Estate of Francis Eagin III v. Careone at Evesham

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0426-23

ESTATE OF FRANCIS
EAGIN, III, by Administrator
FRANCIS EAGIN, IV,1 and
FRANCIS EAGIN, IV,
Individually,

Plaintiffs-Appellants,

v.

CAREONE AT EVESHAM,

Defendant-Respondent.

Argued January 23, 2024 – Decided February 12, 2024

Before Judges Sumners and Rose.

On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Burlington
County, Docket No. L-1079-20.

Sherri Lee Warfel argued the cause for appellant
(Pellettieri Rabstein & Altman, attorneys; Sherri Lee

1
Improperly pled as Francis Eagin, Jr. Because Eagin and his son bear the same
name, we use "Eagin" to signify decedent and "son" to signify Francis Eagin,
IV.
 Warfel, of counsel and on the briefs; Sungkyu S. Lee
on the briefs).

Anthony Cocca argued the cause for respondent (Cocca
& Cutinello, LLP, attorneys; Anthony Cocca and
Katelyn E. Cutinello, of counsel and on the briefs).

PER CURIAM

Francis Eagin, III died while hospitalized the day after he was released

from defendant CareOne at Evesham. Eagin was twice admitted to CareOne's

facility for rehabilitation after he was discharged from different hospitals during

a three-month period in 2018, for a total of sixty-seven days. At the time of

Eagin's admission, CareOne was licensed as a "Long Term Care Facility."

Eagin's estate and his son, as administrator and in his individual capacity,

(collectively, plaintiffs) filed a nursing malpractice complaint against CareOne,

pleading: common law negligence (count one); violations of federal law (count

two); violations of the Nursing Home Responsibilities and Residents' Rights Act

(NHA), N.J.S.A. 30:13-1 to -17 (count three); punitive damages under the

Punitive Damages Act (PDA), N.J.S.A. 2A:15-5.9 to -5.17 (count four); and, on

behalf of Eagin's survivors, a claim under the Wrongful Death Act, (count five).

Following the completion of fact discovery, CareOne moved for partial

summary judgment, seeking dismissal of portions of the first count, and counts

two through four. CareOne argued the unit of its facility where Eagin was

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treated does not fall within the NHA's definition of a nursing home; the federal

and state regulations and statutes cited in plaintiffs' complaint do not permit

private causes of action; and plaintiffs failed to demonstrate a prima facie claim

for punitive damages.

Citing CareOne's "Long Term Care Facility" license and a recently-

revised jury charge, 2 plaintiffs countered that a facility licensed as a long-term

care facility satisfied the definition of a nursing home under the NHA, "whether

the resident [wa]s in for long-term or sub[]acute rehabilitation." Plaintiffs also

argued their punitive damages claim was supported by the evidence.

In a written statement of reasons accompanying a June 30, 2023 order, the

judge concluded there was no competent evidence in the record to support

plaintiffs' claim that CareOne's facility constituted a nursing home as defined

under the NHA. Accordingly, the judge dismissed all claims relating to the

NHA in counts one through three but permitted plaintiffs to "allege that any

violations of the federal and state regulations constitute evidence of [CareOne]'s

negligence." The judge also found plaintiffs failed to establish a prima facie

claim for punitive damages.

2
Model Jury Charges (Civil), 5.77, "Violations of Nursing Home Statutes or
Regulations – Negligence and Violations of Nursing Home Residents' Rights
Claims" (rev. Nov. 2023) (MJC 5.77).
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 In an oral decision accompanying an August 25, 2023 order, the judge

denied plaintiffs' ensuing motion for reconsideration of their NHA claims.

Plaintiffs did not move for reconsideration of the dismissal of their punitive

damages claim.

By leave granted, plaintiffs appeal from both orders, arguing the motion

judge misapplied the controlling legal principles. After de novo review of the

record, Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021), we conclude additional

discovery is necessary to resolve the issues raised on this appeal as they relate

to the definition of a nursing home under the NHA. We therefore vacate the

orders as they pertain to plaintiffs' NHA claims, only, and remand for further

proceedings consistent with this opinion. However, we decline to disturb the

June 30, 2022 order dismissing plaintiffs' punitive damages claim.

I.

We summarize the pertinent facts from the motion record, noting for

purposes of this appeal, the facts are largely undisputed. According to the report

of plaintiffs' expert, Barbara Darlington, RN, BSN, MS, LNHA, Eagin was

sixty-nine years old on June 15, 2018, when he "was admitted from home to

Cooper University Hospital . . . for evaluation and treatment of abdominal pain

with associated urinary retention."

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 Upon admission, Eagin had a host of other medical diagnoses including:

"Parkinson's disease, hypertension, diabetes, coronary artery disease on

anticoagulation, left above the knee amputation, hypothyroidism,

hypercholesterolemia, atrial fibrillation, hypertrophy of prostate with urinary

obstruction, chronic indwelling Foley catheter, and hematuria." Eagin also had

a "friction/shear wound" on his buttocks. He presented as "intermittently

confused," explained by his family as his "baseline mental status." While

hospitalized, Eagin's treatment included the insertion of a three-way Foley

catheter and nasogastric intubation.

At his son's request, on July 2, 2018, Eagin was transferred to another

hospital for a second opinion. Eagin remained hospitalized for one month and

was treated for persistent fevers. He was provided physical, occupational, and

speech therapies.

In her report, Darlington stated on August 11, 2018, Eagin was transferred

to CareOne "for further treatment and rehabilitation." She noted Eagin "required

extensive assistance of one person for feeding via the nasogastric tube." About

one month after he was admitted to CareOne, Eagin's nasogastric tube was

removed but the Foley catheter remained in place. Eagin "was non[]

ambulatory." He required assistance "via a mechanical lift to a wheelchair[,]

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which had to be wheeled by others." Darlington summarized CareOne's care

plan, physician's orders, and nursing treatment.

At his son's request following another fever, Eagin was transferred to a

third hospital on October 9, 2018. Hospitalized for one month, Eagin was

diagnosed and treated for his wounds and "sepsis secondary to urinary tract

infection."

On November 9, 2018, Eagin "was discharged and returned to CareOne

. . . in stable condition." Citing the "Resident Evaluation" form completed that

same day, Darlington noted Eagin's wounds.

The following week, on November 17, 2018, Eagin was transferred and

admitted to a fourth hospital "for evaluation and treatment of fever with

leukocytosis." He died in that hospital the next day. Darlington noted "Eagin

was a patient at CareOne" for about sixty-seven days.

II.

A.

We review a decision on summary judgment employing the same standard

as the motion court. See Samolyk v. Berthe, 251 N.J. 73, 78 (2022). We

therefore measure the court's findings and conclusions "against the standards set

forth in Brill." Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498

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(App. Div. 2000). "We must 'consider whether the competent evidential

materials presented, when viewed in the light most favorable to the non-moving

party, are sufficient to permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party.'" Samolyk, 251 N.J. at 78 (quoting Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1994)); see also, R. 4:46-

1(c). We owe no deference to the trial court's legal analysis or interpretation of

a statute. In re Registrant H.D., 241 N.J. 412, 418 (2020).

The crux of the issues presented on appeal is whether CareOne's "facility"

fell within the NHA's definition of a "nursing home." "For the purposes of [the

NHA,]" a "nursing home" is defined as

any 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 with acute or chronic illness or
injury, or a physical disability, or who are
convalescing, or who are in need of assistance in
bathing, dressing, or some other type of supervision,
and are in need of such treatment or care on a
continuing basis.

[N.J.S.A. 30:13-2(c).]

In essence, plaintiffs argue "the definition's focus is not on the patient but

the institution itself." CareOne counters Eagin was admitted to its "skilled

nursing facility for short-term subacute rehabilitation not long-term care" and,

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as such, he "did not receive 'extended medical and nursing treatment or care' on

a 'continuing basis.'" Resolution of the issues begins with our interpretation of

the statute, implicating well-established principles.

"The object of statutory interpretation is to effectuate the intent of the

Legislature, as evidenced by the plain language of the statute, its legislative

history and underlying policy, and concepts of reasonableness." State v.

Courtney, 234 N.J. 77, 85 (2020). We "begin[] with the words of the statute and

ascribe[] to them their ordinary meaning," reading "disputed language 'in

context with related provisions so as to give sense to the legislation as a whole.'"

Ryan v. Renny, 203 N.J. 37, 54 (2010) (quoting DiProspero v. Penn, 183 N.J.

477, 492 (2005)). "If the statute is clear on its face, the analysis is complete,

and it must be enforced according to its terms." Pfannenstein v. Surrey, 475

N.J. Super. 83, 95 (App. Div.) certif. denied, 254 N.J. 517 (2023). "If, however,

a literal interpretation of a provision would lead to an absurd result or would be

inconsistent with the statute's overall purpose, 'that interpretation should be

rejected' and 'the spirit of the law should control.'" Ibid. (quoting Hubbard v.

Reed, 168 N.J. 387, 392-93 (2001)).

We previously chronicled the legislative history underpinning the NHA.

See Bermudez v. Kessler Inst. for Rehab., 439 N.J. Super. 45, 53-56 (App. Div.

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2015); see also Est. of Burns v. CareOne at Stanwick, LLC, 468 N.J. Super. 306,

313 (App. Div. 2021). We therefore need not repeat our discourse in the same

level of detail. Suffice it to say, the driving force of the enactment was the

Legislature's intent to address concerns about "the condition of the nursing

homes and the personal care facilities for the aged in this State." Bermudez, 439

N.J. Super. at 53 (quoting S.C.R. 15 (1974)).

Following the recommendations of the Nursing Home Study Commission,

the NHA was enacted in 1976. Id. at 55. The act's purpose, outlined in the

statement to the bill, was to establish a bill of rights and responsibilities to

address "the inferior treatment" often experienced by nursing home residents.

S. Insts., Health & Welfare Comm., Statement to S. 944, at 1 (June 4, 1976).

Comparing the enactment to its federal counterpart, the Legislature declared

"this bill makes similar standards of care applicable to all nursing homes and

nursing home residents in the State and, moreover, makes such standards an

expression of legislative policy and intent." Ibid.

Pursuant to N.J.S.A. 30:13-8(a), a plaintiff whose rights are violated under

the NHA "shall have a cause of action against any person committing such

violation." The same provision permits fee-shifting and punitive damages. Ibid.

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Under certain circumstances that are not relevant here, treble damages may be

awarded. N.J.S.A. 30:13-8(b).

Nearly a decade after the NHA was enacted, our Supreme Court set forth

several characteristics of a nursing home in a decision that implicated the rights

of a comatose nursing home resident. In re Conroy, 98 N.J. 321, 375-377 (1985).

The Court observed nursing home residents are "a particularly vulnerable" and

"quite elderly" population, averaging eighty-two years old nationwide. Id. at

375. Most residents: "suffer from chronic or crippling disabilities and mental

impairments[] and need assistance in activities of daily living"; "will eventually

die" in the nursing home; "and their illnesses and deaths will be viewed as

consistent with their advanced age and general infirmity." Ibid.

The Court also noted the absence of surviving family, causing "severe"

social isolation. Ibid. Many nursing home residents "never have visits from

anyone and few ever spend nights away except for medical reasons." Ibid.

"Thus, the involvement of caring family members . . . may not be a realistic

possibility." Ibid. Further, "physicians play a much more limited role in nursing

homes than in hospitals." Ibid. Finally, "nursing homes generally are not faced

with the need to make decisions about a patient's medical care with the same

speed that is necessary in hospitals." Id. at 377.

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 In Bermudez, we granted the defendant health care facility leave to appeal

from an order denying its motion for partial summary judgment regarding a

patient's claims that asserted violations of the NHA. 439 N.J. Super. at 49. We

considered whether the facility, which was licensed as "a comprehensive

rehabilitation hospital," satisfied the definition of nursing home under the act.

Id. at 50.

Citing the NHA's legislative history, we observed "although the

Legislature wrote a broad definition of 'nursing home,' it nevertheless intended

to limit the statute's reach to nursing homes and similar facilities." Id. at 55.

We noted the absence of anything in the legislative history "that the Legislature

sought to include an entity such as a comprehensive rehabilitation hospital" in

the NHA. Id. at 56. We were persuaded that "[h]ad the Legislature intended to

apply the requirements of the [NHA] to institutions such as comprehensive

rehabilitation hospitals, it would undoubtedly have used a more inclusive term

than 'nursing home,' such as 'health care entity,' in the title and text of the

legislation." Ibid. We therefore reversed the denial of summary judgment on

the plaintiff's NHA claims. Ibid.

A few months after we issued our decision in Bermudez, we decided

Ptaszynski v. Atlantic Health Systems, Inc., where we reversed a jury verdict,

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awarding the plaintiff damages and counsel fees against the defendant health

care facility. 440 N.J. Super. 24, 29 (App. Div. 2015). We considered the

defendant's contentions – raised in the context of its charitable immunity

argument under N.J.S.A. 2A:53A-8 – that its facility was not a nursing home

within the meaning of the NHA. Id. at 43. The defendant argued its facility was

"hospital-based . . . where persons are admitted for fewer than thirty days for

sub[]acute rehabilitation." Ibid. The plaintiff countered the facility was "a

hospital-based, long-term care facility," thereby satisfying the NHA's definition

of a nursing home. Ibid.

Referencing the record, we noted the defendant was licensed to operate

both "a comprehensive rehabilitative hospital consisting of thirty-eight beds"

and "a hospital-based, long-term care facility with forty beds." Ibid. However,

neither license stated the facility "[wa]s licensed to operate as a nursing home."

Ibid. Nor was there any evidence in the record that the Department of Health

(DOH) had "issued a separate certificate of need" to the facility "authorizing the

establishment of a nursing home." Ibid. (citing N.J.S.A. 26:H-2(a)).

We further observed there was no evidentiary support that the facility

"would be permitted to provide care on a 'continuing basis,' which is an essential

element of a 'nursing home' in the NHA." Ibid. We noted "patients [we]re

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treated temporarily at [the facility], with the expectation that they w[ould] be

moved to another facility for long-term or 'continuing' care if needed." Ibid.

Choosing not to decide the issue on the record presented on appeal, we remanded

for the court to consider the arguments, guided by our decision in Bermudez.

Id. at 44.

More recently, in Estate of Burns, we granted the defendant health care

facility leave to appeal from a trial court order that granted the plaintiff partial

summary judgment on its claim that the facility was subject to the Rooming and

Boarding House Act, N.J.S.A. 55:13B-1 to -21. 468 N.J. Super. at 310.

Contending it "operate[d] an assisted living residence," the defendant argued

there was no private cause of action under the bill of rights applicable to assisted

living residences. Id. at 312. We agreed and reversed the court's decision. Id.

at 322.

We also rejected the court's suggestion that if the plaintiff demonstrated

at trial the facility "was operating something other than an assisted living

residence, a jury could consider and ultimately find a violation of the bill of

rights applicable to that other type of facility." Ibid. We reasoned the

defendant's "facility [wa]s governed by the license issued to it as an assisted

living facility." Ibid. We noted if the facility were operating something other

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than an assisted living facility, the DOH – and not a judge or jury – should make

that determination. Ibid.

B.

Against these legal principles, we turn to the parties' contentions in the

present matter. The parties do not dispute that CareOne is licensed as a long-

term care facility. Nor is there any contention that CareOne is a hospital or

"hospital-based."

Citing the scope and purpose section of the licensure regulations for long-

term care facilities, plaintiffs argue all such facilities are nursing homes. For

example, N.J.A.C. 8:39-1.1, provides "[t]his chapter contains rules and

standards intended to assure the high quality of care delivered in long-term care

facilities, commonly known as nursing homes, throughout New Jersey."

(Emphasis added). Plaintiffs also cite the statutory scheme for long-term care

facility licensure and certificates of need, arguing section N.J.S.A. 26:2H-7 of

the Health Care Facilities Planning Act (HCFPA), N.J.S.A. 26:2H-1 to -26,

requires all nursing homes "to obtain a 'Long-Term Care Facility' license."

CareOne counters the HCFPA and its related regulations are not

referenced in the NHA's definition of a nursing home and, as such, they do not

apply. CareOne maintains Eagin "was admitted to defendant's skilled nursing

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care facility for short-term subacute rehabilitation not long-term care." Further,

CareOne asserts there neither exists a specific license in this state for a "nursing

home" nor a "subacute rehabilitation unit" – when the rehabilitation unit is not

part of a hospital.

Turning to the NHA's definition of a nursing home, we note the term "any

institution" is untethered to a facility's licensure. Because a specifically

designated "nursing home license" is not required under the HCFPA and its

related regulations, the omission is not surprising. Nonetheless, we are not

persuaded by plaintiffs' argument that the reference in N.J.A.C. 8:39-1.1, i.e.,

"long-term care facilities, commonly known as nursing homes," is dispositive of

the issue. Enacted in 1976 and amended thereafter, the NHA does not reference

the statutory and regulatory scheme encompassing long-term care facilities. 3

In this case, the more vexing issue concerns the nature of CareOne's

facility. Although the physical structure of CareOne is unclear from the record

3
To the extent plaintiffs rely on the recently revised MJC 5.77, their argument
is misplaced. Plaintiffs cite the "Note To Judge" portion of the charge, which
states – without citation to any authority other than the NHA's definition of a
nursing home – that the NHA "applies to any facility licensed as a long-term
care facility, whether the resident is in for long-term care or sub[]acute
rehabilitation." As the motion judge correctly decided, "Model Jury Charges
are neither sanctioned nor approved by the Supreme Court before their
publication." Nor has the Court addressed the definition.
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provided on appeal, during oral argument before us, plaintiffs' counsel asserted

the facility is a single structure with 144 beds; defense counsel did not dispute

that characterization. However, it is unclear from the record whether that

information was presented to the motion judge and, as such, it is inappropriate

for consideration on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014).

Regardless, we are not convinced the facility's physical structure is dispositive

of the NHA's definition of a nursing home.

We consider, instead, the evidential materials presented to the motion

judge in view of the plain terms of the statute. For example, Eagin's August 11,

2018 "Admission Record" contains a field for "Resident Information ." Under

the NHA: "'Resident' means any individual receiving extended medical or

nursing treatment or care at a nursing home." Although not dispositive, it is

unclear from the evidence provided on appeal where within the facility Eagin

"resided" or "stayed" during either of his admissions to CareOne's facility.

To support its position, CareOne cites the deposition of Eagin's son, who

testified he did not know whether his father had been admitted to CareOne for

short-term or long-term rehabilitation but the intent "was to get him back on his

feet and get him home." Specifically, Eagin "was there to get rehab and speech

therapy and medical care if he needed it." He was not able to "move any

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furniture in." Eagin's son also acknowledged his father had been admitted to

"rehab facilit[ies]," including CareOne, after his leg was amputated. This lay

testimony tends to support CareOne's argument that Eagin was not admitted as

a nursing home resident.

Moreover, there is no documentary evidence in the record conclusively

establishing the precise nature of CareOne's facility or the purpose of Eagin's

admissions at CareOne. For example, there is no evidence of: "a written notice

of the rights, obligations[,] and prohibitions set forth in [the NHA]," N.J.S.A.

30:13-7; the "minimum staffing requirements for nursing homes," N.J.S.A.

30:13-18; or an admission agreement between Eagin and CareOne, see N.J.S.A.

30:13-8.1, documenting the anticipated services. Further, under its long-term

care facility license CareOne was authorized to operate a nursing home but the

record is devoid of any evidence indicating the DOH issued a certificate of need

authorizing the establishment of a nursing home. Taken together, the absence

of these documents tends to suggest the facility was not operating as a nursing

home.

But if CareOne – licensed only as a "Long Term Care Facility" – was not

operating as a nursing home, what was its function? Contending Eagin's

treatment at the facility controls the definition, CareOne argues decedent

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received "short-term subacute rehabilitation not long-term care," i.e., not long-

term "care on a continuous basis" under the NHA.

We recognize the NHA was enacted to protect our state's most vulnerable

elderly individuals, most of whose care is not managed with the same intensity

as a subacute rehabilitation unit, but the parties seemingly dispute Eagin's level

of care. CareOne claims "several physicians and specialists were closely

involved in . . . Eagin's care, and plaintiffs presented no contrary evidence with

respect to . . . Eagin or any other patient." However, when deposed, Eagin's son

testified he visited his father nearly "every day." Nurses would enter his room

"every so often" but he "saw a doctor probably twice."

As CareOne acknowledges, however, there is no license in this state for a

subacute rehabilitation unit – when that unit is not hospital-based. See N.J.S.A.

26:2H-7.5 (defining a "subacute care unit" as "a unit located within a hospital[,]

which utilizes licensed long-term care beds to provide subacute care for

patients"). In its answering brief, CareOne maintains "subacute rehabilitation

units that are not hospital[-]based are licensed as long-term care facilities."

Based on the lack of proof in the record establishing CareOne was

operating as a nursing home, the motion judge granted defendant's motion.

However, it is unclear from the record whether under its long-term care facility

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license, CareOne operated its entire facility as "short-term subacute

rehabilitation units" or whether those units were part of another entity, which

may or may not have been a nursing home. The parties dispute this point and

the evidence in the record does not resolve it.

In Burns, which involved another CareOne facility, we stated the "facility

[wa]s governed by the license issued to it as an assisted living residence." 468

N.J. Super. at 322. In the present matter, CareOne attempts to distinguish our

decision in Burns because, unlike the pertinent section of the assisted living

statute, N.J.S.A. 26:2H-128 – which specifically refers to the licensure of

assisted living facilities – "the NHA does not include the type of license as an

element of the definition of a 'nursing home.'" But the license in the present

matter was issued for long-term not short-term care.4

Moreover, the parties not only dispute whether the term "any institution"

applies to the "institution as a whole" or the unit to which Eagin was admitted,

but also whether the institution as a whole or its "subacute rehabilitation units"

4
To be clear, we form no opinion as to whether CareOne was properly or
improperly operating its facility. As we observed in Burns: "Whether during
decedent's stay there, CareOne was operating something other than" what it was
permitted to operate under its license, "should be determined only by the [DOH],
which possesses special expertise in these matters, not by the trial judge or a
jury." 468 N.J. Super. at 378 (citing Daaleman v. Elizabethtown Gas Co., 77
N.J. 267, 269 n.1 (1978)).
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fall under the remainder of the definition. Those terms include: whether the

institution "maintains and operates facilities for extended medical and nursing

treatment or care for two or more nonrelated individuals with acute or chronic

illness or injury"; and whether those individuals "[we]re in need of such

treatment or care on a continuing basis." N.J.S.A. 30:13-2(c). In our view,

resolution of these issues turns on whether, and to what extent, Eagin was

admitted as a resident of a "nursing home" or other "similar facilit[y]," see

Bermudez, 439 N.J. Super. at 55. For example, was Eagin considered a resident

– as reflected on his August 11, 2018 admission form – with the ability to utilize

all facilities of the institution? 5 Put another way, was Eagin treated in a unit that

was separate and apart from the facility as a whole?

We recognize plaintiffs do not argue additional fact discovery is necessary

to resolve the issues presented on this appeal. However, on this record, we are

unable to conclude whether CareOne's facility – as a whole and where Eagin

was treated – falls within the definition of the NHA. Viewing the evidential

materials in the record in favor of plaintiffs as the nonmoving party, we cannot

resolve the disputed issues on this record. See Brill, 142 N.J. at 540.

Accordingly, we vacate the order to the extent it dismissed all claims relating to

5
Eagin's November 9, 2018 admission form is not contained in the record .
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the NHA in counts one through three, and remand for the motion judge to reopen

fact discovery, limited to the issues raised on this appeal concerning NHA's

definition. We leave the timeframe to conclude discovery to the judge's sound

discretion.

C.

Lastly, we briefly address plaintiffs' argument that the motion judge

erroneously dismissed their punitive damages claim under count four . Because

plaintiffs neither moved for reconsideration of the June 30, 2023 order

dismissing their punitive damages claim, nor timely moved for leave to appeal

from that order, we need not address their contentions.

We have nonetheless considered plaintiffs' claims under the PDA – as pled

in their complaint – and conclude they lack sufficient merit to warrant discussion

in a written opinion. See R. 2:11-3(e)(1)(E). We affirm for the reasons stated

in the motion judge's statement of reasons that accompanied the June 30, 2023

order.

Affirmed in part, vacated and remanded in part. We do not retain

jurisdiction.

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