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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

March 31, 2025

New York Appellate Divisions Split on Whether an Assisted Living Facility May Operate as a De Facto Residential Health Care Facility

In its March 14, 2025, decision in Kingston v. Tennyson Ct., et al.,1 the Appellate Division, Fourth Department, modified an order of the Supreme Court, Erie County, that denied the defendants’ motion to dismiss the plaintiff’s complaint. In its decision, the Fourth Department upheld its own precedent set forth in Cunningham v. Mary Agnes Manor Mgt., L.L.C.,2 by finding that the plaintiff in Kingston failed to sufficiently allege facts to overcome the defendants’ showing that the facility is an assisted living facility and not subject to New York Public Health Law §§ 2801-d and 2803-c.

In Kingston, the decedent’s estate filed suit against the defendants alleging that they were negligent and that their negligence caused the decedent to suffer physical injuries and ultimately resulted in her death. The decedent’s estate also brought claims under New York Public Health Law §§ 2801-d and 2803-c alleging that the defendants recklessly deprived the decedent of her rights and benefits. 

The Fourth Department reaffirmed that an assisted living facility licensed in accordance with New York Public Health Law Article 46-B can operate as a de facto residential health care facility subject to liability under New York Public Health Law Article 28 if the assisted living facility provides health-related services. In doing so, the Fourth Department distinguished the facts and circumstances in Kingston from those in Cunningham, finding that the plaintiff in Kingston did not establish that the defendants provided health-related services. In reaffirming Cunningham, the Fourth Department stressed the importance of not diverging from precedent except under compelling circumstances, which it found were not present in Kingston

Notably, two justices concurred with the result but disagreed with the majority’s reasoning; they believed that the Fourth Department should overturn Cunningham and adopt the Second and Third Departments’ interpretation, which precludes a finding that an assisted living facility can also be a de facto residential health care facility under New York Public Health Law Article 28. The concurrence stressed that the language of the statute is unambiguous that assisted living facilities are not residential health care facilities.  

The Kingston decision marks a division in how different New York courts interpret how the Public Health Law is applied to assisted living facilities and residential health care facilities. Attorneys in Barclay Damon’s Torts & Products Liability Defense and Professional Liability Practice Areas will monitor this situation closely to see if the issue is brought before the New York Court of Appeals. 

If you have any questions regarding the content of this alert, please contact Samantha McDermott, associate, at smcdermott@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Tom Cronmiller or Sanjeev Devabhakthuni, Professional Liability Practice Area co-chairs, at tcronmiller@barclaydamon.com and sdevabhakthuni@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense or Professional Liability Practice Areas.
                                                                                         
1NY Slip Op 01522(U) (4th Dep’t, March 14, 2025).
2188 A.D.3d 1560 (4th Dep’t 2020). 
 

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