FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`.
`llfl'2018 11:03 ‘
`FILED. ONEIDA COUNTY CLERK
`
`NYSCEF DOC. NO. 47
`NYSCEF DOC. NO. 47
`
`
`
`INDEX NO. EFCA2017-001091
`INDEX NO. EFCA2017-001091
`'
`'
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`R«.C*.IV*.D NYSCEF: 11/21/2018
`
`
`
`RECEIVED NYSCEF: 11/21/2018
`
`At a Motion Term ofthe Supreme Court of
`the State ofNew York, held in and for the
`County of Oneida at the Courthouse in the
`City of Utica, New York, on October 17,
`2018.
`
`PRESENT: HON. ERIN P. GALL, J.S.C.
`
`STATE OF NEW YORK
`WWW
`
`DOROTHY F. SAGEER, Individually, and
`SELMA A. FUMAROLA, as Power ofAttorney
`for DOROTHY F. SAGEER,
`
`Plaintifis,
`
`RDER
`
`-vs-
`
`Index No.: EFCA2017-001091
`
`URNC OPERATING, LLC,
`URNC, LLC,
`URNC OPERATING, LLC. d/b/a UTICA
`REHABILITATION AND NURSING CENTER,
`UTICA REHABILITATION AND NURSING CENTER,
`UTICA REHABILITATION AND NURSING CENTER
`flkla ST. JOSEPH NURSING HOME,
`ST. JOSEPH NURSING HOME COMPANY OF UTICA, INC.
`ST. JOSEPH PASTORAL CARE, INC.,
`
`
`
`Defendants.
`
`Defendant, St. Joseph Nursing Home Company ofUtica, Inc., having moved for an Order
`
`dismissing plaintiffs complaint in its entirety; and defendant, St. Joselah’s Pastoral Care, Inc.,
`
`having also moved for an Order dismissing plamfifi’s complaint in its entirety; and said motions
`
`having duly come on to be heard and James W. Cmmingham, Esq., of counsel to Smith, Sovik,
`
`Kendrick & Sugnet, P.C., attorneys for defendant, St. Joseph's Nursing Home Company of
`
`Utica, Inc., and Matthew Larkin, Esq., of counsel to Barclay Damon LLP, attorneys for
`
`(mm
`
`1
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`Fiied in Oneida County Clerks Office
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`1 of 9
`MOO/2018152209000 AM index # EFCA2017—001091
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`
`.
`llfl'2018 11:03 ‘
`FILED. ONEIDA COUNTY CLERK
`
`NYSCEF DOC. NO. 47
`NYSCEF DOC. NO. 47
`
`
`
`INDEX NO. EFCA2017-001091
`INDEX NO. EFCA2017-001091
`'
`'
`
`R«.C*.IV*.D NYSCEF: 11/21/2018
`
`
`
`RECEIVED NYSCEF: 11/21/2018
`
`At a Motion Term ofthe Supreme Court of
`the State ofNew York, held in and for the
`County of Oneida at the Courthouse in the
`City of Utica, New York, on October 17,
`2018.
`
`PRESENT: HON. ERIN P. GALL, J.S.C.
`
`STATE OF NEW YORK
`WWW
`
`DOROTHY F. SAGEER, Individually, and
`SELMA A. FUMAROLA, as Power ofAttorney
`for DOROTHY F. SAGEER,
`
`Plaintifis,
`
`RDER
`
`-vs-
`
`Index No.: EFCA2017-001091
`
`URNC OPERATING, LLC,
`URNC, LLC,
`URNC OPERATING, LLC. d/b/a UTICA
`REHABILITATION AND NURSING CENTER,
`UTICA REHABILITATION AND NURSING CENTER,
`UTICA REHABILITATION AND NURSING CENTER
`flkla ST. JOSEPH NURSING HOME,
`ST. JOSEPH NURSING HOME COMPANY OF UTICA, INC.
`ST. JOSEPH PASTORAL CARE, INC.,
`
`
`
`Defendants.
`
`Defendant, St. Joseph Nursing Home Company ofUtica, Inc., having moved for an Order
`
`dismissing plaintiffs complaint in its entirety; and defendant, St. Joselah’s Pastoral Care, Inc.,
`
`having also moved for an Order dismissing plamfifi’s complaint in its entirety; and said motions
`
`having duly come on to be heard and James W. Cmmingham, Esq., of counsel to Smith, Sovik,
`
`Kendrick & Sugnet, P.C., attorneys for defendant, St. Joseph's Nursing Home Company of
`
`Utica, Inc., and Matthew Larkin, Esq., of counsel to Barclay Damon LLP, attorneys for
`
`(mm
`
`1
`
`Fiied in Oneida County Clerks Office
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`1 of 9
`MOO/2018152209000 AM index # EFCA2017—001091
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`
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 11m2018 11:03 ‘
`
`NYSCEF DOC. NO. 47
`NYSCEF DOC. NO. 47
`
`
`
`INDEX NO. EFCA2017-001091
`INDEX NO. EFCA2017-001091
`
`
`
`
`R«C«IV«D NYSCEF: 11/21/2018
`RECEIVED NYSCEF: 11/21/2018
`
`defendant, St. Joseph’s Pastoral Care, Inc., having appeared in person in support of said
`
`defendants' motions to dismiss plainfifi‘s’ complaint, and Stephanie A. Palmer, Esq., of counsel
`
`to Robert F. Julian, P.C., attorneys for plaintiffs, and Latha Raghavan, Esq., of counsel to
`
`Goldberg Segalla, LLP, attorneys for defendants URNC Operating, LLC, URNC, LLC, URNC
`
`Operating, LLC, d/b/a Utica Rehabilitation and Nursing Center, Utica Rehabilitation & Nursing
`
`Center, Utica Rehabilitation & Nursing Center We St. Joseph’s Nursing Home, having
`
`appeared in person in opposition to defendants’ motions to dismiss plaintift‘s’ complaint,
`
`NOW, upon reading and filing ofdefendant St. Joseph Nursing Home Company ofUtica,
`
`Inc.’s Notice of Motion dated August 20, 2018, together with the Affirmation of James W.
`
`Cunningham, Esq., dated August 20, 2018, with Exhibits attached thereto, and the reading and
`
`filing ofdefendant St. Joseph’s Pastoral Care, Ine.’s Notice ofMotion dated September 24, 2018,
`
`together with the Affirmation of Matthew J. Larkin, Esq., dated September 24, 2018, both in
`
`support ofdefendants’ motions to dismiss, and the Afidavit ofStephanie A. Palmer, Esq., sworn
`
`to the 10th day of October, 2018, and the Affidavit of Lathe Raghavan, Esq., sworn to the 10"I
`
`day of October, 2018, both in opposition to defendants’ motions to dismiss, and the Reply
`
`Affirmation of James W. Ctmningham, Esq. dated October 15, 2018 and the Reply Affirmation
`
`of Matthew J. Larlcin, Esq. dated October 15, 2018, and upon consideration of oral arguments
`
`heard from counsel on October 17, 2018, and the Court having rendered a Decision, a copy of
`
`which is attached hereto as Exhibit “A”, it is hereby,
`
`(mnunn
`
`2
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`20f9
`2 of 9
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 11m2018 11:03 ‘
`
`NYSC3F DOC. NO. 47
`NYSCEF DOC. NO. 47
`
`
`
`IVDEX NO.
`EFCA2017—00109l
`INDEX NO. EFCA2017-001091
`
`
`
` fiCfiIV «D NYSC
`3F:
`11/21/2018
`RECEIVED NYSCEF: 11/21/2018
`
`ORDERED, that the motions ofddondants St. Joseph Nursing Home Company ofUfica,
`
`Inc. and St. Joseph's Pastoral Care, Inc. are hereby GRANTED and plaintifi' Complaint against
`
`defendants St. Joseph Nursing Home Company ofUtica, Inc. and St. Joseph's Pastoral Care, Inc.
`
`is DISMISSED in its entirety.
`
`Dma: W201:
`
`
`
`(Human
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`3 of 9
`3 of 9
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 11m2018 11:03 ‘
`NYSC 3F DOC. NO. 47
`NYSCEF DOC. NO. 47
`
`
`
`IVDEX NO.
`EFCA2017-001091
`INDEX NO. EFCA2017-001091
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`
`
`fiCfiIV fiD NYSC
`
`3F:
`11/21/2018
`RECEIVED NYSCEF: 11/21/2018
`
`EXHIBIT “A”
`
`4 of 9
`4 of 9
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 115-12018 11:03 .
`
`NYSCEF DOC. NO. 47
`NYSCEF DOC
`NO
`47
`
`
`
`INDEX NO. EFCA2017-001091
`”DEX NO- 3FCA2017‘001091
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`
`
`
`RECEIVED NYSCEF: 11/21/2018
`RECEIVED NYSCEF: 11/21/.2-.018
`
`STATE OF NEW YORK
`
`SUPREME COURT
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`FIFTH JUDICIAL DISTRICT
`
`COUNTY OF ONEIDA
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`1r
`
`*
`
`*
`
`*
`
`*
`
`'k
`
`'1'
`
`DOROTHY F. SAGEER, Individually, and
`SELMA A. FUMAROLA, as Power of Attorney
`for DOROTHY F. SAGEER,
`
`Plaintiffs,
`
`RJI No. 32—18-0680
`Index No. EFCA2017-001091
`
`URNC OPERATING, LLC d/b/a UTICA
`REHABILITATION AND NURSING CENTER,
`f/k/a ST.
`JOSEPH NURSING HOME,
`ST.
`JOSEPH NURSING HOME COMPANY OF
`UTICA,
`INC., ST.
`JOSEPH PASTORAL CARE,
`
`INC,
`
`Defendants.
`—————-——————~*-—-—--hu-—--—----u—-----———-~—‘—————_'———
`HELD BEFORE:
`
`The Honorable Erin P. Gall, Justice of the
`Supreme Court,
`in and for the Fifth Judicial District,
`State of New York, held at the Oneida County Courthouse,
`Utica, New York, on OCTOBER 17, 2018.
`
`r APPEARANCES:
`
` Bridget A. Hernon,
`
`JULIAN
`LAW OFFICES OF ROBERT F.
`BY:
`STEPHANIE PALMER, ESQ.
`Attorney for Plaintiff
`
`SMITH SOVIK KENDRICK & SUGNET, P.C.
`BY:
`JAMES CUNNINGHAM, ESQ.
`Attorney for Defendant SJNH
`
`BARCLAY DAMON, LLP
`BY: MATTHEW LARKIN, ESQ.
`Attorney for Defendant SJPC
`
`GOLDBERG & SEGALLA, LLP
`BY:
`LATHA RAGHAVAN, ESQ.
`Attorney for Defendant URNC
`
`Senior Court Reporter
`
`50f9
`5 of 9
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 113-12018 11:03 A
`
`NYSCEF DOC. NO. 47
`NYSCTF DOC
`NO
`47
`
`
`
`EFCA2017-001091
`INDEX NO. EFCA2017-001091
`”DEX NO-
`
`
`
`
`RECEIVED NYSCEF: 11/21/2018
`R«C«IV«D NYSCEF: 11/21/2018
`
`THE COURT: Thank you for your arguments
`
`here today.
`
`The Court has prepared a bench decision.
`
`And based on the fact that my opinion has not changed
`
`after oral argument,
`
`I will place my decision on the
`
`record.
`
`This action arises out of a sexual assault
`
`of a patient/resident by another patient/resident.
`
`On January Blst, 2015, SJNH transferred all
`
`ownership and control of the nursing home to URNC
`
`entities. This change in ownership is reflected in
`
`the Restated Certificate of Incorporation filed by
`
`SJNH which establishes the elimination of nursing
`
`home operations and the name change to SJPC.
`
`SJNH brings this pre-answer motion to dismiss on the
`
`SJNH has submitted affidavits and its
`
`grounds that SJNH did not own, control, manage or
`
`operate URNC during the period relative to this
`
`action. SJNH claims it cannot owe a cognizable duty
`
`to the plaintiff as it did not own, operate,
`
`manage or control URNC at any time that plaintiff
`
`was a patient/resident at URNC.
`
`SJNH made
`
`multiple requests to have this action discontinued
`
`against it because it claims it has no connection
`
`to this matter.
`
`The plaintiff has not responded.
`
`6of9
`6 of 9
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 115-12018 11:03 A
`
`NYSCtF DOC
`NO
`47
`NYSCEF DOC. NO. 47
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`INDEX NO. EFCA2017-001091
`”DEX NO' 3FCA2017'001091
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`R«C«IV«D NYSCEF: 11/21/2018
`RECEIVED NYSCEF: 11/21/2018
`
`Certificate of Incorporation that it claims
`
`show that it is an improper party in this
`
`action.
`
`SJPC is the successor name of SJNH.
`
`SJPC did not exist under its current name until after
`
`the facility was sold to the URNC entities.
`
`SJPC
`
`seeks dismissal on the same basis that SJNH seeks
`
`dismissal.
`
`The plaintiff was a patient/resident at
`
`URNC from June 9, 2015 through July 20th, 2015 after
`
`SJNH ceased operations. Defendant URNC and plaintiff
`
`claim that it is too early to dismiss SJNH and SJPC
`
`The defendants SJNH and SJPC claim that
`
`because the patient who assaulted the plaintiff
`
`had been a patient under the care of SJNH and
`
`was previously convicted of assaulting a
`
`co-resident in the same manner. Defendant URNC and
`
`plaintiff claim that the moving defendants provided
`
`no evidence that they warned the subsequent
`
`operator of the nursing home of Mr. Rocker's prior
`
`similar acts and actual criminal conviction, nor
`
`have they provided proof they took all steps
`
`necessary to protect URNC or the plaintiff against
`
`any exposure to a convicted sex offender in the
`
`future.
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 113-12018 11:03 ‘
`
`NYSCEF DOC. NO. 47
`NYSCTF DOC
`NO
`47
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`EFCA2017-001091
`INDEX NO. EFCA2017-001091
`”DEX NO'
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`RECEIVED NYSCEF: 11/21/2018
`R«C«IV«D NYSCEF: 11/21/2018
`
`there is no law to support the theory that a nursing
`
`home operator owes a duty to a future resident of a
`
`nursing home owned, operated, and controlled solely
`
`by another entity after the prior nursing home
`
`operator has sold all assets of the nursing home
`
`and ceased ownership and operation of the nursing
`
`home.
`
`If there was any duty owed, it would be a
`
`contractual duty under the Asset Purchase
`
`Agreement. This contractual duty would only be
`
`owed to URNC co—defendants and would not establish a
`
`duty owed by SJNH to the plaintiff or SJPC to the
`
`plaintiff. Citing Espinal versus Mblville Snow
`
`Contractors, 98 NY2d 136. This is an issue of law,
`
`and not a factual inquiry, and therefore discovery is
`
`not an issue in this matter.
`
`Based on the foregoing,
`
`the motions of
`
`Defendant SJNH and Defendant SJPC are granted.
`
`The Court would ask, Jim, would you prepare
`
`the order? We'll just do one order for both motions;
`
`That should be fine.
`
`decision.
`
`MR. CUNNINGHAM: Yes, Your Honor, I will.
`
`THE COURT: Attach a copy of the decision
`
`of the transcript from just the portion of the
`
`80f9
`8 of 9
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`FILED: ONEIDA COUNTY CLERK 11/21/2018 11:03 AM
`FILED: ONEIDA COUNTY CLERK 11m2018 11:03 ‘
`
`NYSCEF DOC. NO. 47
`NYSCEF DOC. NO. 47
`
`
`
`IVDEX NO. EFCA2017-001091
`INDEX NO. EFCA2017-001091
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`-
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`
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`
`
`RECEIVED NYSCEF: 11/21/2018
`R«.C«.IV«.D NYSCEF: 11/21/I2‘018
`
`MR. CUNNINGHAM: Okay.
`
`*'
`
`'k
`
`*-
`
`Dated‘ dew M’, Mr
`
`crawrrrcnmxl
`
`I, Bridget A. Hernon, no HEREB! 633111! that the
`
`féregoing is a true and accurate transcript.
`/'__-
`l
`I:
`I
`
`:J .a£.zi.,_z._;e:r— 0'.) C '
`
`
`IT
`
`Bridget A. Hernon, Sr. Court Reporter
`
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