Complaint,Petition: In The Matter Of The Application Of Providence Rest Inc., For A Judgment Pursuant To Articles 78 And 30 Of The Civil Practice Law And Rules v. State Of New York Litigation Coordinating Panel

On February 17, 2023 a Complaint,Petition was filed involving a dispute between In The Matter Of The Application Of Providence Rest Inc., For A Judgment Pursuant To Articles 78 And 30 Of The Civil Practice Law And Rules, and State Of New York Litigation Coordinating Panel, for Special Proceedings - CPLR Article 78 in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 02/17/2023 12:40 PM INDEX NO. 802741/2023E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/17/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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In the Matter of the Application of

PROVIDENCE REST INC.,
Index No.:
Petitioner-Plaintiff,

For a Judgment Pursuant to Articles 78 and 30 of the VERIFIED PETITION AND
Civil Practice Law and Rules, COMPLAINT

– against –

STATE OF NEW YORK LITIGATION ORAL ARGUMENT
COORDINATING PANEL, REQUESTED

Respondent-Defendant.

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................1

PARTIES .........................................................................................................................4

JURISDICTION AND VENUE ......................................................................................5

STATEMENT OF FACTS ..............................................................................................5

A. The Statutory COVID-19 Immunities ...........................................................5

B. The Coordination of Related Actions ............................................................10

C. Petition for Coordination of COVID-19 Nursing Home Claims ...................11

D. Interim Order of Coordination .......................................................................12

E. Defendants’ Order to Show Cause .................................................................12

F. Final Order of Coordination...........................................................................13

G. Dismissals at the Pleadings Stage ..................................................................16

H. Constitutional Constraints on the LCP’s Authority ......................................19

FIRST CAUSE OF ACTION
Violation of Lawful Procedure & Arbitrary and Capricious ..............................20

SECOND CAUSE OF ACTION
Action Taken in Excess of Jurisdictional and Constitutional Authority.............23

THIRD CAUSE OF ACTION
Request for Declaratory Relief Under Article 30 of the CPLR ..........................25

ENTRY OF STAY REQUESTED ..................................................................................26

PRIOR APPLICATION...................................................................................................27

PRAYER FOR RELIEF ..................................................................................................27

VERIFICATION..............................................................................................................29

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Plaintiff-Petitioner PROVIDENCE REST INC. (“PROVIDENCE REST”) for its Verified

Petition and Complaint respectfully alleges as follows:

PRELIMINARY STATEMENT

1. This is a hybrid special proceeding and declaratory judgment action brought by

PROVIDENCE REST pursuant to CPLR § 7803(2), (3) and 3001, et seq., against the Respondent-

Defendant STATE OF NEW YORK LITIGATION COORDINATING PANEL (“LCP/Panel”).

2. PROVIDENCE REST challenges and seeks to have declared null and void the Final

Order of Coordination issued by the LCP on October 19, 2022 (“Order”). This Order directs the

pretrial coordination of hundreds of lawsuits against nursing homes and residential health care

facilities (collectively, “nursing homes”) throughout New York State where plaintiffs allege that

these nursing homes “failed to comply with governmental statutes, regulations, and guidance for

protecting and caring for their patients, and/or failed to exercise reasonable care in protecting and

caring for the patients during the COVID-19 pandemic, resulting in injury or death.” (LCP Final

Order of Coordination [“Order”] at 8, Ex. A). 1

3. The breadth of this Order is extraordinary. It orders the pretrial coordination of all

negligence and medical malpractice claims against nursing homes that arose during the COVID-

19 pandemic, which time frame is undefined. It also orders that hundreds of claims each be

adjudicated by a single Coordinating Judge in four counties: Nassau, New York, Albany and Erie.

Nearly all of these cases will require the immediate adjudication of motions to dismiss at the

pleadings stage.

1
Citations to “Ex. __” refer to the exhibits attached to the accompanying affirmation of Megan A. Lawless, Esq.
(“Lawless Affirmation”).

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4. Indeed, an apparent majority of cases, including those filed against PROVIDENCE

REST, are subject to dismissal for lack of capacity based on the failure to name a duly appointed

estate representative to represent the plaintiff-decedent’s interests. Nearly all cases are further ripe

for dismissal based upon the immunities conferred by New York’s Emergency or Disaster

Treatment Protection Act (“EDTPA”), N.Y. Pub. Health Law §§ 3080-82, and/or the federal

Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. § 247d-6d, et seq.

5. These individualized motions to dismiss will be filed prior to any discovery taking

place, and these motions will require independent factual and legal analyses.

6. The goal of pretrial coordination, pursuant to N.Y. Comp. Codes R. & Regs. tit. 22,

§ 202.69, is to facilitate the just and efficient resolution of actions that share common questions of

law or fact and may thereby benefit from uniform treatment. Here, each case is factually distinct.

An action against PROVIDENCE REST involving the care or treatment of a specific patient in its

facility is completely unrelated to a claim by a different patient against a wholly separate facility.

The facts giving rise to an action against PROVIDENCE REST versus other nursing homes are

unique to the individual patient involved and the particular circumstances giving rise to the

allegations therein.

7. Coordination of purportedly related actions is only appropriate where common

questions of fact or law exist; coordinated discovery would be advantageous; and coordination is

manageable and will not unreasonably delay the progress of the proceeding. 22 NYCRR § 202.69.

Here, all of these factors weigh wholly against coordination. Thus, the LCP’s decision to

coordinate these actions was taken in violation of its own operating criteria and lawful procedure.

8. The decision to coordinate was also arbitrary and capricious. There is no rational

basis to join actions where: (1) common questions of fact or law do not exist; (2) coordination will

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unreasonably delay and complicate the swift disposition of actions at the pleadings stage; (3)

coordination will prejudice defendants like PROVIDENCE REST by prolonging their entitlement

to statutory immunity defenses; and (4) coordination will create a wholly unmanageable discovery

process given that discovery is unique to each individual patient and nursing home.

9. Moreover, the LCP’s Order is beyond the scope of authority delegated to the LCP

by New York’s Constitution, which gives New York’s Legislature, and not the Office of Court

Administration, the exclusive authority to regulate jurisdiction, practice, and procedure in New

York’s courts. The Supreme Court “shall have general original jurisdiction in law and equity.”

(N.Y. Const. Art. 6, § 7[a]), and only the Supreme Court may transfer an action or proceeding over

which it has jurisdiction. N.Y. Const. Art. 6, § 19.

10. Court administrators cannot usurp the exclusive jurisdiction and authority of the

Supreme Court by compelling the transfer of properly situated cases from the Justices who have

jurisdiction over them. Only the court and Justices to whom a case is assigned has the authority

to adjudicate the issues before them. The LCP, a creation of the Chief Administrator of the Courts,

cannot issue orders that conflict with New York’s Constitution or with legislatively enacted

provisions of New York’s Civil Practice Law and Rules (“CPLR”).

11. Ordering the wholesale transfer of hundreds of cases beyond the judicial districts

in which they were filed is in excess of the LCP’s jurisdiction and constitutional authority.

12. In sum, the LCP’s Final Order of Coordination is invalid because:

A. it is inconsistent with the criteria set forth in 22 NYCRR § 202.69 for the

coordination of actions with common questions of law and fact;

B. it lacks a sound basis in reason and is without foundation in fact, and is

therefore arbitrary and capricious; and

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C. it is beyond the scope of the authority delegated to the LCP in accordance

with New York’s Constitution, and is beyond any other statutory authority granted to the LCP by

New York’s Legislature.

PARTIES

13. PROVIDENCE REST, doing business as ArchCare at Providence Rest, is a

voluntary, not-for-profit corporation providing nursing and long-term care services to residents at

its facility located at 3304 Waterbury Ave, Bronx, New York 10465. Providence Rest is one of

the skilled nursing facilities sponsored by ArchCare, the Continuing Care Community of the

Archdiocese of New York.

14. PROVIDENCE REST is a party to multiple actions filed in the Supreme Court,

Bronx County. PROVIDENCE REST is a defendant in Ranieri v. Providence Rest, Inc., Index

No. 800275/2022E (Bronx County). This action is impacted by the LCP’s Order and is ripe for a

motion to dismiss based on the immunities afforded Providence Rest by the state and federal

COVID-19 statutory immunities. On November 18, 2022, plaintiff’s counsel filed a copy of the

Panel’s Order with the Court in Ranieri. Counsel for PROVIDENCE REST filed a letter with the

court objecting to plaintiff’s improper procedural attempt to transfer this matter. (Ex. V).

15. PROVIDENCE REST is also a defendant in Paolello v. Providence Rest, Inc.,

816295/2022E (Bronx County), which action was removed to and is stayed in federal court

pending determinations by the Second Circuit regarding federal subject matter jurisdiction.

Providence Rest is also a party to Negron v. Providence Rest, Inc., 800934/2023E (Bronx County),

which was recently filed and removed to federal court.

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16. Plaintiff in Paolello is proceeding as a “Proposed Administrator” of the decedent’s

estate and, therefore, lacks capacity to bring suit. See NY EPTL §5-4.1(1); Carrick v. Central

General Hospital, 51 N.Y.2d 242, 246 (1980).

17. The LCP is an administrative panel in the judicial branch of the New York State

government. The Panel was created by the Chief Administrator of the Courts, in consultation with

the Presiding Justice of each Appellate Division, and is composed of one justice of the Supreme

Court from each judicial department of the State. 22 NYCRR § 202.69 (b)(1).

JURISDICTION AND VENUE

18. This Court has subject matter jurisdiction to decide this Verified Petition and

Complaint pursuant to CPLR § 7803 because the Order of Coordination was a final determination

made in violation of lawful procedure, is arbitrary and capricious, and in excess of the LCP’s

jurisdiction and authority.

19. This Court also has personal jurisdiction over Respondent and jurisdiction to render

a declaratory judgment pursuant to CPLR § 301.

20. Venue lies in Bronx County pursuant to CPLR §§ 506(b) and 7804(b) because

Bronx County is where the material events giving rise to the underlying lawsuits commenced

against PROVIDENCE REST took place.

STATEMENT OF FACTS

A. The Statutory COVID-19 Immunities

1. The EDTPA

21. The LCP ordered the coordination of claims against nursing homes that allege

failure “to comply with governmental statutes, regulations, and guidance for protecting and caring

for their patients, and/or fail[ure] to exercise reasonable care in protecting and caring for the

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patients during the COVID-19 pandemic, resulting in injury or death.” (Ex. A, at 8). These claims

are subject to the statutory immunities afforded PROVIDENCE REST by New York’s EDTPA.

22. The EDTPA promotes “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.” N.Y. Pub. Health Law § 3080. The

public policy underlying the EDTPA is clear: in the face of a life-threatening and unknown disease,

health care professionals and facilities should not be subject to liability for decisions, acts or

omissions made in the course of addressing an unprecedented global health emergency.

23. The EDTPA was deemed to be in full force and effect as of March 7, 2020. It was

amended on August 3, 2020, and ultimately repealed effective April 6, 2021. 2 The Act applies

broadly and states:

any health care facility or health care professional shall have
immunity from any liability, civil or criminal, for any harm or
damages alleged to have been sustained as a result of an act or
omission in the course of arranging for or providing health care
services, if:

(a) the health care facility or health care professional is arranging
for or providing health care services pursuant to a COVID–19
emergency rule or otherwise in accordance with applicable law;

(b) the act or omission occurs in the course of arranging for or
providing health care services and the treatment of the individual
is impacted by the health care facility's or health care
professional's decisions or activities in response to or as a result
of the COVID–19 outbreak and in support of the state's
directives; and

(c) the health care facility or health care professional is arranging
for or providing health care services in good faith.

2
The Appellate Division, Fourth Department confirmed that the repeal of the EDTPA was not retroactive. Ruth v.
Elderwood at Amherst, 209 A.D.3d 1281 (4th Dept. 2022).
6

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N.Y. Pub. Health Law § 3082(1) (emphasis added). For purposes of this section, “health care

services” include:

(a) the diagnosis, prevention, or treatment of COVID-19;

(b) the assessment or care of an individual with a confirmed or
suspected case of COVID-19; or

(c) the care of any other individual who presents at a health care
facility or to a health care professional during the period of the
COVID-19 emergency declaration.

N.Y. Pub. Health Law § 3081(5).

24. The EDTPA applies when there is a showing that the individual patient’s treatment

was impacted by the individual healthcare facility’s decisions or activities in response to or as a

result of the COVID–19 outbreak. There is an exception to immunity where an individual’s

alleged injuries were caused by gross negligence or willful or intentional criminal misconduct.

However, conduct resulting from a resource or staffing shortage shall not be considered willful

misconduct or gross negligence. N.Y. Pub. Health Law § 3082(2).

25. Thus, whether the EDTPA applies in any individual case requires a targeted and

distinct inquiry into whether: (1) the individual patient’s care was impacted by the acts and

decisions of the facility or provider in response to the COVID-19 outbreak; (2) the individual

patient’s injuries were caused by gross negligence or willful misconduct; and (3) the conduct at

issue resulted from a resource or staffing shortage at the particular defendant facility. This analysis

is factually specific to each individual patient on whose behalf suit is brought, and to each

individual nursing home subject to the LCP’s Order.

26. Whether immunity applies depends on the extent to which each facility’s COVID-

19 protocols, patient census, infection rates, staffing shortages, PPE supply and other factors

impacted the individual patient’s care, which varies facility by facility and patient by patient

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depending, inter alia, on the time and place of infection. No two facilities are exactly alike, and

no two patients’ medical courses are the same.

27. Each patient had different medical histories and different documented interventions

under protocols and care plans that were, in the spring of 2020 especially, changing on a daily

basis to reflect the latest science and research of what was, at the time, an unknown and novel

coronavirus. Whether liability attaches or immunity applies depends on a host of factors that are

entirely distinct to each discrete action. There are no common questions of fact with respect to

whether the EDTPA applies to and bars liability for each case affected by the LCP’s Order.

28. Each dispositive motion in the cases brought against PROVIDENCE REST will

involve facts and legal analyses specific to PROVIDENCE REST’s response to the COVID-19

pandemic and how that response impacted the care of the specific patient whose care is at issue,

as required under the EDTPA.

1. The PREP Act

29. Immunity under the federal PREP Act also requires an individualized inquiry on a

case-by-case basis. The PREP Act applies to claims for loss that relate to the administration or

use of “covered countermeasures” to prevent, diagnose, treat, or mitigate COVID-19. The PREP

Act provides healthcare facilities and providers like PROVIDENCE REST with immunity from

“suit and liability under Federal and State law with respect to all claims for loss caused by, arising

out of, relating to, or resulting from the administration to or the use by an individual of a covered

countermeasure if a declaration…has been issued with respect to such countermeasure.” 42 U.S.C.

§ 247d-6d(a)(1). Where it applies, the PREP Act too provides a basis for dismissal at the pleadings

stage.

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30. On March 10, 2020, the Secretary of HHS issued the emergency declaration

triggering the PREP Act and declaring “the spread of … COVID-19 … a public health

emergency.” 3 The Secretary declared that the PREP Act’s liability immunity would apply to the

administration or use of certain “covered countermeasures” to combat COVID-19, which include

“[a]ny drug, device, or biological product that is approved, cleared, or licensed by the FDA and is

used to diagnose, mitigate, prevent, treat, cure, or limit the harm of COVID-19….” 4 In addition

to medications and vaccines to treat and prevent COVID-19, covered countermeasures include

Personal Protective Equipment (“PPE”), supplemental oxygen and COVID-19 testing. 5

31. In place of uncertain and costly litigation, the PREP Act provides an alternative

remedy scheme for claims falling within its scope, consisting of a no-fault type of compensation

program designated by Congress as the “Covered Countermeasure Process Fund” (the “Fund”).

42 U.S.C.A. § 247d-6e. The PREP Act also provides an exclusive federal cause of action in the

United States District Court for the District of Columbia (“D.D.C.”) in cases of death or serious

physical injury resulting from willful misconduct, as statutorily defined. 42 U.S.C.A. § 247d-

6d(d)(e). This federal action is exclusive of all others for claims within the PREP Act’s scope.

32. Thus, where the PREP Act is triggered, individual questions of fact and law

necessarily arise regarding whether: (1) plaintiff’s injury relates to the administration or use of

3
Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against
COVID-19, 85 FR 15198-01 (March 17, 2020) (“Declaration”).
4
HHS Advisory Opinion on the Public Readiness and Emergency Preparedness Act and the March 10, 2020
Declaration under the Act (“First HHS Advisory Opinion”), at 3, https://tinyurl.com/4npemath, (May 19, 2020) (as
amended); Declaration, sec. VI.

5
https://www.fda.gov/medical-devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-
devices/personal-protective-equipment-euas (PPE); https://www.fda.gov/medical-devices/coronavirus-disease-2019-
covid-19-emergency-use-authorizations-medical-devices/in-vitro-diagnostics-euas (COVID-19 testing); 21 C.F.R. §
201.161 (oxygen).

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covered countermeasures, thereby barring state law claims for damages; and (2) plaintiff alleges

willful misconduct requiring that suit be brought in the D.D.C.

33. The actions filed against PROVIDENCE REST challenge the conscious decision-

making of PROVIDENCE REST with respect to the proper utilization of covered devices such as

PPE and COVID-19 testing to diagnose COVID-19 and prevent its spread throughout its facility.

These actions further claim injury relating to the administration of specified covered

countermeasures to treat patients’ COVID-19 illness and its sequalae. Similar claims against

hundreds of other nursing homes also challenge the unique decision-making of each individual

nursing home regarding the utilization of covered countermeasures such as, for example, COVID-

19 testing and supplemental oxygen for each individual patient at specific points in time.

34. Like with the EDTPA, whether plaintiffs’ claims in each of these actions fall within

the scope of the PREP Act requires an individualized analysis as to whether the alleged injuries

have “a causal relationship with the administration to or use by an individual of a covered

countermeasure.” 42 U.S.C. § 247d-6d(a)(2)(B). Each dispositive motion will require an

examination of the facts of each case, as applied to the elements of the PREP Act.

B. The Coordination of Related Actions

35. 22 NYCRR § 202.69 sets forth the standards and procedures for pretrial

coordination of actions in New York. Coordination shall apply to pretrial proceedings, including

dispositive motions.

36. In determining whether to issue an administrative order of coordination, the LCP

must consider the following criteria:

• the complexity of the actions;

• whether common questions of fact or law exist, and the importance of
such questions to the determination of the issues;

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• the risk that coordination may unreasonably delay the progress,
increase the expense, or complicate the processing of any action or
otherwise prejudice a party;

• the risk of duplicative or inconsistent rulings, orders or judgments;

• the convenience of the parties, witnesses and counsel;

• whether coordinated discovery would be advantageous;

• efficient utilization of judicial resources and the facilities and personnel
of the court;

• the manageability of a coordinated litigation;

• whether issues of insurance, limits on assets and potential bankruptcy
can be best addressed in coordinated proceedings; and

• the pendency of related matters in the Federal courts and in the courts
of other states.

22 NYCRR § 202.69.

C. Petition for Coordination of COVID-19 Nursing Home Claims

37. On February 23, 2022, plaintiffs in actions pending throughout New York State

filed a Petition with the LCP seeking the pretrial coordination of actions brought by deceased

individuals’ estates against nursing homes/health care facilities related to their response to the

COVID-19 pandemic. The Petition sought the coordination of nine actions included in the caption,

as well additional actions included in Appendices “A” and “B” to the Petition. (Ex. B).

38. Multiple nursing homes filed opposition to the Petition. See In Re COVID-19

Litigation Against Nursing Homes, No. LCP0001/2022 (ECF Docket Nos. 25-63; see also Ex. C).

39. Plaintiffs’ counsel Brown Chiari also filed opposition to the Petition, contending

that the claims they are handling involve allegations unique to each defendant nursing home.

Brown Chiari also explained how discovery in each of their matters would be factually intensive

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and focus on what each facility did, or did not do, with regard to staffing, funding, and infection

protocols. Counsel further stated: “[g]iven the disparate and factual nature of the claims against

each separate skilled nursing facility, involving various different plaintiffs against various different

defendants, these matters do not lend themselves to the coordination of discovery, especially the

broad scope of discovery sought in the named plaintiffs' application in this action.” (Ex D; ECF

Docket No. 42).

D. Interim Order of Coordination

40. On August 4, 2022, the LCP issued an interim order, stating that some degree of

coordination seemed appropriate for the pretrial coordination of actions brought by individuals

and estate representatives across the State of New York against nursing homes, skilled nursing

facilities, and similar health care facilities alleging malfeasance and resulting COVID-19 deaths.

However, the specifics of coordination, as well as the putative venue, remained undecided. (Ex.

E).

41. The interim order stayed all pending claims against nursing homes alleging

malfeasance and resulting COVID-19 deaths, and in “similar actions filed or yet to be filed”

pending a final Order of Coordination. Id.

E. Defendants’ Order to Show Cause

42. In response to the interim order, on August 18, 2022, multiple defendants

collectively filed an Order to Show Cause seeking leave to renew and reargue the opposition to

coordination and to vacate the interim order. Defendants also filed a Temporary Restraining Order

seeking to lift and suspend that portion of the LCP’s interim order that issued a stay of proceedings.

(Defendants’ Order to Show Cause and Accompanying Affirmation, Ex. F).

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43. In their supporting papers, defendants explained how a stay that prevented them

from filing pre-answer motions in the ordinary course would prolong the dismissal of non-

actionable claims that are currently ripe for disposition. Defendants also discussed how precluding

parties from proceeding with appeals of first-impression legal issues would delay the ultimate

resolution of novel questions of law. And staying actions pending in another court of record,

transferring proceedings to courts that have no jurisdiction over the parties, and otherwise

impairing the rights of the Supreme Court to hear and determine cases within its jurisdiction and

assigned to it are all actions beyond the LCP’s authority and violative of New York’s Constitution.

Id.

44. Notably, plaintiffs’ counsel Brown Chiari once again submitted papers in

opposition to coordination, stating that coordination “does not effectively achieve the intended

goal of Uniform Civil Rule 202.69” and “may also result in additional, unnecessary confusion and

logistical delays for pending cases, as well as contemplated litigation.” (Ex. G; ECF Docket No.

92).

45. On August 26, 2022, the LCP signed the Order to Show Cause and vacated that

part of the interim order that stayed actions not included in the caption or Appendices to the

Petition for Coordination. (Ex. H).

46. The LCP held a conference with the parties on September 13, 2022 to discuss these

issues. These proceedings were not recorded or transcribed.

F. Final Order of Coordination

47. On October 19, 2022, the LCP issued a Final Order of Coordination (“Order”),

which directs the coordination of:

all cases against nursing homes, as defined in Public Health Law § 2801
(2), and residential health care facilities, as defined in Public Health Law

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§ 2801 (3), alleging that they failed to comply with governmental
statutes, regulations, and guidance for protecting and caring for their
patients, and/or failed to exercise reasonable care in protecting and
caring for the patients during the COVID-19 pandemic, resulting in
injury or death.

(Ex. A).

48. In the Order, the LCP concluded that the subject cases “present common questions

of fact and/or law that are important to the determination of their claims.” More specifically, the

Panel ruled “the parties in each of these cases will be required to present expert opinions as to the

standards for protection and care of residents at nursing homes and similar facilities during various

stages of the COVID-19 pandemic.” Id. at 4-5.

49. The Order did not address defendants’ contention that expert opinions regarding

relevant standards of care are wholly irrelevant to the criteria for immunity under the EDTPA and

PREP Act. (See Defendants’ Attorney Affirmation in Support of Order to Show Cause, at 12, Ex

F). Common questions of law regarding standards of care in connection with COVID-19 do not

become relevant unless and until a claim survives dismissal based on EDTPA and PREP Act

immunity.

50. The Order references “common legal issues regarding statutory immunities” under

the PREP Act and EDTPA, with specific reference made to the retroactive effect of the EDTPA’s

repeal, and whether the PREP Act forms the basis for federal subject matter jurisdiction, which

issue is pending review in the U.S. Court of Appeals for the Second Circuit. However, the Order

does not address the independent factual and legal analyses required for application of the EDTPA

and PREP Act immunities in each individual case subject to coordination. (Ex. A at 6).

51. Although the Order states “COVID-related nursing home claims will pose many

factual issues which are specific to the respective plaintiffs and nursing home defendants …

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including his or her medical needs and the practices, protocols and treatment provided at his or her

respective nursing home or facility during the pandemic,” it fails to address how these discrete

facts impact threshold motion practice. Id. at 7.

52. Instead, the Order highlights how “the establishment of discovery schedules

through coordinated case management can accommodate the diverse factual contexts presented.

And with increasingly available technological capacity to hold conferences, exchange discovery

materials, and conduct virtual depositions, pretrial proceedings can be managed with little to no

inconvenience or undue expense to the parties, witnesses and counsel, despite the geographic range

of venues.” Id. However, the Panel failed to consider how relevant discovery (medical records;

facility protocols; patient census data; staffing data, deponents; etc.) is unique to each nursing

home and patient, and how the coordination of hundreds of cases could result in hundreds of

discovery-related motions to be heard before a few Coordinating Justices. (See Defendants’

Attorney Affirmation in Support of Order to Show Cause, at 5, Ex. F).

53. Finally, the Panel ruled that “these claims are likely to involve common issues

regarding insurance coverage for claims arising from defendants’ practices and protocols during

the emergency period of the COVID-19 pandemic. Because many of the defendants may share

similar insurance coverage and relevant provisions, insurance-related issues may be addressed

more efficiently through coordination.” Ex. A at 6-7. Notably, however, there was no evidence

before the Panel regarding PROVIDENCE REST or any other nursing homes’ insurance coverage

for the claims subject to coordination.

54. The Order directs coordination according to the Department of the Appellate

Division in which the action was commenced. Cases commenced in the Appellate Division, First

Department, will be coordinated before a Coordinating Judge of the Supreme Court, New York

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County. Cases commenced in the Appellate Division, Second Department, will be coordinated

before a Coordinating Judge of the Supreme Court, Nassau County. Cases commenced in the

Appellate Division, Third Department, will be coordinated before a Coordinating Judge of the

Court, Albany County. Cases commenced in the Appellate Division, Fourth Department, will be

coordinated before a Coordinating Judge of the Supreme Court, Erie County. Id.

55. The LCP directed coordination beginning with motions on the pleadings, pursuant

to CPLR § 3211, through discovery, settlement discussions and summary judgment motions,

pursuant to CPLR § 3212. After coordination and only after summary judgment motion practice,

individual cases will then be remanded to the counties of commencement for trial, unless the

parties stipulate otherwise. Id.

56. The Order sets forth specific procedures for plaintiffs to follow to trigger the

coordination of actions included in the caption and appendices. The Order also sets forth specific

procedures for plaintiffs to follow for the coordination of additional actions. Id. at 12-13. In

numerous instances, plaintiffs have failed to follow the procedures outlined by the LCP in the

Order and per its operating rules. (See January 19, 2023 Letter to LCP, Ex I).

G. Dismissals at the Pleadings Stage

57. Multiple courts in New York have already dismissed claims in the normal course

against nursing homes and other healthcare facilities at the pleadings stage based on the EDTPA.

For example, in Saltanovich v. Sea View Hospital Rehabilitation Center, et al., Index No.

151312/2021, (Sup. Ct., Richmond County, May 18, 2022), the court thoroughly analyzed the

retroactive effect of the repeal of the EDTPA by examining the statutory text of the repeal, the

legislative history of the repeal, and the strong legal presumption against retroactivity. The court

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concluded that the repeal of the EDTPA was not retroactive and applied the EDTPA’s statutory

immunity to dismiss the claims against the nursing home at the pleadings stage. (Ex. J).

58. Similarly, in Damon v. Clove Lakes Healthcare & Rehabilitation Center, Inc.,

Index No. 150031/2022 (Sup. Ct., Richmond County, June 17, 2022), the court held that a cause

of action based simply on the fact that an individual contracted COVID-19 at a nursing home is

akin to strict liability and cannot be sustained as a matter of law. (Ex. K). The court stated: “[i]f

the fact alone that COVID-19 related deaths occurred in a medical facility were a legal cause of

action, virtually every hospital, nursing home, and frontline healthcare worker that treated a patient

who died of COVID-19 during the pandemic would be subject to liability.” Id. at 8. The court

thus dismissed the complaint against the defendant nursing home based on insufficiency of the

pleadings and the EDTPA.

59. In Ruth v. Elderwood at Amherst, 209 A.D.3d 1281 (4th Dept. 2022), the Appellate

Division, Fourth Department, affirmed the dismissal of the complaint against the defendant

nursing home pursuant to the EDTPA. And the courts in Fortes v. Sky View Rehabilitation and

Health Care Center, Index No. 59735/2022 (Westchester County, Jan. 9, 2023) (Ex. L); DeFonce

v. Sky View Rehabilitation & Health Care Center, Index No. 61757/2022 (Sup. Ct., Westchester

County, January 6, 2023) (Ex. M), and Crampton v. Garnet Health, 155 N.Y.S.3d 699 (Sup. Ct.,

Orange County 2021), also enforced the EDTPA and dismissed complaints against defendant

nursing homes based on the discrete facts of each case.

60. Multiple courts have similarly granted dismissal in favor of healthcare providers

pursuant to the EDTPA after individualized, fact specific motion practice. See, e.g., Graves v.

Suffolk County, et al., Index. No. 603705/2021 (Sup. Ct., Suffolk County, Apr. 13, 2022)

(dismissing action against ambulance service under EDTPA) (Ex. N); Hyman v. Suffolk University

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Medical Center, Index No. 152068/2021 (Sup. Ct., Suffolk County, Sept. 30, 2022) (dismissing

claims against hospital under EDTPA) (Ex. O); Garcia v. New York City Health & Hospitals

Corporation, No. 159046/2020 (Sup. Ct., N.Y. County, July 6, 2022) (dismissing claims against

hospital under EDTPA) (Ex. P); and Hampton v. City of New York, et al., Index No. 28392/20E

(Sup. Ct., Bronx County, May 18, 2021) (same) (Ex. Q).

61. Other courts have also swiftly and efficiently dismissed complaints for lack of

capacity where plaintiffs proceeded as “Proposed Administrators” of decedents’ estates. 6

62. There is no reason to upend the natural progression of motion practice in the

ordinary course and delay the dismissal of actions that fail as a matter of law. Indeed, forcing

PROVIDENCE REST to

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Elizabeth Taylor Track Judge’s New Case

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Document Filed Date

February 17, 2023

Case Filing Date

February 17, 2023

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Parties

BRAVERMAN, DYLAN COREY Attorney for the Plaintiff
In the Matter of the Application of Providence Rest Inc., for a Judgment Pursuant to Articles 78 and 30 of the Civil Practice Law and Rules Plaintiff
LAWLESS, MEGAN ALICE Attorney for the Plaintiff
PANARELLA, JONATHAN JOSEPH Attorney
SIUDZINSKI, MICHAEL JOHN Attorney for the Defendant
State of New York Litigation Coordinating Panel Defendant
Stephen Ranieri Non Party
ANDREW ISENBERG Attorney
LAURA CIACCIO Attorney
ALEJANDRA PAULINO Attorney
JEFFREY GUZMAN Attorneys for Defendants
JAMES CATTERSON Attorney
ALEXANDER GUZMAN Attorneys for Defendants
JOSEPH FITZGERALD Attorneys for Defendants
JOSEPH CIACCIO Attorneys for Plaintiffs
ADAM FISCHKELTA Attorneys for Plaintiffs
DAMIEN SMITH Attorneys for Plaintiffs
CHARLES FAILLACE Attorneys for Defendants
LIZA TRAZZERA Attorneys for Plaintiffs

Complaint,Petition: In The Matter Of The Application Of Providence Rest Inc., For A Judgment Pursuant To Articles 78 And 30 Of The Civil Practice Law And Rules v. State Of New York Litigation Coordinating Panel

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