Zain v Ernest L. Isaacson DPM, P.C. 2025 NY Slip Op 30060(U) January 7, 2025 Supreme Court, New York County Docket Number: Index No. 805136/2021 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 805136/2021 ROBERT ZAIN, MOTION DATE 10/15/2024 Plaintiff, MOTION SEQ. NO. 001 -v- ERNEST L. ISAACSON DPM, P.C., and ERNEST L. DECISION + ORDER ON ISAACSON, DPM, MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57 were read on this motion to/for DISMISS .
In this action to recover damages for medical malpractice, the defendants, Ernest L.
Isaacson DPM, P.C., and Ernest L. Isaacson, DPM, move pursuant to CPLR 3211(a)(1) and (7)
to dismiss the complaint, based on a defense founded upon documentary evidence and for
failure to state a cause of action. The plaintiff opposes the motion. The motion is denied,
inasmuch as the defendants are not immune from civil liability conferred by the Emergency or
Disaster Treatment Protection Act (Public Health Law former §§ 3080-3082; hereinafter
EDTPA), the complaint properly states a cause of action sounding in medical malpractice, and
the defendants waived the affirmative defense codified by CPLR 3211(a)(1).
The plaintiff was a patient of the defendant podiatrist Ernest L. Isaacson, DPM, and his
professional corporation, the defendant Ernest L. Isaacson, DPM, P.C., from February 7, 2020
until April 8, 2020. In his complaint, which he filed on May 6, 2021, the plaintiff alleged that the
defendants treated him for an ulcer on his left heel, which ultimately resulted in an above-the-
knee amputation when an infection developed and went untreated in that heel.
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 1 of 6 SEQ 001
1 of 6 [* 1] INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
In their motion, the defendants argued that the complaint should be dismissed since
EDTPA conferred immunity upon them from civil actions, such as the plaintiff’s action here,
since the claims here related to healthcare services provided in response to the COVID-19
pandemic. In opposition, the plaintiff argued that EDTPA may not be invoked by the
defendants, since that statutes does not apply to podiatrists or professional corporations such
as the defendants, who did not provide services in connection with COVID-19.
When assessing the adequacy of a pleading in the context of a motion to dismiss under
CPLR 3211(a)(7), the court’s role is “to determine whether [the] pleadings state a cause of
action” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). To
determine whether a claim adequately states a cause of action, the court must “liberally
construe” it, accept the facts alleged in it as true, accord it “the benefit of every possible
favorable inference” (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881 [2013];
Simkin v Blank, 19 NY3d 46 [2012]), and determine only whether the facts, as alleged, fit within
any cognizable legal theory (see Taxi Tours, Inc. v Go New York Tours, Inc., 41 NY3d 991, 993
[2024]; Hurrell-Harring v State of New York, 15 NY3d 8 [2010]; Leon v Martinez, 84 NY2d 83
[1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st
Dept 2004]; CPLR 3026). “The motion must be denied if from the pleading's four corners factual
allegations are discerned which taken together manifest any cause of action cognizable at law”
(511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation marks
omitted]; see Leon v Martinez, 84 NY2d at 87-88; Guggenheimer v Ginzburg, 43 NY2d 268
[1977]). Where, however, the court considers evidentiary material beyond the complaint, as it
does here, the criterion becomes “whether the proponent of the pleading has a cause of action,
not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d at 275), but
dismissal will not eventuate unless it is “shown that a material fact as claimed by the pleader to
be one is not a fact at all” and that “no significant dispute exists regarding it” (id.). Nonetheless,
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 2 of 6 SEQ 001
2 of 6 [* 2] INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
“conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—
are insufficient to survive a motion to dismiss” (Godfrey v Spano, 13 NY3d 358, 373 [2009]).
In March 2020, then-Governor Andrew Cuomo signed Executive Order No. 202 (9
NYCRR 8.202), declaring a disaster emergency in New York state, and Executive Order No.
202.10 (9 NYCRR 8.202.10), conferring, upon healthcare workers and facilities, immunity from
civil liability for any injury or death alleged to have been sustained directly as a result of the
provision of medical services in support of New York’s response to the COVID-19 pandemic,
except where such injury or death was caused by gross negligence or recklessness. On April 3,
2020, the Legislature passed EDTPA, granting any healthcare facility or healthcare professional
immunity from civil or criminal liability related to the care of patients with COVID-19, provided
that:
“the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives; and the health care facility or health care professional is arranging for or providing health care services in good faith”
(Public Health Law former § 3082[2]). The immunity does not apply where an act or omission
constituted willful or intention criminal misconduct, gross negligence, reckless misconduct, or
intentional infliction of harm (id.). EDTPA was effective retroactive to March 7, 2020, making it
applicable to acts or omissions that occurred on or after that date. On April 6, 2021, the
legislature repealed the EDTPA, with the repeal to take effect immediately.
As relevant here, the term “health care professional,” as explicitly defined by EDTPA,
means,
“an individual, whether acting as an agent, volunteer, contractor, employee, or otherwise, who is:
“(a) licensed or otherwise authorized under title eight, article one hundred thirty- one, one hundred thirty-one-B, one hundred thirty-one- C, one hundred thirty- seven, one hundred thirty-nine, one hundred forty, one hundred fifty-three, one
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L.
Free access — add to your briefcase to read the full text and ask questions with AI
Zain v Ernest L. Isaacson DPM, P.C. 2025 NY Slip Op 30060(U) January 7, 2025 Supreme Court, New York County Docket Number: Index No. 805136/2021 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 805136/2021 ROBERT ZAIN, MOTION DATE 10/15/2024 Plaintiff, MOTION SEQ. NO. 001 -v- ERNEST L. ISAACSON DPM, P.C., and ERNEST L. DECISION + ORDER ON ISAACSON, DPM, MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57 were read on this motion to/for DISMISS .
In this action to recover damages for medical malpractice, the defendants, Ernest L.
Isaacson DPM, P.C., and Ernest L. Isaacson, DPM, move pursuant to CPLR 3211(a)(1) and (7)
to dismiss the complaint, based on a defense founded upon documentary evidence and for
failure to state a cause of action. The plaintiff opposes the motion. The motion is denied,
inasmuch as the defendants are not immune from civil liability conferred by the Emergency or
Disaster Treatment Protection Act (Public Health Law former §§ 3080-3082; hereinafter
EDTPA), the complaint properly states a cause of action sounding in medical malpractice, and
the defendants waived the affirmative defense codified by CPLR 3211(a)(1).
The plaintiff was a patient of the defendant podiatrist Ernest L. Isaacson, DPM, and his
professional corporation, the defendant Ernest L. Isaacson, DPM, P.C., from February 7, 2020
until April 8, 2020. In his complaint, which he filed on May 6, 2021, the plaintiff alleged that the
defendants treated him for an ulcer on his left heel, which ultimately resulted in an above-the-
knee amputation when an infection developed and went untreated in that heel.
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 1 of 6 SEQ 001
1 of 6 [* 1] INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
In their motion, the defendants argued that the complaint should be dismissed since
EDTPA conferred immunity upon them from civil actions, such as the plaintiff’s action here,
since the claims here related to healthcare services provided in response to the COVID-19
pandemic. In opposition, the plaintiff argued that EDTPA may not be invoked by the
defendants, since that statutes does not apply to podiatrists or professional corporations such
as the defendants, who did not provide services in connection with COVID-19.
When assessing the adequacy of a pleading in the context of a motion to dismiss under
CPLR 3211(a)(7), the court’s role is “to determine whether [the] pleadings state a cause of
action” (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). To
determine whether a claim adequately states a cause of action, the court must “liberally
construe” it, accept the facts alleged in it as true, accord it “the benefit of every possible
favorable inference” (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881 [2013];
Simkin v Blank, 19 NY3d 46 [2012]), and determine only whether the facts, as alleged, fit within
any cognizable legal theory (see Taxi Tours, Inc. v Go New York Tours, Inc., 41 NY3d 991, 993
[2024]; Hurrell-Harring v State of New York, 15 NY3d 8 [2010]; Leon v Martinez, 84 NY2d 83
[1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st
Dept 2004]; CPLR 3026). “The motion must be denied if from the pleading's four corners factual
allegations are discerned which taken together manifest any cause of action cognizable at law”
(511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation marks
omitted]; see Leon v Martinez, 84 NY2d at 87-88; Guggenheimer v Ginzburg, 43 NY2d 268
[1977]). Where, however, the court considers evidentiary material beyond the complaint, as it
does here, the criterion becomes “whether the proponent of the pleading has a cause of action,
not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d at 275), but
dismissal will not eventuate unless it is “shown that a material fact as claimed by the pleader to
be one is not a fact at all” and that “no significant dispute exists regarding it” (id.). Nonetheless,
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 2 of 6 SEQ 001
2 of 6 [* 2] INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
“conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—
are insufficient to survive a motion to dismiss” (Godfrey v Spano, 13 NY3d 358, 373 [2009]).
In March 2020, then-Governor Andrew Cuomo signed Executive Order No. 202 (9
NYCRR 8.202), declaring a disaster emergency in New York state, and Executive Order No.
202.10 (9 NYCRR 8.202.10), conferring, upon healthcare workers and facilities, immunity from
civil liability for any injury or death alleged to have been sustained directly as a result of the
provision of medical services in support of New York’s response to the COVID-19 pandemic,
except where such injury or death was caused by gross negligence or recklessness. On April 3,
2020, the Legislature passed EDTPA, granting any healthcare facility or healthcare professional
immunity from civil or criminal liability related to the care of patients with COVID-19, provided
that:
“the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives; and the health care facility or health care professional is arranging for or providing health care services in good faith”
(Public Health Law former § 3082[2]). The immunity does not apply where an act or omission
constituted willful or intention criminal misconduct, gross negligence, reckless misconduct, or
intentional infliction of harm (id.). EDTPA was effective retroactive to March 7, 2020, making it
applicable to acts or omissions that occurred on or after that date. On April 6, 2021, the
legislature repealed the EDTPA, with the repeal to take effect immediately.
As relevant here, the term “health care professional,” as explicitly defined by EDTPA,
means,
“an individual, whether acting as an agent, volunteer, contractor, employee, or otherwise, who is:
“(a) licensed or otherwise authorized under title eight, article one hundred thirty- one, one hundred thirty-one-B, one hundred thirty-one- C, one hundred thirty- seven, one hundred thirty-nine, one hundred forty, one hundred fifty-three, one
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 3 of 6 SEQ 001
3 of 6 [* 3] INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
hundred fifty-four, one hundred sixty-three, one hundred sixty-four or one hundred sixty-five of the education law; [or]
***** “(c) licensed or certified under article thirty of this chapter to provide emergency medical services; [and who is]
*****
“(e) providing health care services within the scope of authority permitted by a COVID-19 emergency rule”
(Public Health Law former §§ 3081[4][a], [c], [e]). The term “health care services,” as employed
in EDTPA, means,
“services provided by a healthcare facility or a healthcare professional, regardless of the location where those services are provided, that relate to:
“(a) the diagnosis, prevention, or treatment of COVID-19;
“(b) the assessment or care of an individual with a confirmed or suspected case of COVID-19; or
“(c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.”
(Public Health Law former § 3081[5] [emphasis added]). Finally, for purposes of EDTPA, the
term “health care facility” means
“a hospital, nursing home, or other facility licensed or authorized to provide health care services for any individual under article twenty-eight of this chapter, article sixteen and article thirty-one of the mental hygiene law or under a COVID- 19 emergency rule.”
(Public Health Law former § 3081[3]).
The court concludes that the language employed in these statutory definitions excludes
the defendants from EDTPA immunity in connection with the claims asserted by the plaintiff
here. Since podiatrists are licensed under article 141 of the Education law (see Education Law
§§ 7000-7014), Isaacson does not fall within the type of health care professional defined by the
Public Health Law former §§ 3081(4)(a) and (c). The defendants also were not providing
“health care services,” as defined by Public Health Law former § 3081(5)(a), (b), or (c), and did
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 4 of 6 SEQ 001
4 of 6 [* 4] INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
not provide any services at a “health care facility,” as defined by Public Health Law former §
3081(3). Thus, EDTPA does not confer immunity upon the defendants, and the complaint
cannot be dismissed on that ground.
The court notes that the defendants filed this motion after the filing of the note of issue,
and submitted various documents in support of the motion, such as a statement of material
facts, the pleadings, the deposition transcripts of the parties and nonparty witnesses, the
plaintiff’s medical records, and the affirmation of both Isaacson and a board-certified medical
doctor. While perhaps indicative of the defendants’ intention to move for summary judgment,
the court does not find it necessary to convert this motion to one for summary judgment, since a
CPLR 3211(a)(7) motion can be made at any time (see M & E 73-75, LLC v 57 Fusion LLC, 189
AD3d 1, 5 [1st Dept 2020]; CPLR 3211[e]), and it is not clear that the defendants were charting
a summary judgment course. Moreover, the defendants’ expert opined only that “at no time
during the period of February 7, 2020 through March 16, 2020 did ZAIN exhibit signs or
symptoms consistent with necrotizing fasciitis,” a condition that the plaintiff had alleged was
allowed to worsen due to the defendants’ malpractice. Nonetheless, inasmuch as the complaint
alleged that the subject treatment had been rendered from February 7, 2020 to April 8, 2020,
and otherwise asserted the elements of a medical malpractice cause of action, this opinion is
insufficient to support a motion to dismiss the complaint for failure to state a cause of action.
As set forth in CPLR 3211(e),
“[a]t any time before service of the responsive pleading is required, a party may move on one or more grounds set forth in subdivision (a) of this rule, and no more than one such motion may be permitted. Any objection or defense based upon a ground set forth in paragraph[ ] one . . . of subdivision (a) of this rule is waived unless raised either by such motion or in the responsive pleading.”
To the extent that the defendants also moved to dismiss the complaint based on a defense
founded upon documentary evidence, they have waived that affirmative defense by failing to
assert it in their answers. In any event, under CPLR 3211(a)(1), a dismissal is warranted only “if
the documentary evidence submitted conclusively establishes a defense to the asserted claims
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 5 of 6 SEQ 001
5 of 6 [* 5] INDEX NO. 805136/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/07/2025
as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see Ellington v EMI Music, Inc., 24
NY3d 239 [2014]). For evidence to qualify as “documentary,” it must be unambiguous,
authentic, and “essentially undeniable” (Dixon v 105 W. 75th St., LLC, 148 AD3d 623, 629 [1st
Dept 2017], citing Fontanetta v John Doe 1, 73 AD3d 78 [2d Dept 2010]). Affidavits or
affirmations do not qualify as documentary evidence (see Granada Condominium III Assn. v
Palomino, 78 AD3d 996 [2d Dept 2010]; Suchmacher v Manana Grocery, 73 AD3d 1017 [2d
Dept 2010]; Fontanetta v John Doe 1, 73 AD3d at 85; Tsimerman v Janoff, 40 AD3d 242 [1st
Dept 2007]), and, other than the text of EDTPA itself, the defendants advert to no documents
that would conclusively establish a defense to the medical malpractice cause of action.
This court has considered the parties’ remaining contentions and finds them unavailing.
Accordingly, it is,
ORDERED that the motion of the defendants, Ernest L. Isaacson DPM, P.C., and Ernest
L. Isaacson, DPM, to dismiss the complaint is denied; and it is further,
ORDERED that the parties shall appear for an initial pretrial settlement conference
before the court, in Room 204 at 71 Thomas Street, New York, New York 10013, on January
30, 2025, at 11:00 a.m., at which time they shall be prepared to discuss resolution of the action
and the scheduling of a firm date for the commencement of jury selection.
This constitutes the Decision and Order of the court.
1/7/2025 $SIG$ DATE JOHN J. KELLEY, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
INDEX NO. 805136/2021 ZAIN, ROBERT v ERNEST L. ISAACSON, DPM, P.C. Page 6 of 6 SEQ 001
6 of 6 [* 6]