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INDEXINDEX NO.NO. 610952/2019610952/2019FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020as a nursing home or facility providing health-related services. In tum, health-related services aredefined as 'service in a facility or facilities which provide or offer lodging, board and physicalcare including, but not limited to, the recording of health information, dietary supervision andsupervised hygienic services incident to such service.' [citation omitted]. In order for a facility tobe considered a residential health care facility under Article 28, it must serve principally as afacility for the provision of health-related services. [citation omitted]. The plain meaning of§ 2801-d unequivocally indicates that its purpose is to apply only to those facilities, i.e., nursinghomes that provide in depth treatment to patients and a highly recommended routine for itsresidences. Plaintiffs (sic) apparent basis for bringing claims under Article 28 of the PublicHealth Law, is based upon the erroneous belief that Amber Court Assisted Living Facility, LLCis a residential health care facility or nursing home. However, it is clear from the affidavit ofRaphael Weiss that Amber Court Assisted Living Facility, LLC is in fact, a dormant corporationthat holds no licenses, hires no employees, provides no care, offers no services, holds noproperty, and has never operated . As such, the Second Cause of Action, must be dismissed asit cannot be maintained against Amber Court Assisted Living Facility, LLC due to it not being aresidential health care facility, i.e. nursing home." See Defendant Amber's Weiss Affidavit inSupport of Motion (Seq. No. 01).Counsel for defendant Amber also argues, in pertinent part, that, "[i]t is awell-established principle that a simple breach of contract is not to be considered a tort unless alegal duty independent of the contract itself has been violated. [citation omitted]. This legal dutymust spring form circumstances extraneous to, and not constituting elements of, the contract,although it may be connected with and dependent upon the contract. [citation omitted]. In theplaintiffs (sic) Complaint, the plaintiff (sic) clearly duplicated her (sic) allegations of negligence6[* 6]6 of 19

FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545INDEXINDEX NO.NO. 610952/2019610952/2019RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020as a breach of contract cause of action. The alleged breach of contract arises out of the (sic)circumstances as the negligence cause of action . Pursuant to CPLR 3016, 'Where a cause ofaction . is based upon . fraud . the circumstances constituting the wrong shall be stated indetail.' The material facts relied upon as constituting the fraud and the various elements thereofshould be specified so that the Court may determine whether they constitute fraud in law.[citations omitted] . Plaintiff (sic) has failed to adequately assert with specificity, the elementsof a fraud cause of action. As such, the plaintiff's (sic) Fifth Cause of Action should bedismissed."In opposition to the motion (Seq. No. 01) and in support of the cross-motion (Seq. No.02), counsel for plaintiffs submits, in pertinent part, that, "[w]hen AMBER COURT filed itswithin Motion to Dismiss, Plaintiffs were alerted to the fact that they had mistakenly sued thewrong AMBER COURT corporate entity in their original Complaint. Plaintiffs bring thisCross-Motion to Amend their Summons and Complaint to include, inter alia, the correct name ofthe corporate entity actually responsible for the harms inflicted upon Plaintiffs and theirDecedent: 'AMBER COURT ASSISTED LIVING OF WESTBURY', in place and instead ofthe AMBER COURT 'shell' corporation mistakenly named in Plaintiffs' Complaint. Plaintiffshave also added a new cause of action for Medical Malpractice against a new Defendant: thephysician AMBER COURT assigned to treat the Decedent on the facility's premises, whosemedical practice upon information and belief is limited to the treatment of AMBER COURTresidents, AMBISHA PATHAK, M.D . Apparently, AMBER COURT's filing of the withinMotion to Dismiss also alerted this Court to a clerical error Plaintiffs made when they E-filedtheir Summons and Verified Complaint on August 9, 2019; although Plaintiffs correctly E-Filedtheir Summons, they mistakenly E-filed a duplicate copy of said Summons, mistakenly labeled7[* 7]77 of 19

FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545INDEXINDEX NO.NO. 610952/2019610952/2019RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020as their 'COMPLAINT', instead ofE-filing a copy of their Verified Complaint. Plaintiffs thenpurchased their Index Number and believed they had successfully completed their E-filing of theSummons and Complaint in this matter. Once this Court received AMBER COURT's E-filedMotion to Dismiss it apparently checked Plaintiffs E-filed 'Complaint' and discovered theirerror, because the Court returned Plaintiffs' erroneously E-Filed 'Complaint' the same day thatAMBER COURT filed its within Motion, and asked Plaintiffs to correct same . - whichPlaintiffs did, in response to the Court's request, on December 2, 2019 . The Court promptlyE-filed the 'corrected' 'Complaint' in place and instead of the erroneously labeled documentfrom the NYSCEF web site (sic), rendering moot Defendant's Motion to Dismiss forPlaintiff's (sic) failure to file a complete copy of Plaintiffs' Verified Complaint." See Plaintiffs'Affirmation in Opposition to Motion (Seq. No. 01) and in Support of Cross-Motion (Seq. No.02) Exhibits A, D and E.In further support of the cross-motion (Seq. No. 02), counsel for plaintiffs asserts, inpertinent part, that, "[i]t is well-settled that leave to amend pleadings should be freely granted inthe absence of prejudice to any party to the action, [citation omitted], unless the proposedamendment is 'palpably insufficient or patently devoid of merit.' [citations omitted]. Because weare still in the pleading stage of this case and Defendant AMBER COURT has yet to impose itsAnswer, no prejudice can result to any party herein if Plaintiffs' Motion to Amend theirComplaint is granted at this early stage of litigation . Plaintiffs have met all the requirementsfor their within Cross-Motion for Leave to Amend the Complaint: (1) Plaintiffs' ProposedSupplemental Summons and Amended Complaint name the correct AMBER COURT corporateentity: AMBER COURT OF WESTBURY, LLC (not only are the names of the correct corporateentity and the incorrectly-named corporate entity almost identical but, upon information and8[* 8]88 of 19

FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545INDEXINDEX NO.NO. 610952/2019610952/2019RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020belief, both entities have the same or similar corporate officers); and, (2) The attached Affidavitof Plaintiff Susan Stiglitz, dated February 4, 2020, confirms the merit and sufficiency of theamendments Plaintiffs wish to make to their Complaint; (3) There has been no delay byPlaintiffs in seeking leave of Court to amend their pleadings, much less the 'gross delay'prohibited by CPLR §2001; and, (4) Since, upon information and belief, the same principals areofficers of both corporate entities, AMBER COURT ASSISTED LIVING, LLC and AMBERCOURT ASSISTED LIVING OF WESTBURY, LLC, respectively, no prejudice or unfairsurprise will result to any party herein if Plaintiffs' Cross-Motion is granted. [citation omitted].Furthermore, as is set forth in the certified Dearth Certificate . , Ms. KAUFMAN died on June29, 2018, from her injuries caused by Defendants' respective tortious acts and omissions. Thus,Plaintiffs' action was timely filed. And, as is set forth hereinbelow in greater detail, AMBERCOURT received service of all but the signature page of Plaintiffs' Complaint, which was morethan sufficient to place said Defendant on notice of Plaintiffs' causes of action against it." SeePlaintiffs' Affirmation in Opposition to Motion (Seq. No. 01) and in Support of Cross-Motion(Seq. No. 02) Exhibits A and H; Plaintiffs' Affidavit in Opposition to Motion (Seq. No. 01) andin Support of Cross-Motion (Seq. No. 02).Counsel for plaintiffs additionally submits, in pertinent part, that, "[ d]efendant AMBERCOURT failed to meet its movant's burden of showing that Plaintiffs' service of process upon itwas so fatally flawed as to be deemed constitutionally deficient to establish personal jurisdictionover said Defendant for purpose of this lawsuit. This is because the self-serving Affidavits itsubmitted in support of its Motion to Dismiss are insufficient to rebut the presumption of goodservice raised by the Affidavit of Service sworn to by process server Vicki Matland on October8, 2019 . 'It is well settled in New York that a process server is entitled to rely upon the9[* 9]9 of 19

FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545INDEXINDEX NO.NO. 610952/2019610952/2019RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020representations of an employee who claims to be authorized to receive service of process.'[citations omitted] . The case law is clear: as long as the employee represents that they areauthorized to accept service of process for their employer, and as long as there are indicia ofreliability at the scene that support the person's representation of authority, the process servermay effectuate personal service upon the corporation by service upon that individual. [citationsomitted]. In the case at bar Plaintiffs' process server unequivocally swore in her Affidavit ofService . that Mr. Jallim informed her the was authorized to accept service on behalf ofAMBER COURT. Accordingly, the process server was entitled to rely on Mr. Jallim'sassurance because the law does not require a process server to conduct an internal investigationinto the inner power structure of AMBER COURT's management team. Accordingly,Defendant's Motion to Dismiss on grounds of allegedly improper service of process uponAMBER COURT via personal service upon Authorized Agent Naram (sic) Jallim, must bedenied in its entirety." See Plaintiffs' Affirmation in Opposition to Motion (Seq. No. 01) and inSupport of Cross-Motion (Seq. No. 02) Exhibit F.Counsel for plaintiffs further argues, in pertinent part, that, "AMBER COURT'sallegation that Plaintiffs cannot maintain a cause of action against it pursuant to Public HealthLaw §2801-d, because the statute only applies to nursing homes while AMBER COURT is onlylicensed as an Adult Home and ALF, is totally without merit. In actual fact, PHL §2801(3)defines 'residential health care facility' - the type of facility to which Article 28 of the PublicHealth Law applies - as: 'a nursing home or a facility providing health-related service.'[citations omitted] . At the very least, Plaintiffs must have the opportunity to obtain fulldiscovery from Defendant AMBER COURT, including a copy of Decedent's completemedical and other records of her residency there, and copies of AMBER COURT's corporate,10[* 10]10 of 19

FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545INDEXINDEX NO.NO. 610952/2019610952/2019RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020(sic) licensing, Medicaid, operations and financial records required, inter alia, to provePlaintiffs' allegations that AMBER COURT was illegally operating a de facto nursing homewith respect to its illegal retention of Decedent HESTER KAUFMAN, such that the Court musthold AMBER COURT accountable pursuant to PHL 2801-d and PHL 2803-c, and theirassociated regulations, for illegally retaining a patient who required a higher level of care than anALF could provide, and denying that resident the care and treatment she required to survive andthrive, which deprivations caused the excruciatingly painful, drawn out demise of DecedentHESTER KAUFMAN . In light of the extremely detailed pleading of fact and law relevant toPlaintiffs' cause of action for Fraud, Plaintiffs respectfully ask the Court to deny DefendantAMBER COURT's meritless Motion to Dismiss Plaintiffs' cause of action for Fraud, for analleged failure to plead the cause of action with requisite specificity . While commercial lawlitigants are prevented from bringing causes of action for Breach of Contract and Negligence inthe same action, because they are duplicative of each other, actions alleging nursing home andALF abuse and neglect are brought on a completely different legal theory - pursuant to whichactions for Breach of Contract and Negligence are not duplicative of each other, because theyarise from different, and easily distinguishable, sets of facts . In Mrs. KAUFMAN's withincase, the services AMBER COURT denied to Decedent were not creatures of Decedent'sResidency Agreement - they were guaranteed to Decedent by operation of statutes andregulations that are separate and apart from the Residency Agreement Contract. Accordingly,Plaintiffs' claims for denial of statutorily-guaranteed nursing, medical, therapeutic, medicationadministration and nutritional services, inter alia, are separate and apart from - and independentof the enumerated services contained in the Residency Agreement. Similarly, Plaintiffs' claimsfor negligence against AMBER COURT alleging that whatever services its employees, agents11[* 11]11 of 19

FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545INDEXINDEX NO.NO. 610952/2019610952/2019RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020and/or assigns did happen to provide to Decedent were provided negligently, and caused her tosustain serious injuries culminating in her untimely death on June 29, 2018, are separate andapart from Plaintiffs' claims that AMBER COURT failed to provide certain services at all, inviolation of the terms of Decedent's Residency Agreement. One of the reasons why Plaintiffs areentitled to maintain separate causes of action for Breach of Contract and Negligence in the samelawsuit is because they are entitled to seek separate elements of damages for each cause of action- for each different set of tortious acts, . "As indicated, plaintiffs submit the Affidavit of plaintiff Susan Stiglitz in support of theircross-motion (Seq. No. 02). See Plaintiffs' Affidavit in Opposition to Motion (Seq. No. 01) andin Support of Cross-Motion (Seq. No. 02).In opposition to the cross-motion (Seq. No. 02) and in reply to the motion (Seq. No. 01),counsel for defendant Amber submits, in pertinent part, that, "[i]n the cross-motion, plaintiffs'counsel admits that plaintiff (sic) had brought the action against an incorrect corporate entity andnow seeks leave to amend the Complaint to name a different Amber Court entity. Importantly,plaintiffs also seek to add a new defendant, Isha Pathak, M.D. (hereinafter 'Dr. Pathak'), whowas not named as a defendant in the original complaint. A review of plaintiffs' proposedamended Complaint indicates that it essentially contains the same causes of action as stated inthe original Complaint, and adds a cause of action for medical malpractice against Dr. Pathak.Accordingly, it is respectfully requested that the Court consider our motion to dismiss several ofthe plaintiffs' causes of action as equally pertaining to the proposed Amended Complaint.[citations omitted]. Plaintiffs seek leave pursuant to CPLR § 3025(c) (sic) to serve the proposedAmended Complaint. Plaintiffs' counsel recognizes in paragraph 16 of her affirmation that it isnecessary for plaintiffs to establish the merits of the proposed Amended Complaint. The only12[* 12]12 of 19

FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545INDEXINDEX NO.NO. 610952/2019610952/2019RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020support with respect to merits is the affidavit of plaintiff Susan Stiglitz, a lay person and not amedical or nursing expert. In the event plaintiffs are granted leave to serve the proposedAmended Complaint then it will be necessary for plaintiff (sic) to make service upon the newdefendant Dr. Pathak, who is not an employee of defendant Amber Court and who will not berepresented by this office. The instant motion seeks dismissal of plaintiffs' cause of actionagainst Amber Court pursuant to the New York Public Health Law§ 2801-d. As discussed in themotion, New York Public Health Law § 2801-d only pertains to skilled nursing facilities,commonly known as nursing homes. Annexed hereto as Exhibit 'A' is the Operating Certificateissued by New York State Department of Health to Amber Court of Westbury, LLC, the newdefendant named in plaintiffs' proposed Amended Complaint. The Operating Certificatedescribes Amber Court as being a (sic) 'adult home- assisted living'. Therefore, since defendantAmber Court is an adult living facility and not a nursing home, the provisions of Public HealthLaw § 2801-d are not applicable and this cause of action should be dismissed with respect toAmber Court. Plaintiffs' counsel recognizes in her supporting affirmation . that Article 28 ofthe Public Health Law provided for the regulation of nursing homes while Article 46-b of thePublic Health Law provides for the regulation of assisted living residences. Accordingly, it isconceded by plaintiffs' counsel that New York law makes a clear distinction between these twovery different types of facilities. Plaintiff herself acknowledged this distinction at the time ofadmission. Annexed hereto at Exhibit 'B' is the Admission Agreement for plaintiffs (sic)decedent Hester Kaufman, which we note was signed by plaintiff Susan Stiglitz. As indicated onpage 1 of the Admission Agreement, it is acknowledged that Amber Court is an adult carefacility and the services provided in the Admission Agreement are consistent with the operation13[* 13]13 of 19

INDEXINDEX NO.NO. 610952/2019610952/2019FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AMNYSCEF DOC.DOC. NO.NO. 4545RECEIVED NYSCEF:NYSCEF: 05/04/202005/04/2020of an adult care facility and not a nursing home." See Defendant Amber's Affirmation inOpposition to Cross-Motion (Seq. No. 02) and in Reply to Motion (Seq. No. 01) Exhibits A-C.Counsel for defendant Amber further contends, in pertinent part, that, "[ d]efendantAmber Court also moves to dismiss plaintiff's (sic) cause of action for breach of contract on theground that it is duplicative of plaintiffs' cause of action for negligence. The motion details thatit is a well established principle of law that a simple breach of contract is not considered a tort.[citation omitted]. Plaintiff's (sic) counsel concedes this point in paragraph 43 of her affirmationbut then argues without any legal support that a claim of breach of contract with respect to anadult care facilit

Health Law Article 28, against an Assisted Living Facility, plaintiff (sic) asserts a cause of action 3 [* 3] 3 of 19 . FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AM INDEX NO. 610952/2019 . Court Assisted Living, LLC is a dormant New York State Corporation . Amber Court Assisted