Opinion
104359/07
04-18-2016
Barry Green, PHILIP NOONAN, KENNETH PALTZIK and LISA SOTO, Plaintiffs, v. Lakeside Manor Home for Adults, Inc. and LAKESIDE MANOR HOMES FOR ADULTS, INC., Defendants.
Attorneys for Plaintiff: MFY Legal Services, Inc. Jeanette Zelhof, Esq. By: Jota Borgmann, Esq., and Nahid Sorooshyari, Esq. Sidley Austin LLP By: James D. Arden, Esq., and Alexander I. Cohen, Esq. Attorneys for Defendant: O'Connell & Aronowitz By: Jeffrey J. Sherrin, Esq., and Kurt E. Bratten, Esq.
Attorneys for Plaintiff: MFY Legal Services, Inc. Jeanette Zelhof, Esq. By: Jota Borgmann, Esq., and Nahid Sorooshyari, Esq. Sidley Austin LLP By: James D. Arden, Esq., and Alexander I. Cohen, Esq. Attorneys for Defendant: O'Connell & Aronowitz By: Jeffrey J. Sherrin, Esq., and Kurt E. Bratten, Esq. Alan C. Marin, J.
This is the decision following the non-jury trial of plaintiffs' suit regarding the availability of telephone service for them as residents of the Lakeside Manor Home for Adults in Staten Island. About 200 adults live at Lakeside Manor; with the exception of a few private rooms, two residents share a room with a bathroom. Lakeside Manor serves three meals a day, provides housekeeping, laundry, medication management and some recreational activities. The residents can come and go as they please.
Lakeside Manor is a private, proprietary entity that is subject to article 7 of the Social Services Law ("Residential Programs for Adults") and 18 NYCRR part 487 ("Standards for Adult Homes"). Administrative responsibility lies principally with the State Department of Health. The Department annually inspects Lakeside Manor, at which time agency personnel may be on site for a week or more.
Section 461- c of the Social Services Law requires that an adult care facility enter into a written admission agreement with each resident that sets out in detail the facility's services. The individual agreements for each of the four plaintiffs, with a text that is State-mandated, are entitled "Adult Care Facility Admission Agreement." These agreements, in evidence as plaintiffs' exhibits 4 through 7, were amended from time to time, usually to reflect a change in a resident's monthly payment.
Each agreement incorporated State law and regulation: "The resident and the resident's representatives agree to pay and the operator agrees to accept the following payment in full satisfaction of the services which the operator must provide according to law and regulation: [the rate follows]." The agreements do not reference any specific provision of Part 487, which comprehends 15 sections and 46 pages in its bound, hard copy version. It covers, for example on food service, that meals shall be planned three weeks in advance, menus are to be publically posted and that no more than 15 hours may elapse between dinner and breakfast the next morning.
Bates-stamped page LM 42 in plaintiff's exhibit 4; this sentence was quoted in Green v Lakeside Manor Home for Adults, Inc.,101 AD3d 809, 810 (2d Dept).
18 NYCRR § 487.8: (d)(8 & 9) and (e)(14).
The rule or regulation at issue here is as follows:
"All facilities shall, with the cooperation of the telephone company, have at least one telephone available for outside calls for every 40 residents or portion thereof. The operator may impose equivalent charges for use." [18 NYCRR § 487.11(l)(15)].
At the time that plaintiffs initiated their lawsuit in 2007, there was one pay phone in the first floor lobby area which was within sight of the main desk and near the offices for Lakeside Manor staff and outside professionals such as therapists and social workers. In October of 2007, a second pay phone was installed in the same area; actually, two new pay phones were installed, and the existing pay phone removed.
In earlier motion practice, the Second Department had ruled that the fact defendant provided additional phone service after this lawsuit was filed did not mean that there had been compliance with the regulation and admission agreements before that (Green v Lakeside Manor Home for Adults, Inc., 101 AD3d 809, 811 [2d Dept]). Accordingly, the discussion herein will focus on whether Lakeside Manor prior to October, 2007 was in compliance with the regulation requiring one telephone per 40 residents. In addition, there is a second cause of action, for discrimination in violation of the federal Fair Housing Act.
The Court will use the singular "defendant," except where the context requires otherwise.
42 USC § 3601 et seq.
I.
The plaintiffs argue generally that the availability of telephone service was inadequate, there were lines at the pay phone, that it was sometimes broken or the change box was so full that coins could not be deposited, and that residents lost money.
Sander Lustig took the stand and testified that he had been the operator and administrator of Lakeside Manor from 1981 until 2004 or 2005, and since then, has held the position of operator. Mr. S. Lustig recalled that when he came to Lakeside Manor in 1981, there was the one pay phone in the lobby.
The reference is to "S. Lustig" because his son, Avi Lustig, is a member of Lakeside Manor management.
S. Lustig testified that the regulation requiring one phone per 40 residents was in effect since 1985. He also testified that from that time until the December 14, 2007 letter from the Department of Health following its inspection, Lakeside Manor was never cited for violation of the 1:40 regulation. The inspection was performed November 16, 2007 soon after the second pay phone was added, but it reported that there was only one, not two, house phones to which calls could be transferred (see below). The inspection also turned up that charges were imposed for toll-free numbers called from the pay phones.
The Historical Note to section 487.11 (entitled "Environmental standards") indicates it was filed in August of 1984, and amendments were filed in 1986 and 1991, but there is no information as to which of its provisions were amended. In any case, such is not inconsistent with S. Lustig's testimony and went unchallenged at trial.
Plaintiff's exhibit 3, Bates-stamped page LM 575.
In November of 2001, the State Commission on Quality of Care had performed an inspection of Lakeside Manor, and in its February 11, 2002 letter to Sander Lustig indicated that the residents had said that the pay phone in the lobby was out of order for a week and recommended that it should be fixed right away (defendant's exhibit C, page 8).
The Commission also recommended that residents be afforded "adequate privacy in their verbal communications as required by Title 18 NYCRR Section 487.5(a)(3) (iii)" (id.). Such privacy provision was not part of the Second Department's Lakeside Manor decision (101 AD3d 809); came up only indirectly at trial; and would tend to support the placing of phone calls by staff directed to a resident's room or the use of counselor phones.
At trial, we heard more than a dozen witnesses with firsthand knowledge of the area around the pay phone in the lobby near the front desk: the four plaintiffs, Sander Lustig and his son, Avi Lustig (the current administrator), an employee, a former employee, an outside counselor and five current residents who are not plaintiffs.
The witnesses obviously have varying degrees of interest. The Court is mindful that the non-plaintiff residents who testified might be viewed as vulnerable individuals uncomfortable with criticizing the people who run their residence. They were subpoenaed to testify and will be referred to by initials. The direct testimony of the plaintiffs did not stand up very well in view of their cross-examination and depositions (conducted on March 12, 2008) together with the trial testimony from other witnesses.
To this trier of fact, a notable witness was Alice Fofie, 33 years at Lakeside Manor and head supervisor for almost as long. That can mean such a witness might be inclined to see things her employer's way. With that said, Ms. Fofie was highly credible given her confident, matter-of-fact demeanor and excellent memory.
As head supervisor, Ms. Fofie was based at the front desk in the lobby and could see the pay phone or phones, which she said were about 50 feet away. Fofie also had a good view of the two house phones on the lobby wall. When there was one pay phone, Ms. Fofie described its use as: "Not that many people, not that much." The witness explained that "Most of the time they come to us and we dial the house, the number, and then we transfer to the house phone, or we transfer to their room." Then this exchange occurred:
"Q. Let's go back to the time period when there was only one pay phone. Around that period of time, did you ever see anyone waiting to use the pay phone because someone else was using it?
A. No.
Q. Never once?
A. No."
As for Barry Green, Ms. Fofie would see him go into a therapist's office, where he could use the phone, but she did not know for certain. Fofie testified that she never saw him using the pay phone. An example of her familiarity with the residents is Ms. Fofie's testimony that Barry Green would not take his sister's calls.
Ms. Fofie testified that she never saw Kenneth Paltzik or Lisa Soto use a pay phone, and they never asked her, or as far as she knows, anyone else at the front desk, to make a call for them. Nor did the witness ever see plaintiff Philip Noonan make a pay phone call.
At times ("not that often"), residents lost money in the pay phones, and Ms. Fofie would write down their name, amount lost and give the paper or receipt to her supervisor, Avi Lustig. Apparently, it was Lakeside Manor policy to pay the receipt amounts; there was no testimony that the receipts were not paid as submitted.
Paulette Carlo, a licensed chemical dependency counselor, has been an employee of Silver Lake Support Services for a number of years, including the period from 2003 to 2008, when she worked out of Lakeside Manor five days a week, 9 to 5, with an office on the first floor.
Ms. Carlo's office had a phone, which she allowed residents to use "all the time. . . money is an issue for a lot of residents there, so in order to be helpful, if the call was legit, they could certainly use the phone." Carlo recalled that she would let Barry Green use her phone once or twice a week, often leaving the office to him. If she was busy and could not let him, sometimes he would come back; in other instances, Ms. Carlo presumed that Mr. Green tried another office for his call - - "there were a number of offices on the first floor with counselors in them."
Marie Johnson, currently working at Kingsborough Community College, was employed at Lakeside Manor until about a half dozen years ago. Ms. Johnson was at Lakeside Manor for some 20 years, the last fifteen of which as a medication aide working at the front desk or in the dining room. Johnson also covered the supervisor's job on the weekend, like Alice Fofie, from the front desk in the lobby.
In her years at Lakeside Manor, Ms. Johnson once or twice saw residents waiting for the pay phone, but never for long. If someone was on the pay phone a while, they would re-place the call and have it transferred to a house phone or the resident's room. Ms. Johnson testified that Lisa Soto used the pay phone once or twice, recalling also one time that Ms. Soto called her son from the front desk. Johnson never saw Mr. Paltzik using the pay phone or waiting in line. She had not ever seen Mr. Noonan using such phone; and he did not come to the front desk to ask to have a call placed for him.
Ms. Johnson recalled the weekend when the phone was broken and the staff would place calls for residents. Johnson said that the pay phone was broken twice and then she or other staff would make the call and transfer it to the resident's room or to one of the house phones in the lobby, which she did for Barry Green a few times that weekend. She testified that a little later she heard Mr. Green complaining about it to another resident, and told him "to cut it out" - - his call had been made. Ms. Johnson confirmed that a resident would be given the amount they said they had lost at the pay phone.
One of the residents called by defendant who was not involved in this lawsuit was RT, a Lakeside Manor resident for 22 years at the time of trial. RT had been president of the resident council at Lakeside for 5 yrs and vice-president before that for 5 years. His service on the council thus dates back to when there was one pay phone, although RT did not recall when there was only one, which somewhat undercut his narrative.
According to RT, a basic responsibility of the resident council was to channel complaints from residents: a resident would go to RT, who would "talk to the owner . . . And then generally, speaking, he will correct the situation. Almost immediately." In his role on the resident council, RT testified that he had never heard a complaint about phone access. The witness testified that he went through the lobby 15 to 20 times a day and never saw people waiting for a pay phone. * * *
Plaintiff's exhibit 8 is from the resident council meeting of January 31, 2007. The minutes contained the following: "Although the phone works ok, it is time to get a new pay phone. The question that I brought to the attention of the council is when getting new phone should we have the rates different. Such as 50 cents for unlimited or keep it the same." (Item 1 of Bates-stamped page LM 103).
Plaintiff Barry Green, a current resident who moved into Lakeside Manor in 2005, testified at trial that there were at least a dozen times when he wanted to use the pay phone, but could not because of the potential long wait, and that the phone was broken "several times." Mr. Green commented on the absence of privacy of the pay phone and lack of a place to sit, which made it uncomfortable for him.
Mr. Green said he had a SafeLink (or LifeLink) phone under a federal program that provided 250 minutes free per month, but did not use it much. At times, he said he used the cell phone of his social worker (in the 2005 to 2008 period). In his deposition, Mr. Green recalled that when asked for a refund for lost money, it was paid to him.
Plaintiff Lisa Soto moved into Lakeside Manor in 2004 and when she took the stand at trial was no longer living there. When asked how often she communicated with her family, Ms. Soto answered that early on in her stay at Lakeside: "not too often . . . [t]here was always people waiting to get on the line. There is always a line or a problem at the phone. Sometimes there was too much change in there and you couldn't . . . get a phone call through it if it was too full."
On cross-examination, Ms. Soto said she never complained about the phone, that in the years she resided at Lakeside Manor, the change box was full three or four times and never lost money or if she did, it was reimbursed.
Ms. Soto testified that when there was one pay phone, she used it a few times a week. Soto also had a phone under the federal program, but said that she exhausted its 250 minutes by the middle of the month. Ms. Soto thought either that she had SafeLink in 2007 or 2008, or that it had become available at that time. Ms. Soto in her testimony, including her deposition, said she used the phones of her social worker and counselor and would borrow the cell phones of other residents.
Plaintiff Philip Noonan, a current resident who came to Lakeside Manor in 1999, testified he would use the pay phones "to order food or call my program." Mr. Noonan said he would not ask the staff because "I'd rather do it myself."
When asked why he was in court, Mr. Noonan responded because the building was supposed to have four pay phones "because you have four or five people every day waiting on line to call somebody." Noonan said that a couple of years before he took the stand, he had to wait on line, implying it was a one-time occurrence for him. In his deposition, the plaintiff said that "maybe once or twice" he had seen a line with "two or three people," and that he went outside of the building to use a phone only once (" I think the phone wasn't working here").
By the time of trial, plaintiff Kenneth Paltzik had moved to Florida, and there was agreement to read his deposition from March 12, 2008. Mr. Paltzik testified that "I lost tons of money in the phone," but gave no details about it. * * *
Prior to the installation of the second pay phone in October of 2007, the phone service available to Lakeside Manor residents was as follows:
*Six lines at the front desk, which could be transferred to two house phones or made at the desk by a staff person (a resident can call to the desk from his or her room) and then put through to the room. The front desk was staffed 24 hours, seven days a week.
* Residents could use the phones in the offices of their social worker/ therapist/counselor/case manager on the first floor by the front desk - - either a land line or cell phone.
* Residents could use staff phones.
* Residents could receive incoming calls to their room from outside the building.
In addition, as indicated above, the federal SafeLink program provided 250 minutes free per month, but evidence on its use and availability was not presented. (We did hear at trial that all medicaid recipients were eligible). Plaintiffs did not challenge that the federal program was in effect before their law suit was brought, but no specific information on starting date was presented, and Ms. Soto could not pin it down within 2007 to 2008.
The use in the regulation of the term "outside" can be ambiguous ("at least one telephone available for outside calls for every 40 residents"). Such term, rather than "outgoing," suggests an in-house phone system where calls can be made between rooms and from rooms to the front desk, but not outside the facility in either direction.
During trial, both sides used the terms "outgoing" and "incoming" to refer to calls between a resident and a person or entity beyond the Lakeside Manor building - - such as a family member, friend, medical provider or restaurant. Geoffrey Lieberman, longtime executive director of the Coalition of Institutionalized Aged and Disabled, testified at trial that they inform adult home residents of their rights using a handbook for that purpose. It contains the following, which uses "outgoing" to describe the regulation:
"[Q.] Do I have a right to a phone?
[A.] The home must provide one telephone for every forty residents for outgoing calls.Usually the home provides pay phones." [Defendant's exhibit U, page 12]. * * *
Given the current ubiquity of cell phones, a case turning on a regulation of one phone for forty persons seems fairly ancient, but it is the basis of one of the two causes of action here. For that, a good portion of the testimony was concerned not so much with whether one pay phone was sufficient, but rather that in 2007, there were other options, including house phones, office phones, incoming calls and the staff placing calls for residents.
How does such availability compare with, for example, having five pay phones at Lakeside Manor, which with 200 residents would have satisfied the 1:40 ratio. This trier of fact concludes that plaintiffs have not met their burden of proving that the available phone service in 2007 was less adequate than if Lakeside Manor had had five pay phones and no other phone access. In sum, defendant did not violate 18 NYCRR § 487.11(l)(15).
It cannot credibly be argued that if defendant was in compliance prior to October of 2007, it could have been out of compliance afterwards. With that said, there was one issue that arose when two new pay phones were installed and the existing pay phone removed. The new phones had to be programmed and Avi Lustig incorrectly programmed them so that toll-free calls were charged for. No amount of loss was presented at trial. In fact, when a colloquy occurred to resolve an objection, the Court asked counsel for plaintiff whether he had statistics on how many 800 (and 866) calls were made during this period, and the response was : "No . . . This is speaking towards his state of mind when he was programming these phones." II.
The plaintiffs' second cause of action, based on the Fair Housing Act, was described by the Second Department as "whether the plaintiffs' disabilities were a motivating factor' behind the defendants' alleged failure to provide the mandated level of telephone service" (101 AD3d at 812, referring to the 1:40 regulation).
Inasmuch as this Court has found no violation of such regulation, then the second cause of action cannot succeed. Nonetheless, a brief discussion is not inappropriate.
Plaintiffs point to an affidavit Sander Lustig gave as part of this lawsuit (plaintiffs' exhibit 10). Paragraph 7 of his affidavit, which was read to Mr. S. Lustig when he was on the witness stand, provided: "Additional phones have not been needed because a significant number of our residents have their own cell phones, and many others have either no capacity to make phone calls because of their disabilities, or no one to call."
The Court is reluctant to delve into the testimony about the personal problems of individual plaintiffs and other resident-witnesses, although it was undisputed that each of the four plaintiffs was on social security disability. Mr. S. Lustig testified that some residents - - he could not assign a percentage - - had a mental or physical disability or both. He indicated that to be accepted into Lakeside Manor, an individual had to be ambulatory and functioning, "except they lack the supportive setting that they need in order to maintain their health as in medication [and] case management . . ."
Sander Lustig was explaining the level of usage that he saw. Arguably, supply can affect demand, and once a better, more individual level of phone service becomes available, an individual's use can change: JK, a Lakeside Manor resident since 1995, testified that he had made no outgoing calls until 2012 when he made one on the pay phone, but when his roommate got a phone which he could borrow, he started calling his sister every week.
There was significant testimony about the long term acquaintanceship and causal, friendly encounters between senior management and the residents. Former employee Marie Johnson explained that, "The one thing I liked about Lakeside that was different from a lot of other homes is we lived to help the residents."
The Court has reviewed the case submissions plaintiffs made in their post-trial memorandum. Defendant has not violated the Fair Housing Act. They have not run afoul, for example, of this instructive language: "An actionable intent to discriminate need not be motivated by dislike for, or animosity against, people with disabilities; the legislative history of the Fair Housing Act shows that Congress intended equally to prohibit discrimination resulting from false and over-protective assumptions about the needs of handicapped people' . . . [citation omitted]." Bryant Woods Inn v Howard County, 911 F. Supp. 918, 929 (D. Md.), affd 124 F.3d 597 (4th Cir.). III.
Plaintiffs have moved to reopen the trial in order to submit additional evidence of plaintiffs' damages and defendant's liability. A trial court's discretion to reopen a case should be "sparingly" used (In re John Jay College of Criminal Justice of City University of New York, 74 AD3d 460, 462 [1st Dept]). Plaintiffs were afforded every opportunity to make their case. Even assuming it was otherwise admissible and that there was an indication in the record (or elsewhere) that such could be pursued, the proposed additional evidence, which related to plaintiffs' phone records and three Department of Health inspection reports, would not add anything material to the discussion above. Compare to Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d 499 (2d Dept).
The reports were dated October 3, 2008; October 9, 2008; and July 24, 2009 (paragraph 14 of plaintiff's Affirmation in Support of Plaintiff's Motion to Reopen).
In response, defendants seek costs and sanctions, contending that plaintiffs' application to reopen the case was frivolous. This Court does not find that costs or sanctions should be awarded under 22 NYCRR § 130-1.1. The Second Department has stated that "The intent of that regulatory scheme is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious tactics [citations omitted]" (Matter of Kernisan v Taylor, 171 AD2d 869). The circumstances here do not rise to the level of what transpired in, for example, Gassab v R.T.R.L.L.C., 22 Misc 3d 1140 (A) (Sup Ct, New York Co.), affirmed 69 AD3d 511 (1st Dept); or Tsabber v Auld, 26 AD3d 233 (1st Dept) .
Accordingly, it is: ORDERED that plaintiffs' motion to reopen the trial is denied, and defendants' motion for costs and disbursements is denied. * * *
The parties submitted the following to the Court:
From plaintiffsa Notice of Motion; an Affirmation in Support of Plaintiffs' Motion to Reopen to Submit Additional Evidence of Plaintiffs' Damages and Defendants' Liability; Plaintiffs' PostTrial Memorandum [with] Proposed Findings of Fact and Conclusions of Law (with exhibits A through F); Plaintiffs' Reply Memorandum in Support of Their Motion to Reopen and in Opposition to Defendants' Motion for Costs and Sanctions; and Plaintiff's PostTrial Reply Memorandum (with exhibit A).
From defendantsa Notice of CrossMotion; an Affirmation of Kurt E. Bratten in Opposition to Plaintiffs' Motion and in Support of Defendants' CrossMotion (with exhibits A through C); Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion to Reopen the Trial and in Support of CrossMotion for Costs and Sanctions; and Defendants' PostTrial Memorandum of Law (with exhibit A).
Based on a review of the credible evidence adduced at trial, the Court finds that defendants did not violate State regulation on the availability of phone service and did not engage in discrimination in violation of the Fair Housing Act; it is:
FURTHER ORDERED that verdict is for defendants Lakeside Manor Home for Adults, Inc. and Lakeside Manor Homes for Adults, Inc., and the complaint is dismissed. Alan C. Marin J.S.C.