Nursing home becomes first in Syracuse area to be sued over Covid-19 death

Syracuse, N.Y. — A Cicero nursing home is being blamed for a resident’s Covid-19 death in the first lawsuit of its kind filed in the Syracuse area.

The lawsuit claims a 92-year-old woman died of the virus May 5, 2020 because she received poor care at The Cottages at Garden Grove in Cicero.

The virus has killed 349 nursing home residents in Onondaga County as of Aug. 7, according to the state.

But the state made it nearly impossible for their families to sue when it passed a controversial law that shielded New York nursing homes from most Covid-19 negligence lawsuits during the pandemic. The only exceptions were cases involving “gross negligence” or “reckless misconduct.”

The broad grant of immunity to nursing homes and hospitals was passed in the early days of the pandemic as part of a state budget bill. It was repealed April 7, but not retroactively. That means nursing homes were protected from most lawsuits over deaths that occurred before April 7 of this year, but not after that date.

The suit against The Cottages accuses the nursing home of gross negligence. It says the nursing home’s conduct was “grossly reckless, willful and wanton in the face of the Covid-19 outbreak and pandemic.” The wrongful death suit was filed in Oneida County Supreme Court by Kenneth Krol.

In the suit, Krol says his mother, Jeannette Krol, was diagnosed with Covid-19 on May 1, 2020, the same day she fell and fractured her thigh bone. The Cottages did not send Krol to a hospital due to fear of Covid and did not treat her quickly enough, according to the suit.

Krol deferred questions about the lawsuit to his New York City attorney, Joseph Ciaccio, who did not return phone calls from Syracuse.com | The Post-Standard.

The administrator of The Cottages also did not return phone calls from Syracuse.com |The Post-Standard.

The Cottages is the first Onondaga County nursing home to be sued over a Covid-19 death, court records show.

As of Aug. 7, The Cottages had reported one resident death from Covid-19 to the state Health Department.

The 156-bed nursing home gets a three-star rating, which means average, from the federal Centers for Medicare & Medicaid Services.

During the pandemic the nursing home has reported 33 confirmed or suspected Covid-19 cases among residents as of July 25, according to federal data.

Although the law appealing immunity does not state it was erased retroactively, a lawsuit pending in federal court on Long Island is asking the court to make the law retroactive.

Such a ruling could open the floodgates for suits against nursing homes. But Nina Kohn, a Syracuse University law professor, said it’s unlikely the court will determine the repeal is retroactive.

“Typically when legislation is interpreted it applies to the future unless it explicitly states it is retroactive,” Kohn said. “The Legislature had the opportunity to try to make this retroactive and it did not do so.”

She expects to see more Covid-19 lawsuits brought against nursing homes. “The fact that lawsuits will be filed, however, does not mean that they will be successful,”Kohn said.

John Dalli, a New York City attorney who represents nursing home residents and their families, said the case against The Cottages is a long shot.

Proving gross negligence and recklessness against a nursing home is extremely difficult in New York state, according to Dalli.

Dalli said it would also be difficult to prove how a nursing home resident contracted Covid-19 in the middle of a pandemic.

“It sets the bar ridiculously high,” he said.

James T. Mulder covers health and higher education. Have a news tip? Contact him at (315) 470-2245 or jmulder@syracuse.com

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