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SHEILA C. TEPPER v. STATE NEW YORK (08/01/68)

SUPREME COURT OF NEW YORK, MONROE COUNTY 1968.NY.42764 <http://www.versuslaw.com>; 292 N.Y.S.2d 509; 57 Misc. 2d 271 August 1, 1968 SHEILA C. TEPPER, PLAINTIFF,v.STATE OF NEW YORK, DEPARTMENT OF SOCIAL WELFARE, DEFENDANT Johnson, Reif & Mullan (Thoma W. Petrillo of counsel), for plaintiff. Louis J. Lefkowitz, Attorney-General (Winifred C. Stanley of counsel), for defendant. Marshall E. Livingston, J. Author: Livingston


Marshall E. Livingston, J.

Author: Livingston

 This is a motion and a cross motion for summary judgment in an action brought by plaintiff relating to the interpretation of section 35-a of the Social Services Law.

Defendant, since July 1, 1967, has been known as the State Department of Social Services, pursuant to section 4 of chapter 728 of the Laws of 1967, and I accordingly, on my own motion, amend the title of the action and the pleadings to conform to the proper title of this department.

Plaintiff has been the owner, since 1952, of the Clinton Sanitarium, a private proprietary convalescent home located in the City of Rochester, New York.

Section 35-a of the Social Welfare Law (now Social Services Law) was enacted in chapter 589 of the Laws of 1956. This section in part restricted the operation of private proprietary convalescent homes, such as the plaintiff owns, after June 30, 1956. The pertinent part of the section states: "ยง 35-a. Private proprietary nursing homes, convalescent homes and homes for adults; special provisions. In order more effectively to assure that the life, health, safety and comfort of persons cared for in private proprietary facilities will be adequately protected and promoted and that such persons will receive the kind and quality of care, supervision and attention required by reason of their condition: * * *

"2. Except as herein provided, after June thirty, nineteen hundred fifty-six no person shall operate any facility as a private proprietary convalescent home. A person who is operating a private proprietary convalescent home on such date in compliance with applicable provisions of law, rules of the board and regulations of the department may continue to operate the same after such date, provided, and only so long as, such compliance continues. Such provisions of law shall include, but shall not be limited to, any requiring a license or permit to operate a private proprietary convalescent home or a facility, however designated or referred to, which is the equivalent thereof." There is no substantial dispute between the parties with respect to the facts here.

It appears that on November 29, 1966, the Rochester area office of the Department of Social Welfare directed plaintiff to provide a living room on the first floor, with comfortable chairs, good lighting, and as many means of diversion as are possible for patients at the Clinton Sanitarium no later than December 15, 1966. Plaintiff vacated a room on the first floor for this purpose, and this reduced the capacity of the convalescent home by three beds.

Then on January 10, 1967, a similar direction was made regarding a living room for use by patients on the second floor of the home to be ready by January 23, 1967. This again reduced the available bed capacity, so that since that time, the Clinton Sanitarium has had a capacity of 22 patients.

Thereafter, on February 15, 1967, plaintiff requested that the defendant grant her permission to enclose the existing front porch at the Clinton Sanitarium for use as a "more proper and suitable" recreation area and to reconvert the rooms previously changed over, back into rooms for patients. This request was denied by the department and its legal counsel.

Defendant's interpretation of section 35-a of the Social Services Law is that it has prohibited, since June 30, 1956, the establishment of any new proprietary convalescent homes in the State and that enclosing the porch would, in effect, permit the expansion of the patient capacity and constitute a violation of section 35-a.

Because subdivision 5 of section 35-a of the Social Services Law provides, "Any person who violates the provisions of this section shall be guilty of a misdemeanor", plaintiff brings this action seeking judgment as follows:

"1. That it be adjudged and established that plaintiff has the right to improve, by way of expansion and remodeling her present facilities to meet new standards and regulations of the Department of Social Welfare.

"2. That it be adjudged and established that plaintiff has the right to remodel and improve and expand her present facilities to allow occupancy to at least twenty-eight (28) convalescents, the number authorized on June 30, 1956, the date of the statute limiting new facilities.

"3. That it be adjudged and established that Section 35-a of the Social Welfare Law restricts only the operations of new facilities and in no way restricts expansion of those facilities which were allowed to continue beyond June 30, 1956. "4. That it be adjudged and decreed that the application of the statute in the manner attempted by defendant is burdensome, unreasonable, confiscatory, and ...


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