On February 23, 2022, national plaintiffs’ personal injury firm, Napoli Shkolnik PLLC (“Napoli”) filed a Motion for Coordination (“Application”) pursuant to 22 NYCRR § 202.69 requesting that the State of New York Litigation Coordinating Panel (“NYLCP”) transfer several litigations “against nursing homes/health care facilities related to their response to the COVID-19 pandemic” pending in counties throughout New York state to Kings County Supreme Court for pre-trial coordination. See Docket, LCP0001/2022.

Utilizing an obscure procedural tool for its motion, Napoli further seeks an order that any actions “that allege similar causes of action against nursing homes, long term care facilities, or similar health care facilities” filed before the order (and still active) or after the order be similarly coordinated in Kings County. Citing the success of the 2017 coordination of opioid litigation in Suffolk County, Plaintiffs argue coordination would inter alia “permit more efficient discovery of complex evidence and…prevent the unnecessary redundancy of expert testimony,” as well as minimize duplication of proceedings, maximize judicial resources and allow consistent adjudication of common and determinative questions of law and fact such as the retroactive application of the repeal of the Emergency or Disaster Treatment Protection Act and the propriety of congregation of COVID-19 positive residents. Napoli argues Kings County is the optimal site for coordination due to its proximity to convenient transportation and New York’s most populous counties.

Shortly after Napoli filed its application, several firms for the identified nursing homes filed notices of appearance and correspondence with the NYCLP objecting to the merits of the Application, objecting to a lack of service of the Application and requesting a briefing schedule to permit the subject nursing homes opportunity to formally oppose the Application. Although counsel generally reserved substantive argument for their anticipated oppositions, the correspondence uniformly opposed the Application with most citing the temporal, geographical, evidentiary, medical, procedural and jurisdictional factors unique to each litigation as a basis to deny the Application.

In an Order dated April 27, 2022 the NYLCP ordered service shall be effected on the nineteen nursing homes identified in the Application by May 10, 2022; the nursing homes shall file any opposition to the Application on or before June 10, 2022; and Plaintiffs shall reply by June 20, 2022.

We are closely monitoring the docket for this Application and we will continue to report on new developments as COVID-19 litigation coordination would greatly impact the nursing home and elder care industries in New York.

For any questions about this topic, please do not hesitate to contact Kelly Jones Howell, Andre Major or the Harris Beach attorney with whom you typically work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.