Goltsman and Ghosn Obtain Dismissal Of Covid Death Claim
Clausen Miller partner Mara Goltsman and associate Josef Ghosn obtained a dismissal of a case pending in Supreme Court Kings County where plaintiff claimed that her disabled son died at a nursing home due to Covid. The son died on February 2, 2020. We argued that the first confirmed case of Covid in New York State was reported on February 29, 2020, after the son died; consequently, plaintiff failed to state a viable claim. The court held that there were reports about the virus in January of 2020 and would not dismiss the complaint based on this argument, stating that plaintiff was entitled to pursue the claim, while affording the complaint a liberal construction.
However, we were able to win dismissal of the causes of action sounding in wrongful death and medical malpractice based on the expiration of the statute of limitation, despite tolling of the statue by the governor’s executive orders. The court held that the statute of limitation sounding in negligence survived as the complaint was filed one day before its expiration.
We were then able to obtain dismissal of the plaintiff’s complaint (sounding in negligence, the sole remaining cause of action) because it was filed before plaintiff was legally appointed as the Administratrix of her son’s Estate and, as such, she lacked the legal capacity to sue when she commenced the action. Plaintiff was allowed 6 months to recommence the action (pursuant to statute) but she was unable to do so because she was not appointed as the Administratrix before the 6 months expired. Therefore, plaintiff’s remaining cause of action was time barred. This multi-pronged attack resulted in a satisfying win for our client and highlights Clausen’s relentless defense of casualty claims.
Mara Goltsman
Private: Josef Ghosn