Could anything be clearer?
Here's what happened in New York v United States. Congress enacted a Federal Law requiring the States to depose of low level radioactive waste. Some Counties in New York objected. In a 6-3 decision, Justice Sandra Day O'Connor wrote:
The Federal Government may not compel the States to enact or administer a federal regulatory program. The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low level radioactive waste. The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes. It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders. While there may be many constitutional methods of achieving regional self-sufficiency in radioactive waste disposal, the method Congress has chosen is not one of them.
New York v. United States, 505 U.S. 144, 188, 112 S. Ct. 2408, 2435, 120 L. Ed. 2d 120 (1992).
The ruling in New York v. United States is that the Federal Government cannot make any State enact or administer a Federal program, especially where the safety of its people are involved.
The scientists seem to say that, even if the cases of Coronavirus level off and then decline significantly, we have to go slow in going back to normal or we can have another large waive of cases. The Governors of many States want to follow the scientists.
But this is the view of the Executive Branch:
"The president of the United States calls the shots... They can't do anything without the approval of the president of the United States."
Asked what provisions of the Constitution gave the President the power to override the states if they wanted to remain closed, the response was: "Numerous provisions," without naming any.
There are no such provisions. But there is one that trumps everything, the Tenth Amendment of the Constitution of the United States.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Amendment X, United States Constitution
The bottom line is that the Governors have the responsibility and the power to protect the people they govern. The Executive Branch or the Congress cannot dictate to the Governor of any State on this subject. That much is clear. Crystal clear. It is that simple.
]]>"Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient" (Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 703 [internal quotation marks omitted]). Thus, the basis for liability under Public Health Law § 2801-d " is neither deviation from accepted standards of medical practice nor breach of a duty of care. Rather, it contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule"' (Novick v South Nassau Communities Hosp., 136 AD3d 999, 1001, quoting Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179). Here, the affirmation of Grandell's expert in nursing set forth that Grandell did not violate any applicable federal and state regulations (see Gold v Park Ave. Extended Care Ctr. Corp., 90 AD3d 833, 834). The expert affirmation submitted by the plaintiff, which relied upon facts that were contradicted or unsupported by the record, offered only conclusory allegations of regulatory violations (see Shapiro v Gurwin Jewish Geriatric Nursing & Rehabilitation Ctr., 84 AD3d 1348, 1349) insufficient to defeat summary judgment.
Schwartz v. Partridge, No. 2017-08646, 2020 WL 355966 (N.Y. App. Div. Jan. 22, 2020) Parties should be mindful of these distinctions. First, medical malpractice is a deviation from accepted standards of medical care. Second, negligence is a breach of the duty of care. Third, a cause of action under the New York Public Health Law requires showing that a defendant nursing home violated applicable federal and state regulations and deprived a resident of the rights granted thereunder. It is not necessary in the Public Health Law claim to show either medical malpractice or negligence-simply violating a statute is enough. These distinctions, while perhaps easy to plead, require careful analysis in every case where these three causes of action are alleged. Our firm has substantial experience in defending Public Health Law claims and has successfully defeated such claims at both the summary judgment stage and at trial. For more information, please contact Louis G. Adolfsen, Esq.]]>In Xiang Fu He v. Troon Management, Inc., et al. decided on October 24, 2019, the New York Court of Appeals held that section 7-210 of the Administrative Code of the City of New York "unambiguously imposes a nondelegable duty on certain real property owners to maintain City sidewalks abutting their land in a reasonably safe condition." In Xiang Fu He the issue in the case was whether or not the owner was responsible for an injury resulting from snow and ice on the abutting city-owned property.
When the case was before the Trial Court, the Judge denied summary judgment to defendants. The Appellate Division, First Department, unanimously reversed on the law. The Appellate Division's decision stated:
"Defendants cannot be held liable for injuries allegedly sustained by plaintiff when he slipped on snow and ice on the sidewalk adjacent to their property, because they were out-of-possession landlords with no contractual obligation to keep the sidewalks clear of snow and ice, and the presence of snow and ice does not constitute a significant structural or design defect..."
At first blush, this decision seems to prohibit landlords generally from avoiding liability for an injury that does not arise from a structural or design defect on the property, such as snow and ice, by entering into a "Triple Net Lease", which generally states that the out-of-possession landlord has no duty to maintain or repair the property and that the tenant is delegated this duty. However, the Court's decision is not that an out-of-possession landlord cannot in all cases contract away liability for such injuries but that the landlord's ability to avoid liability may be prohibited by statute.
Absent a statute, the general rule remains that a landlord has no liability to maintain or repair property under a Triple Net Lease where the liability arises from e.g., the presence of snow and ice, and not from a structural or design defect. What the Xiang Fu He decision is saying is that by statute the legislature of a city or state or any other administrative municipal body can impose liability on an owner and prevent the owner from avoiding that liability, even if the owner has delegated the duty to keep the property free of snow and ice, to a tenant under a Triple Net Lease. Indeed, the Court of Appeals made this clear when it stated:
"...to be clear, nothing in section 7-210 prevents a landowner from entering into a maintenance agreement with tenants and third parties. While an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7-210."
One may ask why this decision is so significant to the plaintiff if the City remains liable for the injuries on the sidewalk even if the landlord has liability. From the plaintiff's point of view, having the landlord or owner of the property as a direct defendant is important. While a tenant will be liable under the traditional rule where an out-of-possession landlord has delegated the duty of maintenance of conditions such as snow and ice to the tenant, the tenant may surely not be as substantial a defendant as the owner of the property itself. While both the owner and the tenant may maintain insurance, the plaintiff has the added protection of the property itself as a means for recovering. The City, it should come as no surprise, is not as quick to resolve cases and does not have the incentive that a landlord's insurance company would have to resolve the case. Thus, as with so many things in the law, the underlying rationale for why one wants to impose liability on a party is often based on that party's financial status and its insurance.
For the time being, the rule stated by the Appellate Division, that an out-of-possession landlord with no duty to maintain the property is responsible only for structural defects should still survive. The teaching of the Xiang Fu He case is that the limitation of liability can be changed by statute.
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