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State of New York
Litigation Coordinating Panel
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In Re : Index No.:
: LCP0001/2022
Covid-19 Litigation :
Against Nursing Homes : AFFIRMATION OF
: EMERGENCY
:
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Lori Semlies, Dylan Braverman, James P. Connors, Jeffrey Wolber and Mario C.
Giannettino, attorneys duly admitted to practice law before the courts of this state, aware of the
penalties of perjury, affirm as follows:
1. Lori Semlies is an attorney with the law firm of Wilson, Elser, Moskowitz, Edelman
& Dicker LLP; Dylan Braverman is an attorney with the law firm of Vigorito, Barker, Patterson,
Nichols & Porter; LLP, James P. Connors is an attorney with the law firm of Lewis Johs Avallone
Aviles, LLP; Jeffery Wolber is an attorney with the law firm of Hall Booth Smith, P.C.; and Mario
C. Giannettino is an attorney with the firm of Kaufman Borgeest & Ryan LLP. Each are counsel
for certain of the defendants, as reflected in appearances entered on New York State Courts
Electronic Filing System (“NYSCEF”).
2. We submit this affirmation in support of the request for a temporary restraining
order, accompanying an order to show cause for renewal and reargument and upon renewal and
reargument, the vacating of this Panel’s August 4, 2022 Interim Order. The temporary restraining
order seeks to lift and suspend that portion of this Panel’s August 4, 2022 Interim Order, which
stays these actions, including “those identified in Appendices A and B and in similar actions filed
or yet to be filed,” pending a final Order of Coordination from the Panel.
3. Immediate suspension of the purported stay order is required in order to restore the
defendants’ entitlement to orderly and proper defense of the cases before the various courts,
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without loss of substantive rights, including to meaningfully seek dismissals, pursue their
contractual rights to arbitration, mandatory changes to venue or other specific statutory
protections.
4. Among the issues raised are that the current stay deprives all parties to each of the
affected cases of the statutorily-mandated “opportunity to be heard” prior to entry of this Panel’s
Interim Order. 22 N.Y.C.R.R. 202.69(b)(2) (stating that “[t]he Panel shall provide notice and an
opportunity to be heard to all parties to the actions sought to be coordinated and shall inform the
justices before whom such actions are pending of the initiation of proceedings before the Panel.”)
(Emphasis added).
5. On August 18, 2022, at approximately 4:14 p.m., Lori Semlies, an attorney with
the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, notified plaintiffs’ counsel
Joseph L. Ciaccio (JCiaccio@NapoliLaw.com), Napoli Shkolnik, PLLC, by e-mail that defendants
would be presenting the instant order to show cause and temporary restraining order to this Panel
on August 19, 2022, via e-filing on NYSCEF and e-mail sent to dahartma@nycourts.gov.
6. Notice and service of this filing will be by electronic filing on August 19, 2022, to
all counsel of record who have entered appearances in this action by operation of NYSCEF.
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State of New York
Litigation Coordinating Panel
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In Re : Index No.:
: LCP0001/2022
Covid-19 Litigation :
Against Nursing Homes : AFFIRMATION IN
: SUPPORT
:
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Lori Semlies, Dylan Braverman, James P. Connors, Jeffrey Wolber and Mario C.
Giannettino, attorneys duly admitted to practice law before the courts of this state, aware of the
penalties of perjury, affirm as follows:
1. Lori Semlies is an attorney with the law firm of Wilson, Elser, Moskowitz, Edelman
& Dicker LLP; Dylan Braverman is an attorney with the law firm of Vigorito, Barker, Patterson,
Nichols & Porter, LLP; James P. Connors is an attorney with the law firm of Lewis Johs Avallone
Aviles, LLP; Jeffery Wolber is an attorney with the law firm of Hall Booth Smith, P.C.; and Mario
C. Giannettino is an attorney with the firm of Kaufman Borgeest & Ryan LLP. Each are counsel
for certain of the defendants, as reflected in appearances entered on New York State Courts
Electronic Filing System (“NYSCEF”).
2. We submit this affirmation in support of the instant motion, made by order to show
cause, which seeks an order:
a. Granting leave to renew the opposition to the application before this Panel leading
to the August 4, 2022 Interim Order;
b. Granting leave to reargue the opposition leading to the August 4, 2022 Interim
Order;
c. Upon renewal and upon reargument, vacating the August 4, 2022 Interim Order in
its entirety; or, alternatively,
d. Should this Panel decline to vacate the August 4, 2022 Interim Order, vacating the
Interim Order to the extent it stays these actions, including “those identified in
Appendices A and B and in similar actions filed or yet to be filed,” pending a
final Order of Coordination from the Panel; and
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e. Such other and further relief as this Panel deems just and proper.
3. Defendants also seek, by way of a temporary restraining order, that pending hearing
and determination of this motion, the portion of this Panel’s August 4, 2022 Interim Order that
stays these actions, including “those identified in Appendices A and B and in similar actions filed
or yet to be filed”, pending a final Order of Coordination from the Panel, be lifted and suspended.
(Interim Order, Exhibit “A”).
4. In support of the within motion, the following exhibits are attached hereto:
Exhibit A: August 4, 2022 Interim Order
Exhibit B: Damon v. Clove Lakes Healthcare and Rehabilitation Center, Inc.
Exhibit C: New York State Assembly Transcript
Exhibit D: Garcia v. New York City Health & Hospitals Corporation
Exhibit E: Saltanovich v. Sea View Hospital Rehabilitation Center, et al.
Exhibit F: Graves v. Suffolk County, et al.
Exhibit G: Ruth v. Elderwood at Amherst
Exhibit H: Hampton v. City of New York, et al.
Exhibit I: Crampton v. Garnet Health
Exhibit J: New York State Senate Transcript
Exhibit K: Exemplar Admission Agreement with Venue Provision and
Arbitration Agreement
PRELIMINARY STATEMENT
5. The goal of pre-trial coordination is to facilitate the just and efficient resolution of
actions that share common questions of law or fact, which may benefit from uniform treatment.
However, the Panel-imposed stay and proposed plan of coordination here will result in exactly the
opposite. Since the briefing of plaintiffs’ application for coordination, there have been significant
factual and legal developments that warrant leave to renew opposition to plaintiff’s application for
coordination and to reargue this Panel’s August 4, 2022 Interim Order (“Order/Interim Order”).
Defendants estimate that over 1,000 lawsuits have been or will soon be filed across New York
involving deaths to residents of “nursing homes, skilled nursing facilities, and similar heath care
facilities” (hereinafter “nursing homes”) from COVID-19. (See Exhibit “A”, p. 9). More and
more, these actions are being brought by “Proposed Administrators” without the capacity to sue,
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thereby subjecting them to immediate dismissal. Courts throughout New York have already
dismissed actions alleging injury due to COVID-19 based on insufficiency of the pleadings and/or
the immunities afforded by New York’s Emergency or Disaster Treatment Protection Act
(“EDTPA”), N.Y. Pub. Health Law §§ 3080-82 – at the pleadings stage and prior to discovery.
Thus, a number of actions potentially subject to this Panel’s Interim Order are ripe for summary
disposition, which will avoid the perpetuation of claims that fail to state causes of action as a matter
of law.
6. Further, to date, the cases coordinated by this Panel have involved either the
launching of a product into society that caused widespread harm (opioids), a terrorist attack, or
single event-causing harm (multi-vehicle collision). COVID-19 is different. It is a novel
coronavirus that is now estimated to have infected over 590 million people worldwide and resulted
in the death of over 6.44 million people. The disease caught the entire world and healthcare
industry off guard, including the United States Center for Disease Control and Prevention Center
(the “CDC”), who recently admitted it performed poorly in responding to the pandemic, for among
other reasons, its inability to effectively communicate standards to prevent the transmission of
COVID-19. Treating COVID-19 as a mass tort simply based on template pleadings by plaintiffs’
firms that feign common legal standards or uniform responses to the outbreak is prejudicial to the
nursing homes and its personnel who were impacted by the virus at the risk of their own health
and safety. The fact that many lawsuits have already been or may be filed in New York State does
not transform a global pandemic into a mass tort worthy of pre-trial coordination. Coordinating
these actions sets a dangerous precedent by encouraging plaintiffs to flood courts with identical
complaints in order to create the illusion of a mass tort.
7. Defendants respectfully ask this Panel for leave to renew and reargue the objections
to plaintiff’s application for coordination and to lift the stay of proceedings set forth by the Panel’s
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Interim Order. Preventing defendants from filing pre-answer motions in the ordinary course will
prolong the dismissal of non-actionable claims that are currently ripe for disposition. Additionally,
precluding defendants from proceeding with appeals of first-impression legal issues will 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 personal 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 beyond this Panel’s authority and violative of New York’s
Constitution. Accordingly, defendants respectfully ask the Panel to grant this motion and vacate
the August 4, 2022 Interim Order in its entirety.
ARGUMENT
8. A motion for leave to renew “shall be based upon new facts not offered on the prior
motion that would change the prior determination or shall demonstrate that there has been a change
in the law that would change the prior determination.” CPLR § 2221(e). A motion for leave to
reargue shall be “based upon matters of fact or law allegedly overlooked or misapprehended by
the court in determining the prior motion, but shall not include any matters of fact not offered on
the prior motion.” CPLR § 2221(d); Viola v. City of New York, 13 A.D.3d 439, 440 (2nd Dept.
2004) (reargument warranted where court mistakenly arrived at its earlier decision). As shown
below, recent factual and legal developments, coupled with the constitutional concerns outlined
herein, warrant the relief requested by this motion.
I. A PANEL-IMPOSED STAY AND PRE-TRIAL COORDINATION WILL
UNNECESSARILY DELAY THE DISPOSAL OF ACTIONS AT THE PLEADINGS
STAGE
9. In recent months, there has been a sharp increase in the number of Complaints filed
throughout New York’s judicial districts against nursing homes alleging death from COVID-19.
Upon information and belief, defendants estimate that over 1,000 cases, either pending or soon-
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to-be-filed, could be subject to pre-trial coordination per this Panel’s Interim Order. That would
result in over 1,000 factually and legally distinct pre-answer, dispositive motions to be heard in
one judicial district before one or a few Coordinating Justices; 1,000+ discovery-related motions
to be heard before one or a few Coordinating Justices; and coordination of document and other
discovery from potentially 500+ separate and distinct nursing homes throughout New York state
with individualized responses to the COVID-19 outbreak.
10. A large number of these cases can be disposed of at the pleadings stage, pursuant
to CPLR § 3211(a)(3) (lack of capacity), and § 3211(a)(7), based on legal insufficiency of the
pleadings, and the immunities afforded by the EDTPA and the federal Public Readiness and
Emergency Preparedness Act (“PREP Act”), 42 U.S.C. § 247d-6d, et seq. Indeed, some already
have. Judicially efficiency is greatly served by lifting the Panel-imposed stay and allowing
dispositive motions to be filed in the Supreme Courts where these action are pending.
A. Motion to Dismiss for Insufficiency of Pleadings
11. On June 21, 2022, Justice Orlando Marrazzo, Jr. (Richmond County) issued a
thorough and well-reasoned decision dismissing plaintiff’s claims in Damon v. Clove Lakes
Healthcare and Rehabilitation Center, Inc., No. 150031/2022 (Sup. Ct., Richmond County, June
21, 2022) (attached hereto as Exhibit “B”). Not only did Judge Marrazzo dismiss the complaint
with prejudice under the EDTPA, but he also ruled that the complaint itself failed to state a cause
of action as a matter of law. Like in the cases herein, plaintiff’s decedent in Damon was admitted
to defendant’s nursing home, during which time he was infected with COVID-19 in the early days
of the pandemic and developed respiratory distress and hypoxia, allegedly resulting in his untimely
death. The court ruled that the complaint must be dismissed because it failed to state a cause of
action, stating:
Notwithstanding the immunity provided to Defendant by the EDTPA, the
Complaint should be dismissed, pursuant to CPLR § 3211(a)(7), because it
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contains no specific factual allegations tied to any date, time, action,
omission, or occurrence in a manner sufficient to support the Plaintiff’s
claims. Rather, Plaintiff’s claims are entirely speculative, conclusory, and
references irrelevant occurrences which are not factually related to any of
the vague boilerplate allegations in the Complaint.
Id. at p. 6. The court further held:
The sole allegation appears to be that the Decedent contracted COVID-19 at
the subject facility, which led to his death. As such, Plaintiff appears to be
asserting a cause of action akin to strict liability because there are no facts
alleged to support the argument that [the patient’s] death was caused by any
culpable conduct on the part of the Defendant.
***
The Court notes that Plaintiff also references COVID-19-related deaths at
the subject facility as an allegation against Defendant. Again, this is not
tied to any specific events concerning the Decedent. If 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.
***
Plaintiff has cast a wide net and the Complaint is merely an attempt to
initiate proceedings in the hopes that discovery will provide some
information to validate its claims at some later time.
Id. at pp. 6-9 (emphasis added).
12. The complaint in Damon is identical to dozens of others filed by the same firm
(Krentsel Guzman Herbet, LLP), which are pending in multiple courts. This complaint is markedly
similar to complaints filed by other plaintiffs here and in other states, which similarly lack specific
factual allegations tied to any date, time, action, omission, or occurrence in a manner sufficient to
support causes of action under New York law. Thus, notwithstanding the immunities afforded by
the EDTPA and the PREP Act, hundreds of complaints are currently ripe for dismissal, pursuant
to CPLR § 3211(a)(7). Timely disposition of these actions in the venues where they are pending
promote the quick and efficient resolution of potentially hundreds of claims. Thus, the goals of
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coordination will benefit from the lifting of the Panel-imposed stay currently in place so that
defendants may file dispositive motions based on the insufficiency of the pleadings.
B. Motion to Dismiss for Lack of Capacity
13. The stay issued by the Interim Order should also be lifted in order for defendants
to file dispositive motions for lack of capacity. The Interim Order requires nursing homes to
defend against claims brought by plaintiffs who lack legal capacity, without an avenue to dispose
of cases on that basis until trial, resulting in significant expense and prejudice to those facilities.
Defendants in these and similar cases should not be precluded from making threshold motions to
dismiss complaints under CPLR § 3211(a)(3) in circumstances where the plaintiff lacks legal
capacity to maintain the suit. An increasing number of lawsuits have been filed recently by
plaintiffs denominated as “Proposed Administrator” or “Proposed Executor”. As filed, these
complaints are subject to dismissal as a matter of law, and many have already been dismissed on
these grounds.
14. EPTL § 5-4.1(1) provides that only a “personal representative, duly appointed by
the State or any other jurisdiction, of a decedent who is survived by distributes may maintain an
action to recover damages for a wrongful act, neglect, or default which caused the decedent’s death
against a person who would have been liable to the decedent by reason of such wrongful conduct
if death had not ensued.” As stated by the Court of Appeals, “the statutory requirement of a duly
appointed administrator [in wrongful death actions] is in the nature of a condition precedent to the
right to bring the suit, and, as such, is an essential element of the claim.” Carrick v. Cent. Gen.
Hosp., 51 N.Y.2d 242, 249 (1980) (citing George v. Mt. Sinai Hosp., 47 N.Y.2d 170 (1979)); c.f.,
Lichtenstein v. State, 252 A.D.2d 921, 922 (3rd Dept. 1998).
15. When a party has not received letters to administer the estate of a decedent, said
party does not have legal capacity to sue. See, e.g., Mingone v. State, 100 A.D.2d 897, 899 (2nd
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Dept. 1984) (dismissing action for personal injuries and wrongful death because at time summons
was served, there was no personal representative of decedent’s estate appointed); see also
Rodriguez v. River Valley Care Ctr., Inc., 175 A.D.3d 432, 433 (1st Dept. 2019) (holding that
plaintiff lacked legal capacity to pursue personal injury and wrongful death claims on behalf of
estate prior to receiving letters of administration and re-filing lawsuit). Cases commenced by a
“proposed” estate representative are void ab initio, commenced by a fictional entity that has no
legal identity in New York. It is inherently unfair to health care facilities to require them to litigate
claims where the plaintiff does not yet exist and has no cause of action on the face of the complaint.
Moreover, a plaintiff may subsequently be properly appointed as representatives by action of the
Surrogates Court and re-file their actions within six months of dismissal under CPLR §205.
Rodriguez, 175 A.D.3d at 433. There is, however, a 6-month temporal limit to the “second chance”
afforded to plaintiff in these circumstances. As such, the delay occasioned by an immediate stay
of all actions improperly renders this limitation illusory and, in effect, renders it null and void.
Indeed, to the extent the Interim Order seeks to stay defendants’ ability to bring the issue of
capacity to the Supreme Court’s attention in the jurisdiction where the action was commenced
(and likely where the Surrogate’s Court action seeking to issue Letters is pending), we respectfully
contend that determination of this threshold issue should not be curtailed.
C. Motion to Dismiss under the EDTPA
1. Issue of Retroactivity
16. Multiple courts across the State have dismissed actions pursuant to the EDTPA at
the pleadings stage and prior to discovery. 1 As this Panel is aware, appeals are pending on the
Garcia v. New York City Health & Hospitals Corporation, No. 159046/2020 (Sup. Ct., N.Y. County, July 6, 2022);
1
Saltanovich v. Sea View Hospital Rehabilitation Center, et al., Index No. 151312/2021, (Sup. Ct., Richmond County,
May 18, 2022); Graves v. Suffolk County, et al.,, Index. No. 603705/2021 (Sup. Ct., Suffolk County, Apr. 13, 2022);
Ruth v. Elderwood at Amherst, No. 804780/2021 (Sup. Ct., Erie County, August 5, 2021); Hampton v. City of New
York, et al., Index No. 28392/20E (Sup. Ct., Bronx County May 18, 2021); Crampton v. Garnet Health, 73 Misc. 3d
543, 558, 155 N.Y.S.3d 699 (N.Y. Sup. Ct. 2021) (Decisions attached hereto as Exhibit “D”- “I”).
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issue of whether the repeal of the EDTPA in April 2021 was meant to apply retroactively.
However, the Panel should be made aware that this issue has absolutely no legal merit by virtue
of the plain language of the repeal and the clear intent of the legislators who vigorously debated it
prior to its passage. Attached hereto as Exhibit “C” is the transcript from the New York State
Assembly session on March 4, 2021, where the bill was discussed. This dialogue clearly evinces
the intent and understanding of the Assembly, prior to voting, that the repeal was to be applied
prospectively.
Mr. Byrne: [M]y understanding is this proposal does not have any sort of
retroactive effect to increase that liability. (See p. 45). [I]t is with the belief
and understanding that this bill is being applied prospectively, not
retrospectively, that I will be voting in the affirmative. (See p. 82) (emphasis
added).
Mr. Goodell: A lot of questions have been asked whether those protections
are being lifted retroactively. I don’t think they should. I think there’s very,
very serious constitutional due process issues if you try to impose
retroactive liability. And I’m confident … that the courts will apply this
prospectively, as they should. So with that clear understanding and the
legislative history … I will be supporting it and urge my colleagues to do
the same. (See p. 60) (emphasis added).
Ms. Woerner: So I’ll be supporting this bill today because we should
always hold bad actors accountable. And it is my hope that this is applied
prospectively and not retroactively because of the environment in which our
nursing home administrators had to deal. (See p. 65) (emphasis added).
Mr. Lavine: So on the question of retroactivity, it is my intent that there
should be no retro – retroactive removal of those protections that were
granted in the March 23rd Executive Order. And I just want to make that
clear. (See p. 73) (emphasis added).
Ms. Fahy: My understanding as well is that this was not retroactive, it was
prospective. And again, I just want to be on the record saying that my
understanding is that this is prospective. (See p. 86) (emphasis added).
Ms. Griffin: I am proud to co-sponsor this bill with the understanding that
it is prospective. I don’t believe nursing home operators that ran facilities
as efficiently, safely and compassionately as they could at an extremely
challenging time should be held accountable retroactively. (See p. 93)
(emphasis added).
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17. Statements made by members of the Committee on Health, including its Chair,
Richard Gottfried, are also unequivocal on this issue:
Mr. Gottfried: It is highly unusual for a law to be applied retroactively.
When the Legislature wants a law to be – to have retroactive effect, we
know how to do that. We put in special language that makes it crystal clear
like, this act shall take effect immediately and shall be deemed to have been
in full force and effect since whenever. There’s none of that language
here. So we don’t have to worry about this being applied retroactively.
(See p. 90) (emphasis added);
Mr. McDonald: We had the Health Committee meeting the other day. The
answer was very clear, is this bill retroactive. The answer was very clear:
No, it’s not. It wasn’t really a question, it was pretty much straightforward.
[W]hen I look at the bill, the bill is probably the simplest bill we’ll ever see.
You know, this is – this is a new bill, it’s effective immediately upon
passage, and I don’t see anything about retroactivity in this. (See p. 66-67)
(emphasis added).
18. Assembly Member Burdick cogently summarized the “dialogue regarding what the
intent is.” He stated:
I … want to thank Chair Gottfried for his explanation that for the law to be
retroactive, the Legislature would have explicitly stated that it’s retroactive.
There’s no such language that exists in this legislation. It is the clear intent
of this Body that it be prospective. I am thoroughly satisfied that that would
be how it will be treated.
(See p. 92) (emphasis added). The comments from New York State Senate members prior to their
vote on the Bill further supports this intent. Senator Mayer explained: “I want to thank Senator
Biaggi for her really persistent leadership on this issue. And I want to clarify that my
understanding is that this bill is prospective, it will apply going forward.” (See New York State
Senate Transcript, pp. 1834-38, attached hereto as Exhibit “J”).
19. The statutory text of the repeal is also unequivocal with respect to its prospective
effect. It states:
Section 1. Article 30-d of the public health law is REPEALED.
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§ 2. This act shall take effect immediately.” 2 (Emphasis added).
When a statute includes the phrase “effective immediately,” “‘it does not have any retroactive
operation or effect.’” Morales v. Gross, 230 A.D.2d 7, 10 (2nd Dept. 1997) (quotation omitted);
see also Moynihan v. New York State Employees' Ret. Sys., 192 A.D.2d 913, 914 (3rd Dept. 1993)
(“shall take effect immediately” provides clear indication of prospective application). When a
statute is framed in future words such as “shall”, it is construed as prospective only. Kuryak v.
Adamczyk, 265 A.D.2d 796, 796 (4th Dept. 1999); Weiler v. Dry Dock Sav. Inst., 258 A.D. 581,
582 (1st Dept. 1940), aff’d 284 N.Y. 630 (1940), (“[a] statute using words importing futurity, such
as ‘shall be,’ is regarded as prospective only.”); Dalziel v. Rosenfeld, 265 N.Y. 76, 79 (1934)
(same). Moreover, retroactive operation is not favored by courts, and statutes will not be given
such construction unless the language expressly or by necessary implication requires it. Kuryak,
265 A.D.2d at 796; see also Landgraf v. USI Film Prod., 511 U.S. 244, 265 (1994) (“presumption
against retroactive legislation is deeply rooted in our jurisprudence”); see also NY Gen. Constr.
Law § 93 (the repeal of a statute “shall not affect or impair any act done, offense committed or
right accruing, accrued or acquired … prior to the time such repeal takes effect”). “It takes a clear
expression of the legislative purpose to justify a retroactive application.” Jacobus v. Colgate, 217
N.Y. 235, 240 (1916). That is wholly absent in this case. Thus, any argument that the EDTPA
does not apply to the claims impacted by this Panel’s Interim Order by virtue of a purported
retroactive repeal is wholly without merit and should not deter the filing of dispositive motions in
the ordinary course.
2. Criteria for Immunity
20. The Interim Order states that each of the actions here present common questions of
law that are important to the determination of plaintiffs’ claims. The Order further finds
2
https://www.nysenate.gov/legislation/bills/2021/s5177.
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commonality with respect to “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.” (Order, at p. 3). However, questions regarding standards of care are wholly irrelevant
to dispositive motions at the pre-discovery stage of these actions. The immunity conferred by the
EDTPA removes these cases from the traditional medical malpractice arena. 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 immunity. A defendant is entitled to
immunity under the EDTPA where: (1) the allegations pertain to the prevention or treatment of
COVID-19; and (2) the defendant demonstrates that the patient’s overall treatment was impacted
by defendant’s decisions or activities in response to or as a result of the COVID–19 outbreak.
Questions regarding standard of care are not part of the analysis.
21. As Judge Barbara Jaffe recently held in Garcia v. New York City Health &
Hospitals Corporation, No. 159046/2020 (Sup. Ct., N.Y. County, July 6, 2022):
the EDTPA confers blanket immunity on negligence occurring during the
pandemic, due to the wisdom of the Legislature in recognizing that
treatment of COVID-19 patients was a priority and that a medical facility
be given leeway in deciding how to allocate treatment and resources in the
immediate, emergent, and highly-fraught environment.
Id. at p. 4. (Exhibit “D”). The Garcia court therefore dismissed plaintiff’s claims without
discovery or expert testimony. The only relevant inquiry was whether the allegedly negligent acts
“constituted a response to the facility’s treatment of COVID-19 patients in general” (id.), a highly
individualized factual inquiry that is immaterial to community standards of care. Thus, there are
no common questions of fact or law that would impact the dismissal of these actions under the
EDTPA.
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D. Motion to Dismiss under the PREP Act
22. Immunity “from suit” is a jurisdictional concept. It is more than a mere defense to
liability—its fundamental aim is to shield a defendant from the possibility of liability and the costs
associated with defending a lawsuit. It is rare, but in situations where it applies, it is taken seriously
and addressed as early as possible during the litigation. The Supreme Court has explained:
The entitlement [not to stand trial or face the other burdens of litigation] is an
immunity from suit rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously permitted to go to trial.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis original). See also Hunter v. Bryant, 502
U.S. 224, 227 (1991) (“we repeatedly have stressed the importance of resolving immunity
questions at the earliest possible stage in litigation”) (emphasis added); Crawford-El v. Britton,
523 U.S. 574, 597–600 (1998) (explaining that questions of immunity should be resolved “before
permitting discovery”).
23. Stated differently, where a defendant is immune from suit, the immunity is violated
the moment the action is commenced, and continues to be violated every day the action remains
pending. Thus, not only is an early determination of such immunity prudent policy from an
efficiency standpoint (for both courts and litigants), but it ensures that the Legislature’s will is not
thwarted by a plaintiff’s counsel seeking to engage in a fishing expedition and use the costly
discovery process as leverage in settlement negotiations.
24. Here, many defendants impacted by this Panel’s Interim Order have potential
immunity “from suit” under the PREP Act. Briefly, that statute provides broad immunity “from
suit” with respect to any claim against a healthcare facility (i.e., a “covered person”) “relating to,”
inter alia, the use or administration of PPE to mitigate the spread of COVID-19, COVID-19 tests
to diagnose individuals, drugs to treat COVID-19 individuals, or devices to identify symptomatic
individuals. See 42 U.S.C. § 247d-6d(a)(1); 85 Fed. Reg. 15198. Critically, this immunity “from
13
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suit” is not limited to claims for injuries caused by the countermeasures themselves; rather, it
applies to, inter alia, any claim that is related to a facility’s implementation of a program involving
covered countermeasures against COVID-19, or operation of a facility with respect to the same.
See § 237d-6d(i)(6) (defining “program planner”); 85 Fed. Reg. 15198, 15200 (discussing
“administration”).
25. Therefore, by staying all cases listed on Appendix A and Appendix B, as well as
purportedly staying “similar actions” filed or yet to be filed, this Panel effectively deprived all
defendants who meet the definition of a “covered person” under the PREP Act from enforcing
their immunity “from suit” provided by federal law. Given the underlying meaning of immunity
“from suit,” this substantially prejudices them for a variety of reasons.
26. While there is considerable disagreement between plaintiffs and defendants as to
whether the PREP Act applies to claims of negligent infection control in nursing homes, this
Panel’s stay thwarts the effort to resolve that disagreement. Instead, it compounds the problem by
forcing all defendants to “wait and see” what the Panel decides to do with respect to coordination.
Further, if coordination is ultimately ordered, each defendant will again need to “wait and see”
how to assert its immunity from suit. Meanwhile, they are prevented from pursuing their own
motions to dismiss and are forced to incur the very litigation costs and threat of liability that
Congress expressly sought to shield them from in the first place.
27. Again, every day an action is pending, the immunity is lost. Those many defendants
with motions to dismiss already filed but not decided are prevented from receiving a decision, and
if necessary, pursuing an appeal; and those defendants without motions yet filed are prevented
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from timely filing them in the first place. That, in turn, prevents the appellate process from
addressing these issues, which only exacerbates the problem. 3
28. Instead, each defendant should be permitted to assert its immunity from suit for
itself, to do so by filing a motion to dismiss if able, and to pursue an appeal if necessary. Different
defendants with different defense counsel and different facilities may, for a variety of reasons, seek
to enforce the PREP Act in different ways. That is their prerogative as litigants. Unfortunately,
for those defendants seeking to do so by filing an early motion to dismiss, this Panel’s Order
arguably stands in the way.
29. Therefore, this Panel’s Interim Order should be vacated, and all defendants should
be permitted to assert their immunity “from suit” under the PREP Act in the manner they each see
fit.
E. Motion to Enforce Arbitration and Venue Provisions
30. As discussed, the Interim Order endeavoring to stay all pre-trial motions will further
clog the court system with cases that could be decided on threshold motions, resulting in deprived
contractual rights, needless and unnecessary expense for all litigants, and potentially delayed
justice for plaintiffs with meritorious claims. A critical factor in determining whether (and, if
proper, how) to order coordination is whether coordination would “…unreasonably delay the
progress, increase the expense, or complicate the process of any action or otherwise prejudice a
party…” 22 NYCRR § 202.69 (b)(3). As currently situated, the Interim Order would require
parties to engage in discovery and litigation on claims, which may otherwise be dismissed or
3
Critically, this is not limited to questions of removability under the PREP Act, which this Panel noted is the subject
of two consolidated appeals pending before the Second Circuit. See Rivera-Zayas v Our Lady of Consolation Geriatric
Care Center, No. 21-2164 (2d Cir.); Leroy v Hume, No. 21-2158, 21-2159 (cons) (2d Cir.). Rather, immunity under
the PREP Act is a distinct question that can be raised irrespective of whether the case is removed to federal court.
15
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addressed in more appropriate fora, as required by binding contractual venue provisions and
mandatory arbitration provisions.
31. With respect to the latter, the target nursing homes in these actions frequently enter
into an Admission Agreement with residents of their respective facilities. Many of these
Admission Agreements between residents and nursing homes often include or are accompanied by
Arbitration Agreements requiring binding arbitration over any dispute related to the resident’s stay
in the facility. The Interim Order impermissibly interferes with parties’ contractual arbitration
agreements in violation of the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”) and CPLR
Article 75. The FAA “reflects an emphatic federal policy in favor of arbitral dispute resolution.”
Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530, 533 (2012) (per curiam) (citations
omitted); Rent-A-Ctr., W., Inc. v. Concepcion, 561 U.S. 63, 67 (2010) (observing that the FAA
“places arbitration agreements on equal footing with other contracts and requires courts to enforce
them according to their terms.”).
Preview
FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 State of New York Litigation Coordinating Panel -------------------------------------------------------------------- X In Re : Index No.: : LCP0001/2022 Covid-19 Litigation : Against Nursing Homes : AFFIRMATION OF : EMERGENCY : -------------------------------------------------------------------- X Lori Semlies, Dylan Braverman, James P. Connors, Jeffrey Wolber and Mario C. Giannettino, attorneys duly admitted to practice law before the courts of this state, aware of the penalties of perjury, affirm as follows: 1. Lori Semlies is an attorney with the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP; Dylan Braverman is an attorney with the law firm of Vigorito, Barker, Patterson, Nichols & Porter; LLP, James P. Connors is an attorney with the law firm of Lewis Johs Avallone Aviles, LLP; Jeffery Wolber is an attorney with the law firm of Hall Booth Smith, P.C.; and Mario C. Giannettino is an attorney with the firm of Kaufman Borgeest & Ryan LLP. Each are counsel for certain of the defendants, as reflected in appearances entered on New York State Courts Electronic Filing System (“NYSCEF”). 2. We submit this affirmation in support of the request for a temporary restraining order, accompanying an order to show cause for renewal and reargument and upon renewal and reargument, the vacating of this Panel’s August 4, 2022 Interim Order. The temporary restraining order seeks to lift and suspend that portion of this Panel’s August 4, 2022 Interim Order, which stays these actions, including “those identified in Appendices A and B and in similar actions filed or yet to be filed,” pending a final Order of Coordination from the Panel. 3. Immediate suspension of the purported stay order is required in order to restore the defendants’ entitlement to orderly and proper defense of the cases before the various courts, 1 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 without loss of substantive rights, including to meaningfully seek dismissals, pursue their contractual rights to arbitration, mandatory changes to venue or other specific statutory protections. 4. Among the issues raised are that the current stay deprives all parties to each of the affected cases of the statutorily-mandated “opportunity to be heard” prior to entry of this Panel’s Interim Order. 22 N.Y.C.R.R. 202.69(b)(2) (stating that “[t]he Panel shall provide notice and an opportunity to be heard to all parties to the actions sought to be coordinated and shall inform the justices before whom such actions are pending of the initiation of proceedings before the Panel.”) (Emphasis added). 5. On August 18, 2022, at approximately 4:14 p.m., Lori Semlies, an attorney with the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, notified plaintiffs’ counsel Joseph L. Ciaccio (JCiaccio@NapoliLaw.com), Napoli Shkolnik, PLLC, by e-mail that defendants would be presenting the instant order to show cause and temporary restraining order to this Panel on August 19, 2022, via e-filing on NYSCEF and e-mail sent to dahartma@nycourts.gov. 6. Notice and service of this filing will be by electronic filing on August 19, 2022, to all counsel of record who have entered appearances in this action by operation of NYSCEF. 2 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 State of New York Litigation Coordinating Panel -------------------------------------------------------------------- X In Re : Index No.: : LCP0001/2022 Covid-19 Litigation : Against Nursing Homes : AFFIRMATION IN : SUPPORT : -------------------------------------------------------------------- X Lori Semlies, Dylan Braverman, James P. Connors, Jeffrey Wolber and Mario C. Giannettino, attorneys duly admitted to practice law before the courts of this state, aware of the penalties of perjury, affirm as follows: 1. Lori Semlies is an attorney with the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP; Dylan Braverman is an attorney with the law firm of Vigorito, Barker, Patterson, Nichols & Porter, LLP; James P. Connors is an attorney with the law firm of Lewis Johs Avallone Aviles, LLP; Jeffery Wolber is an attorney with the law firm of Hall Booth Smith, P.C.; and Mario C. Giannettino is an attorney with the firm of Kaufman Borgeest & Ryan LLP. Each are counsel for certain of the defendants, as reflected in appearances entered on New York State Courts Electronic Filing System (“NYSCEF”). 2. We submit this affirmation in support of the instant motion, made by order to show cause, which seeks an order: a. Granting leave to renew the opposition to the application before this Panel leading to the August 4, 2022 Interim Order; b. Granting leave to reargue the opposition leading to the August 4, 2022 Interim Order; c. Upon renewal and upon reargument, vacating the August 4, 2022 Interim Order in its entirety; or, alternatively, d. Should this Panel decline to vacate the August 4, 2022 Interim Order, vacating the Interim Order to the extent it stays these actions, including “those identified in Appendices A and B and in similar actions filed or yet to be filed,” pending a final Order of Coordination from the Panel; and FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 e. Such other and further relief as this Panel deems just and proper. 3. Defendants also seek, by way of a temporary restraining order, that pending hearing and determination of this motion, the portion of this Panel’s August 4, 2022 Interim Order that stays these actions, including “those identified in Appendices A and B and in similar actions filed or yet to be filed”, pending a final Order of Coordination from the Panel, be lifted and suspended. (Interim Order, Exhibit “A”). 4. In support of the within motion, the following exhibits are attached hereto: Exhibit A: August 4, 2022 Interim Order Exhibit B: Damon v. Clove Lakes Healthcare and Rehabilitation Center, Inc. Exhibit C: New York State Assembly Transcript Exhibit D: Garcia v. New York City Health & Hospitals Corporation Exhibit E: Saltanovich v. Sea View Hospital Rehabilitation Center, et al. Exhibit F: Graves v. Suffolk County, et al. Exhibit G: Ruth v. Elderwood at Amherst Exhibit H: Hampton v. City of New York, et al. Exhibit I: Crampton v. Garnet Health Exhibit J: New York State Senate Transcript Exhibit K: Exemplar Admission Agreement with Venue Provision and Arbitration Agreement PRELIMINARY STATEMENT 5. The goal of pre-trial coordination is to facilitate the just and efficient resolution of actions that share common questions of law or fact, which may benefit from uniform treatment. However, the Panel-imposed stay and proposed plan of coordination here will result in exactly the opposite. Since the briefing of plaintiffs’ application for coordination, there have been significant factual and legal developments that warrant leave to renew opposition to plaintiff’s application for coordination and to reargue this Panel’s August 4, 2022 Interim Order (“Order/Interim Order”). Defendants estimate that over 1,000 lawsuits have been or will soon be filed across New York involving deaths to residents of “nursing homes, skilled nursing facilities, and similar heath care facilities” (hereinafter “nursing homes”) from COVID-19. (See Exhibit “A”, p. 9). More and more, these actions are being brought by “Proposed Administrators” without the capacity to sue, 2 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 thereby subjecting them to immediate dismissal. Courts throughout New York have already dismissed actions alleging injury due to COVID-19 based on insufficiency of the pleadings and/or the immunities afforded by New York’s Emergency or Disaster Treatment Protection Act (“EDTPA”), N.Y. Pub. Health Law §§ 3080-82 – at the pleadings stage and prior to discovery. Thus, a number of actions potentially subject to this Panel’s Interim Order are ripe for summary disposition, which will avoid the perpetuation of claims that fail to state causes of action as a matter of law. 6. Further, to date, the cases coordinated by this Panel have involved either the launching of a product into society that caused widespread harm (opioids), a terrorist attack, or single event-causing harm (multi-vehicle collision). COVID-19 is different. It is a novel coronavirus that is now estimated to have infected over 590 million people worldwide and resulted in the death of over 6.44 million people. The disease caught the entire world and healthcare industry off guard, including the United States Center for Disease Control and Prevention Center (the “CDC”), who recently admitted it performed poorly in responding to the pandemic, for among other reasons, its inability to effectively communicate standards to prevent the transmission of COVID-19. Treating COVID-19 as a mass tort simply based on template pleadings by plaintiffs’ firms that feign common legal standards or uniform responses to the outbreak is prejudicial to the nursing homes and its personnel who were impacted by the virus at the risk of their own health and safety. The fact that many lawsuits have already been or may be filed in New York State does not transform a global pandemic into a mass tort worthy of pre-trial coordination. Coordinating these actions sets a dangerous precedent by encouraging plaintiffs to flood courts with identical complaints in order to create the illusion of a mass tort. 7. Defendants respectfully ask this Panel for leave to renew and reargue the objections to plaintiff’s application for coordination and to lift the stay of proceedings set forth by the Panel’s 3 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 Interim Order. Preventing defendants from filing pre-answer motions in the ordinary course will prolong the dismissal of non-actionable claims that are currently ripe for disposition. Additionally, precluding defendants from proceeding with appeals of first-impression legal issues will 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 personal 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 beyond this Panel’s authority and violative of New York’s Constitution. Accordingly, defendants respectfully ask the Panel to grant this motion and vacate the August 4, 2022 Interim Order in its entirety. ARGUMENT 8. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.” CPLR § 2221(e). A motion for leave to reargue shall be “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” CPLR § 2221(d); Viola v. City of New York, 13 A.D.3d 439, 440 (2nd Dept. 2004) (reargument warranted where court mistakenly arrived at its earlier decision). As shown below, recent factual and legal developments, coupled with the constitutional concerns outlined herein, warrant the relief requested by this motion. I. A PANEL-IMPOSED STAY AND PRE-TRIAL COORDINATION WILL UNNECESSARILY DELAY THE DISPOSAL OF ACTIONS AT THE PLEADINGS STAGE 9. In recent months, there has been a sharp increase in the number of Complaints filed throughout New York’s judicial districts against nursing homes alleging death from COVID-19. Upon information and belief, defendants estimate that over 1,000 cases, either pending or soon- 4 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 to-be-filed, could be subject to pre-trial coordination per this Panel’s Interim Order. That would result in over 1,000 factually and legally distinct pre-answer, dispositive motions to be heard in one judicial district before one or a few Coordinating Justices; 1,000+ discovery-related motions to be heard before one or a few Coordinating Justices; and coordination of document and other discovery from potentially 500+ separate and distinct nursing homes throughout New York state with individualized responses to the COVID-19 outbreak. 10. A large number of these cases can be disposed of at the pleadings stage, pursuant to CPLR § 3211(a)(3) (lack of capacity), and § 3211(a)(7), based on legal insufficiency of the pleadings, and the immunities afforded by the EDTPA and the federal Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. § 247d-6d, et seq. Indeed, some already have. Judicially efficiency is greatly served by lifting the Panel-imposed stay and allowing dispositive motions to be filed in the Supreme Courts where these action are pending. A. Motion to Dismiss for Insufficiency of Pleadings 11. On June 21, 2022, Justice Orlando Marrazzo, Jr. (Richmond County) issued a thorough and well-reasoned decision dismissing plaintiff’s claims in Damon v. Clove Lakes Healthcare and Rehabilitation Center, Inc., No. 150031/2022 (Sup. Ct., Richmond County, June 21, 2022) (attached hereto as Exhibit “B”). Not only did Judge Marrazzo dismiss the complaint with prejudice under the EDTPA, but he also ruled that the complaint itself failed to state a cause of action as a matter of law. Like in the cases herein, plaintiff’s decedent in Damon was admitted to defendant’s nursing home, during which time he was infected with COVID-19 in the early days of the pandemic and developed respiratory distress and hypoxia, allegedly resulting in his untimely death. The court ruled that the complaint must be dismissed because it failed to state a cause of action, stating: Notwithstanding the immunity provided to Defendant by the EDTPA, the Complaint should be dismissed, pursuant to CPLR § 3211(a)(7), because it 5 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 contains no specific factual allegations tied to any date, time, action, omission, or occurrence in a manner sufficient to support the Plaintiff’s claims. Rather, Plaintiff’s claims are entirely speculative, conclusory, and references irrelevant occurrences which are not factually related to any of the vague boilerplate allegations in the Complaint. Id. at p. 6. The court further held: The sole allegation appears to be that the Decedent contracted COVID-19 at the subject facility, which led to his death. As such, Plaintiff appears to be asserting a cause of action akin to strict liability because there are no facts alleged to support the argument that [the patient’s] death was caused by any culpable conduct on the part of the Defendant. *** The Court notes that Plaintiff also references COVID-19-related deaths at the subject facility as an allegation against Defendant. Again, this is not tied to any specific events concerning the Decedent. If 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. *** Plaintiff has cast a wide net and the Complaint is merely an attempt to initiate proceedings in the hopes that discovery will provide some information to validate its claims at some later time. Id. at pp. 6-9 (emphasis added). 12. The complaint in Damon is identical to dozens of others filed by the same firm (Krentsel Guzman Herbet, LLP), which are pending in multiple courts. This complaint is markedly similar to complaints filed by other plaintiffs here and in other states, which similarly lack specific factual allegations tied to any date, time, action, omission, or occurrence in a manner sufficient to support causes of action under New York law. Thus, notwithstanding the immunities afforded by the EDTPA and the PREP Act, hundreds of complaints are currently ripe for dismissal, pursuant to CPLR § 3211(a)(7). Timely disposition of these actions in the venues where they are pending promote the quick and efficient resolution of potentially hundreds of claims. Thus, the goals of 6 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 coordination will benefit from the lifting of the Panel-imposed stay currently in place so that defendants may file dispositive motions based on the insufficiency of the pleadings. B. Motion to Dismiss for Lack of Capacity 13. The stay issued by the Interim Order should also be lifted in order for defendants to file dispositive motions for lack of capacity. The Interim Order requires nursing homes to defend against claims brought by plaintiffs who lack legal capacity, without an avenue to dispose of cases on that basis until trial, resulting in significant expense and prejudice to those facilities. Defendants in these and similar cases should not be precluded from making threshold motions to dismiss complaints under CPLR § 3211(a)(3) in circumstances where the plaintiff lacks legal capacity to maintain the suit. An increasing number of lawsuits have been filed recently by plaintiffs denominated as “Proposed Administrator” or “Proposed Executor”. As filed, these complaints are subject to dismissal as a matter of law, and many have already been dismissed on these grounds. 14. EPTL § 5-4.1(1) provides that only a “personal representative, duly appointed by the State or any other jurisdiction, of a decedent who is survived by distributes may maintain an action to recover damages for a wrongful act, neglect, or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.” As stated by the Court of Appeals, “the statutory requirement of a duly appointed administrator [in wrongful death actions] is in the nature of a condition precedent to the right to bring the suit, and, as such, is an essential element of the claim.” Carrick v. Cent. Gen. Hosp., 51 N.Y.2d 242, 249 (1980) (citing George v. Mt. Sinai Hosp., 47 N.Y.2d 170 (1979)); c.f., Lichtenstein v. State, 252 A.D.2d 921, 922 (3rd Dept. 1998). 15. When a party has not received letters to administer the estate of a decedent, said party does not have legal capacity to sue. See, e.g., Mingone v. State, 100 A.D.2d 897, 899 (2nd 7 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 Dept. 1984) (dismissing action for personal injuries and wrongful death because at time summons was served, there was no personal representative of decedent’s estate appointed); see also Rodriguez v. River Valley Care Ctr., Inc., 175 A.D.3d 432, 433 (1st Dept. 2019) (holding that plaintiff lacked legal capacity to pursue personal injury and wrongful death claims on behalf of estate prior to receiving letters of administration and re-filing lawsuit). Cases commenced by a “proposed” estate representative are void ab initio, commenced by a fictional entity that has no legal identity in New York. It is inherently unfair to health care facilities to require them to litigate claims where the plaintiff does not yet exist and has no cause of action on the face of the complaint. Moreover, a plaintiff may subsequently be properly appointed as representatives by action of the Surrogates Court and re-file their actions within six months of dismissal under CPLR §205. Rodriguez, 175 A.D.3d at 433. There is, however, a 6-month temporal limit to the “second chance” afforded to plaintiff in these circumstances. As such, the delay occasioned by an immediate stay of all actions improperly renders this limitation illusory and, in effect, renders it null and void. Indeed, to the extent the Interim Order seeks to stay defendants’ ability to bring the issue of capacity to the Supreme Court’s attention in the jurisdiction where the action was commenced (and likely where the Surrogate’s Court action seeking to issue Letters is pending), we respectfully contend that determination of this threshold issue should not be curtailed. C. Motion to Dismiss under the EDTPA 1. Issue of Retroactivity 16. Multiple courts across the State have dismissed actions pursuant to the EDTPA at the pleadings stage and prior to discovery. 1 As this Panel is aware, appeals are pending on the Garcia v. New York City Health & Hospitals Corporation, No. 159046/2020 (Sup. Ct., N.Y. County, July 6, 2022); 1 Saltanovich v. Sea View Hospital Rehabilitation Center, et al., Index No. 151312/2021, (Sup. Ct., Richmond County, May 18, 2022); Graves v. Suffolk County, et al.,, Index. No. 603705/2021 (Sup. Ct., Suffolk County, Apr. 13, 2022); Ruth v. Elderwood at Amherst, No. 804780/2021 (Sup. Ct., Erie County, August 5, 2021); Hampton v. City of New York, et al., Index No. 28392/20E (Sup. Ct., Bronx County May 18, 2021); Crampton v. Garnet Health, 73 Misc. 3d 543, 558, 155 N.Y.S.3d 699 (N.Y. Sup. Ct. 2021) (Decisions attached hereto as Exhibit “D”- “I”). 8 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 issue of whether the repeal of the EDTPA in April 2021 was meant to apply retroactively. However, the Panel should be made aware that this issue has absolutely no legal merit by virtue of the plain language of the repeal and the clear intent of the legislators who vigorously debated it prior to its passage. Attached hereto as Exhibit “C” is the transcript from the New York State Assembly session on March 4, 2021, where the bill was discussed. This dialogue clearly evinces the intent and understanding of the Assembly, prior to voting, that the repeal was to be applied prospectively. Mr. Byrne: [M]y understanding is this proposal does not have any sort of retroactive effect to increase that liability. (See p. 45). [I]t is with the belief and understanding that this bill is being applied prospectively, not retrospectively, that I will be voting in the affirmative. (See p. 82) (emphasis added). Mr. Goodell: A lot of questions have been asked whether those protections are being lifted retroactively. I don’t think they should. I think there’s very, very serious constitutional due process issues if you try to impose retroactive liability. And I’m confident … that the courts will apply this prospectively, as they should. So with that clear understanding and the legislative history … I will be supporting it and urge my colleagues to do the same. (See p. 60) (emphasis added). Ms. Woerner: So I’ll be supporting this bill today because we should always hold bad actors accountable. And it is my hope that this is applied prospectively and not retroactively because of the environment in which our nursing home administrators had to deal. (See p. 65) (emphasis added). Mr. Lavine: So on the question of retroactivity, it is my intent that there should be no retro – retroactive removal of those protections that were granted in the March 23rd Executive Order. And I just want to make that clear. (See p. 73) (emphasis added). Ms. Fahy: My understanding as well is that this was not retroactive, it was prospective. And again, I just want to be on the record saying that my understanding is that this is prospective. (See p. 86) (emphasis added). Ms. Griffin: I am proud to co-sponsor this bill with the understanding that it is prospective. I don’t believe nursing home operators that ran facilities as efficiently, safely and compassionately as they could at an extremely challenging time should be held accountable retroactively. (See p. 93) (emphasis added). 9 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 17. Statements made by members of the Committee on Health, including its Chair, Richard Gottfried, are also unequivocal on this issue: Mr. Gottfried: It is highly unusual for a law to be applied retroactively. When the Legislature wants a law to be – to have retroactive effect, we know how to do that. We put in special language that makes it crystal clear like, this act shall take effect immediately and shall be deemed to have been in full force and effect since whenever. There’s none of that language here. So we don’t have to worry about this being applied retroactively. (See p. 90) (emphasis added); Mr. McDonald: We had the Health Committee meeting the other day. The answer was very clear, is this bill retroactive. The answer was very clear: No, it’s not. It wasn’t really a question, it was pretty much straightforward. [W]hen I look at the bill, the bill is probably the simplest bill we’ll ever see. You know, this is – this is a new bill, it’s effective immediately upon passage, and I don’t see anything about retroactivity in this. (See p. 66-67) (emphasis added). 18. Assembly Member Burdick cogently summarized the “dialogue regarding what the intent is.” He stated: I … want to thank Chair Gottfried for his explanation that for the law to be retroactive, the Legislature would have explicitly stated that it’s retroactive. There’s no such language that exists in this legislation. It is the clear intent of this Body that it be prospective. I am thoroughly satisfied that that would be how it will be treated. (See p. 92) (emphasis added). The comments from New York State Senate members prior to their vote on the Bill further supports this intent. Senator Mayer explained: “I want to thank Senator Biaggi for her really persistent leadership on this issue. And I want to clarify that my understanding is that this bill is prospective, it will apply going forward.” (See New York State Senate Transcript, pp. 1834-38, attached hereto as Exhibit “J”). 19. The statutory text of the repeal is also unequivocal with respect to its prospective effect. It states: Section 1. Article 30-d of the public health law is REPEALED. 10 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 § 2. This act shall take effect immediately.” 2 (Emphasis added). When a statute includes the phrase “effective immediately,” “‘it does not have any retroactive operation or effect.’” Morales v. Gross, 230 A.D.2d 7, 10 (2nd Dept. 1997) (quotation omitted); see also Moynihan v. New York State Employees' Ret. Sys., 192 A.D.2d 913, 914 (3rd Dept. 1993) (“shall take effect immediately” provides clear indication of prospective application). When a statute is framed in future words such as “shall”, it is construed as prospective only. Kuryak v. Adamczyk, 265 A.D.2d 796, 796 (4th Dept. 1999); Weiler v. Dry Dock Sav. Inst., 258 A.D. 581, 582 (1st Dept. 1940), aff’d 284 N.Y. 630 (1940), (“[a] statute using words importing futurity, such as ‘shall be,’ is regarded as prospective only.”); Dalziel v. Rosenfeld, 265 N.Y. 76, 79 (1934) (same). Moreover, retroactive operation is not favored by courts, and statutes will not be given such construction unless the language expressly or by necessary implication requires it. Kuryak, 265 A.D.2d at 796; see also Landgraf v. USI Film Prod., 511 U.S. 244, 265 (1994) (“presumption against retroactive legislation is deeply rooted in our jurisprudence”); see also NY Gen. Constr. Law § 93 (the repeal of a statute “shall not affect or impair any act done, offense committed or right accruing, accrued or acquired … prior to the time such repeal takes effect”). “It takes a clear expression of the legislative purpose to justify a retroactive application.” Jacobus v. Colgate, 217 N.Y. 235, 240 (1916). That is wholly absent in this case. Thus, any argument that the EDTPA does not apply to the claims impacted by this Panel’s Interim Order by virtue of a purported retroactive repeal is wholly without merit and should not deter the filing of dispositive motions in the ordinary course. 2. Criteria for Immunity 20. The Interim Order states that each of the actions here present common questions of law that are important to the determination of plaintiffs’ claims. The Order further finds 2 https://www.nysenate.gov/legislation/bills/2021/s5177. 11 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 commonality with respect to “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.” (Order, at p. 3). However, questions regarding standards of care are wholly irrelevant to dispositive motions at the pre-discovery stage of these actions. The immunity conferred by the EDTPA removes these cases from the traditional medical malpractice arena. 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 immunity. A defendant is entitled to immunity under the EDTPA where: (1) the allegations pertain to the prevention or treatment of COVID-19; and (2) the defendant demonstrates that the patient’s overall treatment was impacted by defendant’s decisions or activities in response to or as a result of the COVID–19 outbreak. Questions regarding standard of care are not part of the analysis. 21. As Judge Barbara Jaffe recently held in Garcia v. New York City Health & Hospitals Corporation, No. 159046/2020 (Sup. Ct., N.Y. County, July 6, 2022): the EDTPA confers blanket immunity on negligence occurring during the pandemic, due to the wisdom of the Legislature in recognizing that treatment of COVID-19 patients was a priority and that a medical facility be given leeway in deciding how to allocate treatment and resources in the immediate, emergent, and highly-fraught environment. Id. at p. 4. (Exhibit “D”). The Garcia court therefore dismissed plaintiff’s claims without discovery or expert testimony. The only relevant inquiry was whether the allegedly negligent acts “constituted a response to the facility’s treatment of COVID-19 patients in general” (id.), a highly individualized factual inquiry that is immaterial to community standards of care. Thus, there are no common questions of fact or law that would impact the dismissal of these actions under the EDTPA. 12 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 D. Motion to Dismiss under the PREP Act 22. Immunity “from suit” is a jurisdictional concept. It is more than a mere defense to liability—its fundamental aim is to shield a defendant from the possibility of liability and the costs associated with defending a lawsuit. It is rare, but in situations where it applies, it is taken seriously and addressed as early as possible during the litigation. The Supreme Court has explained: The entitlement [not to stand trial or face the other burdens of litigation] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis original). See also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation”) (emphasis added); Crawford-El v. Britton, 523 U.S. 574, 597–600 (1998) (explaining that questions of immunity should be resolved “before permitting discovery”). 23. Stated differently, where a defendant is immune from suit, the immunity is violated the moment the action is commenced, and continues to be violated every day the action remains pending. Thus, not only is an early determination of such immunity prudent policy from an efficiency standpoint (for both courts and litigants), but it ensures that the Legislature’s will is not thwarted by a plaintiff’s counsel seeking to engage in a fishing expedition and use the costly discovery process as leverage in settlement negotiations. 24. Here, many defendants impacted by this Panel’s Interim Order have potential immunity “from suit” under the PREP Act. Briefly, that statute provides broad immunity “from suit” with respect to any claim against a healthcare facility (i.e., a “covered person”) “relating to,” inter alia, the use or administration of PPE to mitigate the spread of COVID-19, COVID-19 tests to diagnose individuals, drugs to treat COVID-19 individuals, or devices to identify symptomatic individuals. See 42 U.S.C. § 247d-6d(a)(1); 85 Fed. Reg. 15198. Critically, this immunity “from 13 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 suit” is not limited to claims for injuries caused by the countermeasures themselves; rather, it applies to, inter alia, any claim that is related to a facility’s implementation of a program involving covered countermeasures against COVID-19, or operation of a facility with respect to the same. See § 237d-6d(i)(6) (defining “program planner”); 85 Fed. Reg. 15198, 15200 (discussing “administration”). 25. Therefore, by staying all cases listed on Appendix A and Appendix B, as well as purportedly staying “similar actions” filed or yet to be filed, this Panel effectively deprived all defendants who meet the definition of a “covered person” under the PREP Act from enforcing their immunity “from suit” provided by federal law. Given the underlying meaning of immunity “from suit,” this substantially prejudices them for a variety of reasons. 26. While there is considerable disagreement between plaintiffs and defendants as to whether the PREP Act applies to claims of negligent infection control in nursing homes, this Panel’s stay thwarts the effort to resolve that disagreement. Instead, it compounds the problem by forcing all defendants to “wait and see” what the Panel decides to do with respect to coordination. Further, if coordination is ultimately ordered, each defendant will again need to “wait and see” how to assert its immunity from suit. Meanwhile, they are prevented from pursuing their own motions to dismiss and are forced to incur the very litigation costs and threat of liability that Congress expressly sought to shield them from in the first place. 27. Again, every day an action is pending, the immunity is lost. Those many defendants with motions to dismiss already filed but not decided are prevented from receiving a decision, and if necessary, pursuing an appeal; and those defendants without motions yet filed are prevented 14 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 from timely filing them in the first place. That, in turn, prevents the appellate process from addressing these issues, which only exacerbates the problem. 3 28. Instead, each defendant should be permitted to assert its immunity from suit for itself, to do so by filing a motion to dismiss if able, and to pursue an appeal if necessary. Different defendants with different defense counsel and different facilities may, for a variety of reasons, seek to enforce the PREP Act in different ways. That is their prerogative as litigants. Unfortunately, for those defendants seeking to do so by filing an early motion to dismiss, this Panel’s Order arguably stands in the way. 29. Therefore, this Panel’s Interim Order should be vacated, and all defendants should be permitted to assert their immunity “from suit” under the PREP Act in the manner they each see fit. E. Motion to Enforce Arbitration and Venue Provisions 30. As discussed, the Interim Order endeavoring to stay all pre-trial motions will further clog the court system with cases that could be decided on threshold motions, resulting in deprived contractual rights, needless and unnecessary expense for all litigants, and potentially delayed justice for plaintiffs with meritorious claims. A critical factor in determining whether (and, if proper, how) to order coordination is whether coordination would “…unreasonably delay the progress, increase the expense, or complicate the process of any action or otherwise prejudice a party…” 22 NYCRR § 202.69 (b)(3). As currently situated, the Interim Order would require parties to engage in discovery and litigation on claims, which may otherwise be dismissed or 3 Critically, this is not limited to questions of removability under the PREP Act, which this Panel noted is the subject of two consolidated appeals pending before the Second Circuit. See Rivera-Zayas v Our Lady of Consolation Geriatric Care Center, No. 21-2164 (2d Cir.); Leroy v Hume, No. 21-2158, 21-2159 (cons) (2d Cir.). Rather, immunity under the PREP Act is a distinct question that can be raised irrespective of whether the case is removed to federal court. 15 FILED: KINGS COUNTY CLERK 11/03/2023 09:20 AM INDEX NO. 503395/2023 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 11/03/2023 addressed in more appropriate fora, as required by binding contractual venue provisions and mandatory arbitration provisions. 31. With respect to the latter, the target nursing homes in these actions frequently enter into an Admission Agreement with residents of their respective facilities. Many of these Admission Agreements between residents and nursing homes often include or are accompanied by Arbitration Agreements requiring binding arbitration over any dispute related to the resident’s stay in the facility. The Interim Order impermissibly interferes with parties’ contractual arbitration agreements in violation of the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”) and CPLR Article 75. The FAA “reflects an emphatic federal policy in favor of arbitral dispute resolution.” Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530, 533 (2012) (per curiam) (citations omitted); Rent-A-Ctr., W., Inc. v. Concepcion, 561 U.S. 63, 67 (2010) (observing that the FAA “places arbitration agreements on equal footing with other contracts and requires courts to enforce them according to their terms.”).