The following papers numbered EF-7 to EF-33 read on this motion by defendants to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) and (a)(7). Papers Numbered Notice of Motion, Affirmation, Exhibits EF7-EF23 Affirmation in Opposition, Exhibits EF26-EF28 Reply Affirmation, Exhibits EF29-EF33 Upon the foregoing papers, it is ordered that this motion is determined as follows: Defendants’ motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) is denied, but defendants’ motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(7) is granted. (See Ruth v. Elderwood At Amherst, 209 A.D.3d 1281 [4th Dept. 2022].) Plaintiff commenced this action for malpractice, negligence, violations of the Public Health Law and wrongful death sustained while at defendants’ facility, at which plaintiff alleges plaintiff decedent contracted COVID-19, resulting in his death. Plaintiff filed the Summons and Complaint on December 23, 2022, and defendants now file this pre-Answer motion to dismiss. Defendants argue that plaintiff’s Complaint should be dismissed, as plaintiff did not contract COVID-19 while in defendants’ facility, and defendants are also entitled to immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) and PREP Act. It is undisputed that plaintiff decedent George Kalogiannis was a resident of defendants’ facility from June 1, 2020 through December 28, 2020, and passed away on January 4, 2021. Defendants present documentary evidence that plaintiff decedent was tested five times for COVID-19 in December 2020, all of which came back negative prior to plaintiff decedent’s death on January 4, 2021. They further argue that defendants properly relied upon the negative COVID-19 tests, and are therefore immune from liability under the PREP Act. Defendants claim that plaintiff’s allegations of recklessness are vague and insufficient as a matter of law. They also argue that the repeal of EDTPA was not meant to be retroactive, and under EDTPA defendants are immune from liability from civil claims. Therefore, based upon the documentary evidence of the COVID-19 tests, defendants’ motion to dismiss pursuant to CPLR §3211(a)(1) should be granted. Defendants also argue that even assuming plaintiff’s claims to be true, dismissal is warranted under CPLR §3211(a)(7), as they meet the requirements for immunity in accordance with EDTPA. Plaintiff opposed defendants’ motion, arguing that discovery must occur in order to address the issues presented, and that plaintiff has presented a valid Complaint against defendants. Plaintiff argues that there are issues of fact as to whether plaintiff decedent had contracted COVID-19 while in defendants’ facility, and discovery is needed to resolve these issues. Plaintiff further argues that the PREP Act is not applicable because plaintiff’s allegations are not “covered countermeasures”, and further discovery is needed to address this issue. Plaintiff refers to defendants’ medical records, which state that on December 29, 2020, plaintiff decedent had been transferred to Mount Sinai Beth Israel with a diagnosis of pneumonia due to COVID-19 infection. Plaintiff also notes that plaintiff decedent was admitted to Beth Israel with a diagnosis of COVID-19 and did test positive for COVID-19, which was the cause of death listed on the death certificate. Plaintiff argues that the Complaint alleges reckless misconduct by defendants, which can be developed through discovery. Plaintiff further argues that for EDTPA immunity to apply, defendants must demonstrate that the care they gave to plaintiff decedent was affected by the COVID-19 pandemic, and discovery is needed to fully address this issue. Plaintiff further argues that the Complaint sufficiently alleges violations that are not immune under the PREP Act, because the Complaint alleges that defendants’ misconduct caused plaintiff decedent to contract COVID-19, which directly caused his death. A motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) based on documentary evidence may be appropriately granted ‘only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. (Beach 50th St., LLC v. Peninsula Rockaway Ltd. Partnership, 187 A.D.3d 1114, 1116 [2d Dept. 2020].) On a motion to dismiss pursuant to CPLR §3211(a)(7), the Court is required to afford the pleadings a liberal construction, accept the facts alleged in the complaint as true, provide plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Board of Mgrs. Of 136 St. Marks Place Condominium v. St. Marks Place Condominiums II, LLC, 128 A.D.3d 877, 878 [2d Dept. 2015].) Furthermore, whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss, rather, the Court merely examines the adequacy of the pleadings. (EBC Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11 [2005]; see also Cortlandt Street Recovery Corp. v. Bonderman, 31 N.Y.3d 30 [2018].) It can hardly be disputed that the COVID-19 pandemic has been one of the most catastrophic events of the twenty-first century. This crisis resulted in an unprecedented, world-wide shut down of schools, businesses and community activities in an effort to stem the crushing tide of COVID-19 cases and deaths. (See generally Matter of Parascando v. Monheit, 183 A.D.3d 671, 672 [2d Dept. 2020]["These are unusual times occasioned by the onset of the COVID-19 virus"].) In particular, New York State suffered some of the highest death rates in the world during the beginning of the pandemic, many of which occurred in nursing homes, which housed some of our most fragile citizens. The PREP Act was activated on March 17, 2020 by the Secretary of Health and Human Services in response to the public health emergency caused by the COVID-19 virus. (See 42 U.S.C. §247d-6d[d].) In activating this statute, the Secretary further issued a declaration that activation was retroactive to February 4, 2020. Liability protections for pandemic countermeasures taken by certain “covered persons” in response to a declaration of a public health emergency by the Secretary are specifically provided for in the PREP Act, with the sole exception to immunity being for death or serious physical injury proximately caused by wilful misconduct. (42 USC §247d-6d[d][1].) On March 23, 2020, then-Governor Cuomo issued Executive Order 210.10, which, among other items, granted physicians, licensed nurses and medical facilities immunity from civil liability for any injury or death occurring directly as a result of an action or omission by a medical professional in the course of providing medical services in support of the COVID-19 outbreak, unless said injury or death was caused by gross negligence. On April 6, 2020, the New York legislature passed the Emergency or Disaster Treatment Protection Act (hereinafter referred to as “EDTPA”), which codified the above provision, and was in effect from March 7, 2020 through April 2021. (Public Health Law §3082). EDTPA specifically stated that health care providers would be immune from liability if three elements are met: (1) 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; (2) 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 (3) the health care facility or health care professional is arranging for or providing health care services in good faith. (Public Health Law §3082.) Plaintiff’s Complaint states causes of action for medical malpractice, negligence, violations of Public Health Law §2801-d and §2803-c, breach of implied warranty, breach of contract and wrongful death. Plaintiff alleged that while a patient at defendants’ facility from August 2020 and thereafter, plaintiff decedent sought professional medical care from defendants, for which defendants departed from generally accepted standards of medical practice, resulting in pain, suffering, emotional, mental, psychological and physical injuries. Plaintiff’s Complaint further alleged that plaintiff decedent was unnecessarily exposed to staff who were COVID-19 positive, and plaintiff decedent contracted COVID-19 due to defendants’ lack of reasonable care. Plaintiff’s Complaint further alleged that as a result of defendants’ carelessness, recklessness, and negligence plaintiff decedent died on January 4, 2021 as a result of contracting COVID-19. Plaintiff’s Complaint further alleged that as a result of defendants’ acts, omissions and failures in taking safety precautions during the COVID-19 pandemic, plaintiff decedent was injured and died, and plaintiff, as surviving relative, suffered damages as a direct consequence. Defendants’ motion to dismiss pursuant to CPLR §3211(a)(7) is granted, as plaintiff’s claims fall squarely with the immunity from liability afforded by EDTPA. Even viewing the Complaint in the light most favorable to plaintiff, the causes of action against defendants are directly related to allegations that defendants’ malpractice and negligence caused plaintiff decedent to contract COVID-19, resulting in pain and suffering, and ultimately his death. Plaintiff decedent was a patient at defendants’ facility during the applicable timeframe under EDTPA, and plaintiff’s Complaint makes no claims with regard to any violations of the Public Health Law or failure to provide medical treatment beyond those relating to and impacted by COVID-19. Plaintiff’s Complaint also failed to allege that defendants were not acting in good faith in rendering medical care during the COVID-19 pandemic, and present any claims that are not directly related to the medical care rendered to plaintiff during the pandemic. Plaintiff failed to present sufficient evidence to demonstrate the claims are not a result of, or impacted by the COVID-19 pandemic, or that a valid exception exists to the applicability of EDTPA or the PREP Act. Plaintiff argues discovery should be permitted, and blanket immunity to defendants and dismissal will result in a severe injustice to plaintiff decedent, as it precludes discovery that might demonstrate further acts or omissions by defendants that would demonstrate their malpractice and negligence that resulted in plaintiff decedent’s death. However, that blanket immunity is exactly what the legislature intended in enacting EDTPA, as can be seen by the language in the legislative memorandum that repealed EDTPA. (Assembly Introducer’s Mem. In Support, Bill Jacket, L 2021, ch 96; see also Sponsor’s Mem., 2021 NY Senate Bill S5177["In particular, EDTPA egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence"].) Therefore, it is clear that the statute was enacted to protect health care providers, as they continued to provide medical treatment and ensure our society receive the medical care absolutely needed during this unprecedented medical crisis. For better or worse, the legislature made a determination that the need to ensure medical care was provided during the pandemic outweighed the costs of providing blanket immunity to those providing it, and this Court is constrained by that determination. Therefore, unless plaintiff can demonstrate gross negligence by defendants, all claims of malpractice, negligence, violations of Public Health Law, and wrongful death, are barred by EDTPA. To establish gross negligence, plaintiff must demonstrate that defendants’ conduct involved intentional wrongdoing or evinced a reckless indifference to the rights of others. (Skywest, Inc. v. Ground Handling, Inc., 150 A.D.3d 922, 923 [2d Dept. 2017].) Plaintiff’s Complaint failed to allege specific acts or omissions by defendants, as it is conclusory and without sufficient facts to show intentional wrongdoing or reckless indifference to plaintiff decedent. (Compare Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926 [2d Dept. 2018][the plaintiff pled allegations that the defendants greatly exacerbated existing damage to the property with specific facts that sufficiently supported a gross negligence cause of action].) As plaintiff’s Complaint failed to plead specific allegations that rise to the level of gross negligence, which differ in kind, not only degree, from claims of ordinary negligence, the exception to EDTPA for gross negligence actions has not been met. (See Weiss v. Vacca, 2023 NY Slip Op 04613 [2d Dept. 9/13/2023].) Defendants’ motion to dismiss pursuant to CPLR §3211(a)(1) is denied, as the documentary evidence presented is insufficient to eliminate all issues as to whether plaintiff decedent contracted COVID-19 while admitted to defendants’ facility. Defendants’ remaining claims are denied. Accordingly, defendants’ motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(1) is denied, but defendants’ motion to dismiss plaintiff’s Complaint pursuant to CPLR §3211(a)(7) is granted, and plaintiff’s Complaint is dismissed. This constitutes the decision and Order of the Court. Dated: October 4, 2023
