Opinion
Index No. 607494/2022 Mot. Seq. No. 001
01-11-2024
JOHN CATAPANO, as Administrator of the Estate of MICHAEL CATAPANO, deceased, Plaintiff, v. S&L BIRCHWOOD, LLC d/b/a APEX REHABILITATION &CARE CENTER, Defendants.
DUFFY & DUFFY, PLLC Attorney for Plaintiff. LEWIS JOHS AVALLONE AVILES LLP Attorney for Defendants.
Unpublished Opinion
MOTION DATE 4/11/23
ADJ. DATE 6/8/23
DUFFY & DUFFY, PLLC Attorney for Plaintiff.
LEWIS JOHS AVALLONE AVILES LLP Attorney for Defendants.
PRESENT: Hon. GEORGE M. NOLAN Justice of the Supreme.
SHORT FORM ORDER
HON. GEORGE M. NOLAN, J.S.C.
Upon the following papers filed on the motion to dismiss: (1) Notice of Motion and supporting papers by defendant, filed March 10, 2023; (2) Answering Affidavits and supporting papers by plaintiff, filed May 25, 2023; and (3) Replying Affidavits and supporting papers by defendant, filed June 6, 2023, it is
ORDERED that defendant's motion to dismiss the complaint is granted to the extent set forth herein, and is otherwise denied.
I. Facts and Procedural History
This action revolves around the care provided by a nursing home to one of its residents. · Michael Catapano (decedent) was allegedly a resident of a nursing home (the facility) operated by defendant, S&L Birchwood, LLC, from April 2019 until April 2020. Decedent became afflicted with coronavirus, allegedly at the facility, and died on April 23, 2020. Plaintiff, John Catapano, the administrator of decedent's estate, commenced this action against defendant for violations of Public Health Law § 2801-d, wrongful death, and gross ne;:gligence. The complaint contains numerous factual allegations against defendant, including its failing to properly recognize and act upon decedent's coronavirus symptoms; failing to take proper actions for infection prevention and control; commingling residents with coronavirus or symptoms thereof with well residents; failing to properly and timely test residents for coronavirus; failing to train its staff in the use of per,sonal protective equipment (PPE); failing to properly use PPE; failing to ensure that staff members exposed to residents infected with coronavirus were not exposed to well residents; permitting staff members that tested positive for coronavirus to continue working and caring for residents; failing to properly isolate residents who were afflicted with coronavirus; failing to properly allocate resources to address coronavirus; failing to transfer residents to open beds in other nursing homes that were reserved for persons with coronavirus; and admitting patients who tested positive for coronavirus.
Defendant now moves pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint. In support of its motion, defendant submits, among other things, an affidavit from Anabelle Mazzochi and documents from the New York State Department of Health. In opposition, plaintiff submits, among other things, decedent's death certificate.
II. Analysis
CPLR 3211 (a) (1) allows a defendant to seek dismissal of the complaint when "a defense is founded upon documentary evidence." Dismissal on this ground "is warranted only if the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Krasnow v. Catania, 219 A.D.3d 1324, 1325, 197 N.Y.S.3d 70, 72 [2d Dept 2023] [quotation marks and citations omitted]; see Goshen v. Mutual Life Ins. Co. of N. Y. , 98 N.Y.2d 314, 746 N.Y.S.2d 858 [2002]). Affidavits, deposition testimony, and letters do not constitute documentary evidence (Davis v. Henry, 212 A.D.3d597,181 N.Y.S.3d606 [2d Dept 2023]; J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d652,990 N.Y.S.2d 223 [2d Dept 2014]), as they can be challenged by other evidence (Russo v. Crisona, 219 A.D.3d 920,195 N.Y.S.3d 729 [2d Dept 2023]; Phillips v. Taco Bell Corp., 152 A.D.3d 806,60 N.Y.S.3d 67 [2d Dept 2017]). Instead, "judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (Davis, 212 A.D.3d at 597,181 N.Y.S.3d at 607 [quotation marks, citations, and alterations omitted]; see Varricchio v. Big Bros. Big Sisters of Am., Inc., 220 A.D.3d 905,199 N.Y.S.3d 107 [2d Dept 2023]).
CPLR 3211 (a) (7) allows a defendant to seek dismissal of the complaint for failure to state a cause of action. "When reviewing a defendant's motion to dismiss a complaint for failure to state a cause of action, a court must give the complaint a liberal construction, accept the allegations as true[,] and provide plaintiffs with the benefit of every favorable inference" (Nomura Home Equity Loan, Inc., Series 2006-FM2 v. Nomura Credit &Capital, Inc., 30 N.Y.3d 572, 582, 69 N.Y.S.3d 520, 525 [2017] [quotation marks and citations omitted]; see Sunyoung Jung v. Reiner & Kaiser Assoc., 220 A.D.3d 643,198 N.Y.S.3d 106 [2d Dept 2023]). However, the Court is not required to accept bare legal conclusions or facts that are utterly contradicted by documentary evidence (Chic Realty 712, LLC v GSA Holding Corp., 220 A.D.3d 914,198 N.Y.S.3d 730 [2d Dept 2023]; Browne v. Lyft, Inc., 219 A.D.3d 445, 194 N.Y.S.3d 85 [2d Dept 2023]). Whether a plaintiff can ultimately prevail is irrelevant (Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d30,73 N.Y.S.3d95 [2018]; Grabowski v. Orange County, 219 A.D.3d 1314,196N.Y.S.3d 113 [2d Dept 2023]). "Although inartfully pleaded, a claim should not be dismissed when the facts stated are sufficient to make out a cause of action" (Houtenbos v. Fordune Assn., Inc., 200 A.D.3d 662, 664, 160 N.Y.S.3d 57, 61 [2d Dept 2021]). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint" for failure to state a cause of action, "the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (BT Holdings, LLC v. Village of Chester, 189 A.D.3d 754,759, 137 N.Y.S.3d 458,464 [2d Dept 2020] [quotation marks and citations omitted], Iv denied36 N.Y.3d 912,144 N.Y.S.3d 680 [2021]; see Whelan v. Cuomo, 220 A.D.3d 979, 198 N.Y.S.3d 739 [2d Dept 2023]).
Defendant claims that it is immune from suit for plaintiffs allegations based on the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law [PHL] § 3080 et seq.) and the Public Readiness and Emergency Preparedness Act (PREP Act) (42 USC § 247d-6d). Defendant also asserts that the complaint is insufficient because it lacks factual specificity.
Although defendant also claims immunity based on Executive Order 202.10, the EDTPA codified the protections in that executive order (Messina v. Clove Lakes Health Care & Rehabilitation Ctr., Inc., 78 Misc.3d 537,181 N.Y.S.3d 868 [Sup Ct, Richmond County 2023]). As Executive Order 202.10 appears to have been subsumed in the EDTPA, the Court will not separately analyze that executive order.
A. EDTP A
The EDTPA provided certain protections for healthcare facilities and professionals in the provision of services that were affected by the coronavirus pandemic. Although the EDTPA was repealed subsequent to decedent's death, such repeal was not retroactive (Whitehead v. Pine Haven Operating LLC, __A.D.3d __, _N.Y.S.3d_, 2023 NY Slip Op 06180 [3dDept2023]; Ruth v. Elderwood at Amherst, 209 A.D.3d 1281, 175 N.Y.S.3d 811 [4th Dept 2022]).
PHL § 3082 states the following:
1. Notwithstanding any law to the contrary, except as provided in subdivision two of this section, any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services, if:
(a) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
(b) the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility's or health care professional's decisions or activities in response to or as a result of the CO VID-19 outbreak and in support of the state's directives; and
(c) the health care facility or health care professional is arranging for or providing health care services in good faith.
2. The immunity provided by subdivision one of this section shall not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional providing health care services, provided, however, that acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
"Health care services," in turn, is defined as "services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to" "the diagnosis, prevention, or treatment of COVID-19"; "the assessment or care of an individual with a confirmed or suspected case of COVID-19"; or "the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration" (PHL § 3081 [5]).
Plaintiff s PHL § 2801 -d claim, broadly construed, is directed at conduct from both before and after the start of the pandemic. The pre-pandemic conduct includes allegations that defendant violated various regulations and caused decedent "to undergo medical treatment; incur medical expense; suffer disfigurement, disability, mental anguish, and pain; and suffer loss of enjoyment of life" (see PHL § 2801-d [1] [defining "injury" to "include, but not be limited to, physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient"]). This claim alleges that the violations "occurred, and continued, through [decedent's] residency at the [f]acility," which began in April 2019. To the extent that this claim is based on pre-pandemic conduct that caused pre-pandemic damages, it is not barred by the EDTPA.
The remaining factual allegations in the amended complaint are encompassed by the broad language of PHL § 3082 (1). These allegations are all related to the arranging or providing of coronavirus-related healthcare services, and Anabelle Mazzochi, defendant's director of nursing, explained how decedent's care was impacted by the pandemic (see Whitehead, A.D.3d,N.Y.S.3d, 2023 NY Slip Op 06180; Mera v. New York City Health & Hosps. Corp., 220 A.D.3d 668, 197 N.Y.S.3d 278 [2d Dept 2023]; Kalogiannis v. New York Ctr. for Rehabilitation &Nursing, 80 Misc.3d 1219(A), 196 N.Y.S.3d 918 [Sup Ct, Queens County 2023]; Hasan v. Terrace Acquisions II, LLC, 79 Misc.3d 1021, 194 N.Y.S.3d 445 [Sup Ct, Bronx County 2023]; Crampton v. Garnet Health, 73 Misc.3d 543, 155 N.Y.S.3d 699 [Sup Ct, Orange County 2021]). Indeed, plaintiffs claims almost entirely focus on decedent's infection with coronavirus and his subsequent death from it, which clearly fall within the broad scope of section 3082 (1).
The Court must then ascertain if the amended complaint's allegations sufficiently plead that defendant, under section 3082 (2), engaged in willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm (see Crampton, 73 Misc.3d 543, 155 N.Y.S.3d 699 [explaining the EDTPA's framework in the context of a motion to dismiss]). "To constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others," i.e., "when it fails to exercise even slight care or slight diligence" (Seti v. Carnell Assoc., Inc., 218 A.D.3d 509, 511, 193 N.Y.S.3d 80, 81 [2d Dept 2023] [quotation marks, ellipses, and citations omitted]; see Belcastro v. Roman Catholic Diocese of Brooklyn, N. Y., 213 A.D.3d 800,184 N.Y.S.3d 367 [2d Dept 2023]). Whether a party acted in a grossly negligent manner is typically a question for the trier of fact (AEA Middle Mkt. Debt Funding LLC v. Marblegate Asset Mgt., LLC, 214 A.D.3d 111, 185 N.Y.S.3d 73 [1st Dept 2023]; Dolphin Holdings, Ltd. v. Gander &White Shipping, Inc., 122 A.D.3d 901, 998 N.Y.S.2d 107 [2d Dept 2014]).
Some of plaintiffs allegations are sufficient to plead gross negligence. In particular, the amended complaint pleads that defendant "co-mingl[ed] residents infected with and/or showing signs and symptoms of COVID-19 with residents who were not infected with the virus," "failed to timely and properly isolate residents known to be infected with COVID-19," "fail[ed] to ensure staff members exposed to residents infected with COVID-19 did not work with residents not infected with COVID-19," and "allowed staff members that had tested positive for Covid-19 virus to continue to treat and care for residents."
Mazzochi did not address these allegations in her affidavit. Nor did she state that these alleged facts, if true, were due to "a resource or staffing shortage"under PHL § 3082 (2). Of note, a March 28, 2020 memorandum from the New York State Department of Health contained various conditions on allowing healthcare personnel to return to work when they had or were suspected to have had coronavirus, or had been exposed to a confirmed coronavirus patient. Despite plaintiffs allegation that defendant allowed staff members infected with coronavirus to continue caring for patients, Mazzochi did not specifically address whether defendant complied with this guidance. Her statement that defendant, "in good faith, followed all applicable governmental guidance in the care and management of its residents throughout the COVID-19 pandemic in an effort to slow the spread of the virus and to treat infected patients," is conclusory and lacks detail.
The Court notes that defendant has submitted some guidance from the New York State Department of Health that post-dates decedent's April 18, 2020 transfer to Huntington Hospital.
Accordingly, the EDTPA provides immunity to defendant against the amended complaint, except (1) insofar as it is based on allegations that defendant commingled residents infected with coronavirus or showing signs thereof with well residents, allowed staff members who tested positive for the coronavirus to treat and care for residents, failed to ensure that staff members who were exposed to residents afflicted with coronavirus did not care for well residents, and failed to isolate residents infected with coronavirus; and (2) so much of the PHL § 2801-d claim as based on (a) the allegations described above, or (b) pre-pandemic conduct that caused pre-pandemic damages.
B. PREP Act
The PREP Act provides that
a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.(42USC §247d-6d[a] [1]). A "covered countermeasure" means "a qualified pandemic or epidemic product (as defined in paragraph (7))"; "a security countermeasure (as defined in section 247d-6b(c)(1)(B) of this title)"; "a drug..., biological product..., or device ... that is authorized for emergency use in accordance with section 564,564A, or 564B of the Federal Food, Drug, and Cosmetic Act"; or "a respiratory protective device that is approved by the National Institute for Occupational Safety and Health under part 84 of title 42, Code of Federal Regulations (or any successor regulations), and that the Secretary determines to be a priority for use during a public health emergency declared under section 247d of this title," A security countermeasure and a qualified pandemic or epidemic product each refer to certain drugs, biological products, or devices (42 USC § 247d-6b). A "covered person," as pertinent here, means an entity that is a manufacturer, distributor, or program planner of such countermeasure; "a qualified person who prescribed, administered, or dispensed such countermeasure," or an agent of employee thereof. The required declaration under subsection (b) was issued by the Secretary of Health and Human Services, along with subsequent amendments (see e.g. Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed Reg 15198-01).
Here, the allegations in the amended complaint that are not barred by the EDTPA are also not barred by the PREP Act. Covered countermeasures, by the statutory definition, refer to tangible medical items, and the PREP Act applies only to their "administration to or the use [thereof] by an individual." The PREP Act does not bar the claims that are not barred by the EDTPA, which do not involve the use or administration of tangible medical items, but rather decisions involving staffing and resident placement. Although defendant relies heavily on the Department of Health and Human Services' interpretation of the PREP Act, deference is not owed to an agency's interpretation of a statute when, as here, the issue is one of pure statutory interpretation (Matter of DeVera v. Elia, 32 N.Y.3d 423, 93 N.Y.S.3d 198 [2018]; Matter of New York State Bd. of Regents v. State Univ. of N. K, 178 A.D.3d 11,111 N.Y.S.3d 724 [3d Dept 2019], Iv denied 35 N.Y.3d 912,128 N.Y.S.3d 470 [2020]; Matter of Piccolo v. New York State Tax Appeals Trib., 108 A.D.3d 107, 964 N.Y.S.2d 697 [3d Dept 2013]). Reading the language of the EDTPA and its detailed statutory definition of a "covered countermeasure" does not "involve [] knowledge and understanding of underlying operational practices or entail[] an evaluation of factual data and inferences to be drawn therefrom" (Matter of Gonzalez v. Annucci, 32 N.Y.3d 461, 471, 93 N.Y.S.3d 236, 242 [2018] [quotation marks and citation omitted]; see Roberts v. Tishman Speyer Props., L.P., 13 N.Y.3d 270, 890 N.Y.S.2d 388 [2009]). Thus, the PREP Act does not bar plaintiffs allegations that survive the EDTPA.
To the extent that defendant presses a complete preemption argument, it is meritless (e.g. Solomon v. St. Joseph Hosp., 62 F4th 54 [2d Cir 2023] [declining to give deference to the Department of Health and Human Services' contrary statutory interpretation regarding preemption]).
C. Additional arguments
Defendant also argues that "[e]ven if the PREP Act, EDTPA, and Executive Order 202.10 did not require dismissal, the [amended] [c]omplaint fails to state a claim because it fails to provide anything other than vague suggestions that negligence or wrongdoing occurred." The complaint, which contains numerous factual assertions as explained above, is sufficient under New York's lenient notice pleading standard (CPLR 3013; Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121 [1st Dept 1964]). Plaintiffs causes of action need not be pleaded with specificity (CPLR 3016).
Plaintiffs contention that the EDTPA violates article 1, § 16 of the New York State Constitution cannot be considered by the Court, as plaintiff has not shown that he provided the statutory notice to the Attorney General that he was challenging the constitutionality of a state statute (CPLR 1012 [b]; People v. Whitehead, 46 A.D.3d 715, 848 N.Y.S.2d 657 [2d Dept 2007], Iv denied 10 N.Y.3d 772, 854 N.Y.S.2d 334 [2008]; Gina P. v. Stephen S., 33 A.D.3d 412, 824 N.Y.S.2d 619 [1st Dept 2006]).
III. Conclusion
Defendant's motion is granted to the extent of dismissing the amended complaint, except (1) insofar as it is based on allegations that defendant commingled residents infected with coronavirus or showing signs thereof with well residents, allowed staff members who tested positive for the coronavirus to treat and care for residents, failed to ensure that staff members who were exposed to residents afflicted with coronavirus did not care for well residents, and failed to isolate residents infected with coronavirus; and (2) so much of the PHL § 2801-d claim as based on (a) the allegations describedabove, or (b) pre-pandemic conduct that caused pre-pandemic damages.