Preview
FILED: CAYUGA COUNTY CLERK 12/15/2023 10:46 AM INDEX NO. E2023-0104
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/15/2023
Exhibit G
FILED: CAYUGA
QUEENS COUNTY CLERK 12/15/2023
11/03/2023 10:46
10:04 AM INDEX
INDEXNO.
NO.719071/2021
E2023-0104
NYSCEF DOC. NO. 66
74 RECEIVED NYSCEF: 12/15/2023
11/03/2023
Short Form Order
11/3/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------------------------X
NONA GERBER, as Administrator of the Estate of
RIDA ZAVULUNOVA, Deceased, Index No. 719071/2021
Plaintiff, Part MDP
-against- Motion Date: June 21, 2023
FOREST VIEW CENTER, Sequence No. 1
Defendant.
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The following papers numbered EF-11 to EF-73 read on this motion by defendant to
dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) and (a)(7).
Papers
Numbered
Notice of Motion, Affirmation, Exhibits..............................................EF11-EF35
Affirmation in Opposition, Memorandum, Exhibits……............……EF38-EF66
Reply Affirmation, Exhibits………………………………………….EF69-EF73
Upon the foregoing papers, it is ordered that this motion is determined as follows:
Defendant’s motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) is
denied, but defendant’s motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(7) is
granted. (See Ruth v. Elderwood At Amherst, 209 A.D.3d 1281 [4th Dept. 2022].) Plaintiff
commenced this action for malpractice, negligence, violations of the Public Health Law and
wrongful death sustained while at defendants’ facility, at which the Complaint alleges plaintiff
decedent contracted COVID-19, resulting in her death. Plaintiff filed the Summons and
Complaint on August 24, 2021, and defendant files this pre-Answer motion to dismiss.
A motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) based on
documentary evidence may be appropriately granted ‘only where the documentary evidence utterly
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refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. (Beach
50th St., LLC v. Peninsula Rockaway Ltd. Partnership, 187 A.D.3d 1114, 1116 [2d Dept. 2020].)
On a motion to dismiss pursuant to CPLR §3211(a)(7), the Court is required to afford the pleadings
a liberal construction, accept the facts alleged in the complaint as true, provide plaintiff the benefit
of every possible favorable inference, and determine only whether the facts as alleged fit within
any cognizable legal theory. (Board of Mgrs. Of 136 St. Marks Place Condominium v. St. Marks
Place Condominiums II, LLC, 128 A.D.3d 877, 878 [2d Dept. 2015].) Furthermore, whether a
plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion
to dismiss, rather, the Court merely examines the adequacy of the pleadings. (EBC Inc. v. Goldman
Sachs & Co., 5 N.Y.3d 11, 19 [2005]; see also Cortlandt Street Recovery Corp. v. Bonderman, 31
N.Y.3d 30 [2018].)
Defendant’s motion to dismiss pursuant to CPLR §3211(a)(7) is granted, as plaintiff’s
claims fall squarely within the immunity from liability afforded by EDTPA. Plaintiff was
admitted to defendant’s facility on March 9, 2020 for rehabilitation, but was taken to Long Island
Jewish Hospital on April 1, 2020 when her oxygen saturation dropped, and she died on May 5,
2020. Defendant presented an affidavit from Susan Pauliny, defendant’s former Director of
Nursing, who attested defendant enacted plans and policies during the pandemic that impacted the
care and treatment of its residents and were taken in good faith to protect residents such as plaintiff
decedent. Even viewing the Complaint in the light most favorable to plaintiff, the causes of action
against defendant are directly related to allegations that defendant’s malpractice and negligence
caused plaintiff decedent to contract COVID-19, resulting in pain and suffering, and ultimately
her death. Plaintiff decedent was a patient at defendant’s facility during the applicable timeframe
under EDTPA, and plaintiff’s Complaint makes no claims with regard to any violations of the
Public Health Law or failure to provide medical treatment beyond those relating to and impacted
by COVID-19. Plaintiff’s Complaint also failed to sufficiently allege that defendant did not act
in good faith in rendering medical care during the COVID-19 pandemic, and failed to present any
claims that are not directly related to the medical care rendered to plaintiff during the pandemic.
Defendant also demonstrated that the PREP Act is inapplicable, as it is a “covered person”
engaged in “recommended activities” including FDA approved countermeasures such as PPE and
approved COVID-19 tests to diagnose and prevent the spread of the disease. As there is no
evidence of gross negligence or recklessness beyond the conclusory and boilerplate claims made
in plaintiff’s Complaint, defendant demonstrated that it is immune from liability under EDTPA
and the PREP Act.
Plaintiff failed to present sufficient evidence to demonstrate the claims are not a result of,
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or impacted by the COVID-19 pandemic, or that a valid exception exists to the applicability of
EDTPA or the PREP Act. Plaintiff’s argument that the repeal of EDTPA was retroactive is
without merit, as the Fourth Department conclusively determined the legislation’s repeal was not
retroactive. (See Ruth, supra.) Plaintiff argues blanket immunity to defendant and dismissal will
result in a severe injustice to plaintiff decedent, as it precludes discovery that might demonstrate
further acts or omissions by defendant that would demonstrate malpractice and negligence that
resulted in plaintiff decedent’s death. However, that blanket immunity is exactly what the
legislature intended in enacting EDTPA, as can be seen by the language in the legislative
memorandum that repealed EDTPA. (Assembly Introducer’s Mem. In Support, Bill Jacket, L 2021,
ch 96; see also Sponsor’s Mem., 2021 NY Senate Bill S5177 [“In particular, EDTPA egregiously
uses severe liability standards as a means to insulate health care facilities and specifically,
administrators and executives of such facilities, from any civil or criminal liability for
negligence”].) Therefore, it is clear that the statute was enacted to protect health care providers, as
they continued to provide medical treatment and ensure our society received the medical care
absolutely needed during the unprecedented medical crisis. For better or worse, the legislature
made a determination that the need to ensure medical care was provided during the pandemic
outweighed the costs of providing blanket immunity to those who provided it, and this Court is
constrained by that determination. Therefore, unless plaintiff can demonstrate gross negligence
by defendant, all claims of malpractice, negligence, violations of Public Health Law, and wrongful
death, are barred by EDTPA. Further, plaintiff’s claim that the PREP Act is not applicable as a
defense because it only contemplated action involving a drug or device is a narrow interpretation
that lacks caselaw or statutory authority, and therefore is deemed meritless.
To establish gross negligence, plaintiff must demonstrate that defendant’s conduct
involved intentional wrongdoing or evinced a reckless indifference to the rights of others.
(Skywest, Inc. v. Ground Handling, Inc., 150 A.D.3d 922, 923 [2d Dept. 2017].) Plaintiff’s
Complaint failed to allege specific acts or omissions by defendant, as it is conclusory and without
sufficient facts to show intentional wrongdoing or reckless indifference to plaintiff decedent.
(Compare Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926 [2d Dept. 2018][the plaintiff
pled allegations that the defendants greatly exacerbated existing damage to the property with
specific facts that sufficiently supported a gross negligence cause of action].) As plaintiff’s
Complaint failed to plead specific allegations that rise to the level of gross negligence, which differ
in kind, not only degree, from claims of ordinary negligence, the exception to EDTPA for gross
negligence actions has not been met. (See Weiss v. Vacca, 2023 NY Slip Op 04613 [2d Dept.
9/13/2023].) Further, defendant’s motion to dismiss pursuant to CPLR §3211(a)(1) is denied as
moot.
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Accordingly, defendant’s motion to dismiss plaintiff’s Complaint pursuant to CPLR
§3211(a)(1) is denied as moot, but defendant’s motion to dismiss plaintiff’s Complaint pursuant
to CPLR §3211(a)(7) is granted, and plaintiff’s Complaint is dismissed.
This constitutes the decision and Order of the Court.
Dated: November 2, 2023
_________________________________
Hon. Tracy Catapano-Fox, J.S.C.
11/3/2023
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Preview
FILED: CAYUGA COUNTY CLERK 12/15/2023 10:46 AM INDEX NO. E2023-0104 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 12/15/2023 Exhibit G FILED: CAYUGA QUEENS COUNTY CLERK 12/15/2023 11/03/2023 10:46 10:04 AM INDEX INDEXNO. NO.719071/2021 E2023-0104 NYSCEF DOC. NO. 66 74 RECEIVED NYSCEF: 12/15/2023 11/03/2023 Short Form Order 11/3/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------------X NONA GERBER, as Administrator of the Estate of RIDA ZAVULUNOVA, Deceased, Index No. 719071/2021 Plaintiff, Part MDP -against- Motion Date: June 21, 2023 FOREST VIEW CENTER, Sequence No. 1 Defendant. -------------------------------------------------------------------X The following papers numbered EF-11 to EF-73 read on this motion by defendant to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) and (a)(7). Papers Numbered Notice of Motion, Affirmation, Exhibits..............................................EF11-EF35 Affirmation in Opposition, Memorandum, Exhibits……............……EF38-EF66 Reply Affirmation, Exhibits………………………………………….EF69-EF73 Upon the foregoing papers, it is ordered that this motion is determined as follows: Defendant’s motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) is denied, but defendant’s motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(7) is granted. (See Ruth v. Elderwood At Amherst, 209 A.D.3d 1281 [4th Dept. 2022].) Plaintiff commenced this action for malpractice, negligence, violations of the Public Health Law and wrongful death sustained while at defendants’ facility, at which the Complaint alleges plaintiff decedent contracted COVID-19, resulting in her death. Plaintiff filed the Summons and Complaint on August 24, 2021, and defendant files this pre-Answer motion to dismiss. A motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) based on documentary evidence may be appropriately granted ‘only where the documentary evidence utterly 1 1 of 4 FILED: CAYUGA QUEENS COUNTY CLERK 12/15/2023 11/03/2023 10:46 10:04 AM INDEX INDEXNO. NO.719071/2021 E2023-0104 NYSCEF DOC. NO. 66 74 RECEIVED NYSCEF: 12/15/2023 11/03/2023 refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. (Beach 50th St., LLC v. Peninsula Rockaway Ltd. Partnership, 187 A.D.3d 1114, 1116 [2d Dept. 2020].) On a motion to dismiss pursuant to CPLR §3211(a)(7), the Court is required to afford the pleadings a liberal construction, accept the facts alleged in the complaint as true, provide plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Board of Mgrs. Of 136 St. Marks Place Condominium v. St. Marks Place Condominiums II, LLC, 128 A.D.3d 877, 878 [2d Dept. 2015].) Furthermore, whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss, rather, the Court merely examines the adequacy of the pleadings. (EBC Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19 [2005]; see also Cortlandt Street Recovery Corp. v. Bonderman, 31 N.Y.3d 30 [2018].) Defendant’s motion to dismiss pursuant to CPLR §3211(a)(7) is granted, as plaintiff’s claims fall squarely within the immunity from liability afforded by EDTPA. Plaintiff was admitted to defendant’s facility on March 9, 2020 for rehabilitation, but was taken to Long Island Jewish Hospital on April 1, 2020 when her oxygen saturation dropped, and she died on May 5, 2020. Defendant presented an affidavit from Susan Pauliny, defendant’s former Director of Nursing, who attested defendant enacted plans and policies during the pandemic that impacted the care and treatment of its residents and were taken in good faith to protect residents such as plaintiff decedent. Even viewing the Complaint in the light most favorable to plaintiff, the causes of action against defendant are directly related to allegations that defendant’s malpractice and negligence caused plaintiff decedent to contract COVID-19, resulting in pain and suffering, and ultimately her death. Plaintiff decedent was a patient at defendant’s facility during the applicable timeframe under EDTPA, and plaintiff’s Complaint makes no claims with regard to any violations of the Public Health Law or failure to provide medical treatment beyond those relating to and impacted by COVID-19. Plaintiff’s Complaint also failed to sufficiently allege that defendant did not act in good faith in rendering medical care during the COVID-19 pandemic, and failed to present any claims that are not directly related to the medical care rendered to plaintiff during the pandemic. Defendant also demonstrated that the PREP Act is inapplicable, as it is a “covered person” engaged in “recommended activities” including FDA approved countermeasures such as PPE and approved COVID-19 tests to diagnose and prevent the spread of the disease. As there is no evidence of gross negligence or recklessness beyond the conclusory and boilerplate claims made in plaintiff’s Complaint, defendant demonstrated that it is immune from liability under EDTPA and the PREP Act. Plaintiff failed to present sufficient evidence to demonstrate the claims are not a result of, 2 2 of 4 FILED: CAYUGA QUEENS COUNTY CLERK 12/15/2023 11/03/2023 10:46 10:04 AM INDEX INDEXNO. NO.719071/2021 E2023-0104 NYSCEF DOC. NO. 66 74 RECEIVED NYSCEF: 12/15/2023 11/03/2023 or impacted by the COVID-19 pandemic, or that a valid exception exists to the applicability of EDTPA or the PREP Act. Plaintiff’s argument that the repeal of EDTPA was retroactive is without merit, as the Fourth Department conclusively determined the legislation’s repeal was not retroactive. (See Ruth, supra.) Plaintiff argues blanket immunity to defendant and dismissal will result in a severe injustice to plaintiff decedent, as it precludes discovery that might demonstrate further acts or omissions by defendant that would demonstrate malpractice and negligence that resulted in plaintiff decedent’s death. However, that blanket immunity is exactly what the legislature intended in enacting EDTPA, as can be seen by the language in the legislative memorandum that repealed EDTPA. (Assembly Introducer’s Mem. In Support, Bill Jacket, L 2021, ch 96; see also Sponsor’s Mem., 2021 NY Senate Bill S5177 [“In particular, EDTPA egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence”].) Therefore, it is clear that the statute was enacted to protect health care providers, as they continued to provide medical treatment and ensure our society received the medical care absolutely needed during the unprecedented medical crisis. For better or worse, the legislature made a determination that the need to ensure medical care was provided during the pandemic outweighed the costs of providing blanket immunity to those who provided it, and this Court is constrained by that determination. Therefore, unless plaintiff can demonstrate gross negligence by defendant, all claims of malpractice, negligence, violations of Public Health Law, and wrongful death, are barred by EDTPA. Further, plaintiff’s claim that the PREP Act is not applicable as a defense because it only contemplated action involving a drug or device is a narrow interpretation that lacks caselaw or statutory authority, and therefore is deemed meritless. To establish gross negligence, plaintiff must demonstrate that defendant’s conduct involved intentional wrongdoing or evinced a reckless indifference to the rights of others. (Skywest, Inc. v. Ground Handling, Inc., 150 A.D.3d 922, 923 [2d Dept. 2017].) Plaintiff’s Complaint failed to allege specific acts or omissions by defendant, as it is conclusory and without sufficient facts to show intentional wrongdoing or reckless indifference to plaintiff decedent. (Compare Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926 [2d Dept. 2018][the plaintiff pled allegations that the defendants greatly exacerbated existing damage to the property with specific facts that sufficiently supported a gross negligence cause of action].) As plaintiff’s Complaint failed to plead specific allegations that rise to the level of gross negligence, which differ in kind, not only degree, from claims of ordinary negligence, the exception to EDTPA for gross negligence actions has not been met. (See Weiss v. Vacca, 2023 NY Slip Op 04613 [2d Dept. 9/13/2023].) Further, defendant’s motion to dismiss pursuant to CPLR §3211(a)(1) is denied as moot. 3 3 of 4 FILED: CAYUGA QUEENS COUNTY CLERK 12/15/2023 11/03/2023 10:46 10:04 AM INDEX INDEXNO. NO.719071/2021 E2023-0104 NYSCEF DOC. NO. 66 74 RECEIVED NYSCEF: 12/15/2023 11/03/2023 Accordingly, defendant’s motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) is denied as moot, but defendant’s motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(7) is granted, and plaintiff’s Complaint is dismissed. This constitutes the decision and Order of the Court. Dated: November 2, 2023 _________________________________ Hon. Tracy Catapano-Fox, J.S.C. 11/3/2023 4 4 of 4