Judge Jack Weinstein
Plaintiffs represent former residents of Brooklyn’s Prospect Park Residence. Under RICO and a 42 USC §1983 claim alleging deprivation of rights under the Federal Nursing Home Reform Amendments (FNHRA), plaintiffs assert defendants misrepresented the Residence as a licensed assisted living facility from 2006. It was only on Nov. 30, 2012, that New York’s Health Department approved defendant’s 2009 license application. Claiming they were overbilled for rent and services, plaintiffs sought to recover the difference between the amounts paid and what they would have paid had they known the Residence lacked a license. The court granted defendants judgment. Article 46-B of the state’s Public Health Law does not provide for a private right of action. Nor did plaintiffs show injury on their federal claims. There was insufficient evidence of a “scheme or artifice to defraud” to allow a jury to find defendants engaged in mail or wire fraud. Thus there was insufficient evidence for a civil RICO violation claim. Plaintiffs’ FNHRA-related §1983 claim was also misplaced. They did not show deprivation of federal rights “under color of State law.” Defendants were private parties, and at all relevant time the Residence was “private pay—not Medicaid.”
