Preview
FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/25/2021
Exhibit
A
FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/25/2021
STATE OF NEW YORK :
SUPREME COURT : COUNTY OF ERIE
NDALL 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
Williarnsville, NY 14221
WILLIAMSVILLE VIEW MANOR NURSING HOME
165 South Union Road
NY 14221 -
Williamsville,
SHERIDAN MANOR, LLC
2799 Sheridan Drive
NY 14150 ..
Tonawanda,
LEGACY HEALTH CARE, LLC
193 South Union Road
Williamsville, NY 14221
RICK ZACHER
193 South Union Road
Williamville, NY 1422 1
JOHN DOES 1-200
Defendants.
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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 Sommons 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 ofNew 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
onald P. Chiari, . 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
Plaintiffs
vs. COMPLAINT
2d/0^
Index # JÚ 07
RIDGEVIEW MANOR NURSING HOME, LLC,
WILLIAMSVILLE SUBURBAN, LLC,
WILLIAMSVILLE VIEW MANOR NURSING HOME, F I L E D
SHERIDAN MANOR NURSING HOME, LLC, LEGACY ACTIONS & PROCEEDINGS
HEALTH CARE, LLC, RICK ZACHER, and JOHN
DOES 1-200
. . Defendants
ERIE COUNTY
CLERK'S OFFICE
his BROWN CHIARI for his Complaint in the above-
PLAINTIFF, by attorneys, us,
entitled action, states as follows:
1. RANDALL CLAY, and on behalf of all others similarly sitüãted,as the plaintiff
files this class action versus RIDGEVIEW MANOR NURSING HOME, LLC,
WILLIAMSVILLE SUBURBAN, LLC, WILLIAMSVILLE VIEW MANOR NURSlNG
HOME, SHERIDAN MANOR, NURSING HOME, LLC, RICK ZACHER, LEGACY HEALTH
CARE, LLC, and JOHN DOES 1-200 (hereinafter collectively referred to as "Defendants"), for
Defendanta'
damages sustained as a result of violations ofNew 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 information and belief, Defendant RIDGEVIEW MANOR NURSING
HOME, LLC, was a participant in Medicaid and Medicate 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, inco1go,-ted 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 stillis a nursing home facility and/or domestic limited liability compañy,
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 requiremcats for long-term care as prescribed in the U.S. Code of
Federal Regulations, 42 CFR §483.
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7. Upon information and belief, Defcadant 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 compairy, duly organized
and existing by virtue of the laws of the State of New York, with offices for the trancantian of
business located at 193 South Union Road, Williamsville, New York 14221.
9. Upon information and belief, 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 RegüMon 42 CFR §483.
10. Upon information and belief, Defendant WILLIAMSVILLE VIEW MANOR
NURSING HOME was and stillis 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 trananction of business located at 165 South Union Road, Winiamsville, New
York 14221.
11. Upon information and belief, Defendant SHERIDAN 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.
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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 stillis a nursing home facility and/or domestic limited liabilitycompany, duly
organized and existing by virtue of the Iaws 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 conipâñy, 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 CARE, 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 alltimes mentioned herein, Defendant LEGACY
HEALTH CARE, LLC was business as WILLIAMSVILLE VIEW MANOR NURSING -
doing
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, Defeñdañt 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, itsagents,
servants, employees, and/or other resident care personnel.
21. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC
owñêd, operated, managed, directed, administcred, and/or assumed responsibility for a nursing
home facility doing business as WILLIAMSVILLE SUBURBAN, LLC, itsagents, 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 respomibHity for a nursing
home facility doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its
agents, servauts, employees, and/or other resident care personnel.
23. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC
owned, operated, mañsged, directed, ad!dñ*ered, and/or a=s=ned responsibility for a ñürsiig
home facility doing business as SHERIDAN MANOR NURSING HOME, LLC, itsagents,
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, admLüstered, and/or assumed responcibility 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, operetad,
managed, directed, administered, and/or assumed responsibility for a nursing home.facility doing
business as WILLIAMSVILLE SUBURBAN, LLC, itsagents, servants, employees, and/or other
resident care personnel.
28. Upon information and belief, Defendant RICK ZACHER owned, operated,
mâñãged, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servaras,
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 facilitydoing
business as SHERIDAN MANOR NURSING HOME, LLC, its agents, servants, employees,
and/or other resident care personnel.
30. Upon information and belief, Defendant WiLLIAM ZACHER owned, eparatel,
managed, directed, administered, and/or ====ed reapr·rsibility for a nursing home facility doing
-BROWN CHIARI La-
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busiñêss 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,
nianaged, directed, administered, and/or assumed responsibility for a nursing home facility doing
business as WILLIAMSVILLE SUBURBAN, LLC, itsagents, 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, itsagents, servants,
employees, and/or other resident care personnel.
33. Upon information and belief, Defendaat WILLIAM ZACHER owned, operated,
managed, directed, and/or assumed respor. for a home
administered, ibility nursing 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 cntitics 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 ersissiens, give rise to legal resposibility for damagæ
incurred by Plaintiff and by allthose similarly situated, but whose true identities, at the present
time, are üñIüiewn to plaintifE These persons are hereby notified of plaintiff's intention to join
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them as defeñdâñts, if and when, additieñal 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 b ought 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 compensâtory
and punitive damages on behalf of plaintiff and allothers similarly situated as a result of
deprivations by defendants of the rights and benefits to which plaintiff and others simi!rly
situated were endued the terms of contract, state statute, code, rule or regulation and by any
by
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. Resident Class - All persons who resided at a defendant from
Facility facility
May 1, 2004 through the present ("Class Period").
i. Resident Private Subclass - All persons who are members
Facility Pay
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. Public Subclass - allpersons who are members of the
Facility Pay
Facility Resident Class and on whose behalf payments were made to the
Defendants through public funds (Medicare and Medicaid) during the
Class Period.
b. Member Class - All persons who are sclated to Resident
Family any Facility
Class Member by blood, marriage, or legal relationship and paid menia to any
defendant for services rendered at a facility to any Fãcility 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 joinder or
hearing is impractical. The precise number of members and their addresses are presently
unknown to plaintiff. The precise ñümber of persons in the class and their entities and addresses
defendants'
may be ascertained from 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 quesdons 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 engaged in a pattern or practice of unfair and deceptive
conduct in connection with their m=;-ment, administration and operation of the
facilities;
c. Whether defendants failed to employ an adaluate 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;
defendants'
d. Whether conduct violates General Business Law §349;
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defendants'
e. Whether conduct was fraudulcñt;
defendants'
f. Whether conduct allowed for a pattern of deficicñcies for of
quality
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 to provide appropriate and
failing
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 Resident
Facility
Classes. Upon information and belief, the named plaintiff and Resident Class Members
Facility
resided at one or more of the faninth 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.
AJAND FOR A FIRST CAUSE OF ACTlQN
FOR VIOLATION OF.52801-d OF THE NEW YORK STATE PUBLIC I-IEALTH 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 r cid=†ial health
care facility that deprives any patient of said of right or benefit...shall be liable to
facility any
deprivation..."
said patient for injuries suffered as a result of said
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 the
by
terms of any contract by any state statute, code, rule, or regüiation or applicable federal
by any
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statute, code, rule, or regulation, where non-compliance by said facility with such statute, code,
authority."
rule or regulation has not been expressly authorized the appropriate goverre tal
by
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 exietace for residerts; failing
to ad-juately staff the facilities; failing to provide adeqüate number of qualified personnel;
to advance and support environmm* that promoted resident and of
failing dignity quality care;
engaging in a pattern of failing to provide appropriate and adequate resources for facility staf£
facility maintenance, facility supplies, and staff training.
defendants'
47. As a result of conduct, the na.med plaintiff and Class Members have
suffered injury and are entitled to compensatory damages in an amount to be determined at trial,
attorneys'
as well as punitive damage, 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 pramised 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 plaintiR and those similarly situated, to rely upon
same.
50. 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 I-61 above.
52. Plaintiff, and those similrly situated, entered into a contract with defeñdañts 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 similsly situated, sustained damages.
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AS AND FOR A FOURTH CAUSE OF ACTION
FOR NEGLIGENCE. PLAINTIFF ALLEG_ES:
55. Plaintiff, and those similarly situated, refers to and incorporates herein by
reference paragraphs 1-65 above.
56. Defendants owed various duties pursuant to com-mon law standards of care to
Plaintiff, and those similarly situated.
57. Defendants breached those duties.
defend==±='
58. The breach of 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.
Defendan*s'
61. conduct negigcñ‡ly 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 mainteñence, facility supplies, and stafftraining;
all in vieletion 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 similarf situated, sustained injury and damages as a result of
y
defendants'
negligence in excess of jurisdictional limits of alllower courts that would otherwise
plaintiffs'
have jurisdiction over the claims.
WHEREFORE, Plaintiff RANDALL CLAY, and those aimilarly situated, do hereby
demand judgrnent 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 detensiñéd
attorneys'
by a jury upon the trial of this action, plus costs and disbursements and fees.
DATED: Lancaster, New York
April /ff+, 2010
D nald P. Chiari, Esq.. for
BROWN CHIARI u,
Attorneys for Plaintiff
5775 Broadway
Lancaster, New York 14086-2360
(716) 681-7190
- BROWN CHIARI us -
Preview
FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/25/2021 Exhibit A FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/25/2021 STATE OF NEW YORK : SUPREME COURT : COUNTY OF ERIE NDALL 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 Williarnsville, NY 14221 WILLIAMSVILLE VIEW MANOR NURSING HOME 165 South Union Road NY 14221 - Williamsville, SHERIDAN MANOR, LLC 2799 Sheridan Drive NY 14150 .. Tonawanda, LEGACY HEALTH CARE, LLC 193 South Union Road Williamsville, NY 14221 RICK ZACHER 193 South Union Road Williamville, NY 1422 1 JOHN DOES 1-200 Defendants. -BROWN CHIARI us - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 Page 2 - NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/25/2021 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 Sommons 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 ofNew 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 onald P. Chiari, . for BROWN CHIARI LLP Attorneys for Plaintiff 5775 Broadway Lancaster, New York 14086-2360 (716) 681-7190 -BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/25/2021 STATE OF NEW YORK : SUPREME COURT : COUNTY OF ERIE RANDALL CLAY, and on behalf of all others similarly situated Plaintiffs vs. COMPLAINT 2d/0^ Index # JÚ 07 RIDGEVIEW MANOR NURSING HOME, LLC, WILLIAMSVILLE SUBURBAN, LLC, WILLIAMSVILLE VIEW MANOR NURSING HOME, F I L E D SHERIDAN MANOR NURSING HOME, LLC, LEGACY ACTIONS & PROCEEDINGS HEALTH CARE, LLC, RICK ZACHER, and JOHN DOES 1-200 . . Defendants ERIE COUNTY CLERK'S OFFICE his BROWN CHIARI for his Complaint in the above- PLAINTIFF, by attorneys, us, entitled action, states as follows: 1. RANDALL CLAY, and on behalf of all others similarly sitüãted,as the plaintiff files this class action versus RIDGEVIEW MANOR NURSING HOME, LLC, WILLIAMSVILLE SUBURBAN, LLC, WILLIAMSVILLE VIEW MANOR NURSlNG HOME, SHERIDAN MANOR, NURSING HOME, LLC, RICK ZACHER, LEGACY HEALTH CARE, LLC, and JOHN DOES 1-200 (hereinafter collectively referred to as "Defendants"), for Defendanta' damages sustained as a result of violations ofNew York State Public Health Law -BROWN CHIARI us - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - - RECEIVED NYSCEF: 08/25/2021 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 information and belief, Defendant RIDGEVIEW MANOR NURSING HOME, LLC, was a participant in Medicaid and Medicate 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, inco1go,-ted 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 stillis a nursing home facility and/or domestic limited liability compañy, 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 requiremcats for long-term care as prescribed in the U.S. Code of Federal Regulations, 42 CFR §483. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - - RECEIVED NYSCEF: 08/25/2021 Page 3 7. Upon information and belief, Defcadant 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 compairy, duly organized and existing by virtue of the laws of the State of New York, with offices for the trancantian of business located at 193 South Union Road, Williamsville, New York 14221. 9. Upon information and belief, 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 RegüMon 42 CFR §483. 10. Upon information and belief, Defendant WILLIAMSVILLE VIEW MANOR NURSING HOME was and stillis 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 trananction of business located at 165 South Union Road, Winiamsville, New York 14221. 11. Upon information and belief, Defendant SHERIDAN 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. -BROWN CHIARI uP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - - RECEIVED NYSCEF: 08/25/2021 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 stillis a nursing home facility and/or domestic limited liabilitycompany, duly organized and existing by virtue of the Iaws 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 conipâñy, 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 CARE, 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 alltimes mentioned herein, Defendant LEGACY HEALTH CARE, LLC was business as WILLIAMSVILLE VIEW MANOR NURSING - doing HOME. - BROWN CHIARI us - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - - RECEIVED NYSCEF: 08/25/2021 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, Defeñdañt 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, itsagents, servants, employees, and/or other resident care personnel. 21. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC owñêd, operated, managed, directed, administcred, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE SUBURBAN, LLC, itsagents, 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 respomibHity for a nursing home facility doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servauts, employees, and/or other resident care personnel. 23. Upon information and belief, Defendant LEGACY HEALTH CARE, LLC owned, operated, mañsged, directed, ad!dñ*ered, and/or a=s=ned responsibility for a ñürsiig home facility doing business as SHERIDAN MANOR NURSING HOME, LLC, itsagents, 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 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - - RECEIVED NYSCEF: 08/25/2021 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, admLüstered, and/or assumed responcibility 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, operetad, managed, directed, administered, and/or assumed responsibility for a nursing home.facility doing business as WILLIAMSVILLE SUBURBAN, LLC, itsagents, servants, employees, and/or other resident care personnel. 28. Upon information and belief, Defendant RICK ZACHER owned, operated, mâñãged, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE VIEW MANOR NURSING HOME, its agents, servaras, 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 facilitydoing business as SHERIDAN MANOR NURSING HOME, LLC, its agents, servants, employees, and/or other resident care personnel. 30. Upon information and belief, Defendant WiLLIAM ZACHER owned, eparatel, managed, directed, administered, and/or ====ed reapr·rsibility for a nursing home facility doing -BROWN CHIARI La- FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - - RECEIVED NYSCEF: 08/25/2021 Page 7 busiñêss 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, nianaged, directed, administered, and/or assumed responsibility for a nursing home facility doing business as WILLIAMSVILLE SUBURBAN, LLC, itsagents, 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, itsagents, servants, employees, and/or other resident care personnel. 33. Upon information and belief, Defendaat WILLIAM ZACHER owned, operated, managed, directed, and/or assumed respor. for a home administered, ibility nursing 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 cntitics 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 ersissiens, give rise to legal resposibility for damagæ incurred by Plaintiff and by allthose similarly situated, but whose true identities, at the present time, are üñIüiewn to plaintifE These persons are hereby notified of plaintiff's intention to join - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - RECEIVED NYSCEF: 08/25/2021 Page 8 - them as defeñdâñts, if and when, additieñal 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 b ought 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 compensâtory and punitive damages on behalf of plaintiff and allothers similarly situated as a result of deprivations by defendants of the rights and benefits to which plaintiff and others simi!rly situated were endued the terms of contract, state statute, code, rule or regulation and by any by 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. Resident Class - All persons who resided at a defendant from Facility facility May 1, 2004 through the present ("Class Period"). i. Resident Private Subclass - All persons who are members Facility Pay 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. Public Subclass - allpersons who are members of the Facility Pay Facility Resident Class and on whose behalf payments were made to the Defendants through public funds (Medicare and Medicaid) during the Class Period. b. Member Class - All persons who are sclated to Resident Family any Facility Class Member by blood, marriage, or legal relationship and paid menia to any defendant for services rendered at a facility to any Fãcility Resident Class - BROWN CHIARI us - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - Page 9 - RECEIVED NYSCEF: 08/25/2021 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 joinder or hearing is impractical. The precise number of members and their addresses are presently unknown to plaintiff. The precise ñümber of persons in the class and their entities and addresses defendants' may be ascertained from 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 quesdons 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 engaged in a pattern or practice of unfair and deceptive conduct in connection with their m=;-ment, administration and operation of the facilities; c. Whether defendants failed to employ an adaluate 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; defendants' d. Whether conduct violates General Business Law §349; - BROWN CHIARI uP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 Page 10 - RECEIVED NYSCEF: 08/25/2021 defendants' e. Whether conduct was fraudulcñt; defendants' f. Whether conduct allowed for a pattern of deficicñcies for of quality 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 to provide appropriate and failing 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 Resident Facility Classes. Upon information and belief, the named plaintiff and Resident Class Members Facility resided at one or more of the faninth 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. AJAND FOR A FIRST CAUSE OF ACTlQN FOR VIOLATION OF.52801-d OF THE NEW YORK STATE PUBLIC I-IEALTH 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 r cid=†ial health care facility that deprives any patient of said of right or benefit...shall be liable to facility any deprivation..." said patient for injuries suffered as a result of said 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 the by terms of any contract by any state statute, code, rule, or regüiation or applicable federal by any - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - Page 11 - RECEIVED NYSCEF: 08/25/2021 statute, code, rule, or regulation, where non-compliance by said facility with such statute, code, authority." rule or regulation has not been expressly authorized the appropriate goverre tal by 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 exietace for residerts; failing to ad-juately staff the facilities; failing to provide adeqüate number of qualified personnel; to advance and support environmm* that promoted resident and of failing dignity quality care; engaging in a pattern of failing to provide appropriate and adequate resources for facility staf£ facility maintenance, facility supplies, and staff training. defendants' 47. As a result of conduct, the na.med plaintiff and Class Members have suffered injury and are entitled to compensatory damages in an amount to be determined at trial, attorneys' as well as punitive damage, fees, and costs. - BROWN CHIARI ILP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - Page 12 - RECEIVED NYSCEF: 08/25/2021 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 pramised 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 plaintiR and those similarly situated, to rely upon same. 50. 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 I-61 above. 52. Plaintiff, and those similrly situated, entered into a contract with defeñdañts 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 similsly situated, sustained damages. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - Page 13 - RECEIVED NYSCEF: 08/25/2021 AS AND FOR A FOURTH CAUSE OF ACTION FOR NEGLIGENCE. PLAINTIFF ALLEG_ES: 55. Plaintiff, and those similarly situated, refers to and incorporates herein by reference paragraphs 1-65 above. 56. Defendants owed various duties pursuant to com-mon law standards of care to Plaintiff, and those similarly situated. 57. Defendants breached those duties. defend==±=' 58. The breach of 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. Defendan*s' 61. conduct negigcñ‡ly 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 mainteñence, facility supplies, and stafftraining; all in vieletion of rights and benefits provided pursuant to §2801-d of the New York State Public Health Law. - BROWN CHIARI LLP - FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 21 - Page 14 - RECEIVED NYSCEF: 08/25/2021 62. Plaintiff, and those similarf situated, sustained injury and damages as a result of y defendants' negligence in excess of jurisdictional limits of alllower courts that would otherwise plaintiffs' have jurisdiction over the claims. WHEREFORE, Plaintiff RANDALL CLAY, and those aimilarly situated, do hereby demand judgrnent 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 detensiñéd attorneys' by a jury upon the trial of this action, plus costs and disbursements and fees. DATED: Lancaster, New York April /ff+, 2010 D nald P. Chiari, Esq.. for BROWN CHIARI u, Attorneys for Plaintiff 5775 Broadway Lancaster, New York 14086-2360 (716) 681-7190 - BROWN CHIARI us -