Opinion
L T 99064/07.
Decided May 14, 2008.
In this holdover summary proceeding petitioner seeks termination of the respondent's Admission Agreement relying on the Social Services Law (SOS) §§ 461-g (1)(b)(d) upon the grounds that respondent has breached the Admission Agreement and respondent's failure to abide by the facility's rules despite intervention by the facility's manager and operator. The only issue before the court is whether respondent's conduct falls within the category as defined in the foregoing sections of the law and Residential Landlord and Tenant § 6:125. Before reaching a determination in this proceeding, it should be noted the respondent appeared in court on each trial date with his counsel but did not take the witness stand in his defense.
Essential Facts
Petitioner is a licensed Adult Care Facility operated by Mr. Lichtschein with his staff.
Petitioner alleges that respondent has committed at least sixteen (16) violations of his Admission Agreement which fall into the category of "objectionable conduct" from July 2007 and going back to January 2006. Respondent has complained of numerous minor infractions by petitioner, virtually all of which were determined to be unfounded by various state agencies. Respondent has forwarded complaints to the New York State Department of Health, including but not limited to the NYS Commission on Quality Care, the Office of Mental Health, the NYS Adult Complaint Hotline, the Department of Psychiatry at Long Island College Hospital, the NYS Attorney General's Office and the Federal Bureau of Investigation all of which were apparently intended to harass, and his repeated behavior which directly impairs the well being, care and/or safety of the resident and other residents and which substantially interferes with the operation of the facility.
The testimony offered by Mr. Lichtschein clearly shows that respondent is neither happy nor satisfied with the services offered him by petitioner, nor is he reasonably content with other residents of the facility. The court notes that there were at least four (4) outbursts by the respondent during Mr. Lichtschein's testimony. On two (2) occasions the court interrupted petitioner's testimony, calling for a recess at which time the court cautioned the respondent to refrain from such behavior as these outbursts were not helping his case. Respondent went so far as to accuse the court of conspiring with the petitioner and the Attorney General's Office.
Petitioner established that the respondent made threats to staff member Morty Deutscher which ultimately caused him to resign. In January 2007 the police were called to restrain respondent. Ultimately he agreed to voluntarily remove himself to the Long Island College Hospital Mental Ward and continued his threats, both verbally and in writing. Mr. Lichtschein's testimony further established that respondent's repeated behavior substantially interferes with the orderly operation of the facility. Respondent made false accusations that his property had been stolen; false claims that staff members had been arrested; and ethnic slurs: "wishing that Hitler had done a better job." Also he made threats that he would have the home closed; harassed other residents in the dining room and silently recorded comments and observations of other residents at their Council meetings without their permission.
In a few cases respondent's complaints were acknowledged by petitioner but those complaints were corrected promptly. Respondent complained of bedbugs and the situation was rectified within a few days. The evidence further shows that the circulation of the petition by Ms. Kaplan, President of the Surf Manor Residents' Council sought the respondent's removal from the facility. Approximately fifty seven (57) residents signed the petition seeking respondent's removal predicated on his intimidation and harassment of other facility residents. Petitioner's agent admits that he played no part or role in the circulating of this petition by Ms. Kaplan and other facility residents. As testified by Mr. Lichtschein a special agent from the FBI visited the facility and found respondent's complaints to be unsubstantiated. The agent stated that the Bureau was familiar with respondent's penchant for making false claims.
Contrary to respondent's allegation of retaliatory eviction, the proceeding was initiated because of numerous unsubstantiated complaints and further harassment of the residents and staff. The court notes that respondent appeared before a Supreme Court Judge who determined that respondent should be transferred from Long Island College Hospital back to Surf Manor in July 2007. Respondent's interviews with treating physicians and psychiatrists were all conducted in a controlled and supervised environment. Consequently his behavior and responses during these visits were moderate as one might expect. However, respondent's interaction with other residents at Surf Manor on a day to day basis were a stark contrast and inconsistent with the conduct he displayed at the interviews. It is apparent from the testimony that respondent does in fact interfere with the orderly operation of the facility. He has a penchant for reporting minor infractions to various authorities for no legitimate reason.
While it is true that an admission agreement cannot be terminated solely because a facility resident refuses to take a prescribed medication, respondent's interference with the orderly operation of the facility coupled with his failure to take a certain medication leads the court to the conclusion that respondent has breached the Admission Agreement. In the instant case Long Island College Hospital's psychiatrist Dr. Ali Mamun and his currently treating psychiatrist Dr. Sunkavalli both prescribed Depakote to treat respondent's hypo-manic episodes. Dr. Sunkavalli testified that Depakote would help control the hypo-manic episodes. At the same time, the doctor admits that the respondent refuses to take this medication that would probably help him avoid or dramatically reduce the hypo-manic episodes.
Respondent did not offer testimony in this proceeding. Considering the number of outbursts during the trial, the court can only presume that his testimony would in fact support the petitioner's claim of harassment that continues and substantially interferes with orderly operation of the facility. ( Lefton v. Friedman, 163 AD2d 360, 362).
Applicable Law
Respondent claims that petitioner's continued acceptance of the monthly occupancy rate in some way revitalized a terminated Admission Agreement. On the contrary, although this is a special proceeding there is no existing landlord-tenant relationship between petitioner and respondent (RPAPL § 713-a; see also Residential Landlord-Tenant Law § 6:122, 125; Salvation Army v. Alverson, 157 Misc 2d 416). There was never a landlord-tenant relationship in the case at bar. A fortiori, no landlord-tenant relationship can be revived if one never existed (SOS § 461-h). Thus, respondent's second affirmative defense that petitioner renewed his tenancy by accepting rent after the termination date and before the commencement of the proceeding is dismissed as a matter of law. ( Carrier v. Salvation Army, 217 AD2d 420).
Throughout the trial Mr. Lichtschein described many incidents which respondent's disruptive behavior caused other residents and staff to feel threatened and harassed by his loud name calling, even threatening to have Mr. Deutscher fired and closing of the facility. As earlier stated the two (2) or three (3) legitimate problems complained of by respondent were corrected within a matter of two (2) days. All the remaining unsubstantiated complaints by respondent through his calls, leads this court to the conclusion that respondent should be relocated to another facility which will address and cater to his bipolar needs.
Conclusion
Based upon the foregoing it is evident to the court that respondent has breached the Admission Agreement by his objectionable conduct pursuant to subsection (F)(3) of said Agreement. The court has taken into consideration the testimony of Mr. Lichtschein, the exhibits, the behavior of the respondent and his failure to testify. Respondent's repeated outbursts have substantially interfered with the orderly operation of the court just as he has done at the facility. Respondent should be cognizant of the fact that petitioner's residence was authorized and designed to meet respondent's medical and social needs. He has rebuffed petitioner's services and concerns for his health safety and welfare. It is apparent to the court that respondent knowingly embarked on a course which was aimed at harassing staff personnel and facility residents to satisfy his own ego. Egos must be left at the door in order for qualified staff to provide necessary assistance for reasonable health and safety. Respondent chose a course which is diametrically opposed to the petitioner's facility and its statutory purpose.
Accordingly, the court terminates respondent's Admission Agreement. Petitioner is awarded a final judgment of possession with a warrant of eviction to issue forthwith and execution to be stayed forty-five (45) days to allow for an orderly transfer of respondent to another resident facility at which respondent's needs may be more thoroughly diagnosed and at which additional medical treatment may be prescribed.
This constitutes the decision and order of the court.