Opinion
22-CV-7152 (CS)
04-04-2023
ROCCO TARANTINO, as Administrator of the Estate of CARMINE ANTONIO TARANTINO, deceased, Plaintiff, v. BETHEL SPRINGVALE NURSING HOME, INC., d/b/a BETHEL NURSING & REHABILITATION CENTER, Defendant.
Damien Smith Duffy & Duffy, PLLC Wilson, Elser, Moskowitz, Edelman & Dicker LLP
Damien Smith
Duffy & Duffy, PLLC
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
ORDER
CATHY SEIBEL, U.S.D.J.
Before the Court is Plaintiff's motion to remand, (ECF No. 12), and Defendant's crossmotion to dismiss, (ECF No. 15). For the following reasons, Plaintiff's motion to remand is GRANTED and Defendant's cross-motion to dismiss is DENIED without prejudice.
Plaintiff commenced this action in the New York State Supreme Court, Westchester County, on April 4, 2022, against Defendant Bethel Springvale Nursing Home, Inc., on behalf of the estate of his father (“Decedent”). (ECF No. 1-1.) Plaintiff alleges that while Decedent was residing at Defendant's facility, Defendant “failed to timely and properly recognize and act upon [his] signs and symptoms of infection from COVID-19, including fever, hypertension, tachypnea, and hypoxia,” (ECF No. 1-2 ¶ 36), and “failed to provide proper infection prevention and control procedures,” (id. ¶ 38), resulting in Decedent's death, (id. ¶ 37). Plaintiff brings claims for violation of New York Public Health Law § 2801-d, (id. ¶¶ 48-74), wrongful death, (id. ¶¶ 75-81), and gross negligence, (id. ¶¶ 82-91).
On August 22, 2022, Defendant timely removed the case to this Court. (See ECF No. 1.) On September 27, 2022, the Court held a pre-motion conference during which I permitted Plaintiff to file a motion to remand the case to state court and Defendant to file a cross-motion to dismiss. (See Minute Entry dated Sept. 27, 2022.) The instant motions followed.
The issues and arguments presented in Plaintiff's motion to remand are substantively identical to those in Torres v. St. Vincent DePaul Residence, No. 22-CV-7102, 2023 WL 2754305 (S.D.N.Y. Apr. 3, 2023). For the reasons set forth in Torres, the Court grants Plaintiffs motion to remand in light of the Second Circuit's holdings in Solomon v. St. Joseph Hosp., 62 F.4th 54 (2d Cir. 2023). I therefore need not reach the merits of Defendant's motion to dismiss for failure to state a claim and deny that motion as moot. See, e.g., Rivera-Zayas v. Our Lady of Consolation Geriatric Care Ctr., No. 20-CV-5153, 2021 WL 3549878, at *1 (E.D.N.Y. Aug. 11, 2021) (“Because this court lacks subject matter jurisdiction over this action, Plaintiff's motion to remand is GRANTED and Defendants' motion to dismiss is DENIED as moot.”); see also Am. Italian Women for Greater New Haven v. City of New Haven, No. 21-CV-1401, 2023 WL 122043, at *3 (D. Conn. Jan. 5, 2023) (court should consider motion to dismiss for lack of subject matter jurisdiction before other motions “because lack of subject matter jurisdiction may render the other challenges moot”).
Accordingly, for the reasons set forth above, Plaintiff's motion to remand is GRANTED and Defendant's cross-motion to dismiss is DENIED without prejudice. The Clerk of Court is respectfully directed to terminate the pending motions, (ECF Nos. 12, 15), and remand this case to the Supreme Court of the State of New York, Westchester County.
SO ORDERED.