Second COVID nursing home death's case against Cuomo tossed
A federal judge has dismissed a class-action lawsuit accusing former New York Gov. Andrew Cuomo and his administration of being responsible for the deaths of their loved ones in nursing homes during the height of the COVID-19 pandemic in 2020.
U.S. District Court Judge Katherine Polk Failla wrote on Monday that although what happened was heartbreaking, the families' legal arguments didn't meet the standard for suing in federal court.
Cuomo, who was governor at the time, issued a March 2020 directive that initially barred nursing homes from refusing to accept patients who had tested positive for COVID-19. The directive was aimed at freeing up beds for overwhelmed hospitals.
Nyc Mayor Says Cuomo Should 'Answer' Covid Nursing Home Allegations
More than 9,000 recovering coronavirus patients were released from hospitals into nursing homes under the directive, which was later rescinded amid speculation that it had accelerated outbreaks.
The eight plaintiffs in the case argued that their loved ones contracted COVID-19 in nursing homes and died as a result of the directive\. They accused Cuomo and his administration of being civilly liable for their deaths as well as being liable for failing to accurately report the number of nursing home deaths in New York state that resulted from the virus.
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Failla, an Obama appointee, said the government wasn't directly responsible for the deaths, even if its policies had tragic consequences.
"The Court's sympathy for Plaintiffs and their loved ones simply cannot supplant governing law," Failla wrote.
She wrote that the plaintiffs' arguments did not meet the high bar of "shocking the public conscience" which is needed for this type of lawsuit and that officials acted during a fast-moving crisis.
The family members accused the defendants of violating the Due Process Clause of the 14th Amendment. They also brought state law claims including wrongful death and gross negligence under New York law.
Failla dismissed most of the claims on jurisdictional grounds and without prejudice.
"The Court does not question the sincerity or depth of Plaintiffs' loss," she wrote. "But the law, as it currently stands, does not permit recovery against the Defendants for the harms alleged."
She also emphasized that the case was dismissed based on legal standards, not a denial that harm occurred.
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Cuomo spokesperson Rich Azzopardi welcomed the ruling and noted it was the second such case to be tossed on similar grounds.
"Anytime this issue gets taken out of the press or the political arena and into the courts, the truth wins," Azzopardi said.
Azzopardi said the case follows three separate probes by the Justice Department as well as the Manhattan District Attorney's Office.
"Once again, justice has prevailed."
Cuomo, who is currently running for New York City Mayor, has previously said that the directive was based on Center for Diseases and Prevention (CDC) and Centers for Medicare and Medicaid Services (CMS) guidance at the time.
A report released in March 2022 by the New York state comptroller found Cuomo's Health Department "was not transparent in its reporting of COVID-19 deaths in nursing homes" and it "understated the number of deaths at nursing homes by as much as 50%" during some points of the pandemic.
The former governor was grilled by Republican lawmakers last year about following which House Republicans subsequently recommended the Justice Department pursue criminal charges against him. They accused him of intentionally lying to Congress during the House Oversight Committee's investigation into the excessive number of nursing home fatalities.
A state report later commissioned by Cuomo's successor, Gov. Kathy Hochul, found that while the policies on how nursing homes should handle COVID-19 were "rushed and uncoordinated," they were based on the best understanding of the science at the time.
Cuomo ultimately resigned from office in August 2021 following sexual harassment allegations, which he denies.
Fox News' Greg Norman Bradford Betz, Maria Paronich and the Associated Press contributed to this report. Original article source: Second COVID nursing home death's case against Cuomo tossed
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In deciding whether to make a criminal referral, he said, agencies should consider factors such as "the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense"; "the potential gain to the putative defendant that could result from the offense"; and "evidence, if any is available, of the putative defendant's general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue." The Interior Department, which includes the NPS, got the message. A week later, Damon Hagan, a deputy solicitor at the department, emailed Assistant U.S. Attorney Ariel Calmes, noting his office's "review of our regulations for compliance" with Trump's order. Hagan added that he "look[ed] forward to further discussions with your supervisors and yourself regarding the Michelino Sunseri matter." 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Sunseri's trial began the next day. Although Romine and Calmes "had access to this email [from Lands] before trial," Bushnell and co-counsel Alexander Rienzie say in a motion they filed with Hambrick on Wednesday, they "decided not to disclose it to the defense, despite its clear relevance to DOJ authorization, defense strategy and witness impeachment." That failure, Bushnell and Rienzie argue, ran afoul of the prosecution's obligations under Brady v. Maryland, the 1963 case in which the Supreme Court held that criminal defendants have a due process right to see evidence "material" to their guilt or punishment. In the 1995 case Kyles v. Whitley, the lawyers note, the Supreme Court clarified that "a showing of materiality does not require demonstration by a preponderance [of the evidence] that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Rather, it is enough that the suppression "undermines confidence in the outcome of the trial," which implies a "reasonable probability" that the evidence might have changed the result. If they had known about the Lands email before Sunseri's trial, Bushnell and Rienzie suggest, they would have called additional witnesses, including NPS Public Affairs Officer Emily Davis. They say they also would have "expand[ed] trial strategy to challenge the institutional legitimacy of the prosecution" and "explore[d] additional selective/vindictive prosecution theories on cross-examination." Those missed opportunities, they say, "collectively undermin[ed] the fundamental fairness of Mr. Sunseri's trial." Bushnell and Rienzie are asking Hambrick, who has not yet delivered a verdict, to admit the email chain as evidence. They are also seeking an evidentiary hearing to address several issues raised by those messages, including a possible Brady violation and "the integrity and authorization of the prosecution itself, in light of the initiating agency withdrawing support." They are curious about "the decision-making process that led DOJ to continue prosecution without agency support" and "the motivation to continue pursuing disproportionate plea terms after NPS withdrawal." Connor Burkesmith, a photographer who documented Sunseri's Grand Teton feat and is working on a film about it, thinks that decision was plainly unfair. "After the National Park Service explicitly withdrew, the prosecution decided to continue on the war path and subpoenaed the park rangers to testify," Burkesmith says in an email. "The trial then proceeded for two days, with [about] 20 federal employees in attendance, wasting countless taxpayer dollars to prosecute a trail runner for running on a trail." This certainly seems like a case that could have been handled with a civil fine rather than a criminal prosecution, or at least with a plea deal less onerous than the one prosecutors offered. "Even after the DOJ was aware of NPS withdrawal of support, on the morning of trial," Bushnell and Rienzie say, Calmes "reiterated an offer of deferred prosecution with 1,000 hours of community service and a ban from Grand Teton National Park—entirely disproportionate to the conduct at question, particularly with the initiating agency no longer supporting prosecution." Sunseri's lawyers "extended a counter-offer modifying community service to 60 hours and replacing the ban with a restriction tied to alleged conduct." It is unclear how Hambrick will respond to Sunseri's motion, how she is inclined to assess his guilt, or what punishment she might think is appropriate. But the fact that his fate will be decided by a single judge (subject to appeal) could affect the ultimate outcome. Hambrick rejected Sunseri's request for a jury trial, which she was allowed to do under a "petty offense exception" that the Supreme Court has atextually carved out of the Sixth Amendment. That amendment says defendants "in all criminal prosecutions" have a right to "a speedy and public trial" by "an impartial jury." In cases like Sunseri's, "the right to a jury trial is of particular importance," Fox argues. "Founding-era jurors were tasked with preventing injustice. Criminal jurors had a civic duty to assess the wisdom, legitimacy and fairness of a given prosecution, and they had the power to acquit against the evidence to prevent injustice. It is doubtful that a jury fully cognizant of its historical powers and duties would convict Sunseri." The post A Runner Was Prosecuted for Unapproved Trail Use After the Referring Agency Called It 'Overcriminalization' appeared first on
