New York Family Faces Rocky Path to Justice in Wake of Gov. Cuomo’s Nursing Home Shield
March 8, 2021
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More than 500,000 people in the United States have died due to COVID-19 — a death count that, according to NPR, exceeds that of any other country. New York, a state hit hard early on by the coronavirus pandemic, is home to countless bereaved families and individuals, among whom are Vivian Rivera-Zayas and her family. On April 1, 2020, they lost their beloved mother to COVID-19 allegedly due to the negligence of the Our Lady of Consolation Nursing & Rehabilitative Care Center.

Only two days later, NY Gov. Andrew Cuomo pushed through a law that effectively shielded nursing home operators and owners from being held legally accountable for their actions. Vivian and her family were left to believe that their path to justice would be barred, a gut feeling that almost panned out to be true as law firm after law firm turned them away. Now, they have finally been given a beacon of hope: Newsweek and The Daily Poster co-reported that Attorney Brett Leitner, who focuses his practice on combating nursing home negligence, has taken on the case.

Attorney Leitner believes that the family has grounds for a legal claim, pointing to the fact that Our Lady of Consolation failed to take preventative measures after the U.S. Centers for Medicare & Medicaid Services (CMS) issued a COVID-19 warning notice to the nation’s health care facilities. What’s more, the liability shield from lawsuits and criminal prosecution was signed into law April 3, 2020 and was only made retroactive to March 7, 2020, while the CMS notice was dispatched February 6, 2020 — in other words, far before legal immunity went into effect.


In preparing the family’s lawsuit, legal investigations found that Our Lady of Consolation had been cited for violating health and safety protocols far before coronavirus arrived on the scene. Moreover, data from the New York State Department of Health revealed that 69 of the care center’s residents are believed to have died of COVID-19. The facility only has 345 beds, which “suggests the nursing home has recorded among the top 20 most coronavirus deaths in the state, out of more than 550 facilities,” according to Newsweek.

Whether the courts will proceed with this case will not only affect Vivian and her family but also other bereaved families currently at a huge legal disadvantage. For now, they must all wait to see what the courts will decide. In the meantime, Vivian and her sister, Alexa Rivera, have co-founded VoicesForSeniors, a group that aims to prioritize the health of seniors and make sure that there is legal recourse available when they are wronged.

About Ashcraft & Gerel

Ashcraft & Gerel is a personal injury firm that has advocated for the rights of senior citizens for more than 65 years in Maryland and Virginia. If your loved one has been affected by COVID-19 because of someone else’s or a facility’s negligence, we are here to help.

Call an Ashcraft & Gerel attorney today at (866) 709-0505 or contact us online for a free consultation.