Preview
FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER Index No.:
PATRICIA LILLY,
VERIFIED COMPLAINT
Plaintiff,
-against-
MIRIAM OSBORN MEMORIAL HOME ASSOCIATION
doing business as THE OSBORN,
Defendant.
Plaintiff, PATRICIA LlLLY, by her attorneys, SACCO & FILLAS, LLP. complaining of
the Defendants New York Center for Rehabilitation & Nursing, respectfully alleges, upon information
and belief, as follows:
1. That at all times relevant herein, Plaintiff, PATRICIA LILLY, was a resident of the
County of Westchester, City of Yonkers, State of New York.
2. That at all times relevant herein, the Defendant, MIRIAM OSBORN MEMORIAL
HOME ASSOCIATION, doing business as THE OSBORN ("The Osborn") is and was a domestic
corporation duly organized and existing under and by virtue of the laws of the State of New York.
3. That at all times herinafter mentioned, defendnt was and still is a domesstic not-for-profit
corporation duly organized and existing under and by virtue of the laws of the State of New York.
4. At all times relevant herein, the Defendant, The Osborn was doing business within the
State ofNew York with its principal place of business Icoated at 101 Theall Road, Rye, New Yrk, County
of Westchester, State of New York.
5. That at all times relevant herein, the Defendant, The Osborn, owned the premises, known
as at 101 Theall Road, Rye, New York 10580.
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6. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants
and/or employees operated the aforementioned premises.
7. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants
and/or employees maintained the aforementioned premises.
8. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants
and/or employees managed the aforementioned premises.
9. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants
and/or employees supervised the aforementioned premises.
10. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants
and/or employees controlled the aforementioned premises.
1 1. That at all times relevant herein, the Defendant, The Osborn, was and still remains
engaged in the ownership of a nursing facility located at the aforementioned premises which were and are
governed by the laws and regulations of the State of New York.
12. That at all times relevant herein, Defendant, The Osborn, held itself out to the public as
medical and nursing treatment facility where patients, including Plaintiff, PATRICIA LILLY, could be
provided with proper medical and nursing care and treatment, which included providing medical and
nursing personnel, including, doctors, nurses, attendants, assistants, physician assistants, and other health
care providers.
13. Defendant, The Osborn, represented that it, its agents, servants, physicians, physician
assistants, nurses, certified nurses aides and/or employees were competent to perform and render all the
required medical and nursing care, treatment services and advice required by the Plaintiff.
14. That at all times relevant herein, Plaintiff was a patient at Defendant's facilities at the
premises aforementioned.
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15. That at all times relevant herein, Defendant, stood in such relationship of Plaintiff as to
make Defendant liable for all ofthe acts and/or omissions of its agents, servants, licensees, doctors, nurses,
staff, contractors and for employees.
16. That at all times relevant herein, Defendant, its agents, servants, physicians, nurses and/or
employees were was operating a nursing home, skilled nursing facility and/or long term care facility in
New York, and accordingly:
a. Defendants were a nursing home within the meaning of Article 28 of the Public
Health Law and at all times relevant, Defendants were under a duty to comply
with all duties set forth under that chapter;
b. The New York Codes, Rules, and Regulations (NYCRR), 10NYCCR 415.1(b)
(4) require that Nursing Homes comply with all pertinent Federal, State,
and local laws, regulations, codes, standards, and principles;
c. In New York, Nursing Homes are required to provide care and services in a
manner and quality consistent with generally accepted standards of practice
pursuant to 10 NYCRR 415.1 (b) (1);
d. The Defendants were and are participants in Medicare and Medicaid programs.
e. To participate in Medicare and Medicaid programs, nursing homes must be in
compliance with the federal requirements for long term care as prescribed in the
U.S. Code of Federal Regulations, 42 C.F.R.§483.
17. Defendant is aware that it is to be in compliance with the federal requirements for long
term care as prescribed in the U.S. Code of Federal Regulations, 42 C.F.R.§483.
18. Under the Code of Federal Regulations, a nursing home must:
a. Have sufficient nursing staff to provide nursing and related services to attain and
maintain the highest practicable physical, mental, and psychosocial well-being of
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each resident (42 C.F.R.§483.30);
b. Provide, if a resident is unable to carry out activities of daily living, the necessary
services to maintain good nutrition, grooming, and personal and oral hygiene (42
C.F.R. §483.25);
c. Ensure that the residents environment remains free of accident hazards (42
C.F.R§483.25 (h) (1));
d. ensure that each resident receives adequate supervision and assistance devices to
prevent accidents (42 C.F.R.§483.25 (h) (2);
e. ensure that a resident's maintains acceptable parameters of nutritional status such
as body weight and protein levels (42 C.F.R.§483.25);
f. provide an appropriate assessment of each resident entering a certified Nursing
Home and the development and implementation of an appropriate care plan so
that each resident is allowed to attain and maintain the highest practicable mental,
physical and psychosocial well-being (See 42 C.F.R.§483.1);
g. ensure that the facility protects the resident from unnecessary falls and accidents
(See C.F.R. 42§483.25(h));
b. conduct an initial assessment to determine the residents risk of falling and
develop a care plan that is tailored to address the residents needs (See C.F.R.
42§483.20);
i. report any resident falls to the attending physician and also to the responsible party
for the resident and to monitor the resident's complications from the fall; and,
j. the facility further has an obligation to investigate the cause ofall falls and develop
a plan to protect the resident from future falls (See 42 CFR § 483.10 (10)).
k. conduct initially (no later than 14 days after admission) and periodically (after a
significant change in the residents physical or mental condition and, in no case,
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less often than once every 12 months) a comprehensive, accurate, standardized,
reproducible assessment ofeach resident's functional capacity (42 CFR §483.20).
1. a comprehensive care plan for each resident that includes measurable
develop
objectives and timetables to meet a resident's medical, nursing, and mental and
psychosocial needs that are identified in the comprehensive assessment. The care
plan must be developed within 7 days after completion of the comprehensive
assessment and describe the services that are to be furnished. Also, the care plan
must be periodically reviewed and revised a team of qualified persons after
by
each assessment (42 CFR §483.20).
m. prevent the deterioration of a resident's ability to bathe, dress, groom, transfer
and ambulate, toilet, eat, and to use speech, language or other functional
communication systems (42 CFR § 483.25).
n. ensure that residents receive proper treatment and assistive devices to maintain
vision and hearing abilities (42 CFR § 483.25).
0. ensure that residents do not develop pressure sores and, if a resident has pressure
sores, must provide the necessary treatment and services to promote healing,
prevent infection and prevent new sores from developing (42 CFR § 483.25).
p. provide appropriate treatment and services to incontinent residents to restore as
much normal bladder functioning as possible and prevent urinary tract infections
and to restore as much normal bladder function as possible (42 CFR § 483.25).
q. provide each resident with sufficient fluid intake to maintain proper hydration and
health (42 CFR § 483.25).
r. ensure that residents are free of any significant medication errors (42 CFR §
483.25).
s. care for its residents in a manner and in an environment that promotes
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maintenance or enhancement of each resident's quality of life (42 CFR § 483.15).
t. promote care for residents in a manner and in an environment that maintains or
enhances each resident's dignity and respect in full recognition of her or her
individuality (42 CFR § 483.15).
u. ensure that the resident has the right to choose activities, schedules, and health
care consistent with her or her interests, assessments and plan of care (42 CFR §
483.15).
v. ensure that the medical care of each resident is supervised by a physician and must
provide or arrange for the provision of physician services 24 hours a day, in case
of an emergency (42 CFR § 483.40).
w. provide pharmaceutical services (Including procedures that assure the accurate
acquiring, receiving, dispensing, and administering of all drugs and biologicals)
to meet the needs of each resident (42 CFR § 483.60).
x. be administered in a manner that enables it to use its resources effectively and
efficiently to attain or maintain the highest practicable physical, mental, and
psychosocial well-being of each resident (42 CFR § 483.75).
y. maintain clinical records on each resident in accordance with an accepted
professional standards and practices that are complete, accurately documented,
readily accessible, and systematically organized (42 CFR § 483.75).
19. That at all times hereinafter mentioned, Defendant, had the duty to properly complete a
comprehensive MDS assessment for the plaintiff no later than by day 14 after admission.
20. That Defendant had the duty to complete a comprehensive assessment for the plaintiff.
21. That Defendant had the duty to update the comprehensive assessment and to keep it
current.
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22. That Defendant had the duty to complete a comprehensive plan of care by day twenty-one
(21) after admission.
23. That Defendant had the duty to complete a comprehensive plan of care for plaintiff.
24. That Defendant had the duty to update the plan of care and to keep it current.
25. At all times hereinafter mentioned herein, Defendant was operating a nursing home in
New York, and, accordingly:
a. That at all times hereinafter mentioned, Defendant had the duty to comply with
Public Health Law Article 28;
b. That at all times hereinafter mentioned, Defendant was subject to Public Health
Law §2801(d);
c. That at all times hereinafter mentioned, Defendant was under a duty to comply
with New York State Law and Regulations, including but not limited to Part 10,
§415 of NYCRR;
d. That at all times hereinafter mentioned, Defendant was under a duty to ensure that
a resident who enters the facility without pressure sores does not develop pressure
sores unless the individual's clinical condition demonstrates that they were
unavoidable despite every reasonable effort to prevent them; and a resident having
pressure sores receives necessary treatment and services to promote healing,
prevent infection and prevent new sores from developing;
e. That at all times hereinafter mentioned, Defendant was under a duty to ensure that
a resident who enters the facility as a fall risk does not fall; and that that patient is
properly assessed as a fall risk; and, that proper steps are placed to ensure that the
patient does not fall; and, that if incidents occur, or fall risk changes a re-
assessment is done, and steps are taken to ensure the patient does not fall;
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f. That at all times hereinafter mentioned, Defendant was under a duty to comply
with 42 CFR Part 483;
g. That at all times hereinafter mentioned, Defendant was under a duty to comply
with 42 U.S.C. §l396-r (1990) et seq., as amended by OBRA of 1987.
26. That from on or about November 9, 2023 and a continuous course of treatment through
on or about February 15, 2024, plaintiff was lawfully on the aforementiond premises.
27. That from on or about November 9, 2023 and a continuous course of treatment through
on or about February 15, 2024, plaintiff was lawfully in and on the aforementioned premises as a business
ivitee.
28. That prior to, and on the date of February 15, 2024 Defendant, its agents, servantss,
physicians, nurses and/or employees agreed and undertook to care for and treat plaintiff.
29. On the above dates, plaintiff sought the professional care of Defendant, its agents,
servants, physicians, nurses and/or employees for certain medical complaints, the need for medical care,
medical advice, long term care, rehabilitation care and for nursing home care, including complaints, from
which she was suffering, and the Defendant, its agents, servants, physicians, nurses and employees
undertook the responsibility of rendering medical and nursing care, diagnosis, treatment and services to
plaintiff.
30. That at all times hereinafter mentioned, while plaintiff was lawfully about the aforesaid
premises and under the medical care and treatment of the Defendant, its agent, servants, physicians, nurses
and/or employees, plaintiff was caused to fall, be propelled to the ground and sustain serious permanent
personal injuries which caused, continues to and will continue in the fture to cause extensive pain and
mental suffering.
31. That the foregoing was caused wholly and solely by the negligence of the Defendant, it
agents, servants, physicians, nurses and/or employees without any negligence on the part of the plaintiff
contributing thereto..
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32. The causes of action alleged herein falls within one or more of the exemptions set forth in
CPLR I602.
AS AND FOR A FIRST CAUSE OF ACTION IN NEGLIGENCE
AGAINST THE DEFENDANTS
"1" "32"
33. Plaintiffs repeat and reallege paragraphs through above as if set forth in their
entirety herein.
34. The above care, diagnoses, treatment and services rendered to Plaintiff by the defendant,
its agents, servants, physicians, nurses and/or employees, contractors, licensees and/or employees, were
rendered carelessly, unskillfully, negligently, and in a manner which departed from customary and
accepted standards of practice, diagnosis, treatment and service in the community; and negligently failed
to use ordinary and reasonable care, diligence and skills.
35. That the injuries sustained by plaintiff was caused by the lack of reasonable care exercised
by Defendant, in that the above mentioned injuries and occurrence, and the results thereof, were caused by
the negligence of the Defendant and/or said Defendant's agents, servants, physicians, nurses, licensees,
third party contractors and/or employees in the ownership, operation, management, maintenance,
supervision and control of the aforesaid facility and the negligent care and treatment provided to
plaintiffand negligence in failing to hire sufficiently qualified staff to meet plaintiff's needs; in improperly
supervising its staff and its residents/patients; in failing to properly train the staff; in failing to have
sufficient number of staff; in violating plaintiff's rights; in failing to provide adequate and
appropriate care and services to plaintiff in negligently hiring and/or retaining staff and employees; and
in failing to follow statutory laws, rules, and regulations thereby resulting in negligence per se and
evidence of negligence.
36. That the foregoing was caused wholly and solely through and by the negligence of the
defendant, its agents, servants, physicians, nurses and/or employees without any negligence on the part
of the plaintiff contributing thereto.
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37. reason of the foregoing, plaintiff was caused to suffer and sustain severe, serious
By
and permanent personal injuries, severe and serious pain and suffering and mental anguish; plaintiff has
been caused to expend and become obligated to expend and be liable for sums of money for medical
services and related expenses, and has thereby been injured and damaged in a sum which exceeds the
jurisdictional limitations of all lower courts which would otherwise have jurisdiction.
38. That the conduct aforementioned involved willful malfeasance, gross neglect and
negligence and gross abuse on the part of the defendants.
39. By reason of the above plaintiff sustained great pain, agony, injury, suffering, disability,
and hospitalization, as well as mental anguish and emotional distress.
40. That as a consequence, the plaintiff demands special, general and punitive damages in the
sum which exceeds the jurisdictional limits of all lower courts.
AS AND FOR A SECOND CAUSE OF ACTION
IN NEGLIGENCE PER SE AGAINST DEF
Preview
FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER Index No.: PATRICIA LILLY, VERIFIED COMPLAINT Plaintiff, -against- MIRIAM OSBORN MEMORIAL HOME ASSOCIATION doing business as THE OSBORN, Defendant. Plaintiff, PATRICIA LlLLY, by her attorneys, SACCO & FILLAS, LLP. complaining of the Defendants New York Center for Rehabilitation & Nursing, respectfully alleges, upon information and belief, as follows: 1. That at all times relevant herein, Plaintiff, PATRICIA LILLY, was a resident of the County of Westchester, City of Yonkers, State of New York. 2. That at all times relevant herein, the Defendant, MIRIAM OSBORN MEMORIAL HOME ASSOCIATION, doing business as THE OSBORN ("The Osborn") is and was a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. 3. That at all times herinafter mentioned, defendnt was and still is a domesstic not-for-profit corporation duly organized and existing under and by virtue of the laws of the State of New York. 4. At all times relevant herein, the Defendant, The Osborn was doing business within the State ofNew York with its principal place of business Icoated at 101 Theall Road, Rye, New Yrk, County of Westchester, State of New York. 5. That at all times relevant herein, the Defendant, The Osborn, owned the premises, known as at 101 Theall Road, Rye, New York 10580. SACCO& FILLAS,LLP 1 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 6. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants and/or employees operated the aforementioned premises. 7. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants and/or employees maintained the aforementioned premises. 8. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants and/or employees managed the aforementioned premises. 9. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants and/or employees supervised the aforementioned premises. 10. That at all times hereinafter mentioned, the Defendant, The Osborn, its agents, servants and/or employees controlled the aforementioned premises. 1 1. That at all times relevant herein, the Defendant, The Osborn, was and still remains engaged in the ownership of a nursing facility located at the aforementioned premises which were and are governed by the laws and regulations of the State of New York. 12. That at all times relevant herein, Defendant, The Osborn, held itself out to the public as medical and nursing treatment facility where patients, including Plaintiff, PATRICIA LILLY, could be provided with proper medical and nursing care and treatment, which included providing medical and nursing personnel, including, doctors, nurses, attendants, assistants, physician assistants, and other health care providers. 13. Defendant, The Osborn, represented that it, its agents, servants, physicians, physician assistants, nurses, certified nurses aides and/or employees were competent to perform and render all the required medical and nursing care, treatment services and advice required by the Plaintiff. 14. That at all times relevant herein, Plaintiff was a patient at Defendant's facilities at the premises aforementioned. SACCO& FILLAS,LLP 2 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 . NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 15. That at all times relevant herein, Defendant, stood in such relationship of Plaintiff as to make Defendant liable for all ofthe acts and/or omissions of its agents, servants, licensees, doctors, nurses, staff, contractors and for employees. 16. That at all times relevant herein, Defendant, its agents, servants, physicians, nurses and/or employees were was operating a nursing home, skilled nursing facility and/or long term care facility in New York, and accordingly: a. Defendants were a nursing home within the meaning of Article 28 of the Public Health Law and at all times relevant, Defendants were under a duty to comply with all duties set forth under that chapter; b. The New York Codes, Rules, and Regulations (NYCRR), 10NYCCR 415.1(b) (4) require that Nursing Homes comply with all pertinent Federal, State, and local laws, regulations, codes, standards, and principles; c. In New York, Nursing Homes are required to provide care and services in a manner and quality consistent with generally accepted standards of practice pursuant to 10 NYCRR 415.1 (b) (1); d. The Defendants were and are participants in Medicare and Medicaid programs. e. To participate in Medicare and Medicaid programs, nursing homes must be in compliance with the federal requirements for long term care as prescribed in the U.S. Code of Federal Regulations, 42 C.F.R.§483. 17. Defendant is aware that it is to be in compliance with the federal requirements for long term care as prescribed in the U.S. Code of Federal Regulations, 42 C.F.R.§483. 18. Under the Code of Federal Regulations, a nursing home must: a. Have sufficient nursing staff to provide nursing and related services to attain and maintain the highest practicable physical, mental, and psychosocial well-being of SACCO& FILLAS,LLP 3 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 each resident (42 C.F.R.§483.30); b. Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal and oral hygiene (42 C.F.R. §483.25); c. Ensure that the residents environment remains free of accident hazards (42 C.F.R§483.25 (h) (1)); d. ensure that each resident receives adequate supervision and assistance devices to prevent accidents (42 C.F.R.§483.25 (h) (2); e. ensure that a resident's maintains acceptable parameters of nutritional status such as body weight and protein levels (42 C.F.R.§483.25); f. provide an appropriate assessment of each resident entering a certified Nursing Home and the development and implementation of an appropriate care plan so that each resident is allowed to attain and maintain the highest practicable mental, physical and psychosocial well-being (See 42 C.F.R.§483.1); g. ensure that the facility protects the resident from unnecessary falls and accidents (See C.F.R. 42§483.25(h)); b. conduct an initial assessment to determine the residents risk of falling and develop a care plan that is tailored to address the residents needs (See C.F.R. 42§483.20); i. report any resident falls to the attending physician and also to the responsible party for the resident and to monitor the resident's complications from the fall; and, j. the facility further has an obligation to investigate the cause ofall falls and develop a plan to protect the resident from future falls (See 42 CFR § 483.10 (10)). k. conduct initially (no later than 14 days after admission) and periodically (after a significant change in the residents physical or mental condition and, in no case, SACCO& FILLAS,LLP 4 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 less often than once every 12 months) a comprehensive, accurate, standardized, reproducible assessment ofeach resident's functional capacity (42 CFR §483.20). 1. a comprehensive care plan for each resident that includes measurable develop objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must be developed within 7 days after completion of the comprehensive assessment and describe the services that are to be furnished. Also, the care plan must be periodically reviewed and revised a team of qualified persons after by each assessment (42 CFR §483.20). m. prevent the deterioration of a resident's ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to use speech, language or other functional communication systems (42 CFR § 483.25). n. ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities (42 CFR § 483.25). 0. ensure that residents do not develop pressure sores and, if a resident has pressure sores, must provide the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing (42 CFR § 483.25). p. provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible and prevent urinary tract infections and to restore as much normal bladder function as possible (42 CFR § 483.25). q. provide each resident with sufficient fluid intake to maintain proper hydration and health (42 CFR § 483.25). r. ensure that residents are free of any significant medication errors (42 CFR § 483.25). s. care for its residents in a manner and in an environment that promotes SACCO& RLLAS, LLP 5 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 maintenance or enhancement of each resident's quality of life (42 CFR § 483.15). t. promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of her or her individuality (42 CFR § 483.15). u. ensure that the resident has the right to choose activities, schedules, and health care consistent with her or her interests, assessments and plan of care (42 CFR § 483.15). v. ensure that the medical care of each resident is supervised by a physician and must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency (42 CFR § 483.40). w. provide pharmaceutical services (Including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident (42 CFR § 483.60). x. be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident (42 CFR § 483.75). y. maintain clinical records on each resident in accordance with an accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized (42 CFR § 483.75). 19. That at all times hereinafter mentioned, Defendant, had the duty to properly complete a comprehensive MDS assessment for the plaintiff no later than by day 14 after admission. 20. That Defendant had the duty to complete a comprehensive assessment for the plaintiff. 21. That Defendant had the duty to update the comprehensive assessment and to keep it current. SACCO& FILLAS,LLP 6 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 22. That Defendant had the duty to complete a comprehensive plan of care by day twenty-one (21) after admission. 23. That Defendant had the duty to complete a comprehensive plan of care for plaintiff. 24. That Defendant had the duty to update the plan of care and to keep it current. 25. At all times hereinafter mentioned herein, Defendant was operating a nursing home in New York, and, accordingly: a. That at all times hereinafter mentioned, Defendant had the duty to comply with Public Health Law Article 28; b. That at all times hereinafter mentioned, Defendant was subject to Public Health Law §2801(d); c. That at all times hereinafter mentioned, Defendant was under a duty to comply with New York State Law and Regulations, including but not limited to Part 10, §415 of NYCRR; d. That at all times hereinafter mentioned, Defendant was under a duty to ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable despite every reasonable effort to prevent them; and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing; e. That at all times hereinafter mentioned, Defendant was under a duty to ensure that a resident who enters the facility as a fall risk does not fall; and that that patient is properly assessed as a fall risk; and, that proper steps are placed to ensure that the patient does not fall; and, that if incidents occur, or fall risk changes a re- assessment is done, and steps are taken to ensure the patient does not fall; SACCO& FILLAS,LLP 7 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 f. That at all times hereinafter mentioned, Defendant was under a duty to comply with 42 CFR Part 483; g. That at all times hereinafter mentioned, Defendant was under a duty to comply with 42 U.S.C. §l396-r (1990) et seq., as amended by OBRA of 1987. 26. That from on or about November 9, 2023 and a continuous course of treatment through on or about February 15, 2024, plaintiff was lawfully on the aforementiond premises. 27. That from on or about November 9, 2023 and a continuous course of treatment through on or about February 15, 2024, plaintiff was lawfully in and on the aforementioned premises as a business ivitee. 28. That prior to, and on the date of February 15, 2024 Defendant, its agents, servantss, physicians, nurses and/or employees agreed and undertook to care for and treat plaintiff. 29. On the above dates, plaintiff sought the professional care of Defendant, its agents, servants, physicians, nurses and/or employees for certain medical complaints, the need for medical care, medical advice, long term care, rehabilitation care and for nursing home care, including complaints, from which she was suffering, and the Defendant, its agents, servants, physicians, nurses and employees undertook the responsibility of rendering medical and nursing care, diagnosis, treatment and services to plaintiff. 30. That at all times hereinafter mentioned, while plaintiff was lawfully about the aforesaid premises and under the medical care and treatment of the Defendant, its agent, servants, physicians, nurses and/or employees, plaintiff was caused to fall, be propelled to the ground and sustain serious permanent personal injuries which caused, continues to and will continue in the fture to cause extensive pain and mental suffering. 31. That the foregoing was caused wholly and solely by the negligence of the Defendant, it agents, servants, physicians, nurses and/or employees without any negligence on the part of the plaintiff contributing thereto.. SACCO& FILLAS,LLP 8 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 32. The causes of action alleged herein falls within one or more of the exemptions set forth in CPLR I602. AS AND FOR A FIRST CAUSE OF ACTION IN NEGLIGENCE AGAINST THE DEFENDANTS "1" "32" 33. Plaintiffs repeat and reallege paragraphs through above as if set forth in their entirety herein. 34. The above care, diagnoses, treatment and services rendered to Plaintiff by the defendant, its agents, servants, physicians, nurses and/or employees, contractors, licensees and/or employees, were rendered carelessly, unskillfully, negligently, and in a manner which departed from customary and accepted standards of practice, diagnosis, treatment and service in the community; and negligently failed to use ordinary and reasonable care, diligence and skills. 35. That the injuries sustained by plaintiff was caused by the lack of reasonable care exercised by Defendant, in that the above mentioned injuries and occurrence, and the results thereof, were caused by the negligence of the Defendant and/or said Defendant's agents, servants, physicians, nurses, licensees, third party contractors and/or employees in the ownership, operation, management, maintenance, supervision and control of the aforesaid facility and the negligent care and treatment provided to plaintiffand negligence in failing to hire sufficiently qualified staff to meet plaintiff's needs; in improperly supervising its staff and its residents/patients; in failing to properly train the staff; in failing to have sufficient number of staff; in violating plaintiff's rights; in failing to provide adequate and appropriate care and services to plaintiff in negligently hiring and/or retaining staff and employees; and in failing to follow statutory laws, rules, and regulations thereby resulting in negligence per se and evidence of negligence. 36. That the foregoing was caused wholly and solely through and by the negligence of the defendant, its agents, servants, physicians, nurses and/or employees without any negligence on the part of the plaintiff contributing thereto. SACCO& HLLAS, LLP 9 of 21 FILED: WESTCHESTER COUNTY CLERK 04/11/2024 01:20 PM INDEX NO. 60238/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 37. reason of the foregoing, plaintiff was caused to suffer and sustain severe, serious By and permanent personal injuries, severe and serious pain and suffering and mental anguish; plaintiff has been caused to expend and become obligated to expend and be liable for sums of money for medical services and related expenses, and has thereby been injured and damaged in a sum which exceeds the jurisdictional limitations of all lower courts which would otherwise have jurisdiction. 38. That the conduct aforementioned involved willful malfeasance, gross neglect and negligence and gross abuse on the part of the defendants. 39. By reason of the above plaintiff sustained great pain, agony, injury, suffering, disability, and hospitalization, as well as mental anguish and emotional distress. 40. That as a consequence, the plaintiff demands special, general and punitive damages in the sum which exceeds the jurisdictional limits of all lower courts. AS AND FOR A SECOND CAUSE OF ACTION IN NEGLIGENCE PER SE AGAINST DEF