DECISION AND ORDER Representatives of the Alice Hyde Medical Center (hereinafter “Alice Hyde”) and Dianna Clark signed an agreement on March 30, 2018 titled Alice Hyde Medical Center Assisted Living Program Admission Agreement (hereinafter the “Admission Agreement”). Pursuant to the terms of the Admission Agreement, Alice Hyde was to provide Ms. Clark with an “organized, twenty-four hour a day program of supervision, care and services”, to include among other things a private room. Under the terms of the Admission Agreement, Alice Hyde could unilaterally terminate the agreement upon thirty days written notice to Ms. Clark and others, if certain specified grounds existed, including “[i]f the Resident’s behavior poses imminent risk of death or imminent risk of serious physical harm to himself/herself or anyone else.” The termination provisions of the Admission Agreement are in compliance with New York State Social Security Law §461-g(1)(b), which prohibits a housing program, such as the one administered by Alice Hyde, to unilaterally terminate an admission agreement and involuntarily discharge a resident except under limited circumstances.On October 4, 2018, Petitioner served a “30 Day Notice of Termination” on Ms. Clark (hereinafter “Notice of Termination”), citing for grounds that “the resident behavior poses imminent risk of death or imminent risk of harm to him/herself or anyone else.” The factual explanation specified in the Notice of Termination states:on 6/5/18 resident was advised that, after finding screen removed from window & cigarette smell in room, subsequent smoking incident would result in termination of admission agreement. Subsequent smoking incidents occurred on property on 6/8/2018 & 8/24/2018. Resident seen smoking on premises on both dates with oxygen cannula on face.Based upon the Admission Agreement and Notice of Termination, Alice Hyde filed an Amended Verified Petition on April 11, 2019, seeking possession of the premises and a warrant to remove Ms. Clark. The Amended Verified Petition specifies two grounds for involuntary termination, the one specified in the Notice of Termination and a second one that reads: “If Resident repeatedly behaves in a manner that directly impairs the well-being, care, or safety of Resident or any other resident of the Facility or which substantially interferes with the orderly operation of the Facility.” Although the second specified ground is authorized by the Admission Agreement and Social Services Law §461-g(1)(d), it cannot form a basis for termination in this action since it was not specified in the Notice of Termination. See, SSL §461-g(2)(a)(ii) and 18 NYCRR 487.5(f)(4)(i) (requiring the notice contain the reason for termination). See also, 18 NYCRR 487.5(d)(6)(xvi)(a). Thus, to succeed in this action, Alice Hyde has to establish that Ms. Clark’s behavior posed an imminent risk of death or imminent risk of serious physical harm to herself or someone else, the only grounds specified in the Notice of Termination.Alice Hyde established that the premises in question houses an assisted living program, which is attached to the Alice Hyde Nursing Home, which in turn is attached to the Alice Hyde Medical Center. The Administrator of the assisted living program testified that fire presents a great hazard to the residents of an assisted living facility, a skilled nursing home and a medical center, given the chronic illnesses of many of the residents.Keisha Mayville, a home health aide employed by Alice Hyde, testified that on June 8, 2018 that she “witnessed [Ms. Clark] outside in the parking lot smoking a cigarette near my car. She had oxygen on herself. That’s about it.”Alice Hyde admitted three incident reports as Alice Hyde’s business records. Each incident report consists of three pages. The first two pages were prepared by Administrator Smith, who acknowledged during her testimony that she had no first hand knowledge of any of the events described in the incident reports. The third page of each incident report contains a statement of someone who had first hand knowledge of Ms. Clark’s alleged behavior. The first two pages of each incident report may not be considered for any factual description of Ms. Clark’s alleged behavior as it is clear that this portion of each incident reports contains double hearsay not properly admitted for the truth of the statements pursuant to any exceptions to the hearsay rule. See, People v. Brooks, 31 NY3d 939 [2018].The first incident report (Petitioner’s Exhibit “3″) concerns the events of June 9, 2018. Heather McGlaughlin wrote on the third page of this incident report:Resident was outside walking toward building. She was smoking when I pulled into the parking lot at around 5:45 a.m. I saw Loretta (home health aide) waving resident into the assisted living building.It cannot be determined from this information how far Ms. Clark was from the building. There is no reference to any oxygen on or near Ms. Clark. This June 9th incident is not referenced on the Notice of Termination.The second incident report (Petitioner’s Exhibit “4″) concerns August 24, 2018.1 Kaila Tucker wrote on the third page of this incident report:Went to do fifteen minute check and resident was not in room. I went to look for her and found her outside under gazebo smoking.No evidence was admitted concerning the distance from the gazebo to the assisted living facility. Ms. Tucker does not reference any oxygen being on or near Ms. Clark. On the third page of the same incident report, another individual, whose name is illegible, wrote:I also witnessed cigarette and we both smelled smoke. Resident came back inside before we got to her. Resident doesn’t know what we saw. Deanna will address. Oxygen was on her face, but off at bottle.The information contained in the January 5, 2019 Incident Report (Petitioner’s Exhibit “5″) is being disregarded by the Court. It concerns alleged events that occurred after the Notice of Termination was served, and not mentioned in the Amended Verified Petition. P&A Reckess v. Howard, 49 Misc3d 4 [NY App. Term 2015].The Petitioner also admitted the Alice Hyde Medical Center’s No Smoking Policy and an attached statement removing cigarettes from Ms. Clark and asking her to comply with No Smoking Policy of Alice Hyde Assisted Living Program dated May 4, 2018. It is clear that Ms. Clark has been aware of the Alice Hyde No Smoking Policy since at least May of 2018; and that, on multiple occasions, Ms. Clark smoked cigarettes on or near the Alice Hyde premises. Nevertheless, as noted above, in order to obtain the relief requested, Petitioner must do more than prove that Ms. Clark violated Alice Hyde’s No-Smoking Policy, Petitioner must prove the grounds specified in their Notice of Termination. The Court finds that Petitioner has failed to meet this requirement.Petitioner established that in the event that a fire broke out in the facility that the fire posed an imminent risk of death or imminent risk of serious physical harm to the residents of the facility; however, Petitioner failed to establish that Ms. Clark’s smoking created an imminent risk of fire. On each occasion where Petitioner has established that Ms. Clark smoked cigarettes, Ms. Clark apparently smoked outside of the facility’s building. With respect to June 8, 2018, the only information regarding oxygen was a statement that “Ms. Clark had oxygen on herself.” No further testimony explained what was meant by that comment. With respect to June 9, 2018, there was no reference to oxygen whatsoever. With respect to August 24, 2018, one witness did not make any comment regarding oxygen and the other witness indicated that the oxygen was “off at bottle.” Importantly, no evidence was offered regarding the operation of whatever oxygen apparatus, if any, Ms. Clark used; nor the extent of the risk created by smoking near the oxygen apparatus, especially when turned off.In summary, the evidence presented by Alice Hyde failed to establish that Ms. Clark’s behavior placed herself, or anyone else, in imminent risk of death or imminent risk of serious physical harm. Accordingly, the petition must be and hereby is dismissed.SO ORDEREDSigned and Dated: May 22, 2019Plattsburgh, New York
