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  • Writer's pictureLeitner Varughese Warywoda

NY Post Highlights LVW Firm's "Groundbreaking" Win for Nursing Home Victims


COVID negligence suit against LI nursing home can proceed, judge says

By Carl Campanile August 12, 2021 5:52pm Updated

In a potentially groundbreaking case, a federal judge refused to dismiss a negligence suit filed against a Long Island nursing home over treatment of a resident who died from the coronavirus last year.

“We won the first round. But the war is not over. We need to hold nursing homes and Gov. (Andrew) Cuomo accountable for their nursing home actions that led to deaths,” said Vivian Zayas, who filed the suit.

Zayas’ mom, Ana, died of COVID-19 last year following her stay at Our Lady of Consolation on Long Island, the defendant in the case.

The powerful Greater New York Hospital Association and NYS Health Care Association filed friend of the court papers in Brooklyn federal court in June in support of the defendant.

Zayas’ case was initially filed in Brooklyn state Supreme Court last year.

But Our Lady of Consolation moved to have the case transferred to federal court. The defendant claimed a federal law — the Public Readiness and Emergency Preparedness Act — blocks any state law regarding negligence cases during the COVID outbreak.

However, Brooklyn federal court Judge Nicholas Garaufis, in a ruling Wednesday, sided with Zayas and rejected the defendant’s argument the federal law preempts or exempts nursing homes from state negligence suits. He sent the case back to state court in Brooklyn to be litigated.

In his six-page decision, Garaufis rapped the nursing home’s “two-step maneuver” of “urging the federal court to exercise subject matter jurisdiction over this action and then dismiss Plaintiff’s claims based on the unavailability of a remedy in this court.”

The judge mocked the argument as “inconsistent machinations.”

The most recent data shows that 53,797 New York state residents have died from COVID-19, according to the John Hopkins Coronavirus Resource Center. About 16,000 residents in nursing homes and other long-term facilities were killed by the virus.

Zayas’ lawyer, Brett Leitner said her suit, if successful, could trigger thousands of other COVID nursing home negligence cases to flood the courts.

“The state has some culpability here because of the governor’s policies,” Leitner said.

Henry Greenberg of Greenberg Traurig, the lawyer representing the hospital and nursing home groups, said he hadn’t yet reviewed the ruling and had no comment.

At the heart of Zayas’ case is the repeal of the Emergency or Disaster Treatment Protection Act, a state law that shielded hospitals and nursing homes across New York from medical malpractice and negligence claims over their handling of the pandemic.

The controversial law was greenlit by Cuomo — who announced his resignation Tuesday over mounting scandals and is still being investigated over his handling of the pandemic in nursing homes — and the state Legislature in the spring of 2020 before it was repealed altogether in April.

Another state Health Department edict issued early during the pandemic required nursing home patients to admit recovering COVID patients discharged from hospitals. Some studies have concluded the policy contributed to COVID infections and deaths of nursing home residents.

Cuomo announced he was resigning on Tuesday after a damning state investigative report concluded he sexually harassed 11 women, including current and former staffers. He has denied any wrongdoing. But Zayas and other critics complain that Cuomo hasn’t been held accountable for his actions they allege contributed to COVID deaths.

Assemblyman Ronald Kim (D-Queens), an author of the new law allowing malpractice suits, has testified that the repeal applies retroactively.

Kim also is drafting legislation to create a 9/11 Victims Compensation Fund to aid families whose loved ones “unjustly” died from the coronavirus.

Kim praised the judge’s ruling to let the lawsuit proceed.

“The nursing home and hospital industry want to make these cases demanding accountability go away. They’re not going away,” he said.

“I don’t see how a state judge sides with nursing home providers that put profits first over individuals who unnecessarily died from COVID because of negligence. They will side with victims.”

Leitner, Zayas lawyer, said the 620 nursing homes in the state may want to agree to paying into a victims compensation fund set up by the state rather than roll the dice in court.

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