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Bermudez v. Kessler Inst. for Rehab.

Superior Court of New Jersey, Appellate Division

January 8, 2015

WILSON BERMUDEZ, Plaintiff-Respondent,

Argued October 22, 2014

Approved for Publication January 8, 2015.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4077-12.

Walter F. Kawalec, III, argued the cause for appellant (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec and Ryan T. Gannon, on the briefs).

Samuel Tsinman argued the cause for respondent (Forman, Cardonsky & Lawrence, attorneys; Mr. Tsinman, on the brief).

Before Judges ALVAREZ, WAUGH, and CARROLL.[1]

Page 546

[439 N.J.Super. 47] OPINION


By leave granted, defendant Kessler Institute for Rehabilitation (Kessler) appeals the Law Division's August 23, 2013 order denying [439 N.J.Super. 48] its motion for partial summary judgment with respect to claims alleging violations of the Nursing Home Responsibilities and Rights of Residents Act (Nursing Home Act), N.J.S.A. 30:13-1 to -17, and federal regulations governing nursing homes. It also appeals the October 11, 2013 order denying its motion for reconsideration. For the reasons explained in this opinion, we reverse.


We discern the following facts and procedural history from the record on appeal.

In November and December 2010, Bermudez was a patient at Kessler's West Facility, located in West Orange. He had been transferred there from Overlook Hospital on November 19, at which time he had an " unknown diagnosis of generalized progressive weakness with intermittent dystonic spasmodic/dystonic movement of the upper extremities."

Upon admission, Bermudez' treatment plan included an " inpatient comprehensive interdisciplinary rehabilitation program to address [his] impairments and medical conditions . . . while assessing equipment needs and compensatory strategies, with coordinated interdisciplinary services that [would] include physical therapy, occupational therapy, and close monitoring and treatment with 24-hour rehabilitative nursing." The " interdisciplinary program

Page 547

[was to] be performed under the direction of a physiatrist."

The admitting doctor characterized Bermudez' " inpatient hospital rehabilitation stay [as] medically necessary to achieve important health and functional goals," adding that Bermudez required " frequent physician visits, 24-hour rehabilitation nursing, and a coordinated intensive rehabilitation program . . . to address complex medical, nursing, and rehabilitation needs." According to the admission report, the " estimated length of stay" was " [t]hree to four weeks." Bermudez was discharged on December 24, five weeks after his admission.

[439 N.J.Super. 49] In November 2012, almost two years after his discharge, Bermudez filed a six-count complaint against Kessler. He alleged that, while at Kessler's West Facility, he " sustained injuries including but not limited to unnecessary falls and fractures." Although the complaint also premises liability on common law negligence, the legal theories involved in this appeal are based on alleged violation of the Nursing Home Act and the following federal regulations: 42 C.F.R. § § 483.5, 483.13(c)(2), 483.20(b) and (d), 483.25, and 483.30(a)(1).

In July 2013, Kessler moved for summary judgment on counts one, two, and five of the complaint, as well as all other claims for damages premised on the Nursing Home Act or the federal regulations. Kessler argued that the West Facility was a comprehensive rehabilitation hospital, rather than a nursing home. The issue of whether the West Facility is a " nursing home" within the meaning of the Nursing Home Act is significant, in large part, because the Act allows the recovery of treble damages and attorneys' fees by a successful plaintiff, N.J.S.A. 30:13-4.2, -8, relief which would not be available in a traditional negligence action.

On August 23, following oral argument, the motion judge denied Kessler's motion, finding that Kessler was " a nursing home" within the meaning of N.J.S.A. 30:13-2(c).[2] The motion judge denied Kessler's subsequent motion for reconsideration. We granted leave to appeal.


On appeal, Kessler argues that the motion judge erred in determining that the West Facility is a nursing home for the purposes of N.J.S.A. 30:13-2(c) and therefore subject to the provisions of the Nursing Home Act, including enhanced recovery [439 N.J.Super. 50] such as treble damages and attorneys' fees. Bermudez counters that, although the West Facility may be licensed as a comprehensive rehabilitation hospital, it is nevertheless subject to the Nursing Home Act because it meets the Act's broad definition of nursing home.


We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41, 34 A.3d 1248 (2012). " [T]he legal conclusions undergirding the summary judgment motion itself" are reviewed " on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385, 997 A.2d 954 (2010). The issue before us is whether, as the motion judge found, an institution such as a comprehensive rehabilitation hospital is covered by the Nursing Home Act because of the breadth of ...

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