The Estate of Juan Ortiz v. Archcare at Terence Cardinal Cooke Health Care Center

Alfred P. Vigorito Charles K Faillace + Danielle Bennett 4 Of Counsel John W. Barker Danielle M. Hansen Theresa A. Bohm Patricia M. Comblo Gary W. Patterson, Jr.* Anna Hock Angela R. Bonica * Josie M. Conelley Jeffrey R. Nichols* Thomas Jaffa Julia Combs ¢ Brian DiPentima* Mamie Stathatos-Fulgieri Gemma Kenney *** Christine Crane Tricia M. Criscito Scott A. Singer Ruth Bogatyrow Kraft Michael P. Diven * ** Roseann V. Driscoll Gregg D. Weinstock*** m Douglas Langholz Tyler M. Fiorillo William Gagas + Kiki Chrisomallides* Jason Lavery * \ Lauren P. Ingvoldstadf Rani B. Kulkarni Dylan Braverman Megan A. Lawless= Jillian Kuper + Nicole E. Martone Covitt Guy A. Lawrence VB Christian McCarthy Joseph P. Muscarella Timothy P. Lewis — John O’Brien Seema Palmerson Naish KesOpitene? Valero, □□□ brie Antes ae orl VIGORITO, BARKER, PATTERSON, roti □□□□□□ Margaret Antonino* = Vincent Nagler □ een □□ lompson Karolina Wiaderna |. Arevalo Milees Reiner N | Cc H Oo LS & PO RT E R, L L P Chie inn ; * Also Admitted to Practice in NJ Bruce Brady * Bhalinder L. Rikhye Tyler Wein; arten □□ □□□□ Admitted fo Practice ip CT Thomas Brennan = Tammy A. Trees Alexandra Zerrillo * ** :: -- Admitted to Practice in Florida Kenneth Jia Wikox:= {A □□□ mcs Gilbert H. Choi Arthur I. Yankowitz** □□□□□ Admitted to Practice in Ohic Joshua R. Cohen 8 □□□□□□ □□ □□□□□□□□ inca December 27, 2022 VIA CM/ECF Plaintiff shall file a response, not to exceed three pages, by Hon. Jesse M. Furman January 4, 2023. As indicated in the Court's December 12, United States District Court Order, ECF No. 6, the parties should be prepared to discuss Southern District of New York matter at the conference scheduled for January 11, 2023, see Thurgood Marshall United State Courthouse No. 8. 40 Foley Square SO ORDEREL New York, New York 10007 ih Re: — The Estate of Juan Ortiz, by his Proposed Administrator, Yolan howl VArh Lito Terence Cardinal Cooke Health Care Center, et al. ber □□□ Case No. 1:22-cv-10385-JMF □ Dear Judge Furman: The undersigned represents defendant ARCHCARE AT TERENCE CARDINAL COOKE HEALTH CARE CENTER (“Defendant”) in the above-referenced action. Through this letter, Defendant respectfully asks the Court to stay this matter and hold anticipated motion practice and/or consideration of remand in abeyance until after the appeals of Leroy v. Hume, Nos. 21-2158, 21-2159 (cons.), RiveraZayas v. Our Lady of Consolation Geriatric Care Center, 21-2164, and Solomon v. St. Joseph Hospital, No. 21-2729, currently pending in the Second Circuit, are decided. The anticipated motion practice in this matter includes a pre-answer motion to dismiss based upon Plaintiff's lack of capacity to prosecute this action as a “Proposed” estate representative, and the COVID19 immunities afforded by the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e, and New York’s Emergency or Disaster Treatment Protection Act (“EDTPA”), N.Y. Pub. Health Law § 3082 . Defendant anticipates that Plaintiff will also move to remand this action to state court. As a threshold matter, Plaintiff as “Proposed Administrator” of the decedent’s estate lacks standing, and thus lacks capacity to prosecute this action or otherwise act on behalf of the decedent. See NY EPTL §5-4.1(1); Bush v. City of Utica, 948 F.Supp.2d 246, 253 (N.D.N.Y. 2013), aff'd sub nom. Bush vy. City of Utica, N.Y., 558 F.App’x 131 (2d Cir. 2014); Carrick v. Central General Hospital, 51 N.Y.2d 242, 246 (1980); Sam Kyung Cho vy. Yongshin Cho, 45 A.D.3d 388, 389 (1* Dep’t 2007); Butler v. Kings Co. Hospital Center, 30 Misc.3d 1229 (a), 924 N.Y.S.2d 307 (Sup. Ct. Kings County 2011) (dismissing wrongful death claim where “Proposed Administrator” subsequently obtained letters, but never cured initial filing defect). Defendant intends to file a pre-answer motion to dismiss on these grounds because 300 Garden City Plaza * Suite 100 * Garden City, New York 11530 » Phone: (516) 282-3355 » Fax: (516) 908-4960 Plaintiff lacks the capacity to take any step on behalf of the state. As such, Plaintiff cannot oppose dismissal or move to remand. Therefore, dismissal for lack of capacity is warranted, or alternatively, a stay of proceedings until after an administrator is properly appointed. Second, Defendant removed this action because Plaintiff’s Complaint alleges injury relating to the administration of COVID-19 countermeasures to prevent, diagnose and/or treat COVID-19 within the meaning of the PREP Act. Defendant asserts federal subject matter jurisdiction on the grounds that these claims: (1) “aris[e] under” federal law within the meaning of 28 U.S.C. § 1331 because they are completely preempted by the PREP Act; (2) “aris[e] under” federal law within the meaning of 28 U.S.C. § 1331 because, under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing., 545 U.S. 308 (2005), these claims necessarily involve substantial and disputed questions of federal law; and (3) form the basis for federal jurisdiction because defendants subject to such claims are persons acting under federal officers within the meaning of 28 U.S.C. § 1442 (a)(l). These issues are before the Second Circuit in the Leroy and Rivera-Zayas appeals; oral argument occurred on October 31, 2022. On November 14, 2022, the Second Circuit ordered that consideration of these appeals be held in abeyance until the Court issues a decision in Solomon. Briefing in Solomon on the same jurisdictional questions at issue in this case and in Leroy and Rivera-Zayas is currently scheduled to conclude by the end of January 2023. A stay would allow the parties the benefit of awaiting a decision from the Second Circuit before engaging in motion practice that could be deemed moot. As such, Defendant respectfully asks this Court to hold any consideration of remand in abeyance until after the Second Circuit renders decisions in these appeals. Multiple courts in the Southern and Eastern Districts of New York have increasingly stayed motion practice, despite objection by plaintiffs, in similarly situated cases as a matter of judicial efficiency. As E.D.N.Y. Judge Vitaliano recognized in issuing a stay in a case involving identical jurisdictional issues, “a court may…properly exercise its staying power when a higher court is close to settling an important issue of law bearing on the action.” See McGovern v. Our Lady of Consolation Geriatric Care Center, 2:22-cv-05558-ENV (E.D.N.Y., Sep 29, 2022) (issuing stay pending Second Circuit’s resolution of Leroy and Rivera-Zayas appeals) (citation omitted). Numerous other courts have similarly ruled. See, e.g., Cruz v. St. Vincent de Paul Residence, et al., 1:22-cv-10515-JGK (S.D.N.Y., Dec. 23, 2022) (staying case pending decisions by Second Circuit); The Estate of Shirley Brito v. Harlem Center for Nursing and Rehabilitation, LLC et al., 1:22-cv-09937PAE (S.D.N.Y., Dec. 14, 2022) (staying case in light of Second Circuit’s pending resolution of appeals, “which address issues central to this Court’s jurisdiction.”); Ortiz v. Bronx Harbor Heath Care Complex, Inc., et al., 1:22-cv-09348-JLR (S.D.N.Y., Nov. 8, 2022) (staying motion practice until resolution of Leroy and Rivera-Zayas appeals “which may bear on whether this Court has subject-matter jurisdiction over this case.”); Rah v. Terrance Cardinal Cooke Health Care Center, 1:22-cv-03801-LLS (S.D.N.Y., Oct 5, 2022) (staying motion practice until resolution of appeals “which may affect whether this Court has subject matter jurisdiction in this case.”); Horton v. Bronx Harbor Health Care Complex, Inc. et al., 1:22cv-06763-ER (S.D.N.Y. Sept. 20, 2022) (staying case pending resolution of Leroy and Rivera-Zayas appeals); Cusimano v. Eastchester Rehabilitation and Health Center, 1:22-cv-06453-DLC (S.D.N.Y., Aug. 29, 2022) (same); Alston v. Harlem Center for Nursing and Rehabilitation, LLC, et al., 1:22-cv06293-LAK-OTW (S.D.N.Y., Aug. 10, 2022) (same). See also Johanna Carlino v. Eger Health Care & Rehabilitation Center, 1:22-cv-07352-NRMVMS (E.D.N.Y., Dec. 21, 2022) (staying proceedings pending Second Circuit decisions, which may be instructive on the jurisdictional questions posed); Estate of George Karoutsos v. Catholic Health System of Long Island, Inc. et al, 2:22-cv-05177-EK-SIL (E.D.N.Y., Nov. 29, 2022) (granting Defendant’s motion for stay until such time as Second Circuit rules on pending appeals and Plaintiff is duly appointed Administrator of decedent’s estate); Bennett v. Forest Manor Care Center Inc., 2:22-cv-05285-ENV-ST (E.D.N.Y., Nov. 21, 2022) (holding motion practice in abeyance pending Second Circuit’s resolution of appeals); Jones v. The Brookdale University Hospital and Medical Center, et al., 1:22-cv-02552-RPKTAM (E.D.N.Y., Nov. 9, 2022) (same); Vetere v. Suffolk Restorative Therapy and Nursing LLC, 2:22-cv04886-FB-ARL (E.D.N.Y. Nov. 4, 2022) (same); Huston v. Alliance Health Operations, LLC, 1:22-cv05085-DG-VMS (E.D.N.Y., Oct. 7, 2022) (ruling that decisions in Leroy and Rivera-Zayas are likely to be instructive in action); Gillis v. Carmel Richmond Nursing Home, Inc., 1:22-cv-05690-KAM-TAM (E.D.N.Y., Oct. 4, 2022) (same); Gonzalez v. Parker Jewish Institute for Health Care & Rehabilitation, et al., 2:22-cv-05199-AMD-ST (E.D.N.Y., Sep. 9, 2022); Gavin v. Jackson Heights Care Center, LLC et al., 1:22-cv-05006-AMD-RER (E.D.N.Y., Sep. 7, 2022); Kump v. Chapin Home For The Aging, Case No. 1:22-cv-03189-DG-MMH (E.D.N.Y. July 19, 2022). (See Stay Orders attached hereto). Defendant respectfully requests that this Court similarly stay motion practice and hold any consideration of remand in abeyance pending the Second Circuit's resolution of the novel jurisdictional questions at issue here. With respect to the PREP Act, it provides Defendant immunity from suit because Plaintiff’s claims arise out of and relate to the administration of covered countermeasures, as defined by the PREP Act, for the prevention, diagnosis and treatment of COVID-19. As such, it is respectfully submitted that the immunity provisions of the PREP Act bar suit for the claimed injuries, requiring dismissal of the Complaint. Plaintiff’s claims are also barred by New York’s EDTPA, which mandates 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. Plaintiff alleges injury resulting from the provision of health care services pursuant to a COVID-19 emergency rule, and the patient’s care and treatment were impacted by Defendant’s decisions and activities in response to the COVID-19 outbreak. The entire premise of the Complaint is a critique of Defendant’s activities and decisions in response to or as a result of the COVID19 outbreak, thereby triggering the immunity conferred by the EDTPA and requiring dismissal. Alternatively, should this Court decline a stay of motion practice, Defendant respectfully requests that the time to answer or otherwise respond to the Complaint be extended until the foregoing issues are addressed by this Court. We thank the Court in advance for its consideration of this matter. Sincerely, Megan A. Lawless Megan A. Lawless (ML3227) (m.lawless@vbpnplaw.com) TO: (via CM/ECF) Joseph Ciaccio, Esq. NAPOLI SHKOLNIK, PLLC Attorneys for Plaintiff