The following e-filed documents for Motion Sequence 001, listed by NYSCEF document numbers “14,” “15,” “45,” “50,” “51,” and “52,” and attachments and exhibits have been read on this motion: Notice of Motion X Defendant Attorney’s Affidavit/Affirmation in Support X Defendant Attorney’s Supplemental Affidavit/Affirmation in Support X Plaintiff Attorney’s Affidavit/Affirmation in Opposition X Plaintiff’s Expert Affidavit/Affirmation in Opposition X Defendant Attorney’s Affidavit/Affirmation in Reply X DECISION & ORDER Defendant, East Northport Residential Health Care Facility, Inc. d/b/a Huntington Hills Center for Health and Rehabilitation, moves for an Order pursuant to CPLR §3212 granting summary judgment in favor of Defendant, dismissing Plaintiff’s complaint with prejudice, and removing its name from the within caption. Background Plaintiff, Eileen Cuche, as Executor of the Estate of Anne Marie Murphy, commenced this action for damages stemming from the alleged negligent care of the Decedent, Anne Marie Murphy, by Defendant, allegedly resulting in her death. Plaintiff alleges that, during an admission to the Defendant facility Huntington Hills, a residential care facility, between June 21, 2020, and June 29, 2020, Defendant failed to provide Decedent the appropriate quality of care required under New York Public Health Law §§2801-d and 2803-c; the Plaintiff also asserts causes of action against Defendant to recover damages based upon Defendant’s purported negligence, gross negligence, negligent hiring and retention and wrongful death. Plaintiff also asserts a theory of recovery based upon the doctrine of res ipsa loquitor. Plaintiff further claims in her Verified Bill of Particulars and Verified Supplemental Bill of Particulars that the Defendant committed violations of various statutes including 10 NYCRR 415(f)(1)(i) (the right to adequate and appropriate medical care), by failing to properly diagnose and treat an infection in Decedent’s right arm surgical wound and failing to change dressings. Plaintiff also claims that she is entitled to an award of punitive damages and attorney’s fees. This action arises from the alleged improper care received by Decedent during her residence treatment at the Defendant facility. Decedent, who was 85 years-old, had just been discharged from St. Francis Hospital, where she received an embolectomy in her right arm. Plaintiff claims that upon her admission to Defendant facility, the Decedent was showing an elevated white blood cell count and other signs of bacterial infection and endocarditis. These symptoms persisted and worsened during the following days without lab work being repeated to monitor the elevated white blood cell count. Plaintiff alleges that Defendant failed to perform proper diagnostic testing to confirm that Decedent had a bacterial infection and resulting endocarditis, and to determine the organism causing Decedent’s infection. Plaintiff maintains that Defendant failed to utilize proper hygiene in the care and treatment of Decedent’s right arm surgical wound and failed to devise an appropriate care plan to ensure that Decedent received timely care for an Enterococcus Faecalis infection, bacteremia, and infective endocarditis, resulting in the progression of the infection, sepsis and eventually her death. Plaintiff contends that the Defendant’s negligence necessitated Decedent’s transfer to St. Joseph’s Hospital, where she succumbed to her injuries and passed away on July 3, 2020. At St. Joseph Hospital, Decedent was diagnosed with and treated for sepsis with vancomycin, and found to have enterococcal bacteremia, along with resulting bacterial endocarditis. Plaintiff claims that Defendant was negligent by failing to diagnose, treat, and manage such infection, resulting in sepsis and death. Plaintiff also contends that Defendant employed and continues to employ certain personnel and/or contractors despite having known, or should have known, that they were unsuitable for the positions in which they were employed. Defendant’s Contentions Defendant contends that the medical and nursing care provided to Decedent was appropriate and did not depart from good and accepted medical and nursing practice or otherwise violate any statutory regulations or codes. In support, Defendant submits expert affidavits from Cameron R. Hernandez, M.D., a Board-Certified Geriatrician, and Alexander McMeeking, M.D., FACP. FRCP, a Board-Certified Infectious Disease Specialist. Both experts state that it is their opinion that Defendant acted appropriately in their treatment of Decedent, and that Defendant did not deviate from the acceptable standard of care, and thus are not the proximate cause of Decedent’s death. In fact, Dr. Hernandez further states that Defendant went beyond the required standard of care in monitoring and treating Decedent’s surgical wound. Dr. McMeeking opined that Defendant complied with good and accepted standards of medicine in the care and treatment of Decedent and that Decedent did not suffer any injury proximately caused by any care or neglect on the part of Defendant. Dr. McMeeking concluded that Defendant’s medical care and treatment was not negligent because the care provided to Decedent was wholly appropriate, adequate, and within the standard of care. Decedent’s death certificate listed infective endocarditis as a cause of death. St. Joseph’s Hospital records indicate that on July 01, 2020, Decedent’s echocardiogram revealed evidence of a vegetation greater than 1 cm on the left ventricle, which they argue is a very large vegetation and would have taken at least 2-3 weeks to develop. Decedent passed away on July 03, 2020. It is Dr. McMeeking’s opinion that the larger than 1 cm vegetation seen on Decedent’s echocardiogram performed at St. Joseph’s Hospital on July 1, 2020, could not have developed during her admission to the Defendant facility. Further, it is the doctor’s opinion, that it is not medically possible that Decedent’s infective endocarditis stemmed from an untreated infection in her right arm surgical site as it is not medically possible that she developed the larger than 1 cm vegetation seen on her July 1, 2020, echocardiogram in less than 2-3 weeks. Additionally, Dr. McMeeking states that the Enterococcus bacteremia originated from the gastroenterology tract and not from the skin. Therefore, it is his opinion that the Decedent’s bacteremia was not caused by an untreated infection in her right arm surgical wound caused by any neglect care and treatment rendered by the staff at Defendant facility. Dr. McMeeking claims that for Enterococcus bacteremia to have contaminated Decedent’s right arm surgical wound during her June admission to the Defendant facility, either someone with Enterococcus bacteremia due to unclean and unwashed hands would have had to have made contact with her surgical wound and/or surgical wound bandages, or alternatively, the staff at Defendant facility would have had to have failed to properly clean and change her wound dressing daily. However, he claims that there is no documentary evidence or testimonial evidence that Decedent’s surgical bandage was not properly examined, cleaned, and changed daily. There is also no documentary evidence or testimonial evidence of any complaints or issues pertaining to the cleanliness of the Defendant facility or to the hygiene of the staff members. Dr. McMeeking also opines that in the absence of any concerning signs and symptoms of infection, there was no reason, and the staff at the Defendant facility was not required, to order any cultures. It is his opinion that the allegations that Defendant failed to order cultures to determine the type of infection Decedent contracted are wholly without merit and should be dismissed. It is also his opinion that Defendant appropriately, and in accordance with good and accepted medical practice, rendered medical care and treatment in response to any complaints with yellow or brown sputum. On June 26, 2020, Ms. Murphy was prescribed a Z-pak. She was also receiving 3L of oxygen. She was examined and exhibited “no changes no better or worse today.” (See McMeeking Expert Affirmation). She was started on Azithromycin 250 mg as a further precaution with no adverse reaction. It is his opinion that the allegations that Defendant failed to timely and properly assess and address her complaints and shortness of breath, are without merit. It is also his opinion, that the allegations that Defendant failed to obtain a sputum culture to determine the type of infection Decedent contracted is also without merit. Defendant also submits, in support of its motion, the affirmation of Dr. Cameron R. Hernandez. Dr. Hernandez states that after having reviewed the documents he references in his affirmation, he concludes, that Defendant complied with good and accepted standards of medicine and nursing care in the care and treatment of Decedent and that Decedent did not suffer any injury proximately caused by any care or neglect on the part of Defendant. Further, he claims that Defendant took all reasonable measures to avoid any deprivation of Decedent’s rights under the Public Health Law and that Decedent did not suffer any deprivation of said rights or injury as a consequence of any purported inadequate care on the part of Defendant, nor did Defendant commit any morally culpable conduct, or abuse, that was flagrant, malicious, reckless, or grossly indifferent to patient care. Dr. Hernandez states that it is his opinion, based on the medical records and deposition testimony, that the physicians, nurses, and staff at the Defendant facility did not depart from the requisite standards of care, or proximately cause the Decedent’s injuries and/or death. It is his opinion, to a reasonable degree of medical and nursing certainty, that: (1) an appropriate Care Plan was implemented and remained in place throughout the duration of Decedent’s admission; (2) Defendant undertook and completed a comprehensive admission assessment and obtained a complete and thorough history of the Decedent; and (3) Defendant complied with good and accepted medical and nursing practice in thoroughly evaluating Decedent upon her admission, by properly monitoring and assessing Decedent’s condition, and timely addressing changes in condition in furtherance of implementing a comprehensive and appropriate Care Plan (updated to reflect an actual alteration in skin integrity to her right arm postsurgical wound). Consequently, it is Dr. Hernandez’s opinion that Defendant took all reasonable measures to prevent any violations of Decedent’s rights to the extent said rights are enumerated under Public Health Law §§2801-d and/or 2803-c, which are refenced in the New York Code of Rules and Regulations and Code of Federal regulations, including, not limited to, those regulations, provisions and statutes cited in Plaintiff’s Verified Bill of Particulars, Supplemental Verified Bill of Particulars, and Complaint, and that no such violations occurred. Dr. Hernandez further opines that in the absence of any concerning signs and symptoms of the infection, there was no reason, and the staff at the Defendant facility was not required, to order any cultures. He claims that the allegations that Defendant failed to order cultures to determine the type of infection are without merit. He opines that Defendant appropriately, and in accordance with good and accepted medical and nursing practice, rendered medical and nursing care and treatment in response to any complaints of a cough with yellow or brown sputum. He opines that the response by the medical and nursing staff was medically appropriate and instituted a proper course of treatment. He opines that allegations that Defendant failed to timely and properly assess and address Decedent’s complaints of shortness of breath are without merit. She was transferred to St. Joseph’s Hospital less than three days after she initially complained about yellow and brown sputum. It is his opinion that the allegation that Defendant failed to obtain a sputum culture to determine the type of infection Decedent contracted is without merit. As to the staff, Dr. Hernandez finds that there is no evidence that Defendant failed to hire sufficiently qualified staff. The nursing and medical staff effectively and properly assessed Decedent and her needs and established a Care Plan and followed all physician orders. Dr. Hernandez states that Defendant’s staff appropriately created a note in Decedent’s chart indicating that she experienced a change in condition, and thus, he opines that Plaintiff’s allegation that Defendant’s staff failed to address significant changes in condition are without merit. Dr. Hernandez states that there is no evidence or complaints or issues pertaining to the cleanliness of the Defendant facility or to the hygiene of any of the staff members at the Defendant facility. He states that there is no indication that Defendant’s staff acted in a negligent, grossly negligent, reckless, or indifferent manner with respect to the care provided to Decedent. There is no indication of any inappropriate or abusive behavior directed at Decedent on the part of Defendant. Thus, Dr. Hernandez reached the conclusion that Defendant did not violate any resident right and was not negligent, grossly negligent, or reckless, because the care provided to Decedent was appropriate, adequate, and within the standard of care. Further, he finds that no act or omission by Defendant caused or contributed to Decedent’s claimed injuries and/or death. He states the care and treatment rendered by Defendant was not the proximate cause of Decedent’s death. Defendant also maintains that Plaintiff’s Claims are subject to dismissal under the Emergency or Disaster Treatment Protection Act, N.Y. Pub. Health Law Article 30-d (“EDTPA”) because it relates to medical treatment during the COVID-19 Emergency. The New York Legislature enacted the EDTPA on April 3, 2020, in response to the COVID-19 pandemic. Immunity under the EDTPA applies if (1) the defendant is a “health care professional” or “facility”; (2) the defendant was providing “health care services”; (3) the services were provided in accordance with the law or a COVID-19 emergency rule; (4) the services were impacted by the defendant’s response to COVID-19; and (5) the services were rendered in good faith and did not amount to gross negligence or recklessness. Defendant contends that it has met each element; as it is a health care facility, which provided in good faith health care services that were in accordance with law or a COVID-19 emergency rule, and those services were impacted by its response to COVID-19. In the affirmations submitted by Defendants’ expert doctors and the affidavit of nursing director, Sujata Tadepalli, there are no specific accounts as to how Decedent’s diagnosis and treatment was impacted by any response to COVID-19. Additionally, Defendant maintains that the complaint should be dismissed under the PREP Act. The PREP Act lies dormant until invoked by the Secretary of Health and Human Services by issuing a defining declaration. (42 U.S.C. §247d-6d (b)). The PREP Act provides a defendant with immunity from liability and suit during periods declared public health emergencies if: (1) the defendant is a “covered person”; (2) the claim “relate[es] to” or “aris[es] out of the defendant’s “recommended activities” with respect to “covered countermeasures”; and (3) all residual criteria for immunity are satisfied. 42 USC §247d-6d (a)(1) and 247d-d(a)(3). Defendant maintains that it is a covered person under the PREP Act and meets the criteria. The PREP Act provides immunity “from suit and liability” under state and federal law for all claims falling within its broad scope. In the affidavit submitted of Defendant’s nursing director Sujata Tadepalli, Nurse Tadepalli does not connect the use of any countermeasures to the relevant treatment of Decedent. Similarly, Defendant’s experts fail to mention or connect the use of any countermeasures to the relevant treatment of Decedent. Discussion Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist, and the movant is entitled to judgment as a matter of law. (See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (See CPLR §3212(b); Smalls v. AJI Industries, Inc., 10 N.Y.3d 733 [2008]; Alvarez, 68 N.Y.2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so. (See Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. (See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 [1978]). In addition, “[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions.” (Aronov v. Soukkary, 104 A.D.3d 623, 624, 960 N.Y.S.2d 462 [App. Div. 2d Dept. 2013] [quoting Digeronimo v. Fuchs, 101 A.D.3d at 936, 957 N.Y.S.2d [App. Div. 2d Dept. 2012)]). To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and that the breach was a proximate cause of the Plaintiff’s injury. (See Rushton v. State of New York, 189 A.D.3d 1488,134 N.Y.S.3d 752 [App. Div. 2d Dept. 2020]). “The elements of a medical malpractice cause of action are a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the Plaintiff’s injuries.” (Schwartz v. Partridge, 179 A.D.3d 963, 964, 117 N.Y.S.3d 300 [App. Div. 2d Dept. 2020] [internal quotation marks omitted]). “When moving for summary judgment, a defendant provider has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” (J.P. v. Patel, 195 A.D.3d 852, 853, 150 N.Y.S.3d 120 [App. Div. 2d Dept. 2021] [internal quotation marks and brackets omitted]). “In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the Plaintiff’s bill of particulars” (Martinez v. Orange Regional Med. Ctr., 203 A.D.3d 910, 912, 165 N.Y.S.3d 573 [App. Div. 2d Dept. 2022] [internal quotation marks omitted]). “In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements on which the defendant has met his or her initial burden” (Bowe v. Brooklyn United Methodist Church Home, 150 A.D.3d 1067, 1068, 56 N.Y.S.3d 180 [App. Div. 2d Dept. 2017]). “General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant['s]…summary judgment motion.” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]). “Although summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.” (Longhi v. Lewit, 187 A.D.3d 873, 877-878, 133 N.Y.S.3d 623 [App. Div. 2d Dept. 2020] [internal citations, brackets, and quotation marks omitted]). “In order not to be considered speculative or conclusory, expert opinions should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record.” (Id. at 878, 133 N.Y.S.3d 623 [internal quotation marks omitted]; see also Lowe v. Japal, 170 A.D.3d 701, 702-703, 95 N.Y.S.3d 363 [App. Div. 2d Dept. 2019]; see also Barnaman v. Bishop Hucles Episcopal Nursing Home, 213 A.D.3d 896, 898-99, 184 N.Y.S.3d 800, 803-04 [App. Div. 2d Dept. 2023]). “Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient.” (See Schwartz v. Partridge, 179 A.D.3d 963, 965, 117 N.Y.S.3d 300 [App. Div. 2d Dept. 2020], quoting Moore v. St. James Health Care Ctr., LLC, 141 AD3d 701, 703 [App. Div. 2d Dept. 2016] [internal quotation marks omitted]). “Thus, the basis for liability under Public Health Law §2801-d is neither deviation from accepted standards of medical practice nor breach of a duty of care. Rather, it contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule” (See Schwartz v. Partridge, 179 A.D.3d 963, 965, 117 N.Y.S.3d 300 [App. Div. 2d Dept. 2020], quoting Novick v. South Nassau Communities Hosp., 136 AD3d 999, 1001 [App. Div. 2d Dept. 2016]). In applying these principles to the motion and case at bar, this Court finds that Defendant made a prima facie showing of entitlement to judgment in its favor as a matter of law (See Alvarez v. Prospect Hosp., supra). The Plaintiff, however, met her burden of raising a question of fact requiring a plenary trial (See Zuckerman v. City of New York, supra), on her causes of action sounding in negligence, Public Health Law §2801-d, Public Health Law §2803-c, and wrongful death, for the reasons states below. Plaintiff’s Contentions Plaintiff contends, in opposition to Defendant’s motion, that the Decedent, after having undergone an embolectomy in her right arm at St. Francis Hospital, and after her discharge from St. Francis Hospital and upon her admission to the Defendant facility, was showing an elevated white blood cell count and other signs of both bacterial infection and endocarditis. Plaintiff argues that even if Defendant had properly treated Decedent’s wound, “that does not diminish [their] responsibility to timely detect, diagnose, and treat the Enterococcus faecalis infection and resulting endocarditis that progressed while at the facility and ultimately killed Decedent.” (See Affirmation in Opposition). In opposition to Defendant’s arguments that the two immunity statutes under New York’s Emergency or Disaster Treatment Protection Act (“EDTPA”), and 42 U.S.C. §247-6d (the “PREP Act”), Plaintiff maintains that this is not a case involving or concerning COVID-19, and Defendant’s pro forma attempt to evade responsibility through such arguments must be rejected. There is no specific account in the Defendant’s submission as to how Decedent’s diagnosis and treatment was impacted by any response to COVID-19. Moreover, Defendant’s experts and nursing director fail to connect the use of any countermeasures to the relevant treatment of the Decedent. Plaintiff submits, in support of her opposition to Defendant’s motion, the expert affidavit of Emil P. Lesho, D.O., FACP, FIDSA, FSHEA, a Board-Certified Infectious Disease Specialist. Dr. Lesho disagrees with the opinions put forth by Drs. Hernandez and McMeeking, stating that, in his opinion, Defendant did not administer proper care in its treatment of Decedent, and moreover, that Defendant’s failure to discover and properly treat Decedent’s infection caused her death. Dr. Lesho further states that “Huntington Hills’ failure to perform proper testing…failure to have proper specialist consults take place, failure to determine type of infection, failure to administer effective antibiotics, and delay in treating the infection with an effective antibiotic, were substantial contributing factors causing Decedent’s death.” (See Lesho Expert Affirmation in Opposition to Motion). Dr. Lesho disagrees with Defendant’s experts that Decedent received proper medical care within this period, given the failure by Defendant to discovery and properly treat this infection. Dr. Lesho maintains that the Decedent should have been given regular white blood cell count tests to determine whether her count was further above the norm, indicating the presence of an infection and the need for additional testing. Dr. Lesho believed this was particularly the case given the nature of the elevated white blood count found on June 22, 2020, which included elevated levels of absolute neutrophils which is a finding consistent with bacterial infection. Dr. Lesho further opines that had regular white blood cell count testing been continued, the elevation of her white blood cells would have been revealed and discovered, prompting the need for cultures to be taken to determine the presence and nature of the Decedent’s bacterial infection. Dr. Lesho states that as a result of Defendant’s failure to perform proper diagnostic testing based on Decedent’s signs and symptoms, Decedent did not receive proper care until following her transfer to St. Joseph Hospital on June 29, 2020. He opines that promptly conducting testing for a bacterial infection and commencing appropriate antibiotic care by June 26, 2020, as the standard of care required, would have prevented Decedent’s death from sepsis. Dr. Lesho consequently opines that Defendant’s failure to perform proper testing, failure to have proper specialist consults take place, failure to determine the type of infection, failure to administer effective antibiotics, and delay in treating the infection with an effective antibiotic, were substantial contributing factors causing Decedent’s death. Furthermore, it is his opinion, that Defendant’s failure to properly diagnose, detect and treat Ms. Murphy’s bacterial infection and endocarditis was not impacted by, connected to, or a result of Defendant’s response to the COVID-19 pandemic. Dr. Lesho opines that the record fails to indicate that any steps taken by Defendant intended to prevent the spread of COVID-19 or treat patients for COVID-19, affected, impacted, or contributed to Defendant’s failure to properly diagnose and treat Decedent’s bacterial infection and resulting endocarditis. Negligence Defendant submitted expert affirmations of Dr. Hernandez and Dr. McMeeking to establish that it complied with good and accepted standards of medicine and nursing care in the care and treatment of Decedent and that she did not suffer any injury proximately caused by any care or neglect of care on the part of Defendant. It is the doctors’ opinion, within a reasonable degree of medical and nursing certainty, based on medical records and deposition testimony, that the nurses and staff at the Defendant facility did not depart from the requisite standards of care, nor did any alleged departure proximately cause Decedent’s injuries and/or death. In response, Plaintiff’s expert’s affirmation demonstrates the existence of triable issues of fact regarding Defendant’s departure from acceptable standards of skilled nursing care by Defendant. Plaintiff’s submissions rebutted Defendant’s prima facie showing of entitlement to summary judgment and raised triable issues of fact. (See Brooks v. April, 31 N.Y.3d 1102 [2018]: see also Burns v. Goyal, 30 N.Y.3d 956 [2017]). Accordingly, Defendant’s motion for an order granting summary judgment in its favor on the cause of action for negligence is DENIED. Res Ipsa Loquitor In New York it is the general rule that submission of the case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: (1) the event must be of a kind [that] ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. (See Simmons v. Neuman, 50 A.D.3d 666, 667, 855 N.Y.S.2d 189 [App. Div. 2d Dept. 2008]). As to res ipsa loquitor, Defendant established its entitlement to judgment as a matter of law, and Plaintiff failed to raise a triable issue of fact in opposition. Accordingly, Defendant’s motion for summary judgment dismissing the cause of action and/or claim of res ipsa loquitor is GRANTED. Punitive Damages/Gross Negligence and Attorney’s Fees Plaintiff’s claims of gross negligence and request for punitive damages fail to reveal any conduct that could be viewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard of Decedent’s rights. (See Gold v. Park Ave. Extended Care Ctr. Corp., 90 A.D.3d 833, 834 [App. Div. 2d Dept. 2011]). The record demonstrates that the conduct of Defendant in its treatment and care of the Decedent was neither wanton nor malicious, nor activated by evil or reprehensible motives (See Anzalone v. Long Is. Care Ctr., 26 A.D.3d 449, 450-451 [App. Div. 2d Dept. 2006]). In addition, the record fails to demonstrate any conduct by Defendant that was so flagrant as to transcend mere carelessness, nor did its care of Decedent constitute willful or wanton negligence or recklessness (See Rey v. Park View Nursing Home, 262 A.D.2d 624, 627 [App. Div. 2d Dept. 1999]). Accordingly, the Defendant’s motion for an order granting summary judgment dismissing the causes of actions and or claims for punitive damages/gross negligence and attorney fees is GRANTED. Negligent Hiring, Supervision and/or Retention “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training.” (Talavera v. Arbit, 18 A.D.3d 738, 738, 795 N.Y.S.2d 708 [App. Div. 2d Dept. 2005]; see also Quiroz v. Zottola, 96 A.D.3d 1035, 1037, 948 N.Y.S.2d 87 [App. Div. 2d Dept. 2012]). Here, in opposition to Defendant’s prima facie showing that its employees were acting within the scope of their employment, the Plaintiff failed to raise a triable issue of fact. While an exception exists to the above general principle where the plaintiff seeks punitive damages from the employer “based on alleged gross negligence in the hiring or retention of the employee,” (Talavera v. Arbit, 18 A.D.3d at 738, 795 N.Y.S.2d 708 [App. Div. 2d Dept. 2005]), here, that exception is inapplicable because this Court finds that the conduct of Defendant, in its treatment and care of Decedent, was neither reckless, wanton or malicious and dismisses the cause of action seeking punitive damages. Accordingly, the Defendant’s motion for an order granting summary judgment dismissing the causes of action and or claims for negligent hiring, supervision and/or retention is GRANTED. Public Health Law §2801-d and Public Health Law §2803-c Plaintiff has brought this action pursuant to Public Health Law §2801-d and Public Health Law §2803-c. Public Health Law §2801-d states, in relevant part, “[a]ny residential health care facility that deprives any patient of said facility of any right or benefit…shall be liable to said patient for injuries suffered as a result of said deprivation.” Public Health Law §2803-c requires every nursing home and facility providing health related services to adopt the rights and responsibilities of the patients receiving care in said facilities, including, but not limited to, “the right to receive adequate and appropriate medical care” and “the right to receive courteous, fair, and respectful care and treatment.” Pursuant to Public Health Law 2803-c, residents are given a bill of rights embodied in Title 10, Part 415 of New York Codes, Rules and Regulations. As set forth in Plaintiff’s Verified Bill of Particulars, among Plaintiff’s allegations were certain violations of 10 NYCRR 415.3(f)(1)(i), which state that the statement of patients’ rights to be promulgated must include the following: “Every patient shall have the right to receive adequate and appropriate medical care…” Defendant submitted affidavits from expert doctors stating that Defendant did not, in any way, violate Public Health Law §§2801-d and 2803-c. In response, Plaintiff’s expert doctor raised triable issues of fact as to these purported violations of law. For example, Dr. Lesho opines, within a reasonable degree of medical certainty, that Decedent was deprived of her right to proper medical care while a resident at the Defendant facility since the signs and symptoms of bacterial infection and endocarditis were improperly ignored and overlooked. Dr. Lesho explains that Decedent’s elevated white blood cell count on June 22, 2020, should not have been dismissed considering her age, medical history and current condition. Consequently, Defendant’s motion for an order granting summary judgment dismissing this cause of action is DENIED. Wrongful Death In an action for wrongful death, it is incumbent upon the plaintiff to demonstrate a departure from the accepted standard of care and that the departure was the proximate cause of the decedent’s injuries. Issues of fact exist as whether the delay in testing may have decreased Decedent’s chances of survival. (See Jump v. Facelle, 275 A.D.2d 345, 346 [App. Div. 2d Dept. 2000]). Dr. Lesho states that the efficacy of antibiotic treatment of enterococcal bacteremia and endocarditis to preventer treat sepsis is time sensitive. Moreover, Dr. Lesho affirms, that the change of antibiotic treatment which occurred on June 29, 2020, following Decedent’s transfer to St. Joseph Hospital “was too late to prevent or treat Decedent’s sepsis and to successfully treat her bacteremia and bacterial endocarditis, but commencing proper treatment days earlier would have achieved a different result” and “would without doubt have increased her chances of survival substantially.” Dr. Lesho opines, within a reasonable degree of medical certainty, that promptly conducting testing for a bacterial infection and commencing appropriate antibiotic care by June 26, 2020, as the standard of care required, would have prevented Decedent’s death of sepsis. Consequently, the branch of Defendant’s motion for an order granting summary judgment dismissing the cause of action to recover damages for the Decedent’s wrongful death is DENIED as issues of fact exist as to whether a delay in testing and treatment decreased Decedent’s chance of survival. EDTPA (New York Public Health Law §§3080-82) The EDTPA, which was enacted on April 6, 2020, made retroactive to March 7, 2020, and is now repealed provides in pertinent part, as follows: §3082. Limitation of Liability. 1. Notwithstanding any law to the contrary…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 court of 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 facilities 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 providing health care services in good faith. (Public Health Law former §3082 [1]). Here, in support of its argument for dismissal based on this statute, Defendant submits an affidavit from Sujata Tadepalli, a Registered Nurse who was employed as the Director of Nursing at the Defendant facility between January 2020 and the present. Nurse Tadepalli states that his/her duties and responsibilities include the general administration of the Nursing Department and supervision and coordination of care and services to the residents of the facility. Tadepalli generally outlines Defendant’s response to the COVID-19 pandemic and the policies and practices implemented in response to the COVID-19 pandemic. Nurse Tadepalli makes a conclusory general statement that the care of Decedent was unavoidably impacted by the availability and implementation of the products and materials enumerated in her affidavit and Defendant’s response to the COVID crisis during her admission. In order for an affidavit to be sufficient to defeat a motion for summary judgment, it must be detailed, specific and factual in nature and not assert in simple conclusory form. (See Martino v. Miller, 97 A.D.3d 1009, 1011, 949 N.Y.S.2d 225, 228 [App. Div. 3d Dept. 2012]). There is no specific account as to how Decedent’s diagnosis and treatment was impacted by any response to COVID-19. The affidavit submitted is conclusory and non-specific. Furthermore, nothing in the record or in either expert exchange indicates that any steps taken by Defendant intended to prevent the spread of COVID-19 or treat patients for COVID-19, affected, impacted, or contributed to Defendant’s failure to properly diagnose and treat Decedent’s bacterial infection and resulting endocarditis. Neither of Defendant’s experts make any mention of COVID-19 or its effect on patient care generally, and more specifically, in the case of Decedent. In fact, Dr. Hernandez stated that Defendant went beyond the required standard of care in monitoring and treating Decedent’s surgical wound. While Nurse Tadepalli states that all care given to all residents was negatively impacted by Defendant’s response to COVID-19, Dr. Hernandez maintains the opposite in stating that “monitoring Ms. Murphy’s surgical wound for signs and symptoms of infection every shift went beyond the applicable standard of care.” (See Hernandez Expert Affirmation [emphasis added]). Further, Dr. Hernandez finds that no act or omission by Defendant caused or contributed to Decedent’s claimed injuries and/or death. Therefore, Dr. Hernandez’s affirmation and Nurse Tadepalli’s affidavit are in contradiction. There is no specific evidence that the care and treatment and services provided to Decedent were impacted by Defendant’s response to the COVID-19 pandemic. Accordingly, Defendant’s application to dismiss the complaint under EDTPA is DENIED. PREP Act Defendant separately argues that the PREP Act shields it from liability in this action. The PREP Act was enacted in 2005 and is invoked when the Secretary of Health and Human Services determines that a disease or health condition exists that constitutes a public health emergency (42 USC §247d-6d[b]). Thereafter, the Secretary “may make a Declaration through publication in the Federal Register, recommending…the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures.” This was done to address the COVID-19 pandemic. (Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed Reg 15 198 [March 10, 2020]; Est. of Pierro by Stazzone v. Carmel Richmond Healthcare & Rehab. Ctr., 81 Misc. 3d 1085, 1093, 204 N.Y.S.3d 715, 722 [N.Y. Sup. Ct. 2023]). There are absolutely no allegations by either side in this case that Defendant’s misconduct concerns the use or misuse of “covered countermeasures.” Defendant has not submitted any evidence suggesting this is the case. Defendant’s nursing director, Nurse Tadepalli, does not connect the use of any countermeasures to the relevant treatment of Decedent. Defendant’s experts fail to mention or connect the use of any countermeasures to the relevant treatment of Decedent. Additionally, Plaintiff’s expert has opined that the failure to properly treat Decedent in this action was unconnected to any response by Defendant to the COVID-19 pandemic. The PREP Act defense does not apply to the instant matter. Accordingly, Defendant’s application to dismiss the complaint under the PREP Act is DENIED. Accordingly, it is hereby ORDERED, that Defendant’s motion for an order granting summary judgment dismissing Plaintiff’s causes of action and claims for: Res Ipsa Loquitor, Negligent Hiring, Supervision and/or Retention, Punitive Damages/Gross Negligence, and Attorney’s Fees, are hereby GRANTED; and it is further ORDERED, that Defendant’s application to dismiss the complaint under the EDTPA and the PREP Act is DENIED, and it is further ORDERED, that Defendant’s motion for an order granting summary judgment in its favor and dismissing, as Plaintiff’s causes of action to recover damages based upon Defendant’s negligence, violations of Public Health Law §2801-d and Public Health Law §2803-c, and causing Plaintiff’s wrongful death, is DENIED. Any relief not specifically addressed and or granted is hereby DENIED. The foregoing constitutes the decision and order of this Court. Dated: April 30, 2024
