Michel v. Prospect Park Operating, LLC

• Jurisdiction: New York,United States
• Court: New York Supreme Court
• Writing for the Court: Hon. Richard J. Montelione Judge.
• Citation: 2024 NY Slip Op 31460 (U)
• Docket Number: Index No. 500465/2021,Mot. Seq. No. 1
• Decision Date: 18 April 2024
• Parties: BEATRICE MICHEL, as Administrator of the Estate of V1RG1NA ANDRE, Plaintiff, v. PROSPECT PARK OPERATING, LLC d/b/a BROOKLYN CENTER FOR REHABILITATION AND RESIDENTIAL HEALTH CARE, Defendant.
• topic: Health Law,Ongoing or Prospective Litigation,Civil Procedure

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2024 NY Slip Op 31460(U)

BEATRICE MICHEL, as Administrator of the Estate of V1RG1NA ANDRE, Plaintiff,
v.
PROSPECT PARK OPERATING, LLC d/b/a BROOKLYN CENTER FOR REHABILITATION AND RESIDENTIAL HEALTH CARE, Defendant.

Index No. 500465/2021, Mot. Seq. No. 1

Supreme Court, Kings County

April 18, 2024

Unpublished Opinion

Motion Date: 9/28/2022

DECISION AND ORDER

Hon. Richard J. Montelione Judge.

After oral argument, the following papers were read on this motion pursuant to CPLR 2219(a):

Papers	NYSCEF DOC.#
Defendant's motion dated September 3,2021 to dismiss pursuant to CPLR 3211(c) and CPLR §3211(a)(7); attorney affirmation of Mario C. Giannettino, affirmed on September 3, 2021; Affidavit of Dorett Williams, RN, sworn to on August 25th 2021; Exhibits	13-26
Plaintiffs opposition to defendant's motion by her attorney Benjamin P. Jacobs, affirmed on January 6, 2022; Exhibits	28-31
Defendant's reply affirmation of attorney Mario C. Grannetino, affirmed on January 12, 2022	32
Other

This action was commenced by filing the summons and complaint on January 7, 2021, claiming, infer alia, that defendant was negligent and reckless regarding decedent's exposure to the COVID -19 virus by allowing unsafe practices at the defendant's health care facility. Decedent was allegedly exposed to the COVID-19 virus on or about April 2, 2020 and decedent, 77 years old, following a transfer to New York Community Hospital^[1] subsequently died on April 22, 2020. Issue was joined by service of an answer on June 2, 2021. Defendant now moves to dismiss under the New York Emergency or Disaster Treatment Protection Act ("EDTPA") which was signed into law on April 3, 2021, and made retroactive to March 7, 2020. ।

Defendant supports its motion with an affidavit from Dorett Williams, RN, who is the director of Nursing for defendant. Nurse Williams details steps taken by the defendant regarding

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precautions and procedures for staff and residents and communications with the New York State Department of Health ("NYSDOH"). Nurse Williams also detailed some of the protocols put into place after guidance from the NYSDOH. Surveys prior to January 2020 from state surveyors confirmed there were no infection control deficiencies. Although a purported medical record of the decedent is attached to the defendant's moving papers, plaintiff correctly notes that these records do not contain a certification and the affidavit does not lay the foundation for the introduction of those records (CPLR 4518 [a] and CPLR 4518[c]) and therefore the court will not consider these records. (The court will also not consider any communications with state agencies inasmuch as there is no adequate foundation laid for its introduction). However, the affidavit of Ms. Williams will be considered to the extent that it contains non-hearsay information known to the deponent and protocols put into place at the facility.

Plaintiff opposes and argues that causes of action involve actions or omissions which occurred before the effective date of EDTPA. Moreover, plaintiff also claims gross negligence and recklessness explicitly outside the protection of the EDTPA. Plaintiff contends that Nurse William's affidavit does not show more than general treatment of patients with COVID-19, but that the treatment of the plaintiff in particular was affected by COVID-19 pandemic. Moreover, plaintiff asserts that that defendant's misconduct has gone beyond ordinary negligence and dismissal would be "premature." Plaintiff argues the documents provided by defendant are not "documentary' evidence," that is "unambiguous, authentic, and undeniable" citing Attias v. Costiera, 120 A.D.3d 1281, 1282-83 (2d Dept 2014). I

The standard to be applied in a motion to dismiss was recently reiterated by the Court in Martinez v NYC Health and Hosps. Corp.,...