Opinion
Claim No. 139518
09-27-2024
The Estate of Nicholas Papandreou, by his Administrator, ALICE GILLE, Claimant, v. The State of New York, Defendant.
For Claimant: Napoli Shkolnik, PLLC. By: Joseph L. Ciaccio, Esq. For Defendant: Martin Clearwater & Bell, LLP By: Gregory A. Cascino, Esq.
Unpublished Opinion
MOTION DECISION
For Claimant: Napoli Shkolnik, PLLC. By: Joseph L. Ciaccio, Esq.
For Defendant: Martin Clearwater & Bell, LLP By: Gregory A. Cascino, Esq.
LINDA K. MEJIAS-GLOVER, JUDGE
Defendant, the State of New York (hereinafter, the "Defendant"), moves by Notice of Pre-Answer Motion to Dismiss dated and filed with the Court on May 1, 2024, seeking an order: 1) pursuant to CPLR § 3211(a)(7) and New York Public Health Law §§ 3080-3082, dismissing the Claim in its entirety, with prejudice, as Defendants/Respondents are immune from the liability claimed in this Claim; 2) pursuant to Court of Claims Act §10, dismissing this action as it was brought beyond the applicable statute of limitations; and 3) pursuant to Court of Claims Act §11, dismissing the action as the claim was not properly verified. The motion has been fully briefed.
Procedural Background
Claimant commenced this action to recover for alleged violations of Public Health Law 2801-d, 42 C.F.R. 483.25 and 10 NYCRR 415, and seeking monetary damages for personal injuries, conscious pain and suffering, medical expenses, wrongful death, and punitive damages, stemming from 86 year-old Decedent, Nicholas Papandreou's, death on May 3, 2020, from COVID-19 pneumonia at Stony Brook University Hospital ("SBUH"). The Claim was duly served upon the Defendant on July 24, 2023. On March 18, 2024, the parties filed a stipulation to extend Defendant's time to answer or otherwise respond to the Claim until May 1, 2024. As part of the stipulation, Defendant waived lack of personal jurisdiction or improper service defenses, and Defendant filed this motion to dismiss in lieu of answer.
A prior claim to recover money damages arising from the personal injuries and wrongful death of NICHOLAS PAPANDREOU, who died on May 3, 2020, was filed with this Court on May 6, 2022. A Notice of Intention to File a Claim had been served upon THE STATE OF NEW YORK on May 2, 2022. The claim was filed with ALICE GILLE as a "Proposed Administrator". Defendant moved to dismiss the claim on the grounds that claimant therein had not been appointed administrator of her father's estate, and on immunity grounds pursuant to the "Emergency or Disaster Treatment Protection Act" (hereinafter, the "EDTPA"). By Decision and Order dated April 20, 2023 (Liccione, J.), and entered July 7, 2023, pursuant to the EDTPA, the Court dismissed the claim due to lack of subject matter jurisdiction since ALICE GILLE had not been appointed administrator of the Estate of NICHOLAS PAPANDREOU. On July 7, 2023, Defendant served the Order with Notice of Entry. On April 24, 2023, the Suffolk County Surrogate's Court issued Limited Letters of Administration to ALICE GILLE, appointing her Administrator of the Estate of NICHOLAS PAPANDREOU.
Factual Background
From April 2017 until April 28, 2020, Mr. Papandreou was a resident of the Long Island State Veterans Home ("LISVH"), a State run nursing facility. When admitted to LISVH, Mr. Papandreou was suffering from dementia and major neurocognitive disorder, which affected his insight and judgment. He also had a prior history of falling.
Mr. Papandreou began to display symptoms of COVID-19 infection on or about April 24, 2020, and he tested positive for COVID-19 on April 25, 2020. On April 27, 2020, decedent began experiencing severe respiratory problems. As his oxygen saturation decreased, he was transferred to the intensive care unit at SBUH on April 28, 2020. Mr. Papandreou passed away at SBUH on May 3, 2020.
Points of Counsel
Defendant argues that the Claim must be dismissed because immunity from liability is conferred upon the State by New York's Public Health Law §§ 3080-3082, EDTPA. In support of its motion, Defendant has submitted the affidavit of Fred Sganga, LNHA, MPH and FACHE, the Executive Director of the LISVH, wherein he states that LISVH provided health care services to Mr. Papandreou: (1) for the treatment of COVID-19; (2) pursuant to COVID-19 emergency rules (New York Executive Order No. 202: "Declaring a Disaster Emergency in the State of New York" [Mar. 7, 2020]); (3) during a time when the patient's treatment was necessarily impacted by LISVH's decisions and activities as a result of the COVID-19 outbreak; (4) in support of the state's directives "to protect the health and safety of... patients"; and (5) in good faith.
Defendant argues that dismissal in this case is warranted because of the immunity from liability conferred by the EDTPA, which requires dismissal of any claim involving care that was impacted by acts or decisions by healthcare providers and facilities in response to the COVID-19 pandemic, absent narrow exceptions that are not present here. Counsel contends that the Courts trigger such immunity at the pre and post answer stage when a moving defendant can show an "impact" on relevant patient treatment. Such "impact" can be positive, neutral or negative, and thus need not be causally linked to the alleged damages.
Defendant further argues that Claimant has included a cause of action for gross negligence in an attempt to meet the narrow EDTPA exception, but Mr. Sganga's affidavit clearly demonstrates that the LISVH arranged for and provided health care services for the Decedent in good faith, in accordance with evolving Center for Disease Control ("CDC") and ("DOH") COVID-19 guidance. In his affidavit, Mr. Sganga describes the facility wide impact of COVID-19 at the LISVH, including the measures taken to limit infection between March 3, 2020 and April 28, 2020. He further explained how every aspect of Mr. Papandreou's care was impacted by the LISVH's response to the COVID-19 outbreak and in support of New York State and federal directives to combat it. Mr. Sganga further describes the difficulties faced by the facility during the initial surge due to the lack of information known about COVID-19, as well as shortages of PPE, tests and staff. According to Mr. Sganga, due to the high demand and scarcity of tests, often a diagnosis was presumed based upon symptoms, however, patients with mild or no symptoms could still transmit the disease. Asymptomatic individuals were not being tested based on potential exposure at that time due to the fact that less was understood during the initial surge, which made it difficult to perform contact tracing. According to Defendant, these factors made it more challenging to isolate COVID-19 residents, especially during the initial surge.
According to Defendant, the first COVID-19 positive test at LISVH was on March 24, 2020, which was 14 days after all visitation was suspended and all social outings discontinued on March 10, 2020 and 13 days after LISVH began screening all new admissions for signs and symptoms of COVID-19 or potential exposure on March 11, 2020. Thereafter, the entire unit was placed on contact and droplet precautions, and all residents were monitored for signs and symptoms each shift, and on April 2, 2020 a designated unit for COVID-19 patients was established. Defendant admits that given the incubation period and asymptomatic/mild cases, it was still possible for COVID-19 to spread, despite best efforts to isolate all infected individuals.
Defendant's counsel further argues that all aspects of Mr. Papandreou's treatment were impacted by LISVH's response to the pandemic once COVID-19 was suspected. Specifically, Mr. Papandreou received supplemental oxygen, though it was determined that he was not a candidate for Hydroxychloroquine. Counsel further states that although the effectiveness of these treatments were unknown, they were the standard of care, as there was no FDA approved treatment for COVID-19 at that time.
Defendant's counsel further argues that Mr. Sganga's affidavit clearly demonstrates that LISVH arranged for and provided health care services for Mr. Papandreou in good faith, in accordance with evolving CDC and DOH COVID-19 guidance, and, therefore, Defendant has established that it is immune from suit pursuant to the EDTPA, requiring that the Claim be dismissed. Further, Defendant's counsel argues that Claimant cannot establish an exception to the EDTPA.
In opposition to the motion, Claimant, citing CPLR 4518, argues that the "evidence" submitted by Defendant has no probative value, and there are factual questions that should be determined by the trier of fact. Counsel argues that nursing home medical records are akin to hospital medical records, and should, therefore, be certified if a party pretends to use them as evidence. Going a step further, counsel argues that the uncertified medical records attached to the motion are "not admissible in form." Counsel further points out that "in support of their dispositive motion, Defendant submitted an uncorroborated affidavit from its Executive Director, Fred Sganga, who has been an employee at LISVH for over 20 years, and an incomplete uncertified chart." Counsel contends that Mr. Sganga's affidavit "makes conclusory assertions without reference to any corroborating document."
Claimant's counsel, quoting Johnson v. Asberry, 190 A.D.3d 491, 492 (1st Dept 2021), further argues that "whether [D]efendant and LISVH acted in good faith during the COVID-19 pandemic, whether they complied with all applicable federal and state public health guidelines, or whether they complied with any of their own protocols and guidelines 'presents a factual question which cannot be resolved on a CPLR 3211 (a) motion to dismiss.'" Counsel further argues that "[a]t this stage [in the litigation] there is no admissible evidence regarding the implementation, execution, and enforcement of alleged infection control and prevention policies and protocols at LISVH. The foregoing should require, at a minimum, that discovery be conducted to investigate the validity of what is contained within the Sganga affidavit. CPLR 3211(d) provides a court with discretion to deny a motion to dismiss if it appears that 'facts essential to justify opposition may exist but cannot then be stated' or 'may order a continuance to permit... disclosure to be had and may make such other order as may be just.'"
Karpovich v City of New York, 162 A.D.3d 996 [2d Dept 2018].
Claimant's counsel further argues that disposition by summary dismissal in this matter is premature at this stage, and refers the Court to a Third Department holding stating that the affirmative defense of qualified immunity "does not lend itself to a pre-answer motion to dismiss pursuant to CPLR 3211(a)" ... but "[r]ather, qualified immunity is best pled as an affirmative defense in the answer and thereafter be the basis of a motion for summary judgment 'supporting the motion with competent evidence establishing prima facie showing of qualified privilege.'"
Wilcox v. Newark Val. Cent. School Dist., 74 A.D.3d 1558, 1562 [3d Dept 2010], quoting Demas v. Levitsky, 291 A.D.2d 653, 661 [2002], lv. dismissed 98 N.Y.2d 728 [2002].
Avila v State of New York, 39 Misc.3d 1064, 1069 - 1070 [Ct.Cl 2013].
Next, Claimant argues that Defendant has failed to conclusively establish a defense under Public Health Law §3082 arguing that the immunity afforded by the EDTPA is neither absolute nor automatic, but rather, a defendant who invokes the statute's protection must comply with its requirements to be entitled to immunity. Counsel argues that Defendant has failed to "point to any real instance where the coronavirus pandemic or their response thereto had an impact on any aspect of [Claimant] decedent's treatment or care, as required by the EDTPA."
With respect to the cause of action for gross negligence, Claimant's counsel argues the such "should not be viewed in a vacuum, and it is a matter for the jury to decide." Citing numerous cases from Richmond County, counsel argues that dismissal is not warranted even when facing an immunity defense grounded on the EDTPA as "the question of gross negligence is a matter to be determined by the trier of fact" . Counsel further argues that dismissal would go against the strong public policy of resolving controversies and disputes on the merits, and that the Claim here pleads sufficient allegations of gross negligence to survive defendant's dispositive motion.
The State Constitution expressly empowers the Legislature to regulate the procedures governing the manner in which claims against the State are to be tried (NY Const, art VI, §18, subd b) and, in accordance with that mandate, it has provided for nonjury trials only (Court of Claims Act, § 12 [3]).
Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation, 81 Misc.3d 1085 (Sup Ct, Richmond County 2023).
As to the timeliness of the Claim, Counsel, quoting Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 723 (1992), argues that "[t]he Court of Claims Act contains no recommencement provision of its own, but section 10(6) expressly incorporates the time limitations and tolling provisions of CPLR article 2, and [Court of Claims Act § 9(9)] requires that Court of Claims practice follow Supreme Court practice, unless other provisions are expressly made. Thus, these actions may be recommenced if they qualify for recommencement under CPLR 205(a)". Counsel argues that where an action is dismissed for lack of capacity to sue, a claimant is entitled to the benefit of the six-month saving provision of CPLR 205(a). Accordingly, counsel concludes the Claim is not time-barred because the dismissal order of the prior action was entered by the Court on July 7, 2023, and refiled within six months, on July 21, 2023 by ALICE GILLE on behalf of the Estate of NICHOLAS PAPANDREOU.
Lastly, counsel argues that the Claim is properly verified because "even though the [C]laimant resides in the same county as the undersigned, she was not available to verify her claim at the time it was filed" and therefore, the verification was made by counsel.
In reply, Defendant's counsel argues that Claimant's arguments are predominantly procedural, and rely upon cases dealing with the issue in different contexts. Counsel further argues that "Claimant's attempt to draw analogies between EDTPA immunity and other immunities is flawed, and no Court has drawn this same analogy. Rather,... both the Appellate Division and the Supreme Court have granted CPLR 3211(a) pre-answer motions to dismiss pursuant to the EDTPA, based upon the same evidence that was presented by the State here."
Counsel contends that "Mr. Sganga's affidavit clearly demonstrates that LISVH arranged for and provided health care services for Mr. Papandreou in good faith, in accordance with evolving CDC and DOH COVID-19 guidance." Specifically, Mr. Sganga states that the facility-wide impact of COVID-19 at the LISVH, as well as the measures taken from March 3, 2020 until Mr. Papandreou's May 3, 2020 death, and the LISVH's response to the COVID-19 outbreak and in support of federal and New York State directives to combat this deadly unprecedented disease impacted every aspect of Mr. Papandreou's care.
With respect to Claimant's contention that the motion should be denied because a claim for gross negligence has been asserted, and that ordinarily questions of gross negligence should be decided by the jury, Defendant's counsel argues that Claimant cannot invoke the narrow immunity exception based upon such "bald assertions" which have been consistently and repeatedly rejected by the Appellate Divisions and the Supreme Court.
With respect to the issue of timeliness of the Claim, counsel points out that the Second Department has recognized that because the "filing requirements of Court of Claims Act §10 are jurisdictional and must be strictly construed" that CPLR §205(a) does not apply to the Court of Claims.
Meyer v State of N.Y Off. Of Mental Health, 167 A.D.3d 997 [2d Dept 2018]; Kiesow v. State, 161 A.D.3d 1060 [2d Dept 2018].
LAW AND ANALYSIS
Timeliness of the Claim
The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon claimant's compliance with specific conditions set forth in article II, including the time limitations set forth in Section 10 (see id.; Alston v State of New York, 97 N.Y.2d 159 [2001]). These requirements must be" 'strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim'" (Hargrove v State of New York, 138 A.D.3d 777, 777-778 [2d Dept 2016], quoting Welch v State of New York, 286 A.D.2d 496, 497-498 [2d Dept 2001]; see Finnerty v New York State Thruway Auth., 75 N.Y.2d 721, 722-723 [1989]).
The statute of limitations applicable to a cause of action for wrongful death is two years. A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the death of the decedent. In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent.
In order for a person who intends to represent the estate of a decedent to comply with the filing and service provisions of Court of Claims Act §§ 10 (2) and (3), the statute contemplates that such "executor or administrator be formally appointed before commencing an action against the State" (Lichtenstein v State of New York, 93 N.Y.2d 911, 913 [1999]). An administrator or executor "who start[s] her action in the Court of Claims before receiving letters of administration, [does] not meet the requirements of the Court of Claims Act, and thus [has] not properly commence[d] the action" (id. [emphasis added]). Such failure to properly commence an action in the Court of Claims results in CPLR 205(a) being unavailable to recommence the claim (see id., citing Dreger v New York State Thruway Auth., 81 N.Y.2d 721, 722 [1992] ["CPLR 205(a) allows recommencement only where the prior action was timely commenced... [which] requires literal compliance with the relevant statutes governing notice"]; see also Liddel v State of New York, 182 Misc.2d 133, 137 [Ct Cl 1999] affd 278 A.D.2d 928 [4th Dept 2000] [CPLR 205 (a) not available to claimant who commenced an action on behalf of decedent without first obtaining letters of administration].
CPLR § 205(a) provides in pertinent part that, where an action is timely commenced and is terminated in any other manner - other than those not applicable here - the [claimant], or 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 that was dismissed.
Here, the Decedent died on May 3, 2020, taking into account the relevant tolling, Claimant had 2 years and 228 days to file the claim, to wit: by December 17, 2022. A person who seeks to represent a decedent in a claim who fails "to comply with either the filing or service provisions of the Court of Claims Act results in a lack of subject matter jurisdiction requiring dismissal of the claim" (Tooks v State of New York, 40 A.D.3d 1347, 1348 [3d Dept 2007] lv denied 9 N.Y.3d 814 [2007]).
Accordingly, the Claim is untimely and must be dismissed on such basis. Notwithstanding, the Court will analyze the remaining arguments.
Verification of the Claim
Court of Claims Act § 11 (b) requires that a claim "shall be verified in the same manner as a complaint in an action in the supreme court." Verification of a complaint in the Supreme Court requires a "statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes it to be true" (CPLR 3020 [a]). If the verification is made by someone other than a party, "he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party" (CPLR 3021). The Court of Appeals in Matter of Giambra v Commissioner of Motor Vehs. of State of NY (46 N.Y.2d 743, 745 [1978]) made clear that where a pleading is verified by an attorney "there must be careful compliance with the mandates of CPLR 3021" (id. at 745).
The instant claim was verified by Claimant's attorney who states in his affirmation that "[e]ven though the claimant resides in the same county as the undersigned, she was not available to verify her claim at the time it was filed", which is why the verification was not made by the claimant. The Verification attached to the Claim, however, states "the reason this verification is made by affirmant and not by Claimant is that the Claimant herein resides in a County other than the County in which I maintain my offices," which is false. Thus, the verification is defective and subject to dismissal absent waiver of the defect by the defendant (see Ft. Holding Corp. v Otero, 157 Misc.2d 834 [Civ Ct NY County, 1993]; cf Gaffey v Shah, 131 A.D.3d 1006 [2d Dept 2015]; Matter of Steele v State of New York, 19 Misc.3d 766 [Ct Cl, 2008]). Here, Defendant has properly averted waiver of an objection to the unverified or improperly verified claim under Court of Claims Act § 11 (c) (iii), which requires that the Defendant both notify the claimant of the defect with due diligence and raise its objection in either a pre-answer dismissal motion or as an affirmative defense in its answer [emphasis added] (see also Mason v State of New York, UID No. 2010-015-152 [Ct Cl, Collins, J., June 11, 2020]). Defendant, by letter dated July 25, 2023, rejected the Claim received on July 24, 2023, as a nullity, pursuant to CPLR Rule 3022, because the verification was not signed by the party.
Motion to Dismiss - Standard of Review
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim, the facts alleged in the complaint are typically accepted as true and the claimant is accorded every favorable inference (see Brown v University of Rochester, 216 A.D.3d 1328, 1330; 189 N.Y.S.3d 801 [3d Dept 2023]), and "the Court is tasked with determining whether the alleged facts in the complaint fit within 'any cognizable legal theory' "(Yearwood v Richmond Ctr for Rehabilitation & Specialty Healthcare, 81 Misc.3d 1246 [A] [Sup Ct, Richmond County 2024], citing Maursky, supra; Grocery Leasing Corp. v 104 16 LLC., 197 A.D.3d 628 [2d Dept 2021]). "At the same time, however, allegations consisting of bare legal conclusions... are not entitled to any such consideration" (Simkin v Blank, 19 N.Y.3d 46, 52 [2012] [internal quotation marks omitted]). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 [2017]).
However, where the Claimant provides evidence extrinsic to the complaint in support of the motion, a court "need not assume the truthfulness of the pleaded allegations. Instead, the criterion is whether the proponent of the pleading actually has a cause of action, not whether he [or she] has properly stated one" (Henderson v United Parcel Serv., 252 A.D.2d 865, 866 [3d Dept 1998] [internal quotation marks, ellipsis, brackets and citations omitted]; see Matter of Parvaz v Public Serv. Commn., 201 A.D.3d 1211, 1213-1214 [3d Dept 2022], lv dismissed & denied 38 N.Y.3d 1029, [2022]). In such instance, the plaintiff "no longer can rely only on the unsupported factual allegations of the pleading, but must submit evidence demonstrating the existence of a cause of action" (Whitehead v Pine Haven Operating LLC, 222 A.D.3d 104, 109-110 [3d Dept 2023] citing, Matter of La Barbera v Town of Woodstock, 29 A.D.3d 1054, 1055 [3d Dept 2006], lv dismissed 7 N.Y.3d 844, [2006]).
As to the required substance of a complaint, CPLR § 3013 governs and states, "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Notice and elements of the actions are the only requirements. If notice and the elements are present, a CPLR 3211(a)(7) must fail. The pleadings must be liberally construed. Draftsmanship and form are immaterial in relation to the subject motion.
The "Emergency or Disaster Treatment Protection Act"
The New York State Legislature enacted the EDTPA with the stated purpose of "promot[ing] the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency" (Public Health Law former § 3080).
The EDTPA was deemed to be in full force and effect as of March 7, 2020, was amended on August 3, 2020, and repealed on April 6, 2021. Initially, Claimant's counsel argued that the repeal of EDTPA was retroactive, however, it is now well-settled among the Fourth and Third Departments that it is not. Accordingly, the protections were in place in April of 2020.
As of the writing of this decision, the Second Department has not published a decision on the issue or retroactivity.
Initially, the EDTPA provided, with certain exceptions, that a health care facility "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 providing health care services" if three conditions were met: "the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State's directives; and the services were arranged or provided in good faith (Id. Public Health Law former § 3082[1]; Mera v New York City Health & Hosps. Corp., 220 A.D.3d 668, 669 [2d Dept 2023]). The following health care services were covered by the immunity provision: "those related 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; and the care of any other individual who presented at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration" (see Id. Public Health Law former § 3081[5]; Mera v New York City Health & Hosps. Corp., 220 A.D.3d at 669-670).
A moving party's showing of "impact" on relevant patient treatment triggers immunity on the EDTPA. The statute does not require qualification of the impact, e.g. positive, negative or neutral, but rather merely requires that the treatment be impacted by "by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State's directives."
The only exception to immunity, according to Public Health Law former § 3082(2), is where an individual's alleged injuries were caused by gross negligence or intentional criminal misconduct. This provision further provides that "acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal conduct, gross negligence, reckless misconduct, or intentional infliction of harm."
Retroactivity of the Repeal of the "Emergency or Disaster Treatment Protection Act"
The EDTPA was repealed on April 6, 2021 (L 2021, ch 96, § 1), and all of the Appellate Departments have now held that the legislation repealing the EDTPA should not be applied retroactively (see Whitehead v Pine Haven Operating LLC, (222 A.D.3d 104 [3d Dept 2023]); Ruth v Elderwood at Amherst (209 A.D.3d 1281 [4th Dept 2022]); Hasan v Terrace Acquisitions II, LLC, d/b/a Fordham Nursing and Rehabilitation Center a/k/a Kings Terrace Nursing Home (203 N.Y.S.3d 325 [1st Dept 2024]); and Damon v Clove Lakes Healthcare & Rehabilitation. Ctr., Inc., 228 A.D.3d 618 [2d Dept 2024]).
Gross Negligence
To establish gross negligence, a claimant must demonstrate that the defendant's conduct involved intentional wrongdoing or evinced a reckless indifference to the rights of others (see Skywest, Inc. v Ground Handling, Inc., 150 A.D.3d 922, 923 [2d Dept 2017]). Here, the Claimant failed to sufficiently plead the cause of action alleging gross negligence. Specifically, Claimant failed to allege specific acts or omissions by the Defendant demonstrating an intentional wrongdoing or reckless indifference to the Decedent. Furthermore, Claimant's allegations, even if assumed to be true, are defeated by the Affidavit of Mr. Sganga, and other exhibits establish, inter alia, that that LISVH had an infection control policy prior to COVID-19 and that it implemented procedures in response to the COVID-19 pandemic.
Accordingly, the Claimant does not have a cause of action for gross negligence and, thus, dismissal of that cause of action would also be warranted pursuant to CPLR 3211(a)(7).
Punitive Damages
Claimant's request for punitive damages is dismissed. The Court of Appeals has held that punitive damages may not be awarded against the State (Sharapata v Town of Islip, 56 N.Y.2d 332 [1982]).
DECISION AND ORDER
Here, the Claim contains conclusory and bare-bone allegations that the Defendant's acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. Defendant has satisfactorily established that, in light of the EDTPA, Claimant does not have causes of action for negligence, violations of the Public Health Law, or wrongful death. Furthermore, the Affidavit of Mr. Sganga, and other exhibits, established that the Decedent's treatment was impacted by LISVH's response to the COVID-19 pandemic, and that LISVH arranged for and provided health care services for the Decedent in good faith (see Martinez v NYC Health & Hosps. Corp., 223 A.D.3d 732-733 [2d Dept 2024]; Mera v New York City Health & Hosps. Corp., 220 A.D.3d at 668). Having, therefore, failed to make a prima facie showing that the conduct was such that exceptions to the immunity provisions of the EDTPA cannot and do not apply to the Defendant, the Claim must be dismissed.
Accordingly, it is hereby
ORDERED that Claim No. 139518, alleging causes of action for negligence, violations of Public Health Law, and wrongful death, is DISMISSED, as untimely; and it is further
ORDERED that the Clerk shall close the file.
Papers Read:
1. Notice of Motion, Affirmation in Support, Exhibits Annexed
2. Affirmation in Opposition, Exhibits Annexed
3. Reply Affirmation in Further Support of Pre-Answer Motion to Dismiss