Defendants move for summary judgment dismissing the plaintiff’s action. Upon a review of the moving papers and opposition submitted thereto the motions are granted.
The plaintiff, in an unrelated accident, suffered a traumatic brain injury in 1997. In this negligence action, he suffered further injury to his hand and head in 2001. Despite the allegations of a traumatic brain injury, the plaintiff has commenced this action in his own individual capacity.
There is no evidence that a guardian was ever appointed to represent his interest nor have there been any allegations that the plaintiff is not incompetent.
As a result of his brain injury, the plaintiff was accepted to participate in the New York State Department of Health Traumatic Brain Injury Medicaid Waiver Program. According to the TBI Waiver Program manual, the program is administered by the New York State Department of Health through Regional Resource Development Centers (RRDC) and Regional Resources Development Specialists (RRDS) who serve specific counties throughout the state. The manual notes that program uses Medicaid funds to provide support, services and assistance to individuals with a traumatic brain injury to successfully include them in the community, as opposed to being institutionalized.
Waiver services are provided based on the participant’s unique strengths, needs, choices and goals. The individual is the primary decision maker and works in cooperation with providers to develop a plan for services. This process leads to personal empowerment, increased independence, greater community inclusion, self reliance and meaningful and productive activities.
Defendant PHCI, a subsidiary of defendant PHHCSI was authorized as a Service Provider Program and as such it provided home and community support staff, independent living skills training and service coordination to participants of the TBI Waiver Program. PHCI became the service provider for the plaintiff in July of 2006.
In October of 2006, the plaintiff requested assistance from PHCI in finding a new residence. The plaintiff lived in a pet free building in the Bronx and was being evicted because he owned a dog.
In accord with the programs guidelines, PHCI submitted a written housing referral locator form to defendant CUCS. CUCS had an agreement with the New York State Office of Mental Health to provide locating services for the traumatic brain injury waiver program in New York City. The Referral indicated that the plaintiff sought a one bedroom apartment in the same neighborhood, or close to current neighborhood, which is within walking distance or a short commute from Jacobi Hospital. With regard to his accessibility needs, the referral forms stated that the plaintiff required an apartment with a bathroom modified for individuals with disabilities, a walk-in shower. In addition, the plaintiff required an apartment with elevator access or on the ground floor of a multiple dwelling or in a private house.
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