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SENTOSACARE LLC, Benjamin Landa, Bent Philipson, Avalon Gardens Rehab and Health Care Center, South Point Plaza Nursing & Rehabilitaton Center, Parkview Care and Rehabilitation Center, the Hamptons Center for Rehabilitation and Nursing, and Woodmere Rehabilitation & Health Center, Plaintiffs, v. Jennifer LEHMAN and Allegra Abramo, Defendants.
The following e-filed papers read herein:
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 7, 10–49
Opposing Affidavits (Affirmations) 54–57
Reply Affidavits (Affirmations) 61–66
Memoranda of Law 9, 58, 60
Transcript of April 24, 2017 Oral Argument 69
In this action by plaintiffs SentosaCare LLC (SentosaCare), Benjamin Landa (Landa), Bent Philipson (Philipson), Avalon Gardens Rehab and Health Care Center (Avalon Gardens), South Point Plaza Nursing & Rehabilitation Center (South Point), Parkview Care and Rehabilitation Center (Parkview), The Hamptons Center for Rehabilitation and Nursing (Hamptons), and Woodmere Rehabilitation & Health Care Center (Woodmere) (collectively, plaintiffs) against defendants Jennifer Lehman and Allegra Abramo (collectively, defendants), seeking to recover damages for alleged defamation, defendants move, for an order, pursuant to CPLR 3211(a)(1), (a)(7), and (g), dismissing plaintiffs' complaint in its entirety, with prejudice and without leave to amend, on the grounds that: (1) documentary evidence resolves all factual issues and conclusively disposes of plaintiffs' claim, (2) plaintiffs' complaint fails to state a cause of action for defamation, and (3) this action is a Strategic Lawsuit Against Public Participation (SLAPP) as defined in New York Civil Rights Law § 76–a and § 70–a.
FACTS AND PROCEDURAL BACKGROUND
SentosaCare is a consulting company that provides services to skilled nursing facilities in the State of New York. These nursing facilities include Avalon Gardens, South Point, Parkview, Hamptons, and Woodmere (collectively, the SentosaCare affiliated nursing facilities). SentosaCare's principals are Landa and Philipson. Landa and Philipson and their family members have ownership interests in several of the SentosaCare affiliated nursing facilities. SentosaCare has contractual relationships with all of the SentosaCare affiliated nursing facilities. Skilled nursing facilities in New York, such as the SentosaCare affiliated nursing facilities, are subject to continuous oversight and inspection from the New York State Department of Health (the DOH), which can impose fines and other penalties as a result of its inspections. The federal Centers for Medicare and Medicaid Services (the CMS) gives the DOH the authority to monitor nursing home compliance with applicable federal regulations and investigate complaints regarding patient care and safety (see 42 CFR 488.2). The DOH then provides inspection reports to the CMS, and these agencies, often acting collaboratively, can, in turn, assess fines and other penalties against the nursing facilities. Both the DOH and the CMS make the records of complaints, deficiencies, violations, and fines with respect to each nursing facility available to the public.
In order to establish a new nursing facility or to change the ownership of a nursing facility, a person must first submit a Certificate of Need (CON) to the DOH. The DOH then performs a Character & Competence review of the applicant and its existing facilities and summarizes violations and/or fines and its recommendations for the DOH Public Health and Health Planning Council (see Public Health Law § 2801–a  ).
The DOH has reviewed the SentosaCare affiliated nursing facilities owned by Landa and Philipson in connection with at least 15 separate CON change-of-ownership applications. The DOH records show sanctions which were imposed by the DOH against the SentosaCare affiliated nursing facilities.
Defendants are the authors of an article, entitled “How N.Y.'s Biggest For-Profit Nursing Home Group Flourishes Despite a Record of Patient Harm” (the article), which was published on ProPublica.org, an internet website, on October 27, 2015. ProPublica, which has not been named as a defendant herein, is a Pulitzer-prize winning, independent, non-profit organization which publishes investigative journalism on matters of public interest and concern, and particularly publishes stories that seek to vindicate the rights of those who cannot speak or act for themselves. Defendants are not employees of ProPublica.
The lede of the article states that “[t]he state's ‘character-and-competence’ reviews are supposed to weed out operators with histories of violations and fines—but regulators don't always act on the full story.” The remainder of the article repeatedly references, and, in many instances, provides direct links to, the results of DOH Character & Competence Reviews, Inspections, and Complaints, CMS data, and investigations by the Attorney General's Office as the sources.
On June 21, 2015, defendants contacted Landa, requesting his comments on the various facts gathered from a review of DOH, CMS, and related documents. On August 26, 2015, Landa and SentosaCare's counsel provided comments, which defendants incorporated into the article. Thereafter, defendants contacted plaintiffs with additional questions and requests for clarification, and attached spreadsheets that summarized the CMS data that defendants intended to rely upon in the article, but plaintiffs declined to provide a further substantive response.
Plaintiffs claim that defendants ignored and omitted factual information of which they were aware, including factual information provided to them by their counsel and facts set forth in relevant records and documents provided to them. Plaintiffs allege that these allegedly knowing omissions resulted in an article about them that was false, misleading, and defamatory.
According to plaintiffs, defendants, in the article, manifested a lack of understanding of the regulatory scheme that governs nursing homes in New York. They assert that defendants ignored the fact that violations, which are known as tags, are regularly issued to every nursing home in New York, and that, upon issuance of a tag, the regulatory scheme provides for the nursing home to submit a plan of correction (POC) to the DOH, whereupon the DOH reviews the POC and determines whether it is compliant with regulations.
Plaintiffs make reference to 13 statements or groups of statements (the 13 claims) in the article which plaintiffs claim are false, misleading, and defamatory. Plaintiffs' first claim concerns Charles Stewart (Stewart), a resident of Avalon Gardens, who suffered gangrene and had his leg amputated allegedly due to deficient care. The statements in the article, which plaintiffs allege are defamatory are that Dr. Kris Alman, a retired endocrinologist, who reviewed Stewart's medical records and photographs, said that the two quarter-sized lesions on Stewart's foot when he was admitted to Avalon Gardens could not have “become what it did overnight,” that Dr. Alman further said that the condition progressed as far as it did, with Stewart coming in septic and needing an above-the-knee amputation was “inexcusable,” and that the staff at Avalon Gardens “showed no sense of urgency” when the Stewarts complained about Stewart's missed meals, soiled sheets, and unanswered call bells. Plaintiffs assert that these statements were false, and that this incident was investigated by the DOH, which found no violations of any applicable regulations.
Plaintiffs' second claim refers to statements in the article that Avalon Gardens is among a group of for-profit homes affiliated with SentosaCare that “have a record of repeat fines, violations and complaints for deficient care in recent years,” and “[d]espite that record, SentosaCare founder Benjamine Landa, partner Bent Philipson and family members have been able to expand their nursing home ownerships in New York, easily clearing regulatory reviews meant to be a check on repeat offenders.” Plaintiffs' second claim also refers to the statement that many of the nursing home deals ProPublica reviewed received a go-ahead despite “rules saying they ‘shall not be’ approved when facilities have repeat violations that put residents at risk.” Plaintiffs assert that defendants have falsely stated what the rules provide and implied that SentosaCare violated these rules and that, as a result, they should have failed regulatory reviews. Plaintiffs allege that Avalon Gardens does not have a record of recurrent fines, violations, or complaints of care in recent years, and that a review of recent citations from September 1, 2011 through August 31, 2015 reveals no pattern of citations and no recurrent incidents.
Plaintiffs' third claim refers to a set of statements in the article that the DOH's assessment of Landa and other owners of SentosaCare homes have routinely found that the facilities provided a “substantially consistent high level of care, the standard owners must meet to receive council approval,” but that “records show that the council hasn't always had complete information about all the violations and fines at nursing homes owned by or affiliated with applicants it reviewed,” and that SentosaCare owners or associates got “incomplete vetting,” thereby implying that the complete record should have prevented the DOH from making such findings based on federal fines. This third set of statements also includes the further statement that the DOH “reported ‘no repeat violations’ a dozen times when there had been multiple citations for the same problems,” and that the DOH found “no repeat enforcements” at the SentosaCare affiliated nursing facility, South Point, “even though the [facility] had been cited and fined more than once for residents having pressure sores.”
Plaintiffs allege that contrary to these statements and the insinuations that can be gleaned from them, the DOH and Public Health Council have consistently found that the SentosaCare affiliated nursing facilities provide a substantially consistent high level of care based on the fact that they do provide such a high level of care. Plaintiffs further allege that while defendants repeatedly refer to the law as requiring the Public Health Council to deny Character & Competence petitions due to repeat offenses, the standard for such a mandatory denial is “recurrent” violations, as opposed to “repeat” violations. They set forth that the Public Health Law utilizes the word “recurrent,” and not “repeat,” to ensure that operators of facilities that have persistently and continually ignored problems do not receive Public Health Council approval. Plaintiffs claim that SentosaCare affiliated nursing facilities, including South Point and Woodmere, have never had a “recurrent” problem, and any issues arising in SentosaCare affiliated nursing facilities have been immediately addressed and promptly corrected. They assert that defendants' statement that South Point was subject to “repeat enforcements” failed to mention that there were only two pressure-sore citations, arising from two incidents six years apart, with one in 2004 and one in 2010, and that South Point has not received any denial of payment in the past 12 years. They claim that defendants consistently imply wrongdoing by SentosaCare affiliated nursing facilities, the DOH, and the Public Health Council, even though they have complied with governmental processes.
Plaintiffs' fourth claim concerns the statement that 11 of SentosaCare's affiliated nursing facilities exceed the New York State average of 24 violations over the past three years, and that three of these facilities had double that number. Plaintiffs allege that the New York State average number of citations is 25, and not 24, and that defendants arrived at the number of 24 by improperly lumping all facilities together, regardless of facility size, patient population, and facility location. Plaintiffs assert that if this number was calculated by using the number of deficiencies per facility per one hundred occupied beds, it would have revealed that 20 SentosaCare affiliated nursing facilities meet or have less than the average number of deficiencies for New York State facilities.
Plaintiffs' fifth claim is that defendants, throughout the article, do not use the term “deficiency,” but, instead, use the term “violation,” which, they claim is an improper, suggestive, and biased term. They state that by defendants doing this and by their grouping together all findings, and labeling them as “violations,” defendants falsely suggest and imply serious harm and illegality.
Plaintiffs' sixth claim is that the article references seven separate elopements (i.e., where residents left the nursing home premises without the knowledge of the nursing home's operators) of residents from four different SentosaCare affiliated nursing facilities, and improperly links them together to suggest a pattern of issues in facility management. Plaintiffs state that each of the elopements referenced by defendants in the article were found to be an isolated incident by the DOH, and, in each instance, appropriate measures were taken to prevent any reoccurrence. Plaintiffs claim that defendants' statements falsely suggest that there is a pattern to the elopements, but that only four of the 25 SentosaCare affiliated nursing facilities have had any resident elopement in recent years, and most of those instances were the result of resident intent and determination to leave the facility.
Plaintiffs' seventh claim is that the article asserts that SentosaCare affiliated nursing facilities have “dozens of cases of delayed treatment,” and that the DOH inspection reports supposedly reveal a pattern of delayed treatment. Plaintiffs point to the statement that the staff at Parkview, a SentosaCare affiliated nursing facility, “failed to check results from a [resident's] chest x-ray” for four days. Plaintiffs claim that all of the incidents cited by defendants in the article were found to be “isolated incidents” by the DOH, and that there is no pattern of delayed treatment among facilities since each facility that was cited had separate issues which in no way related to another facility. Plaintiffs further claim that defendants intentionally used the term “pattern,” which is a specific term used by the DOH to describe incidents evidencing situations where “more than a limited number of residents are affected, and/or more than a very limited number of staff is involved, and/or the situation has occurred in several locations, and/or the same resident(s) have been affected by repeated occurrences of the same deficient practice.” They allege that defendants' assertion that the staff at Parkview “failed to check results from a chest X-ray” is false by omission and deliberately deceptive, as defendants knew that the major cause of this delay was due to the outside radiology provider failing to provide the chest X-ray results to the facility for four days, and that this is why this incident was found to be an “isolated incident” by the DOH.
Plaintiffs' sixth claim is that the article states that “[o]n multiple occasions, state inspectors discovered that staff at [SentosaCare affiliated nursing facilities] tried to cover up lapses in care-allegedly lying about elopements or the failure to spot bedsores,” and that after a 2012 investigation by the New York State Attorney General, the administrator of Hamptons, a SentosaCare affiliated nursing facility, pled guilty to falsifying records after a resident wandered away from the facility. Plaintiffs assert that the statement that state inspectors “discovered” that staff at SentosaCare affiliated nursing facilities tried to cover up lapses in care is false because the facility pro-actively reported the actions of its administrator to the DOH and the Attorney General's office, and that if not for the facility's self-reporting, the falsification of records would not have been discovered, and the administrator would likely have continued working in the nursing home industry. Plaintiffs allege that the DOH and the office of the Attorney General cleared the facility of any wrongdoing, finding that the rogue administrator acted contrary to facility protocol and the admonition of her supervisor. They claim that defendants knew, but did not report, these facts, and that the reporting of these additional facts were necessary to make the article truthful and not misleading.
Plaintiffs' ninth claim is that the article states that “after another investigation by” the Attorney General's office, four nurses at Woodmere, a SentosaCare affiliated nursing facility, were arrested for falsely signing off on forms indicating they had checked on a resident who had fallen three times in a week and ended up hospitalized. Plaintiffs allege that defendants knew, but failed to report, that the facility had conducted its own internal investigation, that the facility immediately terminated the employment of the nurses in question, and that the facility self-reported its findings to the DOH and the Attorney General's office. Plaintiffs point out that the facility had submitted a POC to the DOH that was approved, and the facility was thereafter found to be back in substantial compliance. They assert that defendants should not have omitted these additional facts, and that the inclusion of these additional facts was necessary to make the article truthful and not misleading.
Plaintiffs' tenth claim is that the article states that CMS has determined that less than 4.1 hours of total daily nursing care per long-term resident increases the risk of bed sores, weight loss, and other types of harm to residents, and that only three SentosaCare affiliated nursing facilities meet this 4.1 hour threshold. Plaintiffs' tenth claim further points to the statements in the article that six facilities provide less than three hours of daily nursing care per resident, that Avalon Gardens and South Point were among only 29 facilities cited for insufficient staffing in the past three years, and that in 2013, Avalon Gardens was cited with work safety violations that led to $24,600 in fines. Plaintiffs allege that defendants falsely suggest that the 4.1 hours is a “threshold” with which facilities are required to comply despite the fact that New York State does not have a mandated minimum threshold of nursing hours required to be provided, as the State allows each facility to assess its own unique staff requirements to determine its own needs. Plaintiffs further allege that defendants imply that Avalon Gardens has insufficient staff, when Avalon Gardens, in fact, has a four-star staff rating, or “above average” rating from CMS, which is based upon an average of three hours and 47 minutes per day total hours of licensed nurses and certified nurse aides per resident. Plaintiffs claim that the implication by defendants that SentosaCare affiliated nursing facilities lack appropriate staffing is false.
Plaintiffs' eleventh claim alleges that the article states that in a most recent inspection, Avalon Gardens was cited for 21 deficiencies, and that Avalon Gardens has nearly 45% percent more complaints and double the number of complaint-related citations per 100 beds than the averages found in New York State nursing homes. Plaintiffs claim that defendants improperly grouped together Life Safety Code Deficiencies (which include violations for facility construction and physical plant issues, such as dim lighting) with Standard Health Deficiencies (relating to resident care) to arrive at an artificially inflated figure.
Plaintiffs' twelfth claim alleges that the article states that Tom Bennett (Bennett), who spent about a month in short-term rehabilitation at Avalon Gardens in 2013, and whose obesity and back injury made it impossible for him to get out of bed, stated in an interview that he did not receive regular sponge baths and sometimes sat in his own feces because no one was available to help him. Plaintiffs claim that this statement was false.
Plaintiffs' thirteenth claim is directed to the statement in the article that since 2011, Woodmere has been cited and fined several times for the same class of violations that put residents in immediate jeopardy, including distribution of unnecessary medication and failing to protect residents from falls. Plaintiffs further point to the statement in the article that the federal government temporarily halted payments for new admissions at Woodmere, a “stiff penalty for homes with ongoing problems.” Plaintiffs claim that Woodmere has not received any immediate jeopardy violations since May 2013, and that Woodmere has not been cited with an immediate jeopardy violation for distribution of unnecessary medication since 2011. Plaintiffs assert that only in one instance was Woodmere subjected to the remedy of denial of payment for new admissions, which was promptly lifted upon substantial compliance with state and federal requirements. Plaintiffs also note that the CMS determined that each isolated deficiency did not rise to a level constituting immediate jeopardy.
Following the publication of the article on October 27, 2015, defendants, on March 18, 2016, contacted plaintiffs' counsel and plaintiffs regarding a possible follow-up to the original article. On March 24, 2016, plaintiffs filed this defamation action against defendants. Plaintiffs' complaint refers to each of the 13 claims, and it asserts one cause of action for defamation per se. In their cause of action for defamation per se, plaintiffs allege that taken as a whole, the article omits or misstates relevant facts, and otherwise conveys an overarching theme that they have engaged in improper and unethical conduct, which amounts to grave misconduct in the nursing home industry, and imputes fraud, dishonesty, negligent, and criminal acts to them with respect to their business practices, and the treatment and care provided to residents/patients at the SentosaCare affiliated nursing facilities. This cause of action further alleges that taken as a whole, the article is false by implication. On June 21, 2016, defendants filed their instant motion to dismiss plaintiffs' complaint.
In support of their motion, defendants contend that pursuant to Civil Rights Law § 74, they are entitled to dismissal of this action. Civil Rights Law § 74 provides, in pertinent part, as follows:
“A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.”
“The purpose of Civil Rights Law § 74 ‘is the protection of reports of [official] proceedings which are made in the public interest’ ” (Cholowsky v Civiletti, 69 AD3d 110, 114 [2d Dept 2009], quoting Williams v Williams, 23 NY2d 592, 599  ). “ ‘The case law has established a liberal interpretation of the ‘fair and true report’ standard of Civil Rights Law § 74 so as to provide broad protection to news accounts of judicial or other official proceedings’ ” (Cholowsky, 69 AD3d at 114, quoting Becher v Troy Publ. Co., 183 AD2d 230, 233  ). The privilege under Civil Rights Law § 74 is absolute and applies even where the plaintiff alleges malice or bad faith (see Panghat v New York State Div. of Human Rights, 89 AD3d 597, 597 [1st Dept 2011], lv denied 19 NY3d 839 , cert denied 569 US 943  ).
“When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer's precision” (Alf v Buffalo News, Inc., 21 NY3d 988, 990 , [internal quotation marks omitted] ). Rather, the relevant inquiry is whether the article “provided substantially accurate reporting” (id.; see also Saleh v New York Post, 78 AD3d 1149, 1151 [2d Dept 2010], lv denied 16 NY3d 714  )
In other words, in order “[f]or a report to be characterized as ‘fair and true’ within the meaning of [Civil Rights Law § 74], thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate” (Holy Spirit Assn. for Unification of World Christianity v New York Times Co., 49 NY2d 63, 67  ). This is consistent with the common law of libel, which “ ‘overlooks minor inaccuracies and concentrates upon substantial truth’ ” (Shulman v Hunderfund, 12 NY3d 143, 150 , quoting Masson v New Yorker Magazine, Inc., 501 US 496, 516 ; see also Cholowsky, 69 AD3d at 114). “Judicial interpretation of section 74 has made it clear that an article need not be a verbatim account or even a precisely accurate report of an official proceeding to be a ‘fair and true report’ of such a proceeding” (Freeze Right Refrig. & AC. Servs. v City of New York, 101 AD2d 175, 183 [1st Dept 1984], citing Briarcliff Lodge Hotel, Inc. v Citizen–Sentinel Publs., 260 NY 106 , rearg denied 261 NY 537  ). The test of whether statements are “substantially accurate” so that the absolute privilege of common-law attaches “is whether the published account of the proceeding would have a different effect on the reader's mind than the actual truth, if published” (Daniel Goldreyer, Ltd. v Van de Wetering, 217 AD2d 434, 436 [1st Dept 1995] ). It is only where the published statements at issue, considered in the context of the article, “suggests more serious conduct than that actually suggested in the official proceeding,” that the privilege will not attach (id.).
Plaintiffs argue that Civil Rights Law § 74 is inapplicable to this action because there was no “proceeding.” This argument must be rejected. “ ‘New York courts have broadly construed the meaning of an official proceeding as used in [Civil Rights Law] Section 74’ ” (Penaherrera v New York Times Co., 2013 WL 4013487 [Sup Ct, NY County 2013], quoting Test Masters Educ. Servs., Inc. v NYP Holdings, Inc., 603 F Supp 2d 584, 588 [SD NY 2009], citing Easton v Public Citizens, Inc., 1991 WL 280688, 1991 US Dist LEXIS 18690 [SD NY Dec. 26, 1991, No. 91 Civ 1639 (JSM) ], affd 969 F2d 1043 [2d Cir 1992] ). Thus, reports are protected which “[concern] activities which are within the prescribed duties of a public body” (Freeze Right Refrig. & AC. Servs., 101 AD2d at 182 [holding that publication of an article by the New York Times concerning an investigation by the New York City Department of Consumer Affairs into the practices of air conditioning repair shops was protected] ). “The test is whether the report concerns action taken by a person officially empowered to do so” (id. at 182 [internal quotation marks omitted] ). “New York [c]ourts have found that an administrative agency investigation into activities within its purview is an official proceeding” (Test Masters Educ. Services, Inc., 603 F Supp 2d at 588 [internal quotation marks omitted]; see also Penaherrera, 2013 WL 4013487).
Thus, New York courts routinely apply Civil Rights Law § 74 to information gleaned from a wide array of document types from a wide range of governmental activities (see e.g. Test Masters, 603 F Supp 2d at 588 [holding that a fair and accurate report of the investigation was privileged under Civil Rights Law § 74 “[w]hether [the reporter] learned of the investigation through an official press release or a draft release or some other means]; Komarov v Advance Mag. Publs., 180 Misc 2d 658, 660 [Sup Ct, NY County 1999] [privilege applied to FBI internal report and search warrant affidavit, even if no charges were brought] ). Here, defendants' sources include official reports and press releases describing governmental licensing proceedings, the exercise of regulatory oversight, inspections, investigations, and criminal charges, which fall within the ambit of Civil Rights Law § 74.
Plaintiffs further argue that Civil Rights Law § 74 is inapplicable to communications which combine information from governmental sources. This argument is without merit. There is no requirement that a communication be limited to a single source or a single proceeding (see Penaherrera, 2013 WL 4013487 [where the privilege protected statements summarizing a Department of Education proposal, statements made by a local Councilman, and a report by the Office of the Public Advocate that accused the former principal-plaintiff of running a school into the ground, “mismanag[ing] its finances,” and being “incompetent to manage the school”] ).
Plaintiffs also argue that Civil Rights Law § 74 is inapplicable because the article combines privileged statements under Civil Rights Law § 74 with other information. Notably, Civil Rights Law § 74 provides that it “does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.” Here, however, there is no other information contained in the article, which is not privileged under Civil Rights Law § 74 or which would constitute libel.
While, in opposing defendants' motion, plaintiffs contend that with respect to their first claim, Stewart's complaint to the DOH was not part of an official “proceeding,” plaintiffs do not dispute that Stewart later filed a complaint with the DOH. Indeed, plaintiffs allege that the DOH investigated this specific incident in their complaint. Moreover, as noted above, reports on allegations that lead to a government investigation are fully protected (see Mulder v Donaldson, Lufkin & Jenrette, 161 Misc 2d 698, 705 [Sup Ct, NY County 1994], affd 208 AD2d 301 [1st Dept 1995] ). Plaintiffs additionally imply that Stewart's allegations were inaccurate, but claim that they cannot offer any information regarding this due to HIPAA regulations. However, plaintiffs were provided with Stewart's signed HIPAA. In any event, in applying the fair report privilege, “the question is not whether or not the statement is ‘true,’ ” but, rather, “the question is whether it is a substantially accurate description” of the complaint that led to the investigation (id.; see also Cholowsky, 69 AD3d at 114).
Plaintiffs further assert that since the DOH investigation exonerated Avalon Gardens, there is no way in which a reporting of Dr. Alman's statements could be a fair report. This assertion ignores the fact that defendants, in fact, reported that after the DOH's investigation, it did not take further action against Avalon Gardens. In addition, with respect to the reporting of Dr. Alman's statement that the progression of Stewart's condition was “inexcusable,” this constituted a report of Dr. Alman's opinion, which is not actionable.
With respect to plaintiffs' twelfth claim, which takes issue with the reporting of statements made by Bennett in an interview, wherein Bennett stated that when he spent about a month at Avalon Gardens, he did not receive regular sponge baths and sometimes sat in his own feces because no one was available to help him, this claim relates to the CMS' finding of inadequate staffing at Avalon Gardens and complaint-related citations against Avalon Gardens. The article noted that plaintiffs' attorney “declined to comment about Bennett's situation.” Plaintiffs, in their opposition papers, do not address this claim or raise any arguments in opposition to its dismissal. Furthermore, since plaintiffs received substantial federal funding and public funds, they are public figures. Thus, to prevail in a defamation suit, plaintiffs would be required to prove with evidence of “convincing clarity” that “the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Co. v Sullivan, 376 US 254, 285–286, 279–280 ; see also Prozeralik v Capital Cities Communications, 82 NY2d 466, 474  ). While plaintiffs, in their complaint, allege that Bennett's statements are untrue, “the failure to investigate [the] truth [of Bennett's statements], standing alone, is not enough to prove actual malice” (Sweeney v Prisoner's Legal Servs. of NY, 84 NY2d 786, 793 [2d Dept 1995] ).
Plaintiffs point to their eighth claim and their ninth claim, which refer to investigations by the Attorney General. They criticize the use of the verb “discovered,” and state that defendants implied by the term “discovered” that the staff at SentosaCare affiliated nursing facilities tried to cover up lapses in care. Specifically, plaintiffs take issue with statements reporting that state inspectors “discovered” that individuals affiliated with the SentosaCare affiliated nursing facilities had engaged in criminal conduct.
Plaintiffs, however, cannot dispute that the article accurately reported that two separate investigations by the Attorney General led to criminal charges against a number of individual employees at two SentosaCare affiliated nursing facilities. This is evidenced by the Attorney General's press release, which stated that these individuals were charged with a “shocking level of neglect and mistreatment, which caused serious injury to a patient.” Plaintiffs, instead, assert that defendants should have not used the word “discover” because one facility self-reported the actions of its administrator to the DOH and the Attorney General's Office and the other conducted its own internal investigation. However, the fact remains that this conduct occurred at these facilities regardless of who reported it. There is nothing about the word “discover” that suggests more serious or widespread fraudulent, dishonest, or criminal conduct than that suggested in the official proceeding and summarized in the article. While plaintiffs argue that the article omitted information favorable to them, they cannot show that the published account of the investigation proceedings “would have a different effect on the reader's mind” or “suggests more serious conduct than that actually suggested in the official proceeding” (see Daniel Goldreyer, Ltd, 217 AD2d at 436).
Furthermore, plaintiffs' fourth claim asserts that the way in which the CMS and the DOH report deficiencies and complaints per 100 beds is inaccurate, but not that the article inaccurately summarized those reports. Plaintiffs also assert that the article failed to include any reference to the four-and-five-star ratings earned by some of their facilities. However, contrary to plaintiffs' assertion, the article did, in fact, include these star ratings referred to by plaintiffs, as well as plaintiffs' comment criticizing the CMS' methodology and citing the facilities' favorable star ratings.
With respect to plaintiffs' eleventh claim, plaintiffs do not deny that the statements that “Avalon Gardens was cited for twenty-one (21) deficiencies” and that it has “nearly forty-five (45%) percent more complaints and double the number of complaint-related citations per one hundred (100) beds than the averages found in New York State nursing homes” accurately summarize the underlying DOH data. Plaintiffs further complain of the way that data is gathered and reported by the DOH and the CMS. Plaintiffs assert that “Life Safety Code Deficiencies” should be considered separately from “Standard Health Deficiencies,” and that “the complaint statistics provided on the DOH and CMS websites do not accurately portray each facility's daily level of care, as these websites compare all facilities and ignore facility characteristics such as facility size and patient population.”
However, even assuming, arguendo, that the manner in which the CMS or the DOH reports such data is misleading, this does not give rise to a defamation claim against defendants. Civil Rights Law § 74 “was designed precisely to protect the publisher of a fair and true report from liability for ․ an error and to relieve it of any duty to expose the error through its own investigation” (Freeze Right Refrig. & A.C. Servs., 101 AD2d at 183; see also Bernacchi v County of Suffolk, 2010 NY Slip Op. 33164[U] [Sup Ct, Suffolk County 2010] [“(w)hether (government) officials are giving precisely accurate information is not the issue” with respect to applying Civil Rights Law § 74 since it is “protective of the media in its reporting of statements and information from named official sources”] ). Furthermore, plaintiffs have not alleged any inaccuracies in the article that are “so egregious as to remove the article from the protection of Civil Rights Law § 74” (Saleh, 78 AD3d at 1152; see also Misek–Falkoff v American Lawyer Media, 300 AD2d 215, 216 [1st Dept 2002], lv denied 100 NY2d 508 2003], rearg denied 100 NY2d 616  ).
Plaintiffs, in their sixth and seventh claims, argue that defendants have grouped the undisputed facts that the DOH investigated seven separate elopements at four SentosaCare affiliated nursing facilities and documented dozens of complaints of delayed treatment across multiple facilities in order to imply a “pattern,” as that term is used in the regulations. This argument must be rejected since the article makes clear that these were separate occurrences at different facilities under the SentosaCare umbrella, and even offered links to the relevant DOH reports. Indeed, the article actually included plaintiffs' comments disclaiming any “pattern.”
Plaintiffs' second and third claims take issue with defendants' use of the term “repeat violations” to describe situations where repeat fines, violations, or complaints have been levied against a SentosaCare affiliated nursing facility. Plaintiffs complain that readers will understand the term “repeat violations” to imply “recurrent violations,” which is the standard for mandatory denial for CON applications, and to suggest thereby that they failed regulatory review. However, plaintiffs, in their opposition papers, admit that defendants nowhere state that there has been a finding of any ‘recurrent’ violations” at SentosaCare affiliated nursing facilities. In fact, the article repeatedly states that the DOH has consistently approved plaintiffs' change of ownership requests, and states that the DOH “found they provide a substantially consistent high level of care.” This renders plaintiffs' claim of this alleged innuendo facially implausible. Moreover, as previously discussed, when determining whether a report is substantially accurate, the language used “should not be dissected and analyzed with a lexicographer's precision,” but, rather, should be afforded “some degree of liberality” (Holy Spirit Assn. for Unification of World Christianity, 49 NY2d at 68).
Plaintiffs' fifth claim similarly contends that defendants improperly replaced the term “deficiency,” with the term of “violation,” which, they claim is an improper, suggestive, and biased term. They state that defendants did so in order to falsely suggest and imply serious harm and illegality, which is not otherwise present. However, there is nothing to suggest that a reasonable reader of ProPublica—who is not reading the article from the perspective of a DOH insider—would understand the term “violation” to convey a more “serious harm and illegality” than that which is reflected in the linked, highlighted DOH and CMS reports, especially given the favorable regulatory findings and recommendations that the article repeatedly references.
Defendants “cannot be held to a standard of strict accountability for use of legal terms of art in a way that is not precisely or technically correct by every possible definition” since if it were otherwise, “the narrow and confining application of the libel laws would entirely defeat the purposes of ․ statutes like section 74 of the Civil Rights Law” (Becher v Troy Pub. Co., Inc., 183 AD2d 230, 234 [3d Dept 1992] [internal quotation marks omitted] ). “Hence, in areas of doubt and conflicting considerations, it is almost always preferable to err on the side of free expression” (id.). In any event, regardless of whether they are called “violations” or “deficiencies,” the statements at issue would not “have a different effect on the mind of the reader from that which the pleaded truth would have produced” (Jewell v NYP Holdings, Inc., 23 F Supp 2d 348, 366 [SD NY 1998] [internal quotation marks omitted] ).
With respect to plaintiffs' tenth claim, plaintiffs challenge the statement which compares the CMS-recommended “4.1 hours of total daily nursing care per long term resident” to the “less than three (3) hours of daily nursing care per resident” provided by six SentosaCare affiliated nursing facilities. Plaintiffs also point to the statement that Avalon Gardens and South Point were among only 29 facilities cited for insufficient staffing in the past three years. However, the article does not state or otherwise suggest that 4.1 hours is a “mandated minimum threshold” under either state or federal law. Rather, the article simply begs the question of whether New York facilities might benefit from a mandated minimum staffing requirement.
With respect to plaintiffs' thirteenth claim, the statements contained in the article are a fair summary of the DOH records. While plaintiffs' thirteenth claim alleges that Woodmere has not received any immediate jeopardy violations since May 2013, this statement is not inconsistent with the facts reported in the article. Plaintiffs also take issue with the use of the phrase “stiff penalty” because there are other penalties that are even more severe, such as denying Medicare payments to those who are already residents of the facility. However, the article did not report that the CMS assessed the most (or more) severe denial-of-payment penalty against Woodmere.
Thus, contrary to plaintiffs' claims, the Court finds that no reasonable reader would understand the article to suggest more serious or widespread misconduct than is reflected in the underlying (and hyperlinked) official reports. In sum, the statements at issue are “substantially accurate” summaries of actions that are within the prescribed duties of public bodies and are, therefore, absolutely privileged under Civil Rights Law § 74. Consequently, dismissal of this action, pursuant to CPLR 3211(a)(1) and (7), is mandated.
Additionally, the Court notes, in passing, that even assuming, arguendo, that Civil Rights Law § 74 was not applicable, plaintiffs would still have to satisfy a high burden of proof applicable to the news media. Plaintiffs, who receive substantial federal funding and engage in business activities which are a matter of public concern, are public figures (see Gertz v Robert Welch, Inc., 418 US 323, 345 ; Huggins v Moore, 94 NY2d 296, 301–302  ). Therefore, defendants may only be held liable if they published information they knew was false or acted with reckless disregard of the truth (see New York Times Co., 376 US at 279–280). Here, the documentary evidence submitted by defendants establishes that this standard has not been met by plaintiffs.
Defendants additionally contend that this action must be dismissed, pursuant to CPLR 3211(g), based on the ground that it constitutes an impermissible SLAPP suit. A SLAPP suit is defined by Civil Rights Law § 76–a(1)(a) as an “action ․ for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.” A “public applicant or permittee” includes within its definition “any person who has applied for or obtained a ․ license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission (Civil Rights Law § 76–a  [b] ). Where a moving party demonstrates that an action is a SLAPP suit, a motion to dismiss under CPLR 3211(g) “shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law.” Since the Court finds, as discussed above, that plaintiffs' complaint must be dismissed, pursuant to CPLR 3211(a)(1) and (7), the Court need not reach defendants' arguments that this action should be dismissed pursuant to CPLR 3211(g).
The Court notes that Civil Rights Law § 70–a(1)(a) provides that a defendant in a SLAPP suit may recover costs and attorney's fees from the plaintiff upon a demonstration that the action “was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law.” Here, the court declines to award defendants relief under Civil Rights Law § 70–a (1), even assuming that the action was properly characterized as a SLAPP suit (see Muller v Abbott, 25 AD3d 674 [2d Dept 2006], lv dismissed 6 NY3d 890 ; Miness v Alter, 262 AD2d 374, 375 [2d Dept 1999]; Matter of West Branch Conservation Assn. v Planning Bd. of Town of Clarkstown, 222 AD2d 513, 515 [2d Dept 1995] ).
Based upon the foregoing, it is hereby
ORDERED that defendants' motion, pursuant to CPLR 3211(a)(1), (a)(7), and (g), dismissing plaintiffs' complaint, with prejudice and without leave to amend, is granted and the complaint is hereby dismissed in its entirety; and it is further,
ORDERED that counsel for defendants shall serve a copy of this Decision and Order with Notice of Entry on plaintiffs and the County Clerk who shall enter judgment accordingly.
This constitutes the Decision and Order of the Court.
Paul Wooten, J.
Response sent, thank you
Docket No: 504407/2016
Decided: January 25, 2018
Court: Supreme Court, Kings County, New York.
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