Messina v. Clove Lakes Health Care & Rehab. Ctr., Inc.

181 N.Y.S.3d 868

Danielle MESSINA, as Administrator of the Estate of Samuel Arbeeny, Plaintiff

v.CLOVE LAKES HEALTH CARE AND REHABILITATION CENTER, INC., Defendant

Index No. 150604/2022

Supreme Court, Richmond County, New York.

Decided on January 9, 2023

Counsel for Plaintiff: Kostantinos Mallas, Esq., Georgaklis & Mallas, PLLC, 9118 Fifth Avenue, Brooklyn, NY 11209, 718-238-2400, 718-477-0020, GMpersonalInjury@gmlawny.com

Counsel for Defendant: Caitlin Anne Robin, Esq., Caitlin Robin and Associates, PLLC, 30 Broad Street, Suite 702, New York, NY 10004, 646-524-6026, caitlin@robinandassociates.com

Paul Marrone, Jr., J.

Samual Arbeeny was a resident at a nursing home owned and operated by the defendant, Clove Lakes Health Care and Rehabilitation Center, Inc. (hereinafter "Defendant"), where he died on April 25, 2020. This action was commenced by the plaintiff, Danielle Messina (hereinafter "Plaintiff") as the administrator of Mr. Arbeeny's estate, for damages incurred while in Defendant's care. The complaint asserts causes of action for (1) violation of Public Health Law § 2801-d, (2) negligent care resulting in pressure ulcers, (3) gross negligence, (4) negligent infliction of emotional distress, (5) wrongful death, and (6) negligent care resulting in falls.

Defendant filed the instant motion to dismiss the action based on Plaintiff's failure to state a cause of action, to which Plaintiff filed opposition and Defendant, in turn, filed a reply. Oral argument was heard on November 10, 2022 with both sides represented by counsel, and the Court's decision was reserved.

In considering a motion to dismiss for failure to state a cause of action, the complaint should be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true ( Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [Ct. App. 1994] ). Initially, the sole criterion is whether the pleading states a cause of action, and if, from the pleading's four corners, the court discerns factual allegations that, when taken together, manifest any cause of action cognizable at law, the motion will fail ( Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [Ct. App. 1977] ). The question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one ( Steve Elliot, LLC v. Teplitsky, 59 A.D.3d 523, 873 N.Y.S.2d 672 [2d Dept. 2009], citing Guggenheimer v. Ginzburg ).

Here, the question presented is whether Defendant is immune from liability under legislative protections granted during the COVID-19 pandemic.

On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order 202, which declared a state of emergency due to the COVID-19 outbreak. On March 23, 2020, Governor Cuomo supplemented that declaration with Executive Order 202.10, which amended Education Law §§ 6527 (2), 6545, and 6909 (1) to provide that:

"[A]ll physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State's response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional."

On or about April 6, 2020, Governor Cuomo and the New York State Legislature enacted the Emergency or Disaster Treatment Prevention Act ("the EDTPA"), which codified the protections granted within Executive Order 202.10, and was subsequently repealed on April 6, 2021 (Public Health Law art 30, as amended by L 2021, ch 96, § 1).

Specifically, the EDTPA provided (id. at 3082, as amended by L 2021, ch 96, § 1):

"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 COVID-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."

The statute continued (id. ):

"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."

Defendant argues that Plaintiff's action should be dismissed due to the protections afforded under the EDTPA, as Defendant meets the requirements for immunity, and due to Plaintiff's failure to articulate any date, time, action, omission, or occurrence for the allegations in a manner sufficient to support Plaintiff's claims. Plaintiff counters that the repeal of the EDTPA was retroactive, thereby stripping Defendant of its protections.

The Court will first deal with the question of retroactivity. This question was recently addressed in the matter of Saltanovich v Sea View Hospital Rehabilitation Center (Sup Ct, Richmond County, May 17, 2022, Aliotta, J., index No. 151645/2021), wherein Hon. Thomas P. Aliotta aptly stated that determining retroactivity requires consideration of certain factors, including: (1) whether the legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; (2) whether the statute was designed to rewrite an unintended judicial interpretation; (3) and whether the enactment itself reaffirms a legislative judgment about what the law in question should be (see Gleason v. Michael Vee, Ltd. , 96 N.Y.2d 117, 122, 726 N.Y.S.2d 45, 749 N.E.2d 724 [Ct. App. 2001] ). Then, the Court must determine whether retroactivity would impair rights a party possessed when it acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed, thus impacting substantive rights ( Matter of Regina Metropolitan Co., LLC v. New York State Division of Housing and Community Renewal , 35 N.Y.3d 332, 366, 130 N.Y.S.3d 759, 154 N.E.3d 972 [Ct. App. 2020], citing Landgraf v. USI Film Products , 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 [1994] ).

Here, the repealing authority made no mention of retroactivity, nor can it be said to have been predicated on an "unintended judicial interpretation" or a need to reaffirm its legislative intent. If the repeal was found to be retroactive, it would most certainly...