Kingston v. Tennyson Ct.: Pleading Requirements for Article 28 (PHL §§ 2801-d, 2803-c) Claims Against Licensed Assisted Living Facilities

1. Introduction

In Kingston v Tennyson Ct. (2025 NY Slip Op 01522 [4th Dept 2025]), the Appellate Division, Fourth Department, addressed whether a plaintiff may pursue statutory claims under Public Health Law (PHL) §§ 2801-d and 2803-c (typically associated with PHL article 28 residential health care facilities) against a facility licensed as an assisted living facility under PHL article 46-B.

The plaintiff, as executor of the decedent’s estate, alleged that the decedent suffered serious injuries from falls or incidents while residing at Tennyson Court, and that defendants’ negligence and statutory violations ultimately contributed to her death. Defendants moved pre-answer to dismiss. The Supreme Court denied the motion in full. On appeal, the Fourth Department partially reversed, dismissing the two statutory causes of action but allowing the negligence cause of action to proceed.

The key legal issue was not merely whether an assisted living facility can ever be treated as an article 28 facility, but whether this complaint alleged enough facts to cross that threshold under Fourth Department precedent.

2. Summary of the Opinion

  • Modified: the order was modified by dismissing the second and third causes of action under PHL §§ 2801-d and 2803-c.
  • Affirmed as modified: the first cause of action (negligence/gross negligence/carelessness/recklessness causing injury and death) survived.
  • The majority held that, even assuming an assisted living facility could be subject to article 28 liability under the Fourth Department’s earlier decision in Cunningham v Mary Agnes Manor Mgt., L.L.C., the complaint here failed to allege sufficient facts to overcome defendants’ contention that the facility was an assisted living facility not subject to PHL §§ 2801-d and 2803-c.
  • The court rejected defendants’ attempt to knock out the negligence claim on pleading and immunity grounds, including a failure to establish immunity under the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082).

3. Analysis

A. Precedents Cited

1) Cunningham v Mary Agnes Manor Mgt., L.L.C., 188 AD3d 1560 (4th Dept 2020)

Cunningham is the central Fourth Department precedent. It recognized that an assisted living facility licensed under PHL article 46-B could operate as a de facto residential health care facility subject to PHL article 28 liability if it provides “health-related services.” In Kingston, the majority did not retreat from that doctrinal possibility; instead, it treated the question as pleading-driven: unlike the complaint in Cunningham, the allegations here did not sufficiently plead facts that would justify treating the facility as article 28-like for purposes of PHL §§ 2801-d and 2803-c.

The practical effect is a clarification (within the Fourth Department) that invoking Cunningham requires specific factual allegations, not conclusory labels, to bridge the licensing gap between articles 46-B and 28.

2) DeRusso v Church Aid of the Prot. Episcopal Church in the Town of Saratoga Springs, Inc., — AD3d —, 2025 NY Slip Op 00008 (3d Dept 2025)

The majority cited DeRusso as a “cf.” reference (contrast/compare), signaling that other Departments have taken a stricter view. The concurrence relied on DeRusso for a plain-text interpretation that an assisted living facility under article 46-B cannot be an article 28 facility—even de facto. Thus, DeRusso highlights a developing inter-Department tension over whether licensing categories are mutually exclusive for article 28 private actions.

3) Broderick v Amber Ct. Assisted Living, 200 AD3d 840 (2d Dept 2021)

Like DeRusso, Broderick supports the concurrence’s view that article 46-B assisted living status forecloses article 28 statutory liability. The majority acknowledged Broderick but did not adopt its stricter approach, opting to resolve the case on narrower grounds (insufficient pleading under existing Fourth Department law).

4) Eastern Consol. Props. v Adelaide Realty Corp., 95 NY2d 785 (2000)

The majority invoked Eastern Consol. Props. for the principle that stare decisis should be abandoned only under “compelling circumstances.” This citation framed the majority’s refusal to overrule Cunningham in a case where doing so was unnecessary to decide the appeal (because the statutory claims failed even under Cunningham’s more permissive framework).

5) People v Barboni, 21 NY3d 393 (2013)

People v Barboni supported the majority’s judicial-restraint point: questions about overruling precedent should await a case where that decision is necessary to resolve the dispute. This is an explicit signal that the Fourth Department perceives the Cunningham issue as “live,” but not procedurally forced in this record.

6) Reynolds v Ferrante, 107 AD3d 1424 (4th Dept 2013) and CPLR 3013

On the negligence claim, the court relied on CPLR 3013 and cited Reynolds v Ferrante for the familiar rule that pleadings must provide sufficient notice of the transactions or occurrences and the material elements of the claim. The court found the complaint adequately particular for negligence-based liability, notwithstanding dismissal of the statutory claims.

7) Holder v Jacob, 231 AD3d 78 (1st Dept 2024)

Defendants argued immunity under the Emergency or Disaster Treatment Protection Act (former PHL art 30-D). The Fourth Department cited Holder v Jacob to support its conclusion that defendants did not “conclusively establish” immunity at the motion-to-dismiss stage. The citation underscores that EDTPA immunity is often fact-intensive and may not be resolved on pleadings alone.

8) Concurrence’s statutory-interpretation line of cases

The concurrence anchored its analysis in plain-meaning statutory interpretation, citing: State of New York v Patricia II., Pultz v Economakis, and Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington. For overruling precedent, it cited Kash v Jewish Home & Infirmary of Rochester, N.Y., Inc., Goodwin v Pretorius, Wiggins v City of New York, Rumsey v New York & New England R.R. Co., and cautions about statutory precedent in Matter of Eckart and People v Hobson. These authorities were used to argue that Cunningham is unsound because it contradicts the express statutory text of PHL § 4651 (1) (a).

B. Legal Reasoning

1) The majority’s two-step approach: preserve Cunningham, dismiss on pleading

The majority accepted (without re-litigating) that under Cunningham an assisted living facility might be treated as de facto article 28 if it provides health-related services. But the majority emphasized that the complaint here did not plead facts sufficient to make that leap. Accordingly, the statutory claims failed at the threshold and were dismissed.

Simultaneously, the majority declined to overrule Cunningham, reasoning that stare decisis and judicial restraint counsel against reaching a broader statutory-interpretation holding when narrower grounds resolve the case.

2) The concurrence’s approach: categorical bar based on statutory mutual exclusivity

The concurrence would have resolved the same dismissal by holding that, as a matter of law, a facility licensed under article 46-B cannot be sued under article 28’s private right of action provisions because PHL § 4651 (1) (a) states that assisted living “shall not include” residential health care facilities licensed under article 28. On that view, there is no room for “de facto” article 28 status for a 46-B licensee, and Cunningham should be overruled as conflicting with statutory text.

3) Survival of the negligence claim

The court separated statutory-rights claims from common-law negligence. It held the negligence claim sufficiently pleaded under CPLR 3013 and refused to dismiss based on EDTPA immunity because defendants did not conclusively establish entitlement to that defense at this stage.

C. Impact

  • Pleading burden in the Fourth Department: Post-Kingston, plaintiffs seeking to invoke PHL §§ 2801-d or 2803-c against an assisted living facility in the Fourth Department must plead concrete facts showing why the facility should be treated as article 28-like under Cunningham—mere recitation that “health-related services” were provided may be insufficient without detail.
  • Inter-Department conflict sharpened: The concurrence openly aligns the Fourth Department with the Second and Third Departments’ reasoning in Broderick and DeRusso, deepening the visibility of the split and increasing the likelihood of future appellate clarification (potentially from the Court of Appeals) if the issue becomes outcome-determinative.
  • Strategic litigation consequences: Defendants in assisted living cases may target statutory claims early via motion practice, while plaintiffs may pivot toward negligence/wrongful death theories unless they can plead (and later prove) facts bringing the case within the Fourth Department’s Cunningham framework.
  • EDTPA defenses remain difficult on pleadings: The reliance on Holder v Jacob suggests continuing skepticism about resolving EDTPA immunity without a developed factual record.

4. Complex Concepts Simplified

PHL article 28 vs. PHL article 46-B
Article 28 governs “residential health care facilities” (e.g., nursing homes) and carries specific statutory duties and resident-rights enforcement mechanisms. Article 46-B governs “assisted living” and related models. The central controversy is whether and when an article 46-B facility can be exposed to article 28 statutory liability.
PHL § 2801-d and § 2803-c
These provisions are commonly used to enforce nursing-home-style resident rights and standards. They can provide a statutory basis for liability beyond ordinary negligence, but typically presuppose that the defendant is a covered article 28 facility.
“De facto” residential health care facility
A “de facto” theory argues that a facility functions like an article 28 facility because of the services it provides, even if it is not formally licensed as one. Cunningham recognized this possibility; the Kingston concurrence argues the statute forecloses it for article 46-B licensees.
Pre-answer motion to dismiss
A motion made before filing an answer, arguing the complaint is legally insufficient on its face or otherwise defective. At this stage, courts often focus on whether the complaint pleads enough facts to state a viable claim.
CPLR 3013 (pleading particularity)
New York requires pleadings to give notice of the events at issue and the material elements of each claim—enough that the defendant understands what it is alleged to have done wrong.
Stare decisis
The principle that courts should follow their own prior decisions to promote stability and predictability, departing only for strong reasons. Here, the majority used stare decisis to keep Cunningham intact; the concurrence argued that clear statutory text is a compelling reason to overrule.
Emergency or Disaster Treatment Protection Act (EDTPA)
A COVID-era statute (former PHL art 30-D) that provided certain immunity protections for covered care during the emergency period. Whether it applies can hinge on facts about timing, covered conduct, and statutory conditions—often unsuitable for dismissal on pleadings alone.

5. Conclusion

Kingston v Tennyson Ct. establishes (at minimum) a practical Fourth Department rule: PHL §§ 2801-d and 2803-c claims against a licensed assisted living facility will be dismissed absent specific factual allegations sufficient to bring the facility within the Cunningham “de facto article 28” framework. The majority’s restraint preserves Cunningham while tightening the pleading expectation; the concurrence’s statutory analysis, however, spotlights a significant doctrinal rift—both within the Fourth Department and across Departments—over whether the statute allows any such “de facto” liability at all.

The decision’s immediate significance is procedural and tactical: it encourages early motion practice against statutory claims and places a premium on careful, fact-rich pleadings. Its broader significance is institutional: it signals that the Fourth Department may soon be forced to confront whether Cunningham can coexist with the plain language of PHL § 4651 (1) (a) and the growing body of contrary Departmental authority.