The following numbered papers were used on this motion: Submitted by Defendant: NYSCEF Doc No. 59: Notice of Motion NYSCEF Doc No. 60: Affirmation of Brian M. Andrews, Esq. in Support of Motion NYSCEF Doc No. 61: Affidavit of Mary Beth Francis, RN, MS, LHN NYSCEF Doc No. 62: Affirmation of John Lazzara, D.O. NYSCEF Doc No. 63: Summons and Complaint NYSCEF Doc No. 64: Carmel Richmond Nursing Home, Inc. Medical Records Part 1 of 2 NYSCEF Doc No. 65: Carmel Richmond Nursing Home, Inc. Medical Records Part 2 of 2 NYSCEF Doc No. 66: Memorandum of Law in Support of Defendant’s Motion to Dismiss NYSCEF Doc No. 67: Carmel Richmond Nursing Home, Inc. COVID-19 Protocols NYSCEF Doc No. 68: CMS Guidance for Infection Control and Prevention of Coronavirus NYSCEF Doc No. 69: New York State Department of Health Advisory NYSCEF Doc No. 70: World Health Organization Advisory: Rational Use of PPE NYSCEF Doc No. 71: New York State Department of Health Advisory: Short Supply of PPE NYSCEF Doc No. 72: Centers for Disease Control Advisory: Testing for COVID-19 NYSCEF Doc No. 73: FDA Emergency Use Authorization: Hydroxychloroquine NYSCEF Doc No. 74: COVID-19 Litigation Against Nursing Homes Order of Coordination NYSCEF Doc No. 75: Hampton v. City of New York, et al. NYSCEF Doc No. 76: Saltanovich v. Sea View Hospital Rehabilitation Center NYSCEF Doc No. 77: Damon v. Clove Lakes Healthcare and Rehabilitation Center, Inc. NYSCEF Doc No. 78: Garcia v. New York City Health and Hospitals Corporation NYSCEF Doc No. 79: Shankle v. The Heights of Summerlin, LLC NYSCEF Doc No. 80: Hyman v. Richmond University Medical Center NYSCEF Doc No. 81: Seror v. Clearview Operating Co., LLC NYSCEF Doc No. 82: DeFonce v. Sky View Rehabilitation and Health Care Center NYSCEF Doc No. 83: Fortes v. Sky View Rehabilitation and Health Care Center NYSCEF Doc No. 84: Robertson v. Humboldt House Rehabilitation and Nursing Center NYSCEF Doc No. 85: Hohler v. Garden Gate Health Care Facility NYSCEF Doc No. 86: Crampton v. Garnet Health NYSCEF Doc No. 87: Mitchell v. Jewish Home Lifecare Sarah Neuman Center NYSCEF Doc No. 88: Colon v. Niagara Rehabilitation and Nursing Center NYSCEF Doc No. 89: Spitzer v. Sky View Rehabilitation and Health Care Center, LLC NYSCEF Doc No. 90: Lee v. Sapphire Center for Rehabilitation and Nursing of Central Queens NYSCEF Doc No. 91: Hassan v. Terrace Acquisions II, LLC NYSCEF Doc No. 92: Valukis v. Kapssalis-Rambalakos, M.D., et al. NYSCEF Doc No. 93: Sapienza v. Tromba, et al. NYSCEF Doc No. 94: Thomas v. White d/b/a White Oaks Rehabilitation and Nursing Center NYSCEF Doc No. 95: Bushart v. The Brightonian, Inc. NYSCEF Doc No. 96: Schapers v. West Lawrence Care Center, LLC NYSCEF Doc No. 97: Becker v. Carmel Richmond Nursing Home, Inc. NYSCEF Doc No. 98: Burke v. Sapphire Center for Rehabilitation & Nursing of Central Queens NYSCEF Doc No. 99: Gaviria v. Sapphire Center for Rehabilitation & Nursing NYSCEF Doc No. 100: Ho v. Sapphire Center for Rehabilitation & Nursing of Central Queens NYSCEF Doc No. 101: Machin v. Sapphire Center for Rehabilitation & Nursing NYSCEF Doc No. 102: Gibbs v. Atlantis Operating LLC NYSCEF Doc No. 103: McCaffery v. White Plains Hospital Medical Center, et al. NYSCEF Doc No. 104: Lociero v. Park Avenue Operating, LLC NYSCEF Doc No. 105: Mera v. New York City Health and Hospitals Corporation NYSCEF Doc No. 106: Loggia v. Carmel Richmond Nursing Home, Inc. NYSCEF Doc No. 107: Caropreso v. Carmel Richmond Nursing Home, Inc. NYSCEF Doc No. 108: Roland v. Parker Jewish Institute for Health Care and Rehabilitation NYSCEF Doc No. 109: Hepworth v. Our Lady of Consultation Nursing and Rehabilitation Care NYSCEF Doc No. 110: Whitehead v. Pine Haven Opinion entered on November 30, 2023 NYSCEF Doc No. 111: Complaint in Whitehead v. Pine Haven Operating LLC NYSCEF Doc No. 112: Bonavita v. Parker Rehabilitation Institute for Health Care NYSCEF Doc No. 113: Martinez v. New York City Health and Hospitals Corporation NYSCEF Doc No. 114: Memorandum of Law in Support of Defendant’s Motion to Dismiss NYSCEF Doc No. 115: Affidavit of Service dated February 8, 2024 Submitted by Plaintiff: NYSCEF Doc No. 116: Affirmation of Andres F. Alonso, Esq. in Opposition to Motion NYSCEF Doc No. 117: Memorandum of Law in Opposition to Defendant’s Motion to Dismiss NYSCEF Doc No. 118: Summons and Complaint NYSCEF Doc No. 119: Notice of Removal NYSCEF Doc No. 120: World Health Organization Situation Report No. 1 NYSCEF Doc No. 121: World Health Organization Situation Report No. 3 NYSCEF Doc No. 122: New York State Department of Health Report No. 2020-S-55 NYSCEF Doc No. 123: News Article dated February 13, 2020 Concerning the Coronavirus NYSCEF Doc No. 124: News Article dated February 29, 2020 Concerning COVID-19 NYSCEF Doc No. 125: Centers for Disease Control Interim Guidance Concerning COVID-19 NYSCEF Doc No. 126: CMS Guidance Concerning Coronavirus dated March 4, 2020 NYSCEF Doc No. 127: New York State Department of Health March 6, 2020 Guidance NYSCEF Doc No. 128: New York State Department of Health March 11, 2020 Guidance NYSCEF Doc No. 129: New York State Department of Health March 13, 2020 Health Advisory NYSCEF Doc No. 130: CMS Guidance Concerning Coronavirus dated March 13, 2020 NYSCEF Doc No. 131: CMS Guidance Concerning Coronavirus dated April 19, 2020 NYSCEF Doc No. 132: NYS Office of the Attorney General January 30, 2021 Report NYSCEF Doc No. 133: Intentionally Omitted NYSCEF Doc No. 134: New York State Constitution NYSCEF Doc No. 135: New York State Senate Bill S5177 NYSCEF Doc No. 136: New York State Constitution NYSCEF Doc No. 137: New York State Senate Bill S5177 NYSCEF Doc No. 138: Affidavit of New York State Assemblymember Ronald T. Kim NYSCEF Doc No. 139: Cacace v. Grandell Rehabilitation and Nursing Center, Inc. NYSCEF Doc No. 140: Whitehead v. Pine Haven Operating LLC NYSCEF Doc No. 141: Lara v. S&J Operational, LLC NYSCEF Doc No. 142: Gonnelly v. Newburgh Operations, LLC NYSCEF Doc No. 143: Matos v. Chiong NYSCEF Doc No. 144: Robertson v. Humboldt House Rehabilitation & Nursing Center NYSCEF Doc No. 145: Costiera v. MMR Care Corp. NYSCEF Doc No. 146: Espinal v. Jackson Heights Care Center, LLC NYSCEF Doc No. 147: Affidavit of Service, dated March 28, 2024 NYSCEF Doc No. 148: Letter dated April 1, 2024 from Andres F. Alonso, Esq. Submitted by Defendant: NYSCEF Doc No. 149: Reply Affirmation of Brian M. Andrews, Esq. in Further Support of Motion NYSCEF Doc No. 150: Reply Memorandum of Law in Further Support of Motion to Dismiss NYSCEF Doc No. 151: Reply Memorandum of Law in Further Support of Motion to Dismiss NYSCEF Doc No. 152: Hasan v. Terrace Acquisitions II, LLC NYSCEF Doc No. 153: Cameron v. Cobble Hill Health Center, Inc. NYSCEF Doc No. 154: Filippone v. White Oaks Rehabilitation and Nursing Center NYSCEF Doc No. 155: Affidavit of Service, dated April 9, 2024 DECISION AND ORDER Upon the foregoing papers and having heard oral argument on the record from appearing counsel, the within motion is determined as follows. Preamble The present COVID-19-related nursing home tort action features issues of cardinal import, which our state’s trial courts have alas continually been called upon to wrestle with in the wake of the COVID-19 pandemic that befell our nation starting in February 2020. Amidst the nationwide malaise engendered by the COVID-19 pandemic, the New York State Legislature, on March 7, 2020, enacted Public Health Law Article 30-D, commonly referred to as the Emergency or Disaster Treatment Protection Act (“EDTPA”), which drastically curtailed the liability exposure of health care facilities and personnel for damages alleged to have been sustained in the course of providing health care services in connection with COVID-19. Faced with a deluge of media reports and public outcry stemming from a colossally elevated number of nursing home patients who died from COVID-19, coupled with a January 30, 2021 report titled “Nursing Home Response to COVID-19 Pandemic” issued by the New York State Office of the Attorney General highlighting a lack of compliance with infection control protocols prevalent in the nursing home context, the Legislature made an abrupt volte-face, via Senate Bill S5177, repealing Public Health Law Article 30-D, effective April 6, 2021 (see NYSCEF Doc No. 135, New York Senate Bill S5177). Since shortly after the repeal of the EDTPA, trial courts have been constrained to grapple with the vexing issue as to whether the repeal of the EDTPA is to be applied retroactively. Predictably, given the statutory silence on the retroactivity front, trial courts have issued discordant decisions as to the core retroactivity conundrum when faced with tort suits filed by the estates of nursing home COVID-19 decedents. As shall appear below, while appellate courts have recently issued decisions that are largely in harmony in this context, COVID-19-related nursing home suits, and the ever-recurring attendant EDTPA defense, shall remain but a nascent area of the law until our State’s highest Court provides definitive guidance to the bench and bar in this arena. Having percolated through the trial and intermediate court crucible, this emerging area of the law is ripe for Court of Appeals review. Of particular import would be categorical guidance as to the propriety of a retroactive application of the repeal of the EDTPA, along with an analysis of the concomitant constitutional due process implications, as well as a delineation of the contours of the gross negligence statutory carveout to EDTPA immunity. Our State’s tumultuous odyssey through the EDTPA regime, and its subsequent repeal, may serve as a cautionary tale of sorts. Hasty, albeit well-intentioned, legislative enactments in the midst of calamitous circumstances oft-times beget unanticipated inauspicious consequences. Nature of the Action In this COVID-related nursing home tort action, Plaintiff Josephine Bologna, as Administrator of the Estate of Anna Bologna (“Plaintiff”) filed suit against Defendant Carmel Richmond Nursing Home, Inc. d/b/a Carmel Richmond Healthcare and Rehabilitation Center (“Defendant”). Plaintiff’s decedent, a longtime resident of Defendant’s nursing home facility, allegedly contracted COVID-19 while a resident at the facility in question (see NYSCEF Doc No. 116, Alonso Aff 28). Plaintiff’s Position as to Defendant’s Failure to Adopt Appropriate Infection Control Measures Plaintiff alleges that Plaintiff’s decedent died on April 2, 2020 (see id. 29). Plaintiff asserts that the injuries and resulting death of Plaintiff’s decedent were caused through the negligence and nursing home malpractice of Defendant (see id.). Plaintiff alleges that Defendant failed to adopt and implement appropriate infection control measures. Specifically, Plaintiff alleges that Defendant failed to appropriately separate residents in accordance with local, state and federal guidance, failed to enforce social distancing among residents and staff alike, failed to cancel group activities, such as communal dining, failed to timely restrict visitors and failed to ensure that all residents, as well as health care professionals, wear a cloth face covering (see id. 30). Plaintiff further posits that Defendant failed to screen all persons entering the building for fever and COVID-19-related symptoms, as well as failed to monitor local, state and federal health guidance related to the coronavirus to safeguard the safety of its residents (see id.). Defendant’s Motion to Dismiss the Complaint Defendant filed a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), which provides, in pertinent part, that a “party may move for judgment dismissing one or more causes of action asserted against him on the ground that…7. the pleading fails to state a cause of action….” In its motion to dismiss, Defendant seeks an order dismissing the complaint with prejudice on the basis that Defendant is immune from liability pursuant to EDTPA, NY Public Health Law §§3080-3082 (see NYSCEF Doc No. 59, Notice of Motion at 1). As an alternate argument, Defendant also posits that the complaint should be dismissed on the ground that Defendant is immune from liability under the federal Public Readiness and Emergency Preparedness Act, 42 USC 247d-6d et seq., and the Court thus lacks subject matter jurisdiction as Plaintiff’s claims are preempted by federal law (see id.). Overview As detailed below, the Court grants Defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) based on recent controlling appellate precedents, which precedents resolve the divergence of views arrived at by trial courts regarding the applicability of the EDTPA in this context until the Court of Appeals grapples with the issue. Plaintiff Argues that Inasmuch as the EDTPA Was Repealed, Which Repeal Is Retroactive, Defendant’s Motion to Dismiss Should Be Denied Plaintiff contends that insofar as the EDTPA was repealed, which repeal is retroactive, Defendant’s motion to dismiss — which is predicated on the EDTPA — should be denied (see NYSCEF Doc No. 116, Alonso Aff
