines "right or
benefit" as "any right or benefit created or established for the well-being of the patient by the
terms of any contract by any state statute, code, rule, or regulation or by any applicable federal
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statute, code, rule, or regulation, where non-compliance by said facility with such statute, code,
rule or. regulation has not been expressly authorized by the appropriate governmental authority."
44. Section 2801-d further provides that any resident/patient whose has suffered a
deprivation or injury as a result of such violation is entitled to compensatory damages sufficient
to compensate such patient for such injury, but in no event less than 25% of the daily per patient
rate of payment established for the residential health care facility under §2807 of Article 28 of
the Public Health Law, or in the case of residential health facility not having such an established
rate, the average daily total charges per patient for said facility for each day that such injury
exists.
45. Section 2801-d(2) also provides that punitive damages may be assessed for the
deprivation of any such right or benefit that is found to be willful or in reckless disregard of the
lawful rights of the patient.
46. Defendants have violated and continue to violate Section 2801-d of the Public
Health Law by, among other things: failing to ensure a dignified existence for residents; failing
to adequately staff the facilities; failing to provide adequate number of qualified personnel;
failing to advance and support environments that promoted resident dignity and quality of care;
engaging in a pattern of failing to provide appropriate and adequate resources for facility staff,
facility maintenance, facility supplies, and staff training.
47. As a result of defendants’ conduct, the named plaintiff and Class Members have
suffered injury and are entitled to compensatory damages in an amount to be determined at trial,
as well as punitive damage, attorneys’ fees, and costs.
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AS AND FOR A SECOND CAUSE OF ACTION
FOR FRAUD, PLAINTIFF ALLEGES:
48. Plaintiff, and those similarly situated, refers to and incorporates herein by
reference paragraphs 1-58 above.
49. Defendants promised to provide appropriate nursing home care and services to
plaintiff, and those similarly situated, while knowing that said representations and promises were
false and made for the purposes of inducing plaintiff, and those similarly situated, to rely upon
same.
As a result of said fraud, plaintiff, and those similarly situated, relied upon
defendants’ representations and sustained damages.
AS AND FOR A THIRD CAUSE OF ACTION
FOR BREACH OF CONTRACT,
PLAINTIFF ALLEGES:
51. Plaintiff, and those similarly situated, refers to and incorporates herein by
reference paragraphs 1-61 above.
52. Plaintiff, and those similarly situated, entered into a contract with defendants for
residential health care services to be provided.
53. Defendants breached the contracts with plaintiff, and those similarly situated.
54. As a result thereof, plaintiff, and those similarly situated, sustained damages.
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AS AND FOR A FOURTH CAUSE OF ACTION
FOR NEGLIGENCE, PLAINTIFF ALLEGES:
55. Plaintiff, and those similarly situated, refers to and incorporates herein by
reference paragraphs 1-65 above.
56. Defendants owed various duties pursuant to common law standards of care to
Plaintiff, and those similarly situated.
57. Defendants breached those duties.
58. The breach of defendants’ duties caused damages to plaintiff, and those
similarly situated.
59. Defendants negligently supervised their agents, servants, employees, and/or other
resident care personnel.
60. Defendants negligently hired their agents, servants, employees, and/or other
resident care personnel.
61. Defendants’ conduct negligently allowed for a pattern of deficiencies for quality
of care issues; negligently failed to advance and support environments that promoted resident
dignity and quality of care; and negligently engaged in a pattern of failing to provide appropriate
and adequate resources for facility staff, facility maintenance, facility supplies, and staff training;
all in violation of rights and benefits provided pursuant to §2801-d of the New York State Public
Health Law.
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62. Plaintiff, and those similarly situated, sustained injury and damages as a result of
defendants’ negligence in excess of jurisdictional limits of all lower courts that would otherwise
have jurisdiction over the plaintiffs’ claims.
WHEREFORE, Plaintiff RANDALL CLAY, and those similarly situated, do hereby
demand judgment against Defendants RIDGEVIEW MANOR NURSING HOME, LLC,
WILLIAMSVILLE SUBURBAN, LLC, wILLIAMSVILLE VIEW MANOR NURSING
HOME, SHERIDAN MANOR NURSING HOME, LLC, LEGACY HEALTH CARE, LLC,
RICK ZACHER, and JOHN DOES 1-200, jointly and severally, in an amount to be determined
by a jury upon the trial of this action, plus costs and disbursements and attorneys’ fees.
DATED: Lancaster, New York
April _/_~, 2010
~)~
Donald P. Chiari, Esq. for
BROWN CHIARI
Attorneys for Plaintiff
5775 Broadway
Lancaster, New Ydrk 14086-2360
(716) 681-7190
- BROWN CHIARI LLP - ¯
Preview
FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 Exhibit A FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 STATE OF NEW YORK ¯ SUPREME COURT ¯ COUNTY OF ERIE RANDALL CLAY, and on behalf of all others similarly situated 104 Admiral Road Buffalo, New York 14216 Plaintiff, SUMMONS VS. Served with Complaint Index # RIDGE VIEW MANOR NURSING HOME 300 Dorrance Avenue Buffalo, NY 14220 WILLIAMSVILLE SUBURBAN, LLC 193 South Union Road Williamsville, NY 14221 WILLIAMSVILLE VIEW MANOR NURSING HOME 165 South Union Road Williamsville, NY 14221 SHERIDAN MANOR, LLC 2799 Sheridan Drive Tonawanda, NY 14150 LEGACY HEALTH CARE, LLC 193 South Union Road Williamsville, NY 14221 RICK ZACHER 193 South Union Road Williamville, NY 14221 JOHN DOES 1-200 Defendants. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 2 - To the above named Defendants: YOU ARE HEREBY SUMMONED AND REQUIRED to serve upon the Plaintiffs attorneys, at the address stated below, a written Answer to the attached Complaint. If this Summons is served upon you within the State of New York by personal service you must respond within TWENTY (20) days after service, not counting the day of service. If this Summons is not personally delivered to you within the State of New York you must respond within THIRTY (30) days after service is completed, as provided by law. If you do not respond to the attached Complaint within the applicable time limitation stated above, a Judgment will be entered against you, by default; for the relief demanded in the Complaint, without further notice to you. This action is brought in the County of Erie because of." [X ] Plaintiffs residence or place of business; [ ] Defendants’ residence; or [ ] Designation made by Plaintiff. DATED: Lancaster, New York April 13, 2010 Chiari, t- for BROWN CHIARI LLP Attorneys for Plaintiff 5775 Broadway Lancaster, New York 14086-2360 (716) 681-7190 - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 STATE OF NEW YORK " SUPREME COURT ¯ COUNTY OF ERIE RANDALL CLAY, and on behalf of all others similarly situated Plaimiffs VS. COMPLAINT Index # RIDGEVIEW MANOR NURSING HOME, LLC, WILLIAMSVILLE SUBURBAN, LLC, WILLIAMSVILLE VIEW MANOR NURSING HOMEI SHERIDAN MANOR NURSING HOME, LLC, LEGACY HEALTH CARE, LLC, RICK ZACHER, and JOHN DOES 1-200 Defendants PLAINTIFF, by his attorneys, BROWN CHIARI ~LV, for his Complaint in the above- entitled action, states as follows: 1. RANDALL CLAY, and on behalf of all others similarly situated, as the plaintiff files this class action versus RIDGEVIEW MANOR NURSING HOME, LLC, WILLIAMSVILLE SUBURBAN, LLC, WILLIAMSVILLE VIEW MANOR NURSING HOME, SHERIDAN MANOR, NURSING HOME, LLC, RICK ZACHER, LEGACY HEALTH CARE, LLC, and JOHN DOES 1-200 (hereinafter collectively referred to as "Defendants"), for damages sustained as a result of Defendants’ violations of New York State Public Health Law - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 2 - §§2801-d, et. seq., violations of General Business Law §349, fraud, breach of contract, and negligence. 2. Plaintiff RANDALL CLAY, at all times hereinafter mentioned has been a resident of County of Erie, State of New York. 3. Upon informationand belief, Defendant RIDGEVIEW MANOR NURSING HOME, LLC, was a participant in Medicaid and Medicare programs and, as such, was required to be in compliance with the federal requirements for long-term care as prescribed in the U.S. Code of Federal Regulations, 42 CFR §483. 4. Upon information and belief, Defendant RIDGEVIEW MANOR NURSING HOME, LLC is a domestic limited liability company, incorporated under the laws of the State of New York, with offices at least at 300 Dorrance Avenue, Buffalo, New York 14220. 5. Upon information and belief, Defendant RIDGEVIEW MANOR NURSING HOME, LLC was and still is a nursing home facility and/or domestic limited liability company, duly organized and existing by virtue of the laws of the State of New York, with offices for the transaction of business located at 300 Dorrance Avenue, Buffalo, New York 14220 6. Upon information and belief, Defendant WILLIAMSVILLE SUBURBAN, LLC was a participant in Medicaid and Medicare programs and, as such, was required to be in compliance with the federal requirements for 10ng~term Care as prescribed in the U.S. Code of Federal Regulations, 42 CFR §483. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 3 - 7. Upon information and belief, Defendant WILLIAMSVILLE SUBURBAN, LLC is a domestic limited liability company, incorporated under the laws of the State of New York, with offices at least at 193 South Union Road, Williamsville, New York 14221. 8. Upon information and belief, Defendant WILLIAMSVILLE SUBURBAN, LLC was and still is a nursing home facility and/or domestic limited liability company, duly organized and existing by virtue of the laws of the State of New York, with offices for the transaction of business located at 193 South Union Road, Williamsville, New York 14221. 9. Upon information and beliei’, Defendant WILLIAMSVILLE VIEW MANOR NURSING HOME was a participant in Medicaid and Medicare programs and, as such, was required to be in compliance with the federal requirements for long-term care as prescribed in the U.S. Code of Federal Regulations, 42 CFR §483. 10. Upon information and belief, Defendant WILLIAMSVILLE VIEW MANOR NURSING HOME was and still is a nursing home facility and/or domestic limited liability . company, duly organized and existing by Virtue of the laws of the State of New York, with offices for the transaction of business located at 165 South Union Road, Williamsville, New York 14221. 11. Upon information and belief, Defendant SHERIDAN MANOR NURSING HOME, LLC was a participant in Medicaid and Medicare programs and, as guch, was required to be in compliance with the federal requirements for long-term care as prescribed in the U.S. Code of Federal Regulations, 42 CFR §483. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 4 - 12. Upon information and belief, Defendant SHERIDAN MANOR NURSING HOME, LLC is a domestic limited liability company, incorporated under the laws of the State of New York, with offices at least at 2799 Sheridan Drive, Tonawanda, New York 14150. 13. Upon information and belief, Defendant SHERIAN MANOR, NURSING HOME LLC was and still is a nursing home facility and/or domestic limited liability company, duly organized and existing by virtue of the laws of the State of New York, with offices for the transaction of business .located at 2799 Sheridan Drive, Tonawanda, New York 14150. 14. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC was a participant in Medicaid and Medicare programs and, as such, was .required to be in compliance with the federal requirements for long-term care as prescribed in the U.S. Code of Federal Regulations, 42 CFR §483. 15. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC is a domestic limited liability company, incorporated under the laws of the State of New York, with offices at least at 193 South Union Road, Williamsville, New York 14221. 16, Upon information and belief, at all times mentioned herein, Defendant LEGACY HEALTH CARI~., LLC was doing business as RIDGEVIEW MANOR NURSING HOME, LLC 17. Upon information and belief, at all times mentioned herein, Defendant LEGACY HEALTH CARE, LLC was doing business as WILLIAMSVILLE SUBURBAN, LLC. 18. Upon information and belief, at all times mentioned herein, Defendant LEGACY HEALTH CARE, LLC was doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 5 - 19. Upon information and belief, at all times mentioned herein, Defendant LEGACY HEALTH CARE, LLC was doing business as SHERIDAN MANOR, LLC. 20. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as RIDGEVIEW MANOR NURSING HOME, LLC, its agents, servants, employees, and/or other resident care personnel. 21. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE SUBURBAN, LLC, its agents, servants, employees, and/or other resident care personnel. 22. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servants, employees, and/or other resident care personnel. 23. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as SHERIDAN MANOR NURSING HOME, LLC, its agents, servants, employees, and/or other resident care personnel. 24. Defendant RICK ZACHER is the current president of LEGACY HEALTH CARE, LLC. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 6 - 25. At various times hereinafter mentioned, WILLIAM ZACHER was the president of LEGACY HEALTH CARE, LLC. 26. Upon information and belief, Defendant RICK ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as RIDGEVIEW MANOR NURSING HOME, LLC, its agents, servants, employees, and/or other resident care personnel. 27. Upon information and belief, Defendant RICK ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE SUBURBAN, LLC, its agents, servants, employees, and/or other resident care personnel. 28. Upon information and belief, Defendant RICK ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servants, employees, and/or other resident care personnel. 29. Upon information and belief, Defendant RICK ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as SHERIDAN MANOR NURSING HOME, LLC, its agents, servants, employees, andi0r other resident care personnel. 30. Upon information and belief, Defendant WILLIAM ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 7 - business as RIDGEVIEW MANOR NURSING HOME, LLC, its agents, servants, employees, and/or other resident care personnel. 31. Upon information and belief, Defendant WILLIAM ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE SUBURBAN, LLC, its agents, servants, employees, and/or other resident care personnel. 32. Upon information and belief, Defendant WILLIAM ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servants, employees, and/or other resident care personnel. 33. Upon information and belief, Defendant WILLIAM ZACHER owned, operated, managed, directed, administered, and/or assumed responsibility for a nursing home facility doing business as SHERIDAN MANOR NURSING HOME, LLC, its agents, servants, employees, and/or other resident care personnel. 34. Defendant JOHN DOE 1-200 are those persons and/or entities who were and may continue to be agents, servants, employees of one or more of the above named defendants, and whose conduct caused the injuries alleged herein to plaintiff and all those similarly situated. 35. Defendant JOHN DOE 1-200 are persons and/or entities whose relationships to the named defendants, or whose acts or omissions, give rise to legal responsibility for damages incurred by Plaintiff and by all those similarly situated, but whose true identities, at the present time, areunknown to plaintiff. These persons are hereby notified of plaintiff’s intention to join - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 8 - them as defendants, if and when, additional investigation or discovery reveals the appropriateness of such joinder. (Hereinafter, all cumulative references to Defendants are in reference to all Defendants in this action, including John Doe’s 1-200). 36. This action is brought by Plaintiff RANDALL CLAY, as a class action, and on behalf of all others similarly situated, under the provisions of §901 of the Civil Practice Law and Rules and pursuant to §2801-d of the New York State Public Health Law seeking compensatory and punitive damages on behalf of plaintiff and all others similarly situated as a result of deprivations by defendants of the rights and benefits to which plaintiff and others similarly situated were entitled by the terms of contract, state statute, code, rule or regulation, and by any applicable federal statute, code, rule or regulation: 37. This action is brought on behalf of the named plaintiff identified above and all other similarly situated New York Residents initially defined as: a. Facility Resident Class - All persons who resided at a defendant facility from May 1, 2004 through the present ("Class Period"). i. Facility Resident Private Pay Subclass - All persons Who are members of the Facility :Resident Class and who made payments to the defendants, or any of them, through private pay funds and/or privately acquired insurance during the Class Period. ii, Facility Public Pay Subclass - all persons who are members of the Facility Resident Class and on whose behalf payments were made to the Defendants through public funds (Medicare and Medicaid) during the Class Period. b. Family Member Class - All persons who are related to any Facility Resident Class Member by blood, marriage, or legal relationship and paid monies to any defendant for services rendered at a facility to any Facility Resident Class - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 9 - Member during the Class Period. The following causes of action are hereby asserted on behalf of this Subclass: second and third causes of action. c. Excluded from the above-referenced classes and subclasses are: i. The defendants, any entity in which the defendants have controlling interest, the officers, directors, and employees of any defendant, and legal representatives, heirs, successors, and assigns of the defendant; (ii) any judge assigned to hear the case (or any spouse or family member of any assigned judge); or (iii) any juror selected to hear the case. 38. Members of the class are so numerous that their individual j oinder or hearing is impractical. The precise number of members and their addresses are presently unknown to plaintiff. The precise number of persons in the class and their entities and addresses may be ascertained from defendants’ records. If deemed necessary by the Court, members of the class may be notified of the pendency of this action by mail, supplemented by published notice. 39. There are common questions of law and fact in this action that relate to and~affect the parties to be represented. These common questions of law and fact exist as to all members of the class and predominate over the questions affecting only individual members of the class. These common legal and factual questions include without limitation: a. Whether all or some of the facilities failed to comply with §2801-d of the New York State Public Health Law during the Class Period; b. ’ Whether defendants engi~ged in a pattern or practice of unfair and deceptive ¯ conduct in connection with their management, administration and operation of the facilities; c. Whether defendants failed to employ an adequate number of qualified personnel. to carry out all the functions of their facilities in violation of §2801-d and related statutes, codes, rules and regulations;. ¯ d. Whether defendants’ conduct violates General Business Law §349; - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 10 - e. Whether defendants’ conduct was fraudulent; f. Whether defendants’ conduct allowed for a pattern of deficiencies for quality of care issues; g. Whether defendants failed to advance and support environments that promoted resident dignity and quality of care; and h. Whether defendants engaged in a pattern of failing to provide appropriate and adequate resources for facility staff, facility maintenance, facility supplies, and staff training. ¯ 40. The claims and named plaintiff are typical of the claims of the Facility Resident Classes. Upon information and belief, the named plaintiff and Facility Resident Class Members resided at one or more of the facilities during times where the facility failed to comply §2801d of the New York State Public Health Law, and other state statutes, codes, rules, and regulations. AS AND FOR A FIRST CAUSE OF ACTION FOR VIOLATION OF ~2801-d OF THE NEW YORK STATE PUBLIC HEALTH LAW, PLAINTIFF ALLEGES: 41. Plaintiff refers to and incorporates herein by reference paragraphs 1-40 above. 42. New York State Public Law Health §2801-d provides that "any residential health care facility that deprives any patient of said facility of any right or benefit.., shall be liable to said patient for injuries suffered as a result of said deprivation..." 43. Section 2801-d of the New York State Public Health Law defines "right or benefit" as "any right or benefit created or established for the well-being of the patient by the terms of any contract by any state statute, code, rule, or regulation or by any applicable federal - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 11 - statute, code, rule, or regulation, where non-compliance by said facility with such statute, code, rule or. regulation has not been expressly authorized by the appropriate governmental authority." 44. Section 2801-d further provides that any resident/patient whose has suffered a deprivation or injury as a result of such violation is entitled to compensatory damages sufficient to compensate such patient for such injury, but in no event less than 25% of the daily per patient rate of payment established for the residential health care facility under §2807 of Article 28 of the Public Health Law, or in the case of residential health facility not having such an established rate, the average daily total charges per patient for said facility for each day that such injury exists. 45. Section 2801-d(2) also provides that punitive damages may be assessed for the deprivation of any such right or benefit that is found to be willful or in reckless disregard of the lawful rights of the patient. 46. Defendants have violated and continue to violate Section 2801-d of the Public Health Law by, among other things: failing to ensure a dignified existence for residents; failing to adequately staff the facilities; failing to provide adequate number of qualified personnel; failing to advance and support environments that promoted resident dignity and quality of care; engaging in a pattern of failing to provide appropriate and adequate resources for facility staff, facility maintenance, facility supplies, and staff training. 47. As a result of defendants’ conduct, the named plaintiff and Class Members have suffered injury and are entitled to compensatory damages in an amount to be determined at trial, as well as punitive damage, attorneys’ fees, and costs. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 12 - AS AND FOR A SECOND CAUSE OF ACTION FOR FRAUD, PLAINTIFF ALLEGES: 48. Plaintiff, and those similarly situated, refers to and incorporates herein by reference paragraphs 1-58 above. 49. Defendants promised to provide appropriate nursing home care and services to plaintiff, and those similarly situated, while knowing that said representations and promises were false and made for the purposes of inducing plaintiff, and those similarly situated, to rely upon same. As a result of said fraud, plaintiff, and those similarly situated, relied upon defendants’ representations and sustained damages. AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT, PLAINTIFF ALLEGES: 51. Plaintiff, and those similarly situated, refers to and incorporates herein by reference paragraphs 1-61 above. 52. Plaintiff, and those similarly situated, entered into a contract with defendants for residential health care services to be provided. 53. Defendants breached the contracts with plaintiff, and those similarly situated. 54. As a result thereof, plaintiff, and those similarly situated, sustained damages. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 13 - AS AND FOR A FOURTH CAUSE OF ACTION FOR NEGLIGENCE, PLAINTIFF ALLEGES: 55. Plaintiff, and those similarly situated, refers to and incorporates herein by reference paragraphs 1-65 above. 56. Defendants owed various duties pursuant to common law standards of care to Plaintiff, and those similarly situated. 57. Defendants breached those duties. 58. The breach of defendants’ duties caused damages to plaintiff, and those similarly situated. 59. Defendants negligently supervised their agents, servants, employees, and/or other resident care personnel. 60. Defendants negligently hired their agents, servants, employees, and/or other resident care personnel. 61. Defendants’ conduct negligently allowed for a pattern of deficiencies for quality of care issues; negligently failed to advance and support environments that promoted resident dignity and quality of care; and negligently engaged in a pattern of failing to provide appropriate and adequate resources for facility staff, facility maintenance, facility supplies, and staff training; all in violation of rights and benefits provided pursuant to §2801-d of the New York State Public Health Law. - BROWN CHIARI LIlY - FILED: ERIE COUNTY CLERK 08/11/2021 03:04 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/11/2021 - Page 14 - 62. Plaintiff, and those similarly situated, sustained injury and damages as a result of defendants’ negligence in excess of jurisdictional limits of all lower courts that would otherwise have jurisdiction over the plaintiffs’ claims. WHEREFORE, Plaintiff RANDALL CLAY, and those similarly situated, do hereby demand judgment against Defendants RIDGEVIEW MANOR NURSING HOME, LLC, WILLIAMSVILLE SUBURBAN, LLC, wILLIAMSVILLE VIEW MANOR NURSING HOME, SHERIDAN MANOR NURSING HOME, LLC, LEGACY HEALTH CARE, LLC, RICK ZACHER, and JOHN DOES 1-200, jointly and severally, in an amount to be determined by a jury upon the trial of this action, plus costs and disbursements and attorneys’ fees. DATED: Lancaster, New York April _/_~, 2010 ~)~ Donald P. Chiari, Esq. for BROWN CHIARI Attorneys for Plaintiff 5775 Broadway Lancaster, New Ydrk 14086-2360 (716) 681-7190 - BROWN CHIARI LLP - ¯