Estate of Pierro v. Carmel Richmond Healthcare & Rehab. Ctr.
| Docket Number | Index No. 152011/2022 |
| Decision Date | 15 November 2023 |
| Citation | 2023 NY Slip Op 23360 |
| Parties | The Estate of Maryanne Pierro, by her Proposed Administrator, JOSEPH STAZZONE, Plaintiff, v. Carmel Richmond Healthcare and Rehabilitation Center; ABC CORPORATION ABC PARTNERSHIP, Defendant. |
| Court | New York Supreme Court |
Wilbert Mendez Marrero NSPR LAW SERVICES LLC Attorneys for the Plaintiff
Brett Ryan Leitner LEITNER VARUGHESE WARYWODA PLLC Attorney for the Defendant
Brian Michael Andrews Vigorito, Barker, Patterson, Nichols & Porter
The following e-filed documents listed on NYSCEF (Motion #001) numbered 9-101 were read on this motion.
Upon the foregoing documents, and after oral argument completed on November 2, 2023, on Motion Sequence #001, Motion Sequence #001 is resolved and therefore, it is hereby, ORDERED, that the Defendants' request for dismissal of Plaintiff's complaint pursuant to CPLR § 3211 [a] [7] upon the ground that Defendant is immune from liability under New York's Emergency or Disaster Treatment Protection Act, NY Pub. Health Law §§ 3080-82 is DENIED with prejudice, and it is further;
ORDERED that the Defendants' request for the dismissal of the complaint pursuant to CPLR § 3211 [a] [2] and CPLR § 3211 [a] [7] on the ground that Defendant is immune from suit and liability under the federal Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d, et seq, and the court thus lacks subject matter jurisdiction is DENIED with prejudice, and it is further;
ORDERED that the Clerk of the Court shall enter judgment accordingly.
Memorandum DecisionOn or about November 1, 2022, Plaintiff, as Proposed Administrator of the Estate of the Decedent, Maryanne Pierro, commenced this action to recover for violations of New York Public Health Law; negligence; conscious pain and suffering; wrongful death; gross negligence; and medical and nursing malpractice, with regards to the death of the Decedent on April 2, 2020.
Defendant filed Motion Sequence #001 on August 18, 2023, seeking (a) dismissal of Plaintiff's complaint pursuant to CPLR § 3211 [a] [7] upon the ground that Defendant is immune from liability under New York's Emergency or Disaster Treatment Protection Act, NY Pub. Health Law §§ 3080-82; (b) dismissal of the complaint pursuant to CPLR § 3211 [a] [2] and CPLR § 3211 [a] [7] on the ground that Defendant is immune from suit and liability under the federal Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d, et seq, and the court thus lacks subject matter jurisdiction as the cause of action is defensively preempted by federal law; and (c) for such other and further relief as this the Court deems just and proper.
On October 16, 2023, Plaintiff filed opposition to Motion Sequence #001. Defendant filed reply on November 1, 2023. Oral argument was heard on November 2, 2023
Decedent was a resident at Defendant's facility from on or around 2015, until April 2, 2020, with intermittent hospitalizations in between. (NY St Cts Filing [NYSCEF] Doc Nos. 1; 14-17). Plaintiff alleges that during the Decedent's time in the care of the Defendants, Defendants were neglectful and failed to provide the Decedent with appropriate care, failed to provide her such nursing and rehabilitation services as are customarily provided in a nursing home and rehabilitation facility, and was otherwise negligent in the care provided to plaintiff's decedent. (NY St Cts Filing [NYSCEF] Doc No. 1).
Decedent contracted COVID-19 while in the Defendants' care. (see id). Plaintiff contends that Decedent's medical chart is devoid of any mention regarding isolation precautions, infection protocols, or any other mention of the COVID-19 virus at Defendants' facility and the measures taken with respect to Decedent. On or around April 2, 2020, per her medical chart, Decedent tested positive for COVID-19 and passed away that same day. (NY St Cts Filing [NYSCEF] Doc No. 17). Her medical chart has conflicting notes as to when she died and when her family was informed. (see id).
COVID-19 was a novel virus caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was first identified in China in December 2019. The global population had no natural immunity from this respiratory virus and initial efforts to contain its spread amongst the population failed. On January 30, 2020, the World Health Organization ("WHO") declared the outbreak a public health emergency of international concern and a global pandemic on March 11, 2020. In early 2020, the emergence of the novel coronavirus in the United States made nursing homes a prime target for the spread of the deadly virus. The CDC cautioned that older adults, people with medical conditions, and people living in nursing homes and longer-term care facilities are at an increased risk for severe illness and need to take extra precautions against COVID-19 (People at Increased Risk, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last updated Jan. 4, 2021). State and Federal legislatures swiftly responded to the numerous COVID-19 outbreaks and subsequent deaths in nursing homes by enacting liability shields and regulations granting immunity to protect health care providers from litigations arising out of their conduct in response to the novel coronavirus [1].
In March 2020, the New York metropolitan region was severely impacted by this global pandemic. Plaintiff contends that prior to the pandemic, Defendants failed to have the appropriate policies, procedures, staffing and otherwise failed to be prepared for a foreseeable event such as an infectious disease exposure and outbreak, and after the pandemic begun and throughout the time periods referenced herein, and that Defendants failed to properly respond to the pandemic.
Defendants contend that the Complaint does not and cannot plead a sustainable cause of action under the law because the allegations therein directly trigger the immunity conferred upon Defendants by New York's Emergency or Disaster Treatment Protection Act, NY Pub. Health Law §§ 3080-82 and the federal Public Readiness and Emergency Preparedness Act.
CPLR § 3211 [a] [7] provides that a "party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action[.]" "In considering a motion pursuant to CPLR 3211 [a] [7] to dismiss a complaint for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (see Green 333 Corp. v RNL Life Science, Inc., 186 A.D.3d 1334 [2d Dept 2020] citing Cortlandt St. Recovery Corp. v Bonderman, 31 N.Y.3d 30 [2018]; Korsinsky v Rose, 120 A.D.3d 1307 [2d Dept 2014]).
Where "evidentiary material is submitted and considered on a motion pursuant to CPLR § 3211 [a] [7], and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (see Graphic Arts Mut. Ins. Co. v Pine Bush Cent. Sch. Dist., 159 A.D.3d 769 [2d Dept 2018] citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268 [1977]; Sposato v Paboojian, 110 A.D.3d 979 [2d Dept 2013]; Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 A.D.3d 574 [2d Dept 2013]).
"A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR § 3211 [a] [7]" (see Mera v. New York City Health & Hosps. Corp., 2023 NY A.D. LEXIS 4951 [2d Dept 2023] quoting Cordell Marble Falls, LLC v Kelly, 191 A.D.3d 760 [2d Dept 2021] quoting Sokol v Leader, 74 A.D.3d 1180 [2d Dept 2010] citing CPLR § 3211 [c]).
"If the court considers evidentiary material, the criterion then becomes 'whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one'" (see id quoting Sokol v Leader, 74 A.D.3d 1180 [2d Dept 2010] quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268 [1977] citing Cordell Marble Falls, LLC v Kelly, 191 A.D.3d 760 [2d Dept 2021]).
At the outset of the COVID-19 pandemic the New York State Legislature enacted the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082 [repealed by L 2021, ch 96, § 1]; hereinafter the EDTPA) with the stated purpose of "promot[ing] the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency" (see id quoting Public Health Law former § 3080).
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