The following papers numbered 1 to 40 were read on this motion (Seq. No. 2) by defendant Sprain Brook Manor Rehab, LLC d/b/a Sprain Brook Manor Rehab (defendant) for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (7): PAPERS NUMBERED Notice of Motion / Affirmation (Borea) / Exhibits A-K 1-13 Affirmation in Opposition (Ciaccio) / Exhibits 1-24 14-38 Reply Affirmation (DeBraccio) / Exhibit L 39-40 DECISION AND ORDER Upon the foregoing papers, the motion is granted, and the complaint is dismissed. This action for, inter alia, nursing home malpractice and wrongful death arises out of the death of plaintiff’s decedent in April 2020, after her infection with COVID-19 while she was in defendant’s care. By Notice of Motion filed on September 14, 2023, defendant seeks an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (7). Defendant contends that it is immune from liability pursuant to the New York Emergency Disaster Treatment and Prevention Act (EDTPA, NY Pub. Health Law Article 30-D) and the federal Public Readiness and Emergency Preparedness Act (PREP Act, 42 USC §247d-6d). Defendant further contends that any causes of action in the Amended Complaint (complaint) which are pleaded to fall outside the claimed statutory immunity are insufficiently pleaded and are refuted by the evidence submitted on the motion. In opposition, plaintiff contends that the EDTPA was retroactively repealed, such that it affords defendant no immunity. Plaintiff further contends that, even if the EDTPA did apply, it must be strictly construed such that the evidence submitted on defendant’s motion is insufficient to warrant dismissal at this stage, and it does not apply to certain causes of action in the complaint. Finally, plaintiff contends that the claims asserted do not fall within the scope of the PREP Act. In reply, defendant contends that the repeal of the EDTPA was prospective only, and that this issue has been settled in the Appellate Division. Defendant submits that the medical records and Affidavit submitted on the motion are sufficient to establish that plaintiff’s claims fall within the scope of the EDTPA and the PREP Act, and that the complaint fails to distinguish conduct claimed to constitute gross negligence from that which constitutes ordinary negligence. The Court has fully considered the submissions of the parties. On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a)(7), the facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every possible favorable inference (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “At the same time, however, allegations consisting of bare legal conclusions…are not entitled to any such consideration” (Simkin v. Blank, 19 NY3d 46, 52 [2012] [internal quotation marks omitted]). “Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 141-142 [2017]). “When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Wells Fargo Bank N.A. v. E & G Dev. Corp., 138 AD3d 986, 986-987 [2d Dept 2016] [citation omitted]). A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence “utterly refutes” the plaintiff’s factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Rodeo Family Enters., LLC v. Matte, 99 AD3d 781, 782 [2d Dept 2012]). To be considered “documentary evidence” within the meaning of CPLR 3211(a)(1), the evidence must be unambiguous and of undisputed authenticity. Judicial records, as well as documents reflecting out-of-court transactions, such as mortgages, deeds, leases and contracts, which in context are “essentially undeniable,” qualify as “documentary evidence” in the proper case (Fontanetta v. John Doe 1, 73 AD3d 78 [2d Dept. 2010]). EDTPA The Appellate Division, Fourth Department has provided a thorough analysis of the immunity claimed here, noting that the “EDTPA initially provided, with certain exceptions, that ‘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’ as long as three conditions were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives; and the services were arranged or provided in good faith (Ruth v. Elderwood at Amherst, 209 AD3d 1281, 1282 [4th Dept 2022], quoting Public Health Law former §3082 [1]). “Health care facilities included nursing homes, and health care professionals included individual medical providers as well as administrators and executives of health care facilities” (id., citing former §§3081[3], [4]). “The health care services covered by the immunity provision included those related to the diagnosis, prevention, or treatment of COVID-19; the assessment or care of an individual with a confirmed or suspected case of COVID-19; and the care of any other individual who presented at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration” (id. at 1282-1283, citing former §3081 [5]). “The immunity conferred by EDTPA did not apply, however, ‘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’” (id., citing former §3082 [2]). The EDTPA was repealed on April 6, 2021; however, “the repeal of EDTPA does not apply retroactively” (id. at 1291). A similarly thorough analysis of the issues presented on the instant motion was recently provided by the Appellate Division, Third Department. Concluding, as the Fourth Department had in Ruth, that the legislative history of the repeal of the EDTPA weighs against retroactive application, the Fourth Department held a defendant nursing home immune from liability in connection with the COVID-19 related death of its resident in April 2020 (Whitehead v. Pine Haven Operating LLC, — AD3d —, 2023 NY Slip Op 06180 [3d Dept, Nov. 30, 2023]). The Court examined the sponsoring memoranda and the legislative floor debates, noting that “the Assembly sponsor indicated his personal belief that the repeal should be retroactive but acknowledged that the bill as drafted contained no retroactivity language and repeatedly stated that the matter would ultimately be left to the courts to resolve, an assertion echoed by several of his colleagues” (id. at *2-3). This Court thus finds plaintiff’s submission of an Affidavit of the Assembly sponsor prepared in connection with a different case (Exhibit 5) unpersuasive. Although the Second Department has not explicitly addressed the issue of retroactivity, it has held, in an action commenced after the repeal of the EDTPA, that the immunity therein applies to bar the complaint of a plaintiff whose decedent died from COVID-19 in April 2020 (Mera v. New York City Health & Hosps. Corp., 220 AD3d 668, 670 [2d Dept 2023], citing Ruth, 209 AD3d 1281). Insofar as the Second Department’s opinion in Mera does not explicitly address the retroactivity issue, the Court notes that, in the absence of contrary authority from the Court of Appeals or the Second Department, this Court is bound by the holdings of the Fourth Department in Ruth and the Third Department in Whitehead (see Maple Med., LLP v. Scott, 191 AD3d 81 [2d Dept 2020]; see also Hasan v. Terrace Acquisitions II, LLC, 79 Misc3d 1021 [Sup Ct, NY County, May 18, 2023, Capella, J.] [noting Fourth Department's holding in Ruth is binding as a matter of law]). Plaintiff’s assertion that the repeal of the EDTPA should be applied retroactively thus is rejected. The Court must next determine whether defendant established its entitlement to dismissal of plaintiff’s claims on the ground of the immunity afforded by the EDTPA. Defendant’s submissions establish that the three conditions required for the application of the statutory immunity, as set forth in Ruth, Whitehead and Mera, are met here, and nothing in plaintiff’s opposition can be construed to rebut defendant’s showing. Defendant submitted the medical records of plaintiff’s decedent (Exhibit B), defendant’s protocols for COVID-19 prevention, monitoring and treatment (Exhibit C) and the government guidance and protocols related thereto (Exhibits D-G), and the Affidavit of defendant’s Director of Nursing, Amy Mendizabal, RN, DNS (Exhibit H).1 The Mendizabal Affidavit establishes that the care and treatment at issue in this action was “provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives; and the services were arranged or provided in good faith” (Ruth, 209 AD3d at 1282), and thus that plaintiff’s claims are in large part barred by the statutory immunity afforded by the EDTPA. The branch of the motion seeking dismissal of the First (violation of Public Health Law §§2801-d and 2803-c), Second (negligence), Third (negligence), Fourth (negligence per se), Fifth (conscious pain and suffering), Sixth (wrongful death) and Eighth (nursing home malpractice and professional negligence) causes of action on the ground that those claims are barred by the EDTPA thus is granted. In light of this determination, the Court need not and does not make any finding as to whether plaintiff’s claims are also barred by the federal PREP Act. Gross Negligence, Reckless Misconduct, or Intentional Infliction of Harm As noted above, “the immunity conferred by EDTPA [does] not apply, however, ‘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’” (Ruth, 209 AD3d at 1282-1283). Plaintiff’s Seventh cause of action, alleging gross negligence, asserts that defendant acted and/or failed to act in a manner so careless as to constitute complete disregard for the rights and safety of plaintiff’s decedent, and did so knowing that their conduct would likely result in injury to plaintiff’s decedent. Plaintiff further asserts that defendant’s conduct was willful and in reckless disregard for plaintiff’s decedent. To constitute gross negligence, a defendant’s conduct must consist of “intentional wrongdoing” or evince “a reckless indifference to the rights of others” (John v. Varughese, 194 AD3d 799, 802 [2d Dept 2021], quoting Ryan v. IM Kapco, Inc., 88 AD3d 682, 683 [2d Dept 2011]). “Gross negligence differs in kind, not only degree, from claims of ordinary negligence” (Colnaghi, U.S.A., Ltd. v. Jewelers Protection Services, Ltd., 81 NY2d 821, 823 [1993] [internal quotation marks and citation omitted]). “Stated differently, a party is grossly negligent when it fails to exercise even slight care or slight diligence” (Ryan, 88 AD3d at 683 [internal quotation marks and citation omitted]). Because plaintiff’s complaint fails to distinguish conduct which is claimed to constitute gross negligence from that which is merely ordinary negligence and does not contain any specific factual allegation in support of any claim of intentional and/or reckless conduct, the claim which plaintiff attempted to plead outside the scope of the EDTPA immunity must also be dismissed. The Seventh cause of action merely recasts plaintiff’s vague and conclusory allegations, previously pleaded as ordinary negligence, as intentional or reckless acts or omissions constituting gross negligence. These sorts of allegations “do not rise to the level of willful conduct that evidences a high degree of moral culpability” (Hasan, 79 Misc3d at 1024, citing Rey v. Park View Nursing Home, 262 AD2d 624 [2d Dept 1999]). In the absence of any specific facts to support a claim of gross negligence, the claim is insufficiently pleaded. Furthermore, the evidence submitted in support of defendant’s motion, specifically the Mendizabal Affidavit and the medical records of plaintiff’s decedent, conclusively establishes that plaintiff does not have a viable cause of action for gross negligence or intentional or reckless misconduct, as defendant took extensive measures to prevent the transmission of COVID-19 and to comply with all applicable government rules and guidance, and defendant rendered prompt treatment upon plaintiff’s decedent exhibiting symptoms of COVID-19 and thereafter transferred plaintiff’s decedent to Westchester Medical Center within approximately 90 minutes of the first signs of respiratory distress. In the absence of any affidavit from a person with knowledge of the facts to remedy the defects in the pleading or to rebut defendant’s showing, the Seventh cause of action is dismissed (see Hasan, 79 Misc3d at 1024, citing Leon, 84 NY2d 83). Accordingly, it is hereby ORDERED that the motion is granted, and defendant shall have judgment dismissing the complaint, and the Clerk shall enter judgment accordingly; and it is further ORDERED that, within ten (10) days of the date hereof, defendant shall serve a copy of this Decision and Order, with notice of entry, upon plaintiff, and shall file proof of said service via NYSCEF. The foregoing constitutes the Decision and Order of the Court. Dated: February 2, 2024
