DECISION & ORDER The Court has considered e-filed documents numbered 1 through 54 in preparing this Decision & Order. Defendant’s move for an order to dismiss pursuant to CPLR §3211(a)(1) and (7). Plaintiff opposes. Oral argument was heard before this Court on October 12, 2022. This case stems from alleged negligence in the medical treatment of Decedent, Patricia Menoudakos, while housed at Defendant’s facility, Daleview Care Center (Daleview). It is uncontested that Decedent was a resident at Daleview from December 12, 2019 until December 31, 2020. On March 31, 2020, Decedent was transferred to a hospital due to contracting Covid-19. Decedent died at the hospital on April 11, 2020. Defendant’s filed the instant motion, pre-answer and pre-discovery. Defendant’s contend it is immune from liability pursuant to the PREP Act1 and the EDTPA.2 Defendant’s also allege that Plaintiff’s gross negligence claim cannot survive the standard of review pursuant to CPLR §3211(a)(7). In support of its motion, Defendant provided twenty-seven exhibits, including: an affidavit of former Daleview Administrator, Mary Kochaniwsky, RN; affirmation of long term care/geriatrics expert Dr. Lawrence Diamond; Daleview’s infection control policies and procedures in place before Covid-19 pandemic; Daleview’s January 2020 information and sign in sheet for infection control in-service session; New York State Health Facilities Association Covid-19 guidance, dated March 4, 2020, March 11, 2020, March 13, 2020, March 20, 2020, and March 21, 2020; Daleview’s March 2020 Covid-19 in-service session information and sign in sheets; Daleview’s March 16, 2020 Covid-19 policies, including its infection control policy, “Covid Surveillance and Tracking Method,” “Supply Procurement During Covid-19,” and “Policy and Procedure for Residents with Suspected Covid;” supply purchase orders made on March 31, 2020; Department of Health survey results on June 10, 2020; advisory opinions of Prep Act, including Declaration and Amendment(s); and Daleview’s Medical Chart of Decedent. Plaintiff contends Defendant’s motion is unsupported by documentary evidence as required by CPLR §3211(a)(1). Plaintiff avers ultimately that this motion is premature, without discovery having been conducted and reserves the right for additional arguments until discovery is to be completed. Additionally, Plaintiff argues that Defendant’s motion fails, as there are factual determinations, including whether Defendant “failed to take appropriate infection precautions to protect decedent due to a deliberate allocation decision caused by supply shortages; whether Defendant did or did not follow relevant government health advisories or instructions, and precisely when and how Decedent contracted Covid-19.” Plaintiff filed its Summons and Complaint alleging the followings causes of actions: 1) Violation of Public Health Law (PHL) §§2801 and 2803 prior to March 7, 2020; 2) Violation of PHL §§2801 and 2803 after to March 7, 2020; 3) negligence prior to March 7, 2020; 4) negligence after March 7, 2020; 5) gross negligence prior to March 7, 2020; 6) gross negligence after March 7, 2020; 7) negligent hiring and retention; and 8) wrongful death. To succeed on a motion to dismiss based on documentary evidence under CPLR §3211(a)(1), “dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law,” thereby definitively disposing of the opposing party’s claims (Leon v. Martinez, 84 N.Y.2d 83, 88 [1994]; see also Fischbach & Moore v. Howell Co., 240 A.D.2d 157 [1st Dept 1997]). Thus, a motion to dismiss based on documentary evidence may be granted only where the documentary evidence “utterly refutes” the plaintiff’s factual allegations (Sabre Real Estate Group, LLC v. Ghazvini, 140 AD3d 724, 724-725 [2d Dept 2016]; Kolchins v. Evolution Markets, Inc., 128 AD3d 47, 57-58 [1st Dept 2015]). The court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory’” (Siracusa v. Sager, 105 AD3d 937 [2d Dept 2013] quoting Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]). Although the facts alleged in the complaint are regarded as true, and the plaintiffs are afforded the benefit of every favorable inference (see Leon v. Martinez, 84 NY2d 83, 87-88 [1994]), allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration (see Adler v. 20/20 Cos., 82 AD3d 915 2011]; Prudential Wykagyl/Rittenberg Realty v. Calabria-Maher, 1 AD3d 422, 422-423 [2003]; New York Community Bank v. Snug Harbor Sq. Venture, 299 AD2d 329, 330 [2002]; see also Maas v. Cornell Univ., 94 NY2d 87, 91 [1999]).” (Nisari v. Ramjohn, 85 A.D.3d 987 [2d Dept 2011]). Additionally, “[n]either affidavits, deposition testimony, nor letters are considered ‘documentary evidence’ within the intendment of CPLR 3211(a)(1).” (Shofel v. DaGrossa, 133 AD3d 649 [2d Dept 2015]). A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR §3211 (a)(7) (see CPLR 3211 [c]). If the court considers evidentiary material, the criterion then becomes “whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v. Ginzburg, 43 NY2d [268] at 275). Yet, affidavits submitted by a defendant “will almost never warrant dismissal under CPLR 3211 unless they ‘establish conclusively that [the plaintiff] has no cause of action’” (Lawrence v. Graubard Miller, 11 NY3d 588, 595 [2008], quoting Rovello v. Orofino Realty Co., 40 NY2d [633]at 636 [emphasis and alterations of original quotation omitted]). Indeed, a motion to dismiss pursuant to CPLR §3211(a) (7) must be denied “unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Guggenheimer v. Ginzburg, 43 NY2d at 275). (Sokol v. Leader, 74 AD3d 1180 [2d Dept 2010]). It should be noted that the EDTPA has since been repealed. However, it is well settled that it was repealed prospectively and not retroactively. (Ruth v. Elderwood at Amherst, 209 AD3d 1281 [4th Dept 2022]). The EDTPA afforded liability protections to “any health care facility” from March 7, 2020 until April 6, 2021, 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. (PHL §3082). The question before this Court is whether there is documentary evidence sufficient to support that Defendant’s treatment of Decedent 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 (PHL §3082 (1)(b)), and thereby, insulating Defendant from liability under the EDTPA. Not only did Defendant fail to show that its treatment of Decedent was in response to the pandemic, but there was on-going treatment from prior to the pandemic specifically, two different diagnoses and treatments. (Spearance v. Snyder, 73 Misc 3d 769, 771 [Sup Ct 2021]). “At the procedurally young stage that this CPLR §3211 motion is brought, Defendants have not met their high burden.” Id. “Dismissal on these grounds can only be granted with an affirmative showing [of evidence] (see Crampton v. Garnet Health, 73 Misc 3d 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 Misc 3d 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]; Messina v. Clove Lakes Health Care and Rehabilitation Ctr., Inc., 2023 NY Slip Op 23008 [Sup Ct Jan. 9, 2023]). Here, the exhibits submitted by Defendant are devoid of any admissible evidence substantiating Decedent’s treatment was directly a result of a “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.” (PHL §3082). Therefore, this Court cannot conclude at this posture whether Defendant’s are immunized from liability. Defendant’s fail to meet its burden of “conclusively establishing a defense.” (Leon, 84 N.Y.2d at 88). Defendant’s last contention is that Plaintiff’s gross negligence claim cannot survive the CPLR §3211(a)(7) motion. The Fifth Cause of Action relates to gross negligence allegedly occurring prior to March 7, 2022, where Plaintiff claims, Defendant’s failed to properly and adequately manage and supervise the Decedent and failed to prepare and implement appropriate infection control polices. The Sixth Cause of Action alleges the same substantive argument, but the allegations pertain to Defendant’s actions after March 7, 2022. Again, Defendant’s evidence fails to establish “conclusively that [Plaintiff] has no cause of action.” (Lawrence, 11 NY3d at 595). Despite the Defendant’s failure, the Court will note that during oral argument, Plaintiff more narrowly construed its gross negligence claim alleging Defendant’s “recklessly and knowingly didn’t have enough staffing.” “Per PHL §3082(2), acts or omissions resulting from “a resource or staffing shortage” may not be considered to be gross negligence or reckless misconduct.” (Crampton, 73 Misc 3d at 560-61. However, Plaintiff’s narrowed oral argument does not warrant dismissal of these causes of actions, at this juncture, as they are sufficiently pled. Gross negligence “differs in kind, not only degree, from claims of ordinary negligence” (Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d at 823, 595 N.Y.S.2d 381, 611 N.E.2d 282). To constitute gross negligence, a party’s conduct must “‘smack[] of intentional wrongdoing’” or “evince[ ] a reckless indifference to the rights of others.” Goldstein v. Carnell Assoc., Inc., 74 AD3d 745, 746-47 [2d Dept 2010]. Here, Defendant’s evidence established they had knowledge of the impending pandemic and began protocols as early as January 2020. Defendant’s admitted to only developing a policy on February 27, 2020, at its facility. In addition, no evidence has been provided that Decedent’s treatment was in response to Covid protocols. Therefore, it is sufficiently pled that Decedent’s treatment and/or failure to implement policies and procedures may constitute gross negligence. Accordingly, it is hereby ORDERED, that Defendant’s motion to dismiss is DENIED, and it is further ORDERED, that Defendant’s time to Answer the Verified Complaint has been extended to thirty (30) days from the date of this Order. Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of this Court. Dated: January 17, 2023
