Goldfeder v. Ingraham

(Maxwell v. Wymam, supra). Waiver is allowed where unreasonable hardship is shown and the waiver will not adversely affect the health and safety of the patients (IT. S. Code, tit. 42, § 1386a, subd. [a], par. [28], cl. [F], subcl. [i]). We are of the opinion that there was substantial evidence that petitioners were violating sections 10-1322 and 10-2341 of the subject Life Safety Code in that their building was not of at least two-hour fire-resistive construction and did not have an automatic sprinkler system. Under these circumstances, a waiver was needed (see Kruger v. Ingraham, 42 A D 2d 983 ) and, on the evidence presented at the hearing, the Commissioner of Social Services properly concluded that (as the facility is presently constituted) petitioners had failed to establish that a waiver would not adversely affect the health and safety of the patients (Matter of Miramiehi Nursing Home v. Lavine, 42 A D 2d 570 , supra). However, we note that the facility has been continuously licensed since petitioners took it over in 1963 and had been operated as a licensed nursing home for about 10 years prior to that time. It is protected by an automatic heat detection system with a coded alarm to the local Fire Department, to alert the latter that an emergency is emanating from this nursing home. The Mount Vernon Fire Department is all-professional. Its response time is approximately two minutes. Petitioners adduced considerable evidence of other fire protection systems and devices. James P. Regan, a recognized fire protection expert, testified that there was no fire hazard and that nothing in the facility would adversely affect the health and safety of the patients. It was his opinion that a dry or wet complete sprinkler system “ could cure ” any section 10-1322 deficiency. Petitioner Goldfeder testified that prior to her purchase of the facility an official of the iState Department of Social Services (which then directly supervised nursing homes) approved the then existing number of beds and assured her that the facility was safe and that there were no problems. Mrs. Goldfeder also testified that she never would have purchased the facility if the State had told her that it was unsafe. She further testified that she has never been advised by the State Department of Health or by the Mount Vernon Fire Department that she should install a sprinkler system. In a December, 1971 letter to respondents, she offered to install a full sprinkler system, but never received any answer. It is to be noted that the State Hospital Code, which took effect in 1966, does not mandate a sprinkler system. Subdivisions (1) of section 711.5 thereof states that “ Each existing nursing home shall have a satisfactory sprinkling and/or a fire detecting system with an alarm connection installed in a manner satisfactory to the department” (10 NYCRR 711.5 [1]). It is thus clear that although the determination under review must be confirmed, the facility as presently constituted does meet the standards of the State Health Department with respect "to non-Medicaid patients. Under all the circumstances, in the interests of justice, we are granting a limited continuation of the stay in order to afford petitioners an opportunity to promptly make those Life Safety Code corrections which can reasonably be made, i.e., the “ Specified Correction ” —which, if originally expressly and clearly required by respondents of petitioners, might have obviated the hearing which was held and these legal proceedings. Rabin, P. J., Hopkins, Munder, Latham and Shapiro, JJ., concur.