Opinion
No. 2023-51168 Index No. 503415/2023
11-03-2023
Victoria Illery, as Proposed Administratrix of the Estate of Lamont Stokes, Deceased, Plaintiff, v. Oxford Nursing Home, Inc., Defendant.
Unpublished Opinion
Hon. Aaron D. Maslow, Justice.
The following numbered papers were read on this motion: NYSCEF Document Numbers 8-13, 18-38.
Upon the foregoing papers, having heard oral argument, and due deliberation having been had thereon, It is hereby ORDERED as follows:
Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc.2d 335 [Sup Ct, Albany County 1997]).
The motion by Defendant to dismiss is determined as follows.
Defendant's notice of motion sought dismissal pursuant to CPLR 3211 (a) (3) and (a) (7).
CPLR 3211 (a) (3) permits a party to move for judgment dismissing a cause of action on the ground that the party asserting the cause of action lacks legal capacity (standing) to sue.
The Plaintiff herein, Victoria Illery, commenced this action in the capacity as "Proposed Administratrix of the Estate of Lamont Stokes." At the time the action was commenced, February 1, 2023, Victoria Illery had not yet obtained letters of administration. Therefore, she lacked standing to sue (see Snodgrass v Professional Radiology, 50 A.D.3d 883 [2d Dept 2008]).
CPLR 3211 (a) (7) permits a party to move for judgment dismissing a cause of action on the ground that the pleading fails to state a cause of action. Plaintiff's complaint alleges that Defendant failed to adequately care for its elderly and vulnerable residents, which led to the death of Lamont Stokes from Covid-19. Defendant asserts that this is not a legally cognizable claim. At oral argument, the parties quibbled over whether the complaint sufficiently alleged causes of action for negligence or a violation of the Public Health Law - whether there was a cause of action for death in a nursing home due to Covid-19 - an issue which is relevant due to Defendant's assertions also that the statute of limitations bars this action. Defendant claims that Covid-19 had not been recognized as a virus at the time Lamont Stokes died.
Public Health Law § 2801-d(1) creates a private cause of action: "Any residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation, except as hereinafter provided."
This Court finds no reason to hold that Plaintiff is barred from maintaining a claim that negligent conduct or a violation of the Public Health Law resulted in death from Covid-19, provided, however, that the claim is viable under a relevant statute of limitations. The Court notes that while the state legislature enacted the Emergency or Disaster Treatment Protection Act (EDTPA), certain exceptions existed within it and its enactment took effect March 7, 2020, after Lamont Stokes' death on February 2, 2020 (see L 2020, ch 56, part GGG). Therefore, the EDTPA does not apply to the instant action (cf. Mera v New York City Health and Hosp. Corp., ___ A.D.3d ___, 2023 NY Slip Op 04975 [2d Dept 2023]; Ruth v Elderwood at Amherst, 209 A.D.3d 1281 [4th Dept 2022]).
It may be that Plaintiff may have difficulty proving that Defendant violated a standard of care or that decedent died from Covid-19 inasmuch as the prevalence of Covid-19 in New York was not officially recognized as of February 2, 2020, but in January 2020 there were news stories about a dangerous virus emanating from China (e.g. Kathy Katella, Our Pandemic Year - A Covid-19 Timeline, Yale Medicine, available at https://www.yalemedicine.org/news/covid-timeline [last accessed ]). Plaintiff is entitled to pursue her claim if she can prove the necessary elements of a cause of action.
"January: A scientist in China confirms that a mysterious new pneumonia-like illness identified in Wuhan, China, in December 2019, can be transmitted from human to human. Two days later, China puts Wuhan under strict lockdown. Meanwhile, on the other side of the globe, the U.S. sees its first case of the disease, later named COVID-19. The patient is a resident of Washington state who had traveled to Wuhan. The Trump Administration declares a public health emergency."
" 'On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory' (Minico Ins. Agency, LLC v B&M Cleanup Servs., 165 A.D.3d 776, 776 [2018]; see Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994])" (Grocery Leasing Corp. v P&C Merrick Realty Co., LLC, 197 A.D.3d 628 [2d Dept 2021]). Affording the complaint herein a liberal construction, this Court finds that it adequately alleged a cause of action for negligence and to recover for a violation of a statutorily conferred right in the Public Health Law.
This Court notes that in paragraphs 112, 116, 131, and 140 of the complaint, it was alleged that Plaintiff was caused to sustain personal injuries, pain and suffering, and loss of enjoyment for life resulting from Defendant's negligence, acts, and/or omissions (see NYSCEF Doc No. 12). The complaint also referred repeatedly to the Public Health Law.
Defendant claimed in its supporting papers - but not in its notice of motion - that this action was barred by the statute of limitations (see NYSCEF Doc No. 9 at 2-4). Although CPLR 3211 (a) (5) (dismissal upon various affirmative defenses) was not specifically referenced in the notice of motion (see NYSCEF Doc No. 8), this Court finds that the statute of limitations was properly raised. "CPLR 2214(a) provides that '[a] notice of motion shall specify... the relief demanded and the grounds therefor'. At bar, the petitioner alleged the grounds upon which the motion was based in the supporting affirmation and not in the notice of motion. Since the appellants failed to demonstrate that they were prejudiced, the petitioner's failure to state the ground in the notice of motion should be disregarded as a technical deficiency in the interests of justice and expediency (see, Pace v Perk, 81 A.D.2d 444; 2A Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.01; CPLR 2001)." (Matter of LiMandri, 171 A.D.2d 747 [2d Dept 1991].) Plaintiff was not prejudiced because she argued against application of the statute of limitations in her papers.
The possible causes of action asserted include wrongful death, medical malpractice, negligence, and a violation of a statutorily conferred right in the Public Health Law.
EPTL § 5-4.1 provides for a two-year statute of limitations for a wrongful death cause of action. Lamont Stokes died on February 2, 2020. Two years hence would have been February 2, 2022. However, during the period of March 20, 2020 to November 3, 2020, all statutes of limitations were tolled by a series of Executive Orders of then-Gov. Andrew Cuomo. The effect this had on causes of action which accrued before March 20, 2020 was to add 228 days to the ending date of the period prescribed by the statute of limitations. (See Vasquez v Tri-State Lbr. Inc., 78 Misc.3d 1230 (A), 2023 NY Slip Op 50390(U) [Sup Ct, Kings County 2023].) When 228 days are added to February 2, 2022, the last day was September 18, 2022. Therefore, a cause of action for wrongful death was untimely brought, as the complaint was filed February 1, 2023.
To the extent the complaint can be construed as alleging medical malpractice, such a cause of action is likewise barred. Per CPLR 214-a, the applicable statute of limitations is two years and six months. Under such a statute of limitations, the last date would have been August 2, 2022. Adding 228 days to August 2, 2022 would have resulted in the date of March 16, 2022. Therefore, a cause of action for medical malpractice was untimely brought, as the complaint was filed February 1, 2023.
The statute of limitations for personal injuries is three years (see CPLR 214 [5]), and to recover upon a liability created or imposed by statute it is also three years (see CPLR 214 [2]). Any cause of action sounding in either of such claims would have accrued not later than February 2, 2020, when Lamont Stokes died. Three years hence would have been February 2, 2023. This action was commenced on February 1, 2023, so a cause of action for negligence or to recover upon a liability created or imposed by statute was timely insofar as acts or omissions took place during the three years prior to filing. (Even without the additional 228 days, it was timely.)
At oral argument, Plaintiff maintained that should Defendant's motion to dismiss be granted, leave to recommence pursuant to CPLR 205 (a) should be granted to Plaintiff Illery in her capacity as administratrix, she having obtained letters of administration. Said subdivision provides:
(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.[emphasis added]
Since a cause of action for negligence or to recover upon a liability created or imposed by statute was timely with respect to acts or omissions which took place during the three years prior to filing, leave to recommence to allege such causes of action pursuant to CPLR 205 (a) is appropriate (see Carrick v Central Gen. Hosp., 51 N.Y.2d 242 [1980]; George v Mt. Sinai Hosp., 47 N.Y.2d 170 [1979]; Snodgrass v Professional Radiology, 50 A.D.3d 883). This Court holds that a CPLR 205 (a) action recommencing a previously dismissed one may be limited to certain causes of action asserted in the original complaint, which included an untimely wrongful death claim (see Aronov v Regency Gardens Apartments Corp., 34 A.D.3d 404 [2d Dept 2006]).
At oral argument, Plaintiff also requested leave to amend the pleading to reflect that Plaintiff Illery was now the administratrix for the Estate of Lamont Stokes. This, however, is not permissible (see CPLR 203 [f]; Goldberg v Camp Mikan-Recro, 42 N.Y.2d 1029 [1977]).
Accordingly, it is hereby ORDERED as follows:
(a) Defendant's motion to dismiss pursuant to CPLR 3211 is GRANTED because Plaintiff Victoria Illery lacked legal capacity to sue when this action was commenced.
(b) Leave is granted to Plaintiff to recommence pursuant to CPLR 205 (a) in her capacity as administratrix of the Estate of Lamont Stokes to the extent that the complaint to be filed asserts causes of action which existed on February 1, 2023, when the within action was commenced, for negligence or to recover upon a liability created or imposed by statute.
(c) Any claims by Plaintiff for causes of action sounding in wrongful death or medical malpractice are time-barred.
(d) Defendant's motion is otherwise DENIED.