Preview
FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
SUMMONS
THE ESTATE OF NIDIA REYES, by her Proposed
Executor, CONRAD REYES, Index No.:
Date Purchased:
Plaintiff(s),
-against- Plaintiff designates KINGS County
as the place of trial
CNH OPERATING, LLC d/b/a THE CHATEAU AT
BROOKLYN REHABILITATION AND NURSING The basis of venue is defendant
CENTER, CNH OPERATING, LLC d/b/a
THE CHATEAU AT BROOKLYN
Defendant(s), REHABILITATION AND
NURSING CENTER’s address:
3457 Nostrand Avenue
Brooklyn, NY 11229
To the above-named Defendants:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the Plaintiff's attorney within 20 days after the service of this Summons, exclusive
of the day of service (or within 30 days after the service is complete if this summons is not
personally delivered to you within the State of New York); and in case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded in the complaint.
Dated: Melville, New York
April 16, 2024
NAPOLI SHKOLNIK, PLLC
Attorneys for Plaintiff
By: __________________________
Joseph L. Ciaccio
400 Broadhollow Road, Suite 305
Melville, New York 11747
T: 212-397-1000
E: jciaccio@napolilaw.com
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Defendant’s Address:
CNH OPERATING, LLC d/b/a
THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER
3457 Nostrand Avenue, Brooklyn, NY 11229
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
THE ESTATE OF NIDIA REYES, by her Proposed Executor,
CONRAD REYES, Index No:
Plaintiff(s), VERIFIED
-against- COMPLAINT
CNH OPERATING, LLC d/b/a THE CHATEAU AT Plaintiff demands
BROOKLYN REHABILITATION AND NURSING a Jury Trial
CENTER,
Defendant(s)
Plaintiff, by his attorneys, NAPOLI SHKOLNIK PLLC, complaining of the defendants,
respectfully alleges upon information and belief:
I. THE PARTIES
a. Plaintiff
1. That at all times hereinafter mentioned, plaintiff CONRAD REYES, is the brother of the
decedent, NIDIA REYES, and is a resident of the State of New York, County of Kings.
2. That at all times hereinafter mentioned, plaintiff’s decedent, NIDIA REYES, was a resident
of the County of Kings, State of New York.
3. That on April 18, 2021, plaintiff’s decedent, NIDIA REYES, died at Kings County
Hospital Center. At the time, NIDIA REYES was a resident at THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER.
4. On November 7, 2023, CONRAD REYES filed a Probate Petition before the Kings County
Surrogate’s Court requesting his appointment as Executor of the Estate of NIDIA REYES.
5. That at all times hereinafter mentioned, NIDIA REYES and her next of kin are represented
in this action by her brother, CONRAD REYES, as Proposed Executor of her Estate.
6. This action falls within one or more exceptions as set forth in N.Y. Civil Practice Laws and
Rules (“C.P.L.R.”) Article 16.
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b. Defendant CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER
7. According to the New York Department of Health, defendant CNH OPERATING, LLC is
the owner and operator of THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING
CENTER, which is located at 3457 Nostrand Avenue, Brooklyn, NY 11229.
8. That at all times relevant hereto, the term “nursing home” shall refer to and include
defendants CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN REHABILITATION AND
NURSING CENTER, the owner(s) and operator(s) of same, as well as any agents, representatives,
employees, care givers, nurses, directors, doctors, physician’s assistants, or staff members of said facility
or corporations.
9. Defendants CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER are located at 3457 Nostrand Avenue, Brooklyn, NY
11229.
10. That at all times hereinafter mentioned, upon information and belief, defendant CNH
OPERATING, LLC was and still is a domestic limited liability company, duly organized under and existing
by virtue of the laws of the State of New York.
11. That at all times hereinafter mentioned, upon information and belief, the defendant, CNH
OPERATING, LLC, was and still is a business entity doing business within the State of New York.
12. That at all times hereinafter mentioned, upon information and belief, defendant CNH
OPERATING, LLC maintained its principal place of business in the County of Kings, State of New York.
13. Prior to and at all times hereinafter mentioned, defendant CNH OPERATING, LLC was
authorized to do business and to operate a nursing home facility located at 3457 Nostrand Avenue,
Brooklyn, NY 11229, known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING
CENTER.
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14. Prior to and at all times hereinafter mentioned, defendant CNH OPERATING, LLC was
and is the owner of a certain nursing home facility located at 3457 Nostrand Avenue, Brooklyn, NY 11229,
known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER.
15. That at all times hereinafter mentioned, upon information and belief, defendants were the
lessors of the aforesaid nursing home facility.
16. That at all times hereinafter mentioned, upon information and belief, defendants were the
lessees of the aforesaid nursing home facility.
17. That at all times hereinafter mentioned, upon information and belief, defendants
maintained, managed, operated, controlled, supervised, and inspected the aforesaid nursing home facility.
18. Prior to and at all times hereinafter mentioned, defendants had possession and control of
the building and facilities where the aforesaid nursing home facility is located.
19. That at all times relevant hereto, upon information and belief, defendants owned the
premises and appurtenances and fixtures thereto located at 3457 Nostrand Avenue, Brooklyn, NY 11229.
20. Prior to and at all times hereinafter mentioned, the defendant, CNH OPERATING, LLC,
was and still remains engaged in conducting and operating a nursing home facility known as THE
CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, and holds itself out to the
general public as a facility providing such care and accommodations where patients can be treated by
competent and skilled physicians and nursing staff to care for those who are ill.
21. Prior to and at all times hereinafter mentioned, the defendant, CNH OPERATING, LLC,
was and still remains engaged in conducting and operating a nursing home facility for nursing care known
as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, and holds itself
out to the general public as a facility providing such care and accommodations where patients can be treated
by competent and skilled physicians and nursing staff to care for those who are ill.
22. Prior to and at all times hereinafter mentioned, the defendant, CNH OPERATING, LLC,
was and still remains engaged in conducting and operating a nursing home facility for the rehabilitation
care of ill and injured persons known as THE CHATEAU AT BROOKLYN REHABILITATION AND
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NURSING CENTER, and holds itself out to the general public as a facility providing such care and
accommodations where patients can be treated by competent and skilled physicians and nursing staff.
23. That at all times relevant hereto, defendant THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER claimed to provide for the proper care and safety of the
residents at their nursing home facility, claimed to provide personnel, including doctors, nurses, attendants,
assistance and others for the proper, safety and good treatment of its patients and residents, and held itself
out to the general public as furnishing treatment facilities where patients and residents, including plaintiff’s
decedent, NIDIA REYES, could be provided with proper care and safety.
24. That at all times hereinafter mentioned, defendants e represented that their nursing home
was competent to perform and render all the resident care, medical care, treatment, services and advice
required by plaintiff’s decedent, NIDIA REYES.
25. That at all times relevant hereto, defendants were operating a nursing home in the State of
New York within the meaning of Article 28 of the Public Health Law and at all times relevant hereto,
defendant was under a duty to comply with all duties set forth in that chapter.
26. That at all times relevant hereto, nursing homes in the State of New York must comply
with all pertinent Federal, State and local laws, regulations, codes, standards and principals, pursuant to the
New York Code, Rules and Regulations (NYCRR), 10 NYCRR 415.1 (b)(4).
27. That at all times relevant hereto, nursing homes in the State of New York 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).
28. That at all times relevant hereto, the nursing home of defendants was and still is a
participant in Medicare and Medicaid.
29. That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs,
the nursing home of defendants 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 C.F.R. §483.
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30. That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs,
the nursing home of defendants was and still is aware that it is required 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.
31. That under the Code of Federal Regulations, the nursing home facility of defendants,
known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, must:
a. have sufficient nursing staff to provide nursing and related
services to attain and maintain the highest practicable physical,
mental, and psycho- social well-being of each resident (42 C.F.R.
§483.30); and,
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);
and,
c. ensure that the resident’s environment remains free of accident
hazards (42 C.F.R. §483.25(h)(1)); and,
d. ensure that each resident receives adequate supervision and
assistance devices to prevent accidents (42 C.F.R. §483.25(h)(2));
and,
e. ensure that a resident maintains acceptable parameters of
nutritional status such as body weight and protein levels (42
C.F.R. §483.25); and,
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
psycho-social well-being (42 C.F.R. §483.1); and,
g. ensure that the facility protects the resident from unnecessary
falls and accidents (42 C.F.R. §483.25(h)); and,
h. conduct an initial assessment to determine the resident’s risks
of falling and develop a care plan that is tailored to address the
resident’s needs (42 C.F.R. §483.20); and,
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 nursing home facility further has an obligation to investigate
the cause of all falls and develop a plan to protect
the resident from future falls (42 C.F.R. §483.10(10)); and
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k. conduct initially (no later than 14 days after admission) and
periodically (after a significant change in the resident’s physical
or mental condition and in no case, less often than once every 12
months) a comprehensive, accurate, standardized, reproducible
assessment of each resident’s functional capacity (42 C.F.R.
§483.20); and,
l. develop a comprehensive care plan for each resident that
includes measurable objectives and timetables to meet a resident’s
medical, nursing, and mental and psycho-social 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 by a team
of qualified persons after each assessment (42 C.F.R. §483.20);
and,
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 C.F.R.
§483.25); and,
n. ensure that residents receive proper treatment and assistive
devices to maintain vision and hearing abilities (42 C.F.R.
§483.25); and,
o. 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 (42 C.F.R. §483.25); and,
p. provide appropriate treatment and services to incontinent
residents to restore as much normal bladder functioning as
possible and prevent injury tract infections (42 C.F.R. §483.25);
and,
q. provide each resident with sufficient fluid intake to maintain
proper hydration and health (42 C.F.R. §483.25); and,
r. ensure that residents are free of any significant medication errors
(42 C.F.R. §483.25); and,
s. care for its residents in a manner and in an environment that
promotes maintenance or enhancement of each resident’s quality
of life (42 C.F.R. §483.15); and,
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 his or her individuality (42 C.F.R. §483.15);
and,
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u. ensure that the resident has the right to choose activities
schedules, and health care consistent with his or her interests,
assessments, and plan of care (42 C.F.R. §483.15); and,
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 per day, in case of an emergency (42
C.F.R. §483.40); and,
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 C.F.R. §483.75); and,
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 C.F.R. §483.75); and,
y. maintain clinical records on each resident in accordance
with accepted professional standards and practices that
are complete, accurately documented, readily accessible,
and systematically organized (42 C.F.R. §483.75).
32. That at all times relevant hereto, defendants had the duty to properly complete a
comprehensive assessment for plaintiff’s decedent NIDIA REYES
33. That at all times relevant hereto, defendants had the duty to update a comprehensive
assessment for plaintiff’s decedent NIDIA REYES and to keep it current.
34. That at all times relevant hereto, defendants had the duty to properly complete a
comprehensive care plan for plaintiff’s decedent NIDIA REYES
35. That at all times relevant hereto, defendants had the duty to update a comprehensive care
plan for plaintiff’s decedent NIDIA REYES and to keep it current.
36. That at all times relevant hereto, defendants, by its officers, employees, agents and/or
servants, under OBRA 42 C.F.R. §483.25 and New York State rules and regulations, had the duty to ensure
that each resident must receive and the facility must provide the necessary care and services to attain or
maintain the highest practicable physical, mental and psycho-social well-being, in accordance with the
comprehensive assessment and care plan.
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37. Prior to and at all times relevant hereto, defendants conducted business as a nursing home
facility located at 3457 Nostrand Avenue, Brooklyn, NY 11229, County of Kings, State of New York, as
licensed and defined under New York Public Health Law Section 2801(2).
38. Prior to and at all times relevant hereto, defendants conducted business as a residential
health care facility, as licensed and defined under New York Public Health Law Section 2801(3).
39. Prior to and at all times hereinafter mentioned, the defendants conducted business as an
adult care facility, as licensed and defined under New York Public Health Law Section 2801(2).
40. That at all times hereinafter mentioned, defendants’ facility was subject to the provisions
of New York Public Health Law Section 2801-c.
41. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER was a nursing home facility providing therein nursing
care to sick, invalid, infirm, disabled or convalescent persons in addition to lodging and board or health
related services pursuant to New York Public Health Law Section 2801(2).
42. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER is a nursing home as within the meaning of Public Health
Law Section 2801(2).
43. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER is a residential health care facility within the meaning of
Public Health Law Section 2801(3).
44. Prior to and at all times relevant hereto, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER was a facility subject to the provisions of New York
Public Health Law Section 2801-d.
45. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER was a facility subject to the provisions of New York
Public Health Law Section 2803-c.
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46. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER was a facility subject to the-provisions of Public Health
Law Section 42 U.S.C. Section 1395(i) et seq.
47. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER was a facility subject to the provisions of Public Health
Law Section 1396(r) (1990) et seq. as amended by the Omnibus Budget Reconciliation Act of 1987 (OBRA
Regulations).
48. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER was a facility subject to the provisions of Public Health
Law Section 42 Code of Federal Regulations Parts 483, setting Medicare and Medicaid Requirements for
long term facilities ("OBRA" regulations) as effective October 1, 1990.
49. Prior to and at all times hereinafter mentioned, the nursing home operated by defendants
was a "nursing facility" as defined by 42 U.S.C.A. Section 1396(r).
50. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER is a licensed nursing home as such term is understood in
law.
51. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN
REHABILITATION AND NURSING CENTER is a nursing home certified for participation in the
Medicare and Medicaid program as an intermediate skilled care facility.
52. Prior to and at all times hereinafter mentioned, by reason of selection to participate as a
long-term care provider, defendants were able to enjoy substantial revenues paid for by tax fare funded
government programs.
53. Prior to and at all times hereinafter mentioned, the aforementioned government programs
provided defendants with a guaranteed source of income and a continual flow of residents whose care was
paid for by the Medicare and Medicaid program or some other taxpayer funded program.
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54. Prior to and at all times hereinafter mentioned, plaintiff-decedent, was the type of resident
whose care was paid for by the government and was the type of resident defendants actively sought in order
to fill their empty beds, increase their rate of occupancy, and overall revenues.
55. At all times relevant to this Complaint, defendants were proprietary corporations engaged
in the for-profit operation of a nursing home, which claimed to “specialize” in the care of helpless
individuals who are chronically infirm, mentally dysfunctional and/or in need of nursing care and treatment.
56. Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff-
decedent and other patients whose care was funded by the government were placed at their nursing home,
THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER held itself out to the
New York Department of Health, the New York Department of Social Services and the public at large as
being skilled in the performance of nursing, and other medical support services.
57. Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff-
decedent and other patients whose care was funded by the government were placed at their nursing home,
THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER held itself out to the
New York Department of Health, the New York Department of Social Services and the public at large as
being properly staffed, supervised and equipped to meet the total needs of their nursing home residents.
58. Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff-
decedent and other patients whose care was funded by the government were placed at their nursing home,
THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER held itself out to the
New York Department of Health, the New York Department of Social Services, and the public at large as
being able to specifically meet the total nursing, medical and physical therapy needs of plaintiff’s decedent
and other residents like her.
59. Prior to and at all times hereinafter mentioned, defendants, their principals, supervisors,
agents, officers, employees, independent medical personnel, independent contractors, and/or Administrator;
Assistant Administrator; Director of Nursing; Assistant Director of Nursing; Medical Director; Assistant
Medical Director, or any or all of its corporate defendant stockholders, employees, independent medical
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personnel and/or independent contractors, or those of its nursing home, and all staff and personnel affiliated
with defendant, were all well aware of the medical conditions and the care that plaintiff’s decedent required,
represented that they could adequately care for her needs, and persuaded the plaintiff’s decedent and
decedent's family to that effect.
60. That at all times relevant hereto, plaintiff’s decedent, NIDIA REYES, was a resident at
defendants’ facility located at 3457 Nostrand Avenue, Brooklyn, NY 11229, and was under the care and
management of defendants.
61. That at all times relevant hereto, defendants stood in such a relationship with plaintiff’s
decedent NIDIA REYES, as to make it liable for the acts and omissions of its doctors, nurses, staff and
employees.
STATEMENT OF FACTS COMMON TO ALL CAUSES OF ACTION
a. COVID-19 Timeline
62. On February 1, 2019, CMS determined it was critical for facilities to include planning for
infectious diseases within their emergency preparedness program. Considering events such as the Ebola
Virus and Zika, CMS determined that facilities should consider preparedness and infection prevention
within their all-hazards approach. Per federal regulations, Medicare and Medicaid participating providers
like BRONX GARDENS have national emergency preparedness requirements regarding planning,
preparing, and training for emergency situations. This includes requirements for emergency plans, policies
and procedures, communications, and staff training.
63. On December 31, 2019, the World Health Organization (herein after referred to as “WHO”)
China Country Office was informed of dozens of cases of pneumonia of unknown etiology detected in
Wuhan City, Hubei Province of China.
64. In or around January 2020, Defendants were made aware of severe acute respiratory
syndrome coronavirus 2 (SARS-CoV-2) spreading world-wide and nationally, known colloquially as the
coronavirus, that caused severe medical distress and death in individuals who caught the disease, especially,
the elderly.
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65. On January 7, 2020, the viral outbreak in Wuhan, China was identified as a new type/strain
of coronavirus, 2019-nCoV (hereinafter referred to as “novel coronavirus”).
66. SARS-CoV-2 is known and documented to cause a debilitating and deadly disease, the
Coronavirus disease 2019(hereinafter, “COVID-19”).
67. On January 11, 2020, Chinese state media reported its first known death from the novel
coronavirus.
68. On January 12, 2020, China shared the genetic sequence of the novel coronavirus for
countries to use in developing specific diagnostic kits.
69. On January 20, 2020, Japan, South Korea and Thailand reported their first confirmed cases
of the novel coronavirus. On that same day, the head of a Chinese government coronavirus team confirmed
that the novel coronavirus outbreak was transmitted by human-to-human contact, which was a development
that put medical facilities, institutions, and long-term skilled nursing facilities on notice of the possibility
that the novel corona virus could spread quickly and widely.
70. On January 23, 2020, the United States and WHO confirmed its first case of the novel
coronavirus in the State of Washington.
71. On February 6, 2020, CMS urged healthcare facilities to prepare for the emerging COVID
threat: “[b]ecause coronavirus infections can rapidly appear and spread, facilities must take steps to prepare,
including reviewing their infection control policies and practices to prevent the spread of infection.” The
guidance emphasized the need for staff to “comply with basic infection control practices,” including hand
hygiene.”
72. On February 11, 2020, the WHO announced “COVID-19” as the shortened name of the
novel “coronavirus disease 2019”.
73. On February 13, 2020, the U.S. Director of The Centers for Disease Control and Prevention
(hereinafter referred to as “CDC”) announced that COVID-19 will likely become a community virus and
remain beyond this current season.
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74. On February 25, 2020, the CDC issued a warning that spread of the virus to the United
States is likely and that people should prepare; and U.S. senators receive a classified briefing on the Trump
administration’s coronavirus response.
75. COVID-19 can and has spread rapidly in long-term residential care facilities and persons
with chronic underlying medical conditions are at greater risk for COVID-19.
76. On February 28, 2020, a case of the novel coronavirus disease was identified and confirmed
in a woman resident of a long-term care skilled nursing facility in King County, Washington. A subsequent
epidemiologic investigation identified 129 cases of COVID-19, including 81 residents (over 62% of the
resident population), 34 staff members, and 14 visitors. 1
77. These residents and/or patients there were the first in the nation to suffer from and die as a
result of the COVID-19 virus, and news of the dire situation and the first deaths in the United States at the
Life Care Center in Kirkland, Washington was widespread all throughout the United States and was known
to all nursing homes.
78. On February 29, 2020, the United States instituted “do not travel warnings” for affected
areas including Italy and South Korea.
79. On February 29, 2020, the CDC posted “Healthcare Facilities: Preparing for Community
Transmission” with the following specific instructions to nursing homes:
• Limit visitors to the facility.
• Post visual alerts (signs, posters) at entrances and in strategic places providing instruction
on hand hygiene, respiratory hygiene, and cough etiquette.
• Ensure supplies are available (tissues, waste receptacles, alcohol-based hand sanitizer).
• Take steps to prevent known or suspected COVID-19 patients from exposing other
patients.
• Limit the movement of COVID-19 patients (e.g. keep them in their rooms)
• Identify dedicated staff to care for COVID-19 patients.
• Observe newly arriving patients/residents for development of respiratory symptoms.
80. On March 1, 2020, the first confirmed COVID-19 case in the State of New York was
reported.
1 https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm
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81. On March 3, 2020, the first presumed COVID-19-related death occurred at a nursing home
in the State of New York.
82. On March 3, 2020, the WHO reported more than 90,000 infections of COVID-19 globally
and about 3,000 deaths.
83. On March 4, 2020, the Centers for Medicare and Medicaid Services (“CMS”) issued its
Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing
Homes, recommending suspension and limitation of standard nursing home activities, and the screening of
visitors and staff at nursing homes for signs and symptoms of a respiratory infection, such as fever, cough,
and sore throat.
84. Other CMS recommendations included: increasing the availability and accessibility of
alcohol-based hand sanitizers, tissues, no touch receptacles for disposal, and facemasks at the facility’s
entrances, waiting rooms, patient check-ins, etc.; increasing signage for vigilant infection prevention, such
as hand hygiene and cough etiquette; properly cleaning, disinfecting, and limiting sharing of medical
equipment between residents and areas of the facility; and providing additional work supplies to avoid
sharing among staff and residents (i.e., pens, pads), and properly disinfecting workplace areas (such as
nurses’ stations, phones, internal radios, etc.).
85. On March 6, 2020, the NYSDOH issued guidance DAL NH-20-04, addressed to nursing
homes, regarding the precautions and procedures these facilities should take to protect and maintain the
health and safety of their residents and staff during the COVID-19 pandemic outbreak, and recognizing the
“potential for more serious illness among older adults” and the “risk of outbreak” in these facilities This
NYSDOH guidance recommended screening visitors, nursing home staff, and employees for symptoms of
illness upon arriving at work, such as fever, lower respiratory infection, shortness of breath, cough, nasal
congestion, runny nose, sore throat, nausea, vomiting, and/or diarrhea, adding that “nursing homes strictly
enforce their illness and sick leave policies”.
86. The next day, on March 7, 2020, the then Governor of New York, Andrew M. Cuomo,
declared a state of emergency over the COVID-19 outbreak as cases in the state continued to rise.
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87. On March 11, 2020, President Donald J. Trump suspended travel from Europe, with the
exception of the United Kingdom, and the WHO deemed COVID-19 a global “pandemic.”
88. On March 11, 2020, the NYDOH issued Guidance #20-10, which recognized that “older
individuals, particularly those with other underlying health conditions, have shown greater susceptibility to
the virus and often experience much more serious illness and outcomes” adding that “the potential for more
serious illness among older adults, coupled with the communal nature of adult care residential services,
represents a risk of outbreak and a substantial challenge” for these types of adult care facilities.
89. On March 13, 2020, seven days after recommending screening visitors, nursing home staff,
and employees for symptoms of illness upon arriving at work, the NYDOH issued another Health Advisory
addressed to nursing homes and adult care facilities, requiring, inter alia, (i) the suspension of “all visitation
expect when medically necessary”, that “duration and number of visits should be minimized”, that [v]isitors
should wear a facemask while in the facility and should be allowed only in the resident’s room”; (ii) the
immediate implementation of “health checks for all [health care personnel] and other facility staff at the
beginning of each shift…regardless of whether they are providing direct patient care”; (iii) that “all [health
care personnel] and other facility staff shall wear a facemask while within 6 feet of residents”; (iv) that
nursing homes “[n]otify the local health department and NYSDOH” of confirmed COVID-19 cases at their
facilities; (v) that nursing homes “actively monitor all residents on affected units once per shift”, including
“a symptom check, vitals, lung auscultation, and pulse oximetry”; (vi) That they “assure that all residents
in affected units remain in their rooms” and to “cancel group activities and communal dining”; (vii) that
“residents must wear facemasks when [health care providers] or other direct care providers enter their
rooms”; (viii) that staff not be floated between units; (ix) to “cohort residents with COVID-19 with
dedicated [health care personnel] and other direct care providers"; (x) to “minimize the number of [health
care personnel] and other direct care providers entering rooms”; and (xi) to place all residents on affected
units “on droplet and contact precautions, regardless of the presence of symptoms and regardless of
COVID-19 status”, among other guidance.
90. On March 13, 2020, President Donald J. Trump declared a “national emergency”.
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91. On March 13, 2020, the Center for Medicare & Medicaid Services (“CMS”) issued
“Guidance for Infection Control and Prevention Concerning Coronavirus Disease 2019 (COVID-19) in
Nursing Homes (Revised)” that contained a specific section for limiting transmission of COVID in nursing
homes with additional guidance including canceling community dining and group activities and reminding
residents to practice social distancing.
92. On March 13, 2020, CMS a issued a memorandum entitled: Guidance for Infection Control
and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes2, which stated, in part:
• Prompt detection, triage and isolation of potentially infectious residents are essential
to prevent unnecessary exposures among residents, healthcare personnel, and visitors
at the facility;
• Facilities without an airborne infection isolation room (AIIR) are not required to
transfer the resident assuming:
a) 1) the resident does not require a higher level of care; and
b) 2) the facility can adhere to the rest of the infection prevention
and control practices recommended for caring for a resident with
COVID-19;
• Facilities should restrict visitation of all visitors and non-essential health care
personnel, except for certain compassionate care situations, such as an end-of-life
situation. In those cases, visitors will be limited to a specific room only;
• Facilities are expected to notify potential visitors to defer visitation until further notice
(through signage, calls, letters, etc.);
• Those with sym
Preview
FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SUMMONS THE ESTATE OF NIDIA REYES, by her Proposed Executor, CONRAD REYES, Index No.: Date Purchased: Plaintiff(s), -against- Plaintiff designates KINGS County as the place of trial CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING The basis of venue is defendant CENTER, CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN Defendant(s), REHABILITATION AND NURSING CENTER’s address: 3457 Nostrand Avenue Brooklyn, NY 11229 To the above-named Defendants: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's attorney within 20 days after the service of this Summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: Melville, New York April 16, 2024 NAPOLI SHKOLNIK, PLLC Attorneys for Plaintiff By: __________________________ Joseph L. Ciaccio 400 Broadhollow Road, Suite 305 Melville, New York 11747 T: 212-397-1000 E: jciaccio@napolilaw.com 1 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 Defendant’s Address: CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER 3457 Nostrand Avenue, Brooklyn, NY 11229 2 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS THE ESTATE OF NIDIA REYES, by her Proposed Executor, CONRAD REYES, Index No: Plaintiff(s), VERIFIED -against- COMPLAINT CNH OPERATING, LLC d/b/a THE CHATEAU AT Plaintiff demands BROOKLYN REHABILITATION AND NURSING a Jury Trial CENTER, Defendant(s) Plaintiff, by his attorneys, NAPOLI SHKOLNIK PLLC, complaining of the defendants, respectfully alleges upon information and belief: I. THE PARTIES a. Plaintiff 1. That at all times hereinafter mentioned, plaintiff CONRAD REYES, is the brother of the decedent, NIDIA REYES, and is a resident of the State of New York, County of Kings. 2. That at all times hereinafter mentioned, plaintiff’s decedent, NIDIA REYES, was a resident of the County of Kings, State of New York. 3. That on April 18, 2021, plaintiff’s decedent, NIDIA REYES, died at Kings County Hospital Center. At the time, NIDIA REYES was a resident at THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER. 4. On November 7, 2023, CONRAD REYES filed a Probate Petition before the Kings County Surrogate’s Court requesting his appointment as Executor of the Estate of NIDIA REYES. 5. That at all times hereinafter mentioned, NIDIA REYES and her next of kin are represented in this action by her brother, CONRAD REYES, as Proposed Executor of her Estate. 6. This action falls within one or more exceptions as set forth in N.Y. Civil Practice Laws and Rules (“C.P.L.R.”) Article 16. 3 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 b. Defendant CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER 7. According to the New York Department of Health, defendant CNH OPERATING, LLC is the owner and operator of THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, which is located at 3457 Nostrand Avenue, Brooklyn, NY 11229. 8. That at all times relevant hereto, the term “nursing home” shall refer to and include defendants CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, the owner(s) and operator(s) of same, as well as any agents, representatives, employees, care givers, nurses, directors, doctors, physician’s assistants, or staff members of said facility or corporations. 9. Defendants CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER are located at 3457 Nostrand Avenue, Brooklyn, NY 11229. 10. That at all times hereinafter mentioned, upon information and belief, defendant CNH OPERATING, LLC was and still is a domestic limited liability company, duly organized under and existing by virtue of the laws of the State of New York. 11. That at all times hereinafter mentioned, upon information and belief, the defendant, CNH OPERATING, LLC, was and still is a business entity doing business within the State of New York. 12. That at all times hereinafter mentioned, upon information and belief, defendant CNH OPERATING, LLC maintained its principal place of business in the County of Kings, State of New York. 13. Prior to and at all times hereinafter mentioned, defendant CNH OPERATING, LLC was authorized to do business and to operate a nursing home facility located at 3457 Nostrand Avenue, Brooklyn, NY 11229, known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER. 4 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 14. Prior to and at all times hereinafter mentioned, defendant CNH OPERATING, LLC was and is the owner of a certain nursing home facility located at 3457 Nostrand Avenue, Brooklyn, NY 11229, known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER. 15. That at all times hereinafter mentioned, upon information and belief, defendants were the lessors of the aforesaid nursing home facility. 16. That at all times hereinafter mentioned, upon information and belief, defendants were the lessees of the aforesaid nursing home facility. 17. That at all times hereinafter mentioned, upon information and belief, defendants maintained, managed, operated, controlled, supervised, and inspected the aforesaid nursing home facility. 18. Prior to and at all times hereinafter mentioned, defendants had possession and control of the building and facilities where the aforesaid nursing home facility is located. 19. That at all times relevant hereto, upon information and belief, defendants owned the premises and appurtenances and fixtures thereto located at 3457 Nostrand Avenue, Brooklyn, NY 11229. 20. Prior to and at all times hereinafter mentioned, the defendant, CNH OPERATING, LLC, was and still remains engaged in conducting and operating a nursing home facility known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, and holds itself out to the general public as a facility providing such care and accommodations where patients can be treated by competent and skilled physicians and nursing staff to care for those who are ill. 21. Prior to and at all times hereinafter mentioned, the defendant, CNH OPERATING, LLC, was and still remains engaged in conducting and operating a nursing home facility for nursing care known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, and holds itself out to the general public as a facility providing such care and accommodations where patients can be treated by competent and skilled physicians and nursing staff to care for those who are ill. 22. Prior to and at all times hereinafter mentioned, the defendant, CNH OPERATING, LLC, was and still remains engaged in conducting and operating a nursing home facility for the rehabilitation care of ill and injured persons known as THE CHATEAU AT BROOKLYN REHABILITATION AND 5 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 NURSING CENTER, and holds itself out to the general public as a facility providing such care and accommodations where patients can be treated by competent and skilled physicians and nursing staff. 23. That at all times relevant hereto, defendant THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER claimed to provide for the proper care and safety of the residents at their nursing home facility, claimed to provide personnel, including doctors, nurses, attendants, assistance and others for the proper, safety and good treatment of its patients and residents, and held itself out to the general public as furnishing treatment facilities where patients and residents, including plaintiff’s decedent, NIDIA REYES, could be provided with proper care and safety. 24. That at all times hereinafter mentioned, defendants e represented that their nursing home was competent to perform and render all the resident care, medical care, treatment, services and advice required by plaintiff’s decedent, NIDIA REYES. 25. That at all times relevant hereto, defendants were operating a nursing home in the State of New York within the meaning of Article 28 of the Public Health Law and at all times relevant hereto, defendant was under a duty to comply with all duties set forth in that chapter. 26. That at all times relevant hereto, nursing homes in the State of New York must comply with all pertinent Federal, State and local laws, regulations, codes, standards and principals, pursuant to the New York Code, Rules and Regulations (NYCRR), 10 NYCRR 415.1 (b)(4). 27. That at all times relevant hereto, nursing homes in the State of New York 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). 28. That at all times relevant hereto, the nursing home of defendants was and still is a participant in Medicare and Medicaid. 29. That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs, the nursing home of defendants 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 C.F.R. §483. 6 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 30. That at all times hereinafter mentioned, to participate in Medicare and Medicaid programs, the nursing home of defendants was and still is aware that it is required 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. 31. That under the Code of Federal Regulations, the nursing home facility of defendants, known as THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER, must: a. have sufficient nursing staff to provide nursing and related services to attain and maintain the highest practicable physical, mental, and psycho- social well-being of each resident (42 C.F.R. §483.30); and, 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); and, c. ensure that the resident’s environment remains free of accident hazards (42 C.F.R. §483.25(h)(1)); and, d. ensure that each resident receives adequate supervision and assistance devices to prevent accidents (42 C.F.R. §483.25(h)(2)); and, e. ensure that a resident maintains acceptable parameters of nutritional status such as body weight and protein levels (42 C.F.R. §483.25); and, 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 psycho-social well-being (42 C.F.R. §483.1); and, g. ensure that the facility protects the resident from unnecessary falls and accidents (42 C.F.R. §483.25(h)); and, h. conduct an initial assessment to determine the resident’s risks of falling and develop a care plan that is tailored to address the resident’s needs (42 C.F.R. §483.20); and, 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 nursing home facility further has an obligation to investigate the cause of all falls and develop a plan to protect the resident from future falls (42 C.F.R. §483.10(10)); and 7 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 k. conduct initially (no later than 14 days after admission) and periodically (after a significant change in the resident’s physical or mental condition and in no case, less often than once every 12 months) a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity (42 C.F.R. §483.20); and, l. develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, and mental and psycho-social 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 by a team of qualified persons after each assessment (42 C.F.R. §483.20); and, 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 C.F.R. §483.25); and, n. ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities (42 C.F.R. §483.25); and, o. 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 (42 C.F.R. §483.25); and, p. provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible and prevent injury tract infections (42 C.F.R. §483.25); and, q. provide each resident with sufficient fluid intake to maintain proper hydration and health (42 C.F.R. §483.25); and, r. ensure that residents are free of any significant medication errors (42 C.F.R. §483.25); and, s. care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life (42 C.F.R. §483.15); and, 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 his or her individuality (42 C.F.R. §483.15); and, 8 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 u. ensure that the resident has the right to choose activities schedules, and health care consistent with his or her interests, assessments, and plan of care (42 C.F.R. §483.15); and, 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 per day, in case of an emergency (42 C.F.R. §483.40); and, 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 C.F.R. §483.75); and, 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 C.F.R. §483.75); and, y. maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized (42 C.F.R. §483.75). 32. That at all times relevant hereto, defendants had the duty to properly complete a comprehensive assessment for plaintiff’s decedent NIDIA REYES 33. That at all times relevant hereto, defendants had the duty to update a comprehensive assessment for plaintiff’s decedent NIDIA REYES and to keep it current. 34. That at all times relevant hereto, defendants had the duty to properly complete a comprehensive care plan for plaintiff’s decedent NIDIA REYES 35. That at all times relevant hereto, defendants had the duty to update a comprehensive care plan for plaintiff’s decedent NIDIA REYES and to keep it current. 36. That at all times relevant hereto, defendants, by its officers, employees, agents and/or servants, under OBRA 42 C.F.R. §483.25 and New York State rules and regulations, had the duty to ensure that each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental and psycho-social well-being, in accordance with the comprehensive assessment and care plan. 9 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 37. Prior to and at all times relevant hereto, defendants conducted business as a nursing home facility located at 3457 Nostrand Avenue, Brooklyn, NY 11229, County of Kings, State of New York, as licensed and defined under New York Public Health Law Section 2801(2). 38. Prior to and at all times relevant hereto, defendants conducted business as a residential health care facility, as licensed and defined under New York Public Health Law Section 2801(3). 39. Prior to and at all times hereinafter mentioned, the defendants conducted business as an adult care facility, as licensed and defined under New York Public Health Law Section 2801(2). 40. That at all times hereinafter mentioned, defendants’ facility was subject to the provisions of New York Public Health Law Section 2801-c. 41. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER was a nursing home facility providing therein nursing care to sick, invalid, infirm, disabled or convalescent persons in addition to lodging and board or health related services pursuant to New York Public Health Law Section 2801(2). 42. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER is a nursing home as within the meaning of Public Health Law Section 2801(2). 43. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER is a residential health care facility within the meaning of Public Health Law Section 2801(3). 44. Prior to and at all times relevant hereto, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER was a facility subject to the provisions of New York Public Health Law Section 2801-d. 45. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER was a facility subject to the provisions of New York Public Health Law Section 2803-c. 10 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 46. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER was a facility subject to the-provisions of Public Health Law Section 42 U.S.C. Section 1395(i) et seq. 47. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER was a facility subject to the provisions of Public Health Law Section 1396(r) (1990) et seq. as amended by the Omnibus Budget Reconciliation Act of 1987 (OBRA Regulations). 48. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER was a facility subject to the provisions of Public Health Law Section 42 Code of Federal Regulations Parts 483, setting Medicare and Medicaid Requirements for long term facilities ("OBRA" regulations) as effective October 1, 1990. 49. Prior to and at all times hereinafter mentioned, the nursing home operated by defendants was a "nursing facility" as defined by 42 U.S.C.A. Section 1396(r). 50. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER is a licensed nursing home as such term is understood in law. 51. Prior to and at all times hereinafter mentioned, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER is a nursing home certified for participation in the Medicare and Medicaid program as an intermediate skilled care facility. 52. Prior to and at all times hereinafter mentioned, by reason of selection to participate as a long-term care provider, defendants were able to enjoy substantial revenues paid for by tax fare funded government programs. 53. Prior to and at all times hereinafter mentioned, the aforementioned government programs provided defendants with a guaranteed source of income and a continual flow of residents whose care was paid for by the Medicare and Medicaid program or some other taxpayer funded program. 11 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 54. Prior to and at all times hereinafter mentioned, plaintiff-decedent, was the type of resident whose care was paid for by the government and was the type of resident defendants actively sought in order to fill their empty beds, increase their rate of occupancy, and overall revenues. 55. At all times relevant to this Complaint, defendants were proprietary corporations engaged in the for-profit operation of a nursing home, which claimed to “specialize” in the care of helpless individuals who are chronically infirm, mentally dysfunctional and/or in need of nursing care and treatment. 56. Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff- decedent and other patients whose care was funded by the government were placed at their nursing home, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER held itself out to the New York Department of Health, the New York Department of Social Services and the public at large as being skilled in the performance of nursing, and other medical support services. 57. Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff- decedent and other patients whose care was funded by the government were placed at their nursing home, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER held itself out to the New York Department of Health, the New York Department of Social Services and the public at large as being properly staffed, supervised and equipped to meet the total needs of their nursing home residents. 58. Prior to and at all times hereinafter mentioned, in an effort to ensure that the plaintiff- decedent and other patients whose care was funded by the government were placed at their nursing home, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER held itself out to the New York Department of Health, the New York Department of Social Services, and the public at large as being able to specifically meet the total nursing, medical and physical therapy needs of plaintiff’s decedent and other residents like her. 59. Prior to and at all times hereinafter mentioned, defendants, their principals, supervisors, agents, officers, employees, independent medical personnel, independent contractors, and/or Administrator; Assistant Administrator; Director of Nursing; Assistant Director of Nursing; Medical Director; Assistant Medical Director, or any or all of its corporate defendant stockholders, employees, independent medical 12 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 personnel and/or independent contractors, or those of its nursing home, and all staff and personnel affiliated with defendant, were all well aware of the medical conditions and the care that plaintiff’s decedent required, represented that they could adequately care for her needs, and persuaded the plaintiff’s decedent and decedent's family to that effect. 60. That at all times relevant hereto, plaintiff’s decedent, NIDIA REYES, was a resident at defendants’ facility located at 3457 Nostrand Avenue, Brooklyn, NY 11229, and was under the care and management of defendants. 61. That at all times relevant hereto, defendants stood in such a relationship with plaintiff’s decedent NIDIA REYES, as to make it liable for the acts and omissions of its doctors, nurses, staff and employees. STATEMENT OF FACTS COMMON TO ALL CAUSES OF ACTION a. COVID-19 Timeline 62. On February 1, 2019, CMS determined it was critical for facilities to include planning for infectious diseases within their emergency preparedness program. Considering events such as the Ebola Virus and Zika, CMS determined that facilities should consider preparedness and infection prevention within their all-hazards approach. Per federal regulations, Medicare and Medicaid participating providers like BRONX GARDENS have national emergency preparedness requirements regarding planning, preparing, and training for emergency situations. This includes requirements for emergency plans, policies and procedures, communications, and staff training. 63. On December 31, 2019, the World Health Organization (herein after referred to as “WHO”) China Country Office was informed of dozens of cases of pneumonia of unknown etiology detected in Wuhan City, Hubei Province of China. 64. In or around January 2020, Defendants were made aware of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) spreading world-wide and nationally, known colloquially as the coronavirus, that caused severe medical distress and death in individuals who caught the disease, especially, the elderly. 13 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 65. On January 7, 2020, the viral outbreak in Wuhan, China was identified as a new type/strain of coronavirus, 2019-nCoV (hereinafter referred to as “novel coronavirus”). 66. SARS-CoV-2 is known and documented to cause a debilitating and deadly disease, the Coronavirus disease 2019(hereinafter, “COVID-19”). 67. On January 11, 2020, Chinese state media reported its first known death from the novel coronavirus. 68. On January 12, 2020, China shared the genetic sequence of the novel coronavirus for countries to use in developing specific diagnostic kits. 69. On January 20, 2020, Japan, South Korea and Thailand reported their first confirmed cases of the novel coronavirus. On that same day, the head of a Chinese government coronavirus team confirmed that the novel coronavirus outbreak was transmitted by human-to-human contact, which was a development that put medical facilities, institutions, and long-term skilled nursing facilities on notice of the possibility that the novel corona virus could spread quickly and widely. 70. On January 23, 2020, the United States and WHO confirmed its first case of the novel coronavirus in the State of Washington. 71. On February 6, 2020, CMS urged healthcare facilities to prepare for the emerging COVID threat: “[b]ecause coronavirus infections can rapidly appear and spread, facilities must take steps to prepare, including reviewing their infection control policies and practices to prevent the spread of infection.” The guidance emphasized the need for staff to “comply with basic infection control practices,” including hand hygiene.” 72. On February 11, 2020, the WHO announced “COVID-19” as the shortened name of the novel “coronavirus disease 2019”. 73. On February 13, 2020, the U.S. Director of The Centers for Disease Control and Prevention (hereinafter referred to as “CDC”) announced that COVID-19 will likely become a community virus and remain beyond this current season. 14 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 74. On February 25, 2020, the CDC issued a warning that spread of the virus to the United States is likely and that people should prepare; and U.S. senators receive a classified briefing on the Trump administration’s coronavirus response. 75. COVID-19 can and has spread rapidly in long-term residential care facilities and persons with chronic underlying medical conditions are at greater risk for COVID-19. 76. On February 28, 2020, a case of the novel coronavirus disease was identified and confirmed in a woman resident of a long-term care skilled nursing facility in King County, Washington. A subsequent epidemiologic investigation identified 129 cases of COVID-19, including 81 residents (over 62% of the resident population), 34 staff members, and 14 visitors. 1 77. These residents and/or patients there were the first in the nation to suffer from and die as a result of the COVID-19 virus, and news of the dire situation and the first deaths in the United States at the Life Care Center in Kirkland, Washington was widespread all throughout the United States and was known to all nursing homes. 78. On February 29, 2020, the United States instituted “do not travel warnings” for affected areas including Italy and South Korea. 79. On February 29, 2020, the CDC posted “Healthcare Facilities: Preparing for Community Transmission” with the following specific instructions to nursing homes: • Limit visitors to the facility. • Post visual alerts (signs, posters) at entrances and in strategic places providing instruction on hand hygiene, respiratory hygiene, and cough etiquette. • Ensure supplies are available (tissues, waste receptacles, alcohol-based hand sanitizer). • Take steps to prevent known or suspected COVID-19 patients from exposing other patients. • Limit the movement of COVID-19 patients (e.g. keep them in their rooms) • Identify dedicated staff to care for COVID-19 patients. • Observe newly arriving patients/residents for development of respiratory symptoms. 80. On March 1, 2020, the first confirmed COVID-19 case in the State of New York was reported. 1 https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm 15 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 81. On March 3, 2020, the first presumed COVID-19-related death occurred at a nursing home in the State of New York. 82. On March 3, 2020, the WHO reported more than 90,000 infections of COVID-19 globally and about 3,000 deaths. 83. On March 4, 2020, the Centers for Medicare and Medicaid Services (“CMS”) issued its Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes, recommending suspension and limitation of standard nursing home activities, and the screening of visitors and staff at nursing homes for signs and symptoms of a respiratory infection, such as fever, cough, and sore throat. 84. Other CMS recommendations included: increasing the availability and accessibility of alcohol-based hand sanitizers, tissues, no touch receptacles for disposal, and facemasks at the facility’s entrances, waiting rooms, patient check-ins, etc.; increasing signage for vigilant infection prevention, such as hand hygiene and cough etiquette; properly cleaning, disinfecting, and limiting sharing of medical equipment between residents and areas of the facility; and providing additional work supplies to avoid sharing among staff and residents (i.e., pens, pads), and properly disinfecting workplace areas (such as nurses’ stations, phones, internal radios, etc.). 85. On March 6, 2020, the NYSDOH issued guidance DAL NH-20-04, addressed to nursing homes, regarding the precautions and procedures these facilities should take to protect and maintain the health and safety of their residents and staff during the COVID-19 pandemic outbreak, and recognizing the “potential for more serious illness among older adults” and the “risk of outbreak” in these facilities This NYSDOH guidance recommended screening visitors, nursing home staff, and employees for symptoms of illness upon arriving at work, such as fever, lower respiratory infection, shortness of breath, cough, nasal congestion, runny nose, sore throat, nausea, vomiting, and/or diarrhea, adding that “nursing homes strictly enforce their illness and sick leave policies”. 86. The next day, on March 7, 2020, the then Governor of New York, Andrew M. Cuomo, declared a state of emergency over the COVID-19 outbreak as cases in the state continued to rise. 16 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 87. On March 11, 2020, President Donald J. Trump suspended travel from Europe, with the exception of the United Kingdom, and the WHO deemed COVID-19 a global “pandemic.” 88. On March 11, 2020, the NYDOH issued Guidance #20-10, which recognized that “older individuals, particularly those with other underlying health conditions, have shown greater susceptibility to the virus and often experience much more serious illness and outcomes” adding that “the potential for more serious illness among older adults, coupled with the communal nature of adult care residential services, represents a risk of outbreak and a substantial challenge” for these types of adult care facilities. 89. On March 13, 2020, seven days after recommending screening visitors, nursing home staff, and employees for symptoms of illness upon arriving at work, the NYDOH issued another Health Advisory addressed to nursing homes and adult care facilities, requiring, inter alia, (i) the suspension of “all visitation expect when medically necessary”, that “duration and number of visits should be minimized”, that [v]isitors should wear a facemask while in the facility and should be allowed only in the resident’s room”; (ii) the immediate implementation of “health checks for all [health care personnel] and other facility staff at the beginning of each shift…regardless of whether they are providing direct patient care”; (iii) that “all [health care personnel] and other facility staff shall wear a facemask while within 6 feet of residents”; (iv) that nursing homes “[n]otify the local health department and NYSDOH” of confirmed COVID-19 cases at their facilities; (v) that nursing homes “actively monitor all residents on affected units once per shift”, including “a symptom check, vitals, lung auscultation, and pulse oximetry”; (vi) That they “assure that all residents in affected units remain in their rooms” and to “cancel group activities and communal dining”; (vii) that “residents must wear facemasks when [health care providers] or other direct care providers enter their rooms”; (viii) that staff not be floated between units; (ix) to “cohort residents with COVID-19 with dedicated [health care personnel] and other direct care providers"; (x) to “minimize the number of [health care personnel] and other direct care providers entering rooms”; and (xi) to place all residents on affected units “on droplet and contact precautions, regardless of the presence of symptoms and regardless of COVID-19 status”, among other guidance. 90. On March 13, 2020, President Donald J. Trump declared a “national emergency”. 17 of 50 FILED: KINGS COUNTY CLERK 04/16/2024 01:22 PM INDEX NO. 510881/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 91. On March 13, 2020, the Center for Medicare & Medicaid Services (“CMS”) issued “Guidance for Infection Control and Prevention Concerning Coronavirus Disease 2019 (COVID-19) in Nursing Homes (Revised)” that contained a specific section for limiting transmission of COVID in nursing homes with additional guidance including canceling community dining and group activities and reminding residents to practice social distancing. 92. On March 13, 2020, CMS a issued a memorandum entitled: Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes2, which stated, in part: • Prompt detection, triage and isolation of potentially infectious residents are essential to prevent unnecessary exposures among residents, healthcare personnel, and visitors at the facility; • Facilities without an airborne infection isolation room (AIIR) are not required to transfer the resident assuming: a) 1) the resident does not require a higher level of care; and b) 2) the facility can adhere to the rest of the infection prevention and control practices recommended for caring for a resident with COVID-19; • Facilities should restrict visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations, such as an end-of-life situation. In those cases, visitors will be limited to a specific room only; • Facilities are expected to notify potential visitors to defer visitation until further notice (through signage, calls, letters, etc.); • Those with sym