In an action for negligence and violations of the New York Public Health Law, it was alleged that CG&P’s client, an assisted living facility, violated the New York Public Health Law with respect to a resident who sustained multiple falls, one of which resulted in a hip fracture which required surgical repair. CG&P moved to dismiss the Public Health Law cause of action on the grounds that the statute is only applicable to claims against residential health care facilities, commonly known as nursing homes. The motion was based upon our client’s operating certificate from the New York State Department of Health which indicated that our client was an assisted living facility. Plaintiff opposed our motion with an affidavit from his client wherein she alleged that she observed health-related services being provided at the facility. While the lower Court denied our motion, the Appellate Division, Second Department, rejected plaintiff’s claim that the facility was a de facto nursing home and accepted our position that the clear language of the statutes and our client’s operating certificate established that the New York Public Health Law is not applicable to our client’s facility. The plaintiff will now be required to establish negligence rather than a statutory violation and would not be entitled to the damages provided under the Public Health Law. This is the first time an Appellate Court in New York has held that Public Health Law Article 28 does not apply to an assisted living facility. The case was handled by CG&P Of Counsel Richard M. Fedrow and associate Alexandra N. Nieto.