ANDREYKO v. SUNRISE SENIOR LIVING,INC. et al

Filing 29

OPINION fld. Signed by Judge Dickinson R. Debevoise on 1/24/14. (sr, )

FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HELENA ANDREYKO Individually and as
Administratrix of the Estate of PAULINA
ANDREYKO Deceased,
Plaintiff,

Civ. No. 12-7240 (KM)

v.

OPINION

SUNRISE SENIOR LIVING, INC. (a
Virginia Corporation); SUNRISE ASSISTED
LIVING MANAGEMENT, INC. (A Virginia
Corporation); SUNRISE OF EDGEWATER,
LLC (A New Jersey Limited Liability
Company); JOHN DOES 1-10, (Being the
persons and/or entities responsible for the
injuries suffered by plaintiff)
Defendants.

Appearances by:
Gregg D. Trautmann, Esq.
Trautman & Associates, LLC
262 East Main Street
Rockaway, NJ 07866
Attorney for Plaintiff,
Rafael Vergara
White and Williams LLP
One Penn Plaza
250 W. 34th Street, Suite 4110
New York, NY 110119
Attorney for Defendants.

1

DEBEVOISE, Senior District Judge
This case arises out of the alleged beating, mistreatment, and/or neglect suffered by a
patient-resident in an assisted living facility in New Jersey. Presently before the Court is a
motion for reconsideration of a previous decision which granted in part and denied in part a
motion to dismiss. The instant motion arises out of a complaint filed by Plaintiff Helena
Andreyko (hereinafter “Plaintiff” or “Helena”) individually and as administratrix of the estate of
her late mother Paulina Andreyko (hereinafter “Paulina”) regarding treatment at an assisted
living facility managed by Defendants Sunrise Senior Living, Inc. (“SSLI”), Sunrise Senior
Living Management, Inc. (“Sunrise Management”) (formerly known as Sunrise Assisted Living
Management), Sunrise of Edgewater LLC,1 and John Does 1-10 (collectively referred to as
“Defendants”). Sunrise Management manages and operates the Sunrise of Edgewater assisted
living facility at issue, and is a wholly owned subsidiary of SSLI. For the reasons set forth
below, the motion is GRANTED.
I.

BACKGROUND
The underlying facts are set forth in full by the Court in its October 24, 2013 opinion.

(See Oct. 24, 2013 Op., ECF 23.) In essence, Paulina required assistance in her activities of
daily living as a result of dementia. She resided at the Sunrise of Edgewater living facility from
about March 2005 until her death on June 25, 2010 at the age of 94. The crux of the underlying
Complaint is based on allegations that on or about January 31, 2009, Paulina was beaten,

1

As previously noted by the Court, Sunrise of Edgewater LLC is not a legal entity or
existing company within the State of New Jersey. Sunrise of Edgewater is a d/b/a/ of “Sunrise
Third (Pool I) LLC,” which is owner and licensed operator of the assisted living community in
question, Sunrise of Edgewater, located at 351 River Road, Edgewater, NJ. Sunrise Third (Pool
I) LLC acts through its manager, Sunrise Management. Plaintiff has yet to amend the complaint
to add Sunrise Third (Pool I) LLC as a party.
2

mistreated, and/or neglected by the Sunrise staff. Her daughter Helena observed facial and head
bruising for two consecutive days, and arranged for Paulina to be brought to a hospital so that her
wounds could be treated. Due to Paulina’s dementia, she was unable to describe how her face
and head had been bruised. Thereafter, Helena hired private aids to care for Paulina overnight.
The Complaint asserts that regardless of whether Paulina was the victim of abuse and
neglect or whether Sunrise failed to provide the staffing levels necessary to ensure it met its
contractual obligations, Sunrise is liable for the injuries Paulina suffered while a resident there.
First, Plaintiff argues that the Defendants are jointly and severally liable for breach of contract
pursuant to the written Resident Agreement to provide basic and “Assisted Living Plus” care,
and request compensatory damages, cost of suit, attorney fees, and equitable relief. Second,
Plaintiff argues that the Defendants violated the New Jersey Nursing Home Responsibilities &
Rights of Residents Act, N.J.S.A. § 30:13-1 et seq. (hereinafter “NHRRRA”), by failing to
provide Paulina with a safe and decent living environment that recognizes her dignity and
individuality. Plaintiff thus requests compensatory damages and punitive damages, cost of suit,
attorney fees, and such relief which the court deems proper.
On November 21, 2012, Defendants SSLI and Sunrise Management petitioned for
removal from the Superior Court of New Jersey, Morris County. On December 19, 2012,
Defendants filed a motion to dismiss both the breach of contract claim (count one) and the
statutory violation claim (count two). First, Defendants contended that the applicable statute of
limitations for a personal injury action should apply, and thus Plaintiff’s breach of contract claim
is properly considered a tort which has a shorter statute of limitations that has expired. Second,
Defendants argued that the NHRRRA is inapplicable. Third, Defendants submitted that SSLI is
not liable for any possible negligence because a corporate parent is not liable for the actions of
3

its subsidiary and because Plaintiff has not plead sufficient facts to indicate SSLI’s involvement.
Fourth, Defendants argued that Plaintiff should not be granted leave to amend her complaint to
cure any deficiencies.
On October 24, 2013, the Court granted in part and denied in part Defendants’ motion to
dismiss. (Oct. 24, 2013 Op., ECF 23.) The Court’s reasoning is set forth in additional detail
below. First, the Court granted the dismissal of count one for breach of contract because the
essence of the action is for personal injury, and thus the statute of limitations expired. Second,
the Court denied the dismissal of count two because the Court originally interpreted assisted
living facilities as covered by the NHRRRA. Last, the Court granted without prejudice the
dismissal of SSLI as a party to the action because Plaintiff failed to establish sufficient factual
allegations to pierce the corporate veil.
On November 7, 2013 Defendants petitioned the Court for reconsideration. Defendants
pressed for reconsideration on the basis that the Court overlooked two legal issues: (i) that the
applicable two-year statute of limitations bars all claims in this case, including the now
outstanding NHRRRA claim, and (ii) that assisted living facilities are not covered by the
NHRRRA in the first place. In the event that the Court declines Defendants’ request for
reconsideration, Defendants request that the Court certify its ruling for interlocutory appellate
review under 28 U.S.C. 1292(b) for guidance by the Third Circuit Court of Appeals on these
issues.
II.

DISCUSSION
A. STANDARD OF REVIEW

4

In the District of New Jersey, motions for reconsideration are governed by Local Civil
Rule 7.1(i) and are considered "extremely limited procedural vehicle(s)." Resorts Int'l, Inc. v.
Greate Bay Hotel & Casino, 830 F. Supp. 826, 831 (D.N.J. 1992). As a result, "reconsideration is
an extraordinary remedy, that is granted 'very sparingly[.]'" Brackett v. Ashcroft, Civ. No. 033988 (WJM), 2003 U.S. Dist. LEXIS 21312, 2003 WL 22303078, at *2 (D.N.J. Oct. 7, 2003)
(quoting Interfaith Community Org. v. Honeywell Int'l, Inc., 215 F. Supp. 2d 482, 507 (D.N.J.
2002)).
Local Civil Rule 7.1(i) permits a party to seek reconsideration by the Court of matters
which the party "believes the Judge or Magistrate Judge has overlooked" when it ruled on the
motion. See L. Civ. R. 7.1(i). The movant has the burden of demonstrating either: "(1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or
to prevent manifest injustice." Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
The Court will grant a motion for reconsideration only where its prior decision has overlooked a
factual or legal issue that may alter the disposition of the matter. See Compaction Sys. Corp., 88
F. Supp.2d at 345; see also L. Civ. R. 7.1(i). "The word 'overlooked' is the operative term in the
Rule." Bowers v. NCAA, 130 F. Supp. 2d 610, 612 (D.N.J. 2001) (citation omitted).
Moreover, L. Civ. R. 7.1(i) does not allow parties to restate arguments which the court
has already considered. See G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990). Thus, a
difference of opinion with the court's decision should be dealt with through the normal appellate
process. See e.g., Bowers, 130 F. Supp. 2d at 612 (citations omitted); Florham Park Chevron,
Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988); NL Indus., Inc. v.

5

Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996) ("Reconsideration motions . . .
may not be used to re- litigate old matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment."). In other words, "[a] motion for
reconsideration should not provide the parties with an opportunity for a second bite at the apple."
Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 533 (D.N.J. 1998) (citation omitted).
B. ANALYSIS
1. The Statute of Limitations
The Court previously dismissed the breach of contract claim because the essence of the
action is for personal injury. (See Oct. 24, 2013 Op., ECF 23.) After examining relevant case
law, the Court looked to N.J.S.A. § 2:14-2, which provides:
Every action at law for an injury to the person caused by the
wrongful act, neglect or default of any person within this State
shall be commenced within two years next after the cause of action
shall have accrued.
N.J.S.A. § 2:14-2 (emphasis added).
Additionally, the Court noted that pursuant to N.J.S.A. § 2A:31-3, survivorship actions for
wrongful death must commence within two years after the death of the decedent, except in the
case of certain exceptions which are not applicable here. (Op. at 8).
Here, Paulina suffered injuries on or around January 31, 2009 and died on June 25,
2010.2 The Court concluded:
This action commenced on August 21, 2012. Even if the Court
were to apply the statute of limitations from the date of death, the
applicable statute of limitations expired approximately two months
prior to the filing of this action. “[T]he statute of limitations under
2

Due to typographical error, the previous opinion erroneously attributed the injuries to
Helena and the year of death as 2012. (Op. at 8.) The error is found in the Discussion section
rather than the Background section, and is harmless as it does not affect the reasoning and
outcome.
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N.J.Stat. Ann. § 2A14:-2 applies to actions for personal injuries,
regardless of whether they arise out of tort or breach of contract.”
Rothman v. Silber, 83 N.J. Super. 192, 197 (Law Div. 1964)
(citing Burns v. Bethlehem Steel Co., 20 N.J. 37 (1956), Tackling
v. Chrysler Corp., 77 N.J. Super. 12 (Law Div. 1962).). See also
Oroz v. American President Lines, Ltd., 259 F.2d 636, 639 (2d Cir.
1958).
Here, the essence of the action is for personal injury,
whatever may be the form of the injury. Thus, the statute of
limitations has expired and count one must be dismissed.
(Op. at 8) (emphasis added).
The Court then went on to find that the NHRRRA applies to Sunrise, despite that it is an
assisted living facility. (Op. at 8-12.) The bulk of the Court’s reasoning focused on the
construction and applicability of the statute, however, and did not address the relationship
between the cause of action arising out of the NHRRRA and the separate finding that the twoyear statute of limitations had expired on the personal injury claim pursuant to N.J.S.A. § 2:14-2.
The Court thus grants reconsideration here because the prior decision overlooked a legal issue
that may alter the disposition of the matter. See L. Civ. R. 7.1(i); Compaction Sys. Corp., 88 F.
Supp.2d at 345.
Defendants request the Court to reconsider its implicit finding that the two-year statute of
limitations does not bar the NHRRRA claim. Defendants submit:
In deciding the motion, the Court overlooked the fact that even if
the NHRRA were applicable, any claim pursuant to that law is still
in the nature of personal injury and thus subject to the two-year
statute of limitations. Every claim in this case is for alleged
personal injuries and therefore subject to the two-year statute of
limitations in N.J.S.A. 2A:14-2. The NHRRA does not contain a
statute of limitations. When a statute does not contain its own
limitations period, the statute of limitations period is the one that
would be applied at common law to an action involving the same
type of “injury.” See Montells v. Haynes, 133 N.J. 282, 627 A.2d
654, 658-59 (1993) (discussing New Jersey law against
discrimination). The injury claims asserted in this case and the
nursing home rights protected are undoubtedly personal in nature.
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Therefore, Count Two of the complaint must be dismissed for the
same reasons Count One was dismissed.
(Mot. for Recons. Br. at 2-3.)
In turn, Plaintiff argues that the NHRRRA is subject to a six year statute of limitations. In
support of her argument, Plaintiff contends that N.J.S.A. § 2:14-1 is operative rather than
N.J.S.A. § 2:14-2, supra at 6.3 N.J.S.A. § 2:14-1 provides as follows:
Every action at law for trespass to real property, for any tortious
injury to real or personal property, for taking, detaining, or
converting personal property, for replevin of goods or chattels, for
any tortious injury to the rights of another not stated in sections
2A:14-2 and 2A:14-3 of this Title, or for recovery under a
contractual claim or liability, express or implied, not under seal, or
upon an account other than one which concerns the trade or
merchandise between merchant and merchant, their factors, agents
and servants, shall be commenced within 6 years next after the
cause of any such action shall have accrued.
This section shall not apply to any action for breach of any contract
for sale governed by section 12A:2-275 of the New Jersey Statutes.
N.J.S.A. 2A:14-1 (emphasis added).
Plaintiff argues that 2A:14-2 does not apply because she is not seeking any damages for
injury to the person. (Opp. Br. at 5.) Plaintiff maintains that the fact section of her complaint
support that the breach alleged is for “neglect and mistreatment” suffered by Paulina during her
stay at Sunrise, and that it is those facts that support her claim that Defendants violated Sections
(j) and (m) of the NHRRRA. (Opp. Br. at 5-6.)4

3

The Court notes that Plaintiff makes no attempt to respond to or distinguish the only case
on which Defendants rely on this point, Montells v. Haynes, 133 N.J. 282 (1993).
4

The Court notes Plaintiff’s typographical error regarding her reliance on Section (l) of the
NHRRRA, as she is actually appealing to section (j), regarding “the right to safe and decent
living environment and considerate and respectful care that recognizes the dignity and
individuality of the resident . . . .” (Compare Opp. Br. at 4-5 and Opp. Br. at 6, misidentifying
8

The relevant sections of NHRRRA set forth the rights of nursing home5 residents:
j. [ ] [T]he right to a safe and decent living environment and
considerate and respectful care that recognizes the dignity and
individuality of the resident, including the right to expect and
receive appropriate assessment, management and treatment of pain
as an integral component of that person’s care consistent with
sound nursing and medical practices.
...
m. [The right] [n]ot to be deprived of any constitutional, civil or
legal right solely by reason of admission to a nursing home.
N.J.S.A. § §§ 30:13-5(j), (m).
The second count of the Complaint provides:
51.
The SUNRISE defendants were negligent, grossly
negligent, flagrant, reckless, willful and wanton in failing to
provide PAULINA ANDREYKO her statutorily mandated nursing
home resident’s rights, PAULINA ANDREYKO was deprived of
such rights by the failures outlined herein-above and suffered
injuries and damages a proximate result thereof.
52.
The SUNRISE defendants breached PAULINA
ANDREYKO’s statutorily mandated nursing home resident’s
rights by failing to provide her with a safe and decent living
environment that recognizes her dignity and individuality.

N.J.S.A. § 30:13-5(j) as section (l)). The Court’s prior opinion also construed the relevant
sections to be (j) and (m). (See Op. at 4, 9.)
5

As discussed further in the second part of this analysis, “nursing home” is defined
broadly by the statute as:
[A]ny institution, whether operated for profit or not, which
maintains and operates facilities for extended medical and nursing
treatment or care for two or more nonrelated individuals who are
suffering from acute or chronic illness or injury, or are crippled,
convalescent or infirm and are in need of such treatment or care on
a continuing bases. Infirm is construed to mean that an individual
is in need of assistance in bathing, dressing or some type of
supervision.
N.J.S.A. § 30:13-2(c).
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53.
As a result of the aforementioned violations, the Estate of
PAULINA ANDREYKO, Deceased is entitled to recover actual
and punitive damages.
(Compl. ¶¶ 51-53) (emphasis added).
The Complaint does not specify which “constitutional, civil or legal right” pursuant to Section
(m) is at issue.
In support of her opposition to the motion for reconsideration, Plaintiff contends:
Nowhere in the second count of plaintiffs’ complaint do they seek
a recovery in tort. They seek no damages for injuries to the
person. Rather, it is the plaintiffs’ contention that the bad acts
complained of which were committed by the defendants amount to
a breach of the NHRRA and the plaintiffs are seeking the resultant
damages.
(Opp. Br. at 6.)
In sum, Plaintiff argues that her self-characterized claim for “neglect and mistreatment,”
(Opp. Br. at 5-6), is premised on the rights afforded via the NHRRRA and should therefore be
subject to the six-year statute of limitations provided by N.J.S.A. § 2:14-1 “for any tortious
injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3.” However, N.J.S.A. §
2A:14-2 explicitly provides for a two-year statute of limitations for wrongful acts, neglect, or
default – which are exactly the harms Plaintiff alleges in her description of her claims as for
“neglect and mistreatment.” Her characterization of the resultant damages as arising from the
NHRRRA rather than in personal injury is inapposite to the essence of the action which arises
from bruising on or around January 2009. Again, the Court has already dismissed Plaintiff’s
breach of contract claim for similar reasons. Upon reconsideration, the Court finds that the twoyear statute of limitations applies to the outstanding NHRRRA claim as well, and Defendants are
therefore entitled to dismissal of the Second Count as a matter of law.

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2. Whether assisted living facilities are liable under the NHRRRA.
On October 24, 2013, the Court found that Sunrise was liable under the NHRRRA and
denied dismissal of count two. The Court first looked to the purpose and history of the
NHRRRA to protect the elderly and to create safeguards because “elderly patients in certain
institutions or care facilities have been subjected to either physical or mental abuses [that have]
either gone unreported or came to light many months later when it was too late to take official
action.” In re Conroy, 98 N.J. 321, 379 (1985). (See Op. at 8-9).
Next, the Court noted the parties’ debate over the relevance of a state appellate decision,
Estate of Anna Ruszala, ex rel. Mizerak v. Brookdale Living Communities, Inc., 415 N.J. Super.
272 (App. Div. 2010). The Court explained:
In Ruszala, two joined plaintiffs brought suit for negligence,
wrongful death, and violations of the [NHRRRA] as a result of
significant injuries suffered at their respective assisted living
facilities. The court considered whether the parties could proceed
with the action or whether they were subject to arbitration clauses
in their resident agreements. The court examined a 2003
amendment of the [NHRRRA], found in N.J.S.A. 30:14-8.1, which
voids clauses that waive or limit a patient’s right to sue for
negligence or malpractice in this context. The court concluded that
although the Federal Arbitration Act, 9 U.S.C.A. § 2, preempts the
statutory amendment to some degree, provisions of the arbitration
clauses at issue were nonetheless void and unenforceable under the
doctrine of substantive unconscionability. Id. at 293 – 299. The
court reasoned that in passing the [NHRRRA], “the Legislature
recognized the need to protect a discrete class of citizens who, by
virtue of their age and infirmity, are particularly vulnerable to
sharp commercial practices, especially in the area of health care,
housing, and end-of-life decisions.” Id. at 296.
(Op. at 10-11) (footnote omitted).
The Court then examined the parties’ arguments as to the pertinence of Ruszala:
Here, Defendants argue that Ruszala is instructive in that the
statutory provision scrutinized therein, N.J.S.A. 30:13-8.1, supra n.
4, expressly refers to both nursing homes and assisted living
11

facilities. Thus, Defendants contend that “the inclusion of assisted
living facilities only in N.J.S.A. 30:13-8.1 of the Nursing Home
Act means assisted living facilities are excluded from the other
provisions of the Nursing Home Act which make no mention of
assisted living facilities, but do mention nursing homes.” (Defs.’
Reply Br. at 7.) However, Defendants overlook that the
underlying claims in Ruszala include [NHRRRA] violations in the
assisted living context. The court did not differentiate the
[NHRRRA] violations related to the injuries and wrongful death
from the residents’ arbitration clauses made void by the 2003
amendment to the [NHRRRA]. Compare Ruszala, 415 N.J. Super.
at 286 and id. at 292-93.
(Op. at 11.)
In reaching its prior conclusion that assisted living facilities were to be read within the
NHRRRA, the Court predominantly relied on the breadth of the definition of “nursing home”
under the NHRRRA:
More importantly, the definition of “nursing home” under the
[NHRRRA] is broadly defined, and does not provide any
limitations on its application to assisted living facilities. The
statute covers “any institution . . . which maintains and operates
facilities for extended medical and nursing treatment or care for
two or more nonrelated individuals who are suffering from acute or
chronic illness or injury, or are crippled, convalescent or infirm
and are in need of such treatment or care on a continuing bases.
Infirm is construed to mean that an individual is in need of
assistance in bathing, dressing or some type of supervision.”
N.J.S.A. 30:13-2(c). Indeed, the definition includes patients who
are in need of “assistance in bathing, dressing, or some type of
supervision.” Id. (emphasis added.) Defendants’ argument would
lead to absurd results by allowing assisted living institutions to
avoid liability for violations suffered by their residents, contrary to
the original purpose of the act to protect treatment of the elderly.
There is simply no indication in the [NHRRRA] that the
Legislature intended to narrow its reach to such a degree. Indeed,
the Legislature knew to expressly limit the reach of the
[NHRRRA], as it did in the case of institutions operated by certain
religious denominations which rely on spiritual means through
prayer alone for healing rather than standard medical care or
treatment. See N.J.S.A. 30:13-9.
(Op. 11-12.)
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For further support, the Court looked to the regulations promulgated by the
Commissioner of Health pursuant to N.J.S.A. § 30:13-10 (Rules and regulations) to effectuate
the purpose of the NHRRRA. However, the Court erroneously read Chapter 36 of the New
Jersey Administrative Code (Standards for Licensure of Assisted Living Residences,
Comprehensive Personal Care Homes, and Assisted Living Programs) as being promulgated
pursuant to the NHRRRA. Upon reconsideration, the licensing and regulations of health care
facilities is authorized pursuant to Title 26 (Health and Vital Statistics), Chapter 2H (Health Care
Facilities), which also treats the licensing schemes of assisted living and nursing home facilities
separately. See N.J.S.A. 26:2H-5 (authorizing assisting living licensure standards set forth by
N.J.A.C. 8:36); N.J.S.A. 26:2H-12.5 (authorizing licensure standards of long-term care facilities,
also known as nursing home residences, set forth by N.J.A.C. 8:39).
Plaintiff relies on dicta in Ruszala that “[r]egulations promulgated under the [NHRRRA]
create corresponding standards for assisted living residences, comprehensive personal care
homes, or assisted living programs. N.J.A.C. 8:36-1.1 to -23.” Ruszala, 415 N.J. Super. at 293.
(See Opp. Br. at 11.) Ruszala provides no citation or reasoning to support this notion.
Furthermore, the text of the standards regarding the licensure scheme of assisted living facilities
are set forth in N.J.A.C. § 8:36, which expressly states that the chapter’s authority rests in a
different part of the New Jersey Code, “N.J.S.A. 26:2H-1 et seq., specifically 26:2H-12.5.”
N.J.A.C. § 8:36 (chapter authority). Moreover, the statement is made in dicta because Ruszala
focuses on whether NHRRRA’s ban on arbitration clauses is preempted by federal law which
deems arbitration provisions valid and enforceable. Specifically, N.J.S.A. § 30:13-8.1 expressly
provides that in both nursing homes and assisted living contexts, arbitration clauses which waive
or limit the right to sue are void and unenforceable. Ruszala holds that federal law preempts the

13

statute’s bar on arbitration, however that other limitations of suit were not preempted under basic
tenets of contract law. Id. at 820 - 22.
Specifically, Ruszala examined the residency agreements at issue therein, and found that
restrictions on discovery, limits on compensatory damages, and a prohibition of punitive
damages, were void and unenforceable under the doctrine of substantive unconscionability.
Ruszala used other sections of the NHRRRA, including N.J.S.A. § 30:13-5 (Rights of [nursing
home] resident), to inform its analysis of the validity of N.J.S.A. § 30:13-8.1. The Court looked
to the parties’ bargaining positions and economic motivations:
These consumers are, by definition, unable to continue to live in
their homes due to ill health, advanced age, or both. Beyond this
profile, the Legislature has identified these individuals as a
uniquely vulnerable group of consumers, entitled to special
protection against economic abuse,10 personal privacy abuse,11 the
deprivation of their right to choose their own healthcare
professionals,12 and an array of other abuses that speak to the core
of human dignity.13 These statutory protections highlight the
disparity in economic resources between these particular
consumers and the owners and operators of these specific facilities.
This imbalance of resources invariable creates a relative inferiority
in bargaining position for such individuals.
FOOTNOTES
10 See N.J.S.A. 30:13-4.1, setting strict guidelines for the
investment and disposition of nursing home security deposits; see
also N.J.S.A. 30:13-5(a), preserving the right of nursing home
residents to manage their own financial affairs.
11 N.J.S.A. 30:13-5(b) – (f).
12 N.J.S.A. 30:13-5(g).
13 N.J.S.A. 30:13-5(h) – (n).

Id. at 297.

14

In sum, Ruszala did not conclude that the NHRRRA provides for the rights of assisted
living residents outside of the statutory limitation of arbitration clauses. Rather, Ruszala
considered contractual waivers of limitations to sue, which are expressly statutorily prohibited in
both nursing home and assisted living residential agreements, in light of the Legislature’s
concern for the vulnerability of a population which can no longer live at home due to infirmity
and/or advanced age.
For the first time, Defendants bring the Court’s attention to a 2011 law, N.J.S.A. §
26:2H-128, which according to Defendants, provides “conclusive proof” that the Legislature did
not believe that the NHRRRA mandated such rights for assisted living residents. (Defs.’ Br. at
9.) Plaintiff counter-argues that Defendants should not now be heard on a motion for
reconsideration to raise a new legal issue previously available to them because defense had the
ability to raise the issue of its applicability and bar to Plaintiff’s claim but chose not to advance
that argument in their original motion. (Opp. Br. at 10.) As to the substance, Plaintiff argues
that the creation of additional rights to assisted living residents by N.J.S.A. § 26:2H-128 does not
indicate that assisted living residents are not covered by the NHRRRA.
N.J.S.A. § 26:2H-128, is entitled “Rights of residents at an assisted living facility and a
comprehensive personal care home; notice and posting of rights.” This new law sets forth fortytwo rights for assisted living residents, including the right to: personalized service and care;
independence and individuality; treatment with respect, courtesy, consideration, and dignity;
privacy; decisions regarding medical treatment and care; freedom from physical and mental
abuse and neglect; reception of various visitors; and the retention and exercise of all
constitutional, civil, and legal rights to which the resident is entitled by law. See N.J.S.A. §
26:2H-128(b) (1), (3), (4), (13), (14), (16), (30), (33), (39).

15

It is important to note that N.J.S.A. § 26:2H-128 does not establish a liability-creating
scheme such as that found in NHRRRA which affords a cause of action against violators of
rights defined therein and an entitlement to prevailing plaintiffs of recovery of reasonable
attorney’s fees and costs. See N.J.S.A. § 30:13-8(a). The new law does not reference
NHRRRA, nor has NHRRRA been amended in light of the new law. Despite Defendants’
contentions of the new law as “conclusive proof,” it can either be construed as: (1) an expansion
of the fourteen rights delineated by the NHRRRA, see N.J.S.A. 30:13-5; or (2) further indication
of the Legislature’s intent to keep separate the schemes related to the rights, standards, and
regulations of nursing home and assisted living residents, with the exception of the express
application regarding arbitration clauses, as discussed at length above.
The Court need not reach a conclusion on the relevance of N.J.S.A. § 26:2H-128,
however, as it presents a new question of law upon a motion for reconsideration and a “second
bit of the apple.” Tischio, 16 F. Supp. 2d at 533.
Thus, the only support remaining for the argument of the assignment of liability within
the NHRRRA to assisted living facilities is the Court’s original reasoning regarding the breadth
of the NHRRRA’s definition of “nursing home,” see supra at 12. Defendants urge the Court to
reconsider and argue:
The NHRRA specifically referred to assisted living facilities when
it wanted to. This is plain by looking at the statute in its entirety.
The term “nursing home” appears within the NHRRA in 14
statutes without any reference to assisted living facilities. See
N.J.S.A. 30:13-1, -2, -3, -3.1, -3.2, -4, -4.1, -4.2, -5, -6, -7, -9, 10.1, and -13. The term “assisted living facilities” only appears
one time in the entire NHRRA – in N.J.S.A. 30:13-8.1 – and it
appears alongside a reference to nursing homes in both the title of
the statute and in its text[.]
(Defs.’ Br. at 5.)

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Upon reconsideration, the Court finds Defendants’ argument to be persuasive. “Under
the established canons of statutory construction, where the Legislature has carefully employed a
term in one place and excluded it in another, it should not be implied where excluded.” GE Solid
State, Inc. v. Dir. Div. of Taxation, 132 NJ. 298, 308 (1993). The New Jersey Supreme Court
recently reminded: “Words make a difference. In case after case, we note that it is the Court’s
responsibility to give force to the words the Legislature has chosen and not rewrite plainly
written laws.” Plan for Abolition of Council on Affordable Hous., 214 N.J. 444, 470 (2013).
Plaintiff has not suggested other methods of statutory interpretation to read otherwise.
The Court does not reach this conclusion lightly. Arbitration clauses regarding the rights
of assisted living residents have been read in light of those rights afforded to nursing home
residents. Considering the vulnerability of this population, there is little reason to distinguish
these groups by enabling only one with an enforcement mechanism to realize its rights. The
parties have not submitted any legislative history to suggest an express intention to withhold the
enforcement of such rights to assisted living residents. However, the Court is guided by the
cannons of statutory construction. The NHRRRA expressly provides an enforcement mechanism
only with regard to the rights defined therein, and such rights are expressly afforded to nursing
home residents. Despite the NHRRRA’s breadth of definition of nursing home, the statute’s
repeated use of the term, coupled with its singular provision for assisted living facilities with
regard to limits on arbitration, suggests a distinction. The overall legislative scheme to treat
these institutions separately in its licensing, standards, and regulations further supports this
finding. Although it pains the Court to reach this conclusion, if the Legislature aims to establish
a liability-creating scheme to enforce the rights of assisted living residents, it will need to do so
expressly.

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III. CONCLUSION
For the foregoing reasons, the motion for reconsideration is granted. The Court finds
good cause to dismiss count two of the Complaint because the statute of limitations has run on
the NHRRRA claim. Moreover, the Court finds that assisted living residents are not afforded a
cause of action within the NHRRRA outside of the arbitration context.
The Court will enter an order implementing this opinion.
/s/ Dickinson R. Debevoise
DICKINSON R. DEBEVOISE, U.S.S.D.J.

Dated: January 24, 2014

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