Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion: Papers NYSCEF Document(s) Defendant’s Motion to Dismiss, with supporting documents (filed August 29, 2022) 3-16 Plaintiff’s Opposition to the Motion, with supporting documents (filed November 3, 2022) 19-23 Defendant’s Reply to Plaintiff’s Opposition, with supporting documents (filed November 8, 2022) 24-27 DECISION and ORDER Samual Arbeeny was a resident at a nursing home owned and operated by the defendant, Clove Lakes Health Care and Rehabilitation Center, Inc. (hereinafter “Defendant”), where he died on April 25, 2020. This action was commenced by the plaintiff, Danielle Messina (hereinafter “Plaintiff”) as the administrator of Mr. Arbeeny’s estate, for damages incurred while in Defendant’s care. The complaint asserts causes of action for (1) violation of Public Health Law §2801-d, (2) negligent care resulting in pressure ulcers, (3) gross negligence, (4) negligent infliction of emotional distress, (5) wrongful death, and (6) negligent care resulting in falls. Defendant filed the instant motion to dismiss the action based on Plaintiff’s failure to state a cause of action, to which Plaintiff filed opposition and Defendant, in turn, filed a reply. Oral argument was heard on November 10, 2022 with both sides represented by counsel, and the Court’s decision was reserved. In considering a motion to dismiss for failure to state a cause of action, the complaint should be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true (Leon v. Martinez, 84 NY2d 83, 87-88 [Ct App 1994]). Initially, the sole criterion is whether the pleading states a cause of action, and if, from the pleading’s four corners, the court discerns factual allegations that, when taken together, manifest any cause of action cognizable at law, the motion will fail (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [Ct App 1977]). The question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one (Steve Elliot, LLC v. Teplitsky, 59 AD3d 523 [2d Dept 2009], citing Guggenheimer v. Ginzburg). Here, the question presented is whether Defendant is immune from liability under legislative protections granted during the COVID-19 pandemic. On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order 202, which declared a state of emergency due to the COVID-19 outbreak. On March 23, 2020, Governor Cuomo supplemented that declaration with Executive Order 202.10, which amended Education Law §§6527 (2), 6545, and 6909 (1) to provide that: “[A]ll physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional.” On or about April 6, 2020, Governor Cuomo and the New York State Legislature enacted the Emergency or Disaster Treatment Prevention Act (“the EDTPA”), which codified the protections granted within Executive Order 202.10, and was subsequently repealed on April 6, 2021 (Public Health Law art 30, as amended by L 2021, ch 96, §1). Specifically, the EDTPA provided (id. at 3082, as amended by L 2021, ch 96, §1): “1. Notwithstanding any law to the contrary, except as provided in subdivision two of this section, any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services, if: (a) 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; (b) 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 (c) the health care facility or health care professional is arranging for or providing health care services in good faith.” The statute continued (id.): “2. The immunity provided by subdivision one of this section shall not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional providing health care services, provided, however, that acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.” Defendant argues that Plaintiff’s action should be dismissed due to the protections afforded under the EDPTA, as Defendant meets the requirements for immunity, and due to Plaintiff’s failure to articulate any date, time, action, omission, or occurrence for the allegations in a manner sufficient to support Plaintiff’s claims. Plaintiff counters that the repeal of the EDPTA was retroactive, thereby stripping Defendant of its protections. The Court will first deal with the question of retroactivity. This question was recently addressed in the matter of Saltanovich v. Sea View Hospital Rehabilitation Center (Sup Ct, Richmond County, May 17, 2022, Aliotta, J., index No. 151645/2021), wherein Hon. Thomas P. Aliotta aptly stated that determining retroactivity requires consideration of certain factors, including: (1) whether the legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; (2) whether the statute was designed to rewrite an unintended judicial interpretation; (3) and whether the enactment itself reaffirms a legislative judgment about what the law in question should be (see Gleason v. Michael Vee, Ltd., 96 NY2d 117, 122 [Ct App 2001]). Then, the Court must determine whether retroactivity would impair rights a party possessed when it acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed, thus impacting substantive rights (Matter of Regina Metropolitan Co., LLC v. New York State Division of Housing and Community Renewal, 35 NY3d 332, 366 [Ct App 2020], citing Landgraf v. USI Film Products, 511 US 244, 365 [1994]). Here, the repealing authority made no mention of retroactivity, nor can it be said to have been predicated on an “unintended judicial interpretation” or a need to reaffirm its legislative intent. If the repeal was found to be retroactive, it would most certainly impair the rights that health care facilities possessed at the time these causes of action arose, and would assuredly increase their liability for past conduct. Therefore, the Court finds that the repeal was not intended to be retroactive and, consequently, the immunity afforded to Defendant at the time of Mr. Arbeeny’s residency was not stripped at the time that the repeal was enacted. With respect to Public Health Law §3082 (1), the Court must determine whether Defendant’s treatment of Mr. Arbeeny was “impacted” by Defendant’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives (id. at [b]). Plaintiff argues that Defendant failed to make such a showing. Defendant, in turn, contends that the statute specifies no requirement that a facility or front-line healthcare worker tender any affirmative evidence to be afforded immunity under the EDTPA. As caselaw on the subject is limited, and understandably so, the Court could not locate a single case where dismissal was granted under this statute without presentment of such evidence, nor could one be found among the unpublished decisions appended to Defendant’s motion. As far as this Court is aware, dismissal on these grounds can only be granted with an affirmative showing (see Crampton v. Garnet Health, 73 Misc3d 543 [Sup Ct, Orange County 2021]), and a failure to do so must result in a denial (see Townsend v. Penus, 2021 NY Slip Op 32375[U] [Sup Ct, Bronx County 2021]; see also Garcia v. NYC Health and Hospitals Corp., Sup Ct, NY County, July 6, 2022, Jaffe, J., index No. 159046/2020, citing Robertson v. Humboldt House Rehab. & Nursing Ctr., Sup Ct, Erie County, Mar. 14, 2022, Ogden, J., index No. 805232/2021), even despite attempts at making such a showing (see Spearance v. Snyder, 73 Misc3d 769 [Sup Ct, Onondaga County 2021]) or where the movant presented a “new, more detailed affidavit” from the defendant on a motion to renew (Matos v. Chiong, 2021 NY Slip Op 32047[U], 5 [Sup Ct, Bronx County 2021]). As for Public Health Law §3082 (2), a party can be found liable for gross negligence where its conduct evinces a reckless indifference to the rights of others (see Goldstein v. Carnell Assoc., Inc., 74 AD3d 745, 746-747 [2d Dept 2010]; Sommer v. Federal Signal Corp., 79 NY2d 540, 554 [Ct App 1992]). In this case, Plaintiff’s third cause of action alleges that Defendant “acted in so careless a manner as to show complete disregard for the rights and safety of others,” and “acted in so reckless a manner, or failed to act in circumstances where an act was clearly required, so as to indicate disregard of the consequences of their action or inactions.” Although conclusory allegations consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss (Godfrey v. Spano, 13 NY3d 358, 373 [Ct App 2009], see JDI Display Am., Inc. v. Jaco Electronics, Inc., 188 AD3d 844, 845 [2d Dept 2020]), Plaintiff’s complaint enumerates the harmful conduct in that Mr. Arbeeny, his next of kin, and/or those authorized to make decision regarding his healthcare relied upon misrepresentations made by Defendant, its staff, employees, and/or independent contractors when making decisions regarding his care, and as a result of their reliance on said misrepresentations, Mr. Arbeeny was “exposed to harm and/or otherwise forced to undergo medical treatment, incur medical expenses, suffer disfigurement, disability, pain and suffering, mental anguish, loss of enjoyment of life, loss of dignity, and death.” Therefore, the Court finds that Plaintiff’s cause of action for gross negligence was sufficiently pled. Finally, the Court is not persuaded by Defendant’s argument that Plaintiff failed to sufficiently articulate any date, time, action, omission, or occurrence for the allegations, and that the causes of action may be time-barred by the applicable statute of limitations. Plaintiff has adequately particularized the harms, including but not limited to Mr. Arbeeny’s fall and the subsequent development of pressure ulcers until his death. Accordingly, Defendant’s motion is hereby denied in its entirety. The foregoing constitutes the decision and order of the Court. Dated: January 9, 2023
