Papers Read: 1. Notice of Motion, Affirmation in Support, Exhibits Annexed 2. Affirmation in Opposition, Exhibits Annexed 3. Reply Affirmation in Further Support of Pre-Answer Motion to Dismiss, Exhibits Annexed 4. Memorandum of Law, Exhibits Annexed 5. Sur-Sur-Reply Affirmation in Further Support of Pre-Answer Motion to Dismiss, Exhibits Annexed 6. Letter re: Omitted Caselaw in Recently Filed Sur-Sur Reply 7. Letter re: AD Decision Overturning Caselaw in Plaintiff’s Opposition 8. Letter re: New EDTPA Authority, Exhibit Annexed DECISION AND ORDER Defendant moved by Notice of Motion dated and filed October 31, 2022, seeking an order, pursuant to CPLR 3211 (a)(7) and New York Public Health Law §§3080-3082, dismissing the Claim in its entirety, with prejudice, as Defendant is immune from the liability claims in this Claim. Claimant has opposed the motion and the Defendant has replied thereto. RELEVANT FACTUAL BACKGROUND Claimant, Jacqueline D’Aoust filed the Claim in this action on April 12, 2022, seeking to recover damages for violations of Public Health Law §§2801-d and 2803-c, deprivation of decedent’s, James W. Logan (hereinafter, the “Decedent”) rights in various violations of 42 CFR 483.80, negligence, gross negligence, recklessness, and wrongful death. Claimant further seeks punitive damages based upon Defendant’s grossly negligent and reckless actions in failing to protect its residents from harm. According to the Claim, Decedent was a resident of the Long Island State Veterans Home (hereinafter, “LISVH”), a state-run nursing facility from April 2019 until his death on April 22, 2020. The Claim contains a cause of action for violations of Public Health Law 2801-d, a cause of action for wrongful death, and a cause of action for gross negligence. The Claim alleges, inter alia, that the Defendant disregarded public health guidelines and failed to implement appropriate infection control policies and an appropriate care plan for the Decedent to prevent the introduction and spread of COVID-19 within its facility. Claimant alleges that the Decedent became infected with COVID-19 while under Defendant’s care when he was placed in areas within the facility with residents known to be positive for COVID-19, which resulted in his death on April 22, 2020 from COVID-19 and pneumonia. In support of the motion, Defendant has attached the Decedent’s progress notes from the period of May 14, 2018 through April 22, 2020 (Exhibit C). Counsel has provided the following summary of the relevant progress notes: on April 4, Decedent complained of nasal congestion and lethargy (Exhibit C at 382), his lungs were clear, he had a non-productive cough, was afebrile, and was without shortness of breath or signs of respiratory distress (Exhibit C at 383); on April 5, he was noted to have occasional dry, non-productive cough, no signs or symptoms of shortness of breath or respiratory distress; on April 6, Mr. Logan continued to complain of nasal stuffiness, he was afebrile, his lungs were clear to auscultation, and he reported that he only coughed when he was laying down (Exhibit C at 384); on April 7, he was afebrile and no cough or complaints of muscle pain were noted; on April 10, he was afebrile and had no complaints of pain or respiratory distress, but complained of pressure on chest when lying flat and weakness (Exhibit C at 385), the head of his bed was elevated and he was encouraged to sit for oxygenation, which had a positive effect; on April 11, he was noted to have weakness, headache, and a dry cough, his temperature was 100.6 and his oxygen saturation was 96 percent on room air, Tylenol was given for headache, he was seen at 17:14 by Karen Ann Dominger, DO (Exhibit C at 385), he denied feeling feverish or having shortness of breath, on exam he was sitting up in his chair making eye contact and speaking fluent sentences, his lungs had bilaterally decreased breath sounds, Cathleen Conway RN noted at 23:51 that he was alert and his temperature was 99.8, but increased weakness persisted, Dr. Dominger ordered Hydroxychloroquine/Plaquenil (“HCQ”) (5 days) Doxycycline (7 days) and zinc sulfate (5 days) which were started on April 12, 2020 (Exhibit C at 386); on April 12, he was afebrile and had no complaints of pain, but general weakness was noted, Oxygen therapy was given due to low saturation (85 percent with improvement to 96 percent) and continued the remainder of this admission; on April 13 Dr. Dominger spoke with the Decedent’s daughter regarding his fever, the prevalence of COVID on the unit and the empiric treatments, which she was in agreement with; on April 20 at 11:33, he was examined by Jennifer Gonzalez, M.D., and he was being treated empirically for COVID (Exhibit C at 389-390), he had completed a course of HCQ and Zinc, however he continued to require oxygen, no recent fevers had been reported, Dr. Gonzalez’s assessment was probable COVID, and ongoing hypoxia without oxygenation, the plan was to obtain chest x-rays, Dr. Gonzalez examined him again at 16:07, the chest X-ray revealed low lung volumes, diffuse hazy and patchy airspaces opacities bilaterally, Dr. Gonzalez’s assessment was “probable COVID-19 pneumonia” and her plan was to begin IV hydration and to continue supplemental oxygen, Rocephin was started. (Exhibit C at 390-391); and at 13:05 on April 21, Decedent was seen by Dr. Gonzalez, and her assessment was COVID-19 positive pneumonia (Exhibit C at 391-392), the plan was to continue on IV hydration and IV Rocephin. At 14:38, Dr. Gonzalez noted that Mr. Logan was confirmed with COVID and was determined to be a candidate for another round of HQC. At 13:05 on April 21, Mr. Logan was seen by Dr. Gonzalez, and her assessment was COVID-19 positive pneumonia and was determined to be a candidate for another round of HQC (Exhibit C at 391-392). The plan was to continue on IV hydration and IV Rocephin. Mr. Logan passed away on April 22 (Exhibit C at 393). POINTS OF COUNSEL Defendant argues that the Claim must be dismissed because immunity from liability is conferred upon the State by New York’s Public Health Law §§3080-3082, known as the “Emergency or Disaster Treatment Protection Act” (hereinafter, the “EDTPA”). In support of its motion, Defendant has submitted the affidavit of Fred Sganga, LNHA, MPH and FACHE, the Executive Director of the LISVH, wherein he states that LISVH provided health care services to Mr. Logan: (1) for the treatment of COVID-19; (2) pursuant to COVID-19 emergency rules (New York Executive Order No. 202: “Declaring a Disaster Emergency in the State of New York” [Mar. 7, 2020]); (3) during a time when the patient’s treatment was necessarily impacted by LISVH’s decisions and activities as a result of the COVID-19 outbreak; (4) in support of the state’s directives “to protect the health and safety of…patients”; and (5) in good faith. Defendant argues that because Claimant’s allegations go to the issue of infection control at the LISVH, the health care services provided to the Decedent are covered by the EDTPA. Defendant further argues that Claimant has included a cause of action for gross negligence in an attempt to meet the narrow EDTPA exception, but Mr. Sganga’s affidavit clearly demonstrates that the LISVH arranged for and provided health care services for the Decedent in good faith, in accordance with evolving Center for Disease Control (“CDC”) and (“DOH”) COVID-19 guidance. In his affidavit, Mr. Sganga describes the facility wide impact of COVID-19 at the LISVH, including the measures taken to limit infection between March 3, 2020 and April 22, 2020. He further explained how every aspect of Mr. Logan’s care was impacted by the LISVH’s response to the COVID-19 outbreak and in support of New York State and federal directives to combat it. Mr. Sganga further describes the difficulties faced by the facility during the initial surge due to the lack of information known about COVID-19, as well as shortages of PPE, tests and staff. According to Mr. Sganga, due to the high demand and scarcity of tests, often a diagnosis was presumed based upon symptoms, however, patients with mild or no symptoms could still transmit the disease. Asymptomatic individuals were not being tested based on potential exposure at that time due to the fact that less was understood during the initial surge, which made it difficult to perform contact tracing. According to Defendant, these factor made it more challenging to isolate COVID-19 residents, especially during the initial surge. According to Defendant, the first COVID-19 positive test at LISVH was on March 24, 2020, which was 14 days after all visitation was suspended and all social outings discontinued on March 10, and 13 days after LISVH began screening all new admissions for signs and symptoms of COVID-19 or potential exposure on March 11. Thereafter, the entire unit was placed on contact and droplet precautions, and all residents were monitored for signs and symptoms each shift, and on April 2, a designated units for COVID-19 patients was established. Defendant admits that given the incubation period and asymptomatic/mild cases, it was still possible for COVID-19 to spread, despite best efforts to isolate all infected individuals. Defendant’s counsel further argues that all aspects of Mr. Logan’s treatment was impacted by LISVH’s response to the pandemic. Specifically, Mr. Logan received supplemental oxygen, and on April 12 he was started on HCQ, Doxycycline and Zinc. Counsel further states that although the effectiveness of these treatments were unknown, they were the standard of care, as there was no FDA approved treatment for COVID-19 at that time. Counsel further states that after a chest x-ray taken on April 20 revealed probable COVID-19 pneumonia, Mr. Logan was started on Rocephin, which was also the standard of care. Defendant’s counsel further argues that Mr. Sganga’s affidavit clearly demonstrates that LISVH arranged for and provided health care services for Mr. Logan in good faith, in accordance with evolving CDC and DOH COVID-19 guidance, and, therefore, Defendant has established that it is immune from suit pursuant to the EDTPA, requiring that the Claim be dismissed. Further, Defendant’s counsel argues that Claimant cannot establish an exception to the EDTPA. In opposition to the motion, Claimant’s counsel submits a document from the New York State Department of Health entitled “Long Island State Veteran’s Home November 24, 2020 Covid19 Survey” (Ex. 1), which cited LISVH for failure to “maintain an infection prevention and control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of [COVID-19].” Counsel, therefore, argues that “as a direct and foreseeable consequence of [Defendant's] failures, as of April 6, 2022, there were a minimum of seventy-seven (77) confirmed and eight (8) presumed COVID-related deaths at [LISVH], as well as thirty-seven (37) resident deaths outside of the facility caused by COVID-19 contracted within [LISVH].” Counsel further argues that the repeal of the EDTPA was retroactive, however, three of the four appellate departments have held it is not1. Counsel next argues, in the alternative, even if the repeal is not retroactive, “Defendant has not demonstrated that the plaintiff-decedent’s medical care was impacted by COVID-19 during the entirety of the post-March 7, 2020, period, if at all, leaving a to-be-determined period after March 7, 2020, when EDTPA immunity would not have applied.” Third, Claimant argues that “Defendant’s pre-Covid period negligence and deprivations of rights under the Public Health Law 2801-d, e.g., the failure to prepare for a virus such as Covid-19, resulted in plaintiff-decedent’s death.” Lastly, Claimant argues that her claims of willful, grossly negligent, and reckless misconduct fall outside the scope of the EDTPA protections. With respect to the affidavits and documents submitted by Defendant in support of its motion, Claimant’s counsel argues that “[s]uch affidavits cannot be considered ‘documentary evidence’ under CPLR 3211(a)(1), nor do the documents establish there is no dispute regarding the facts or legal questions at issue in this government action.” It is Claimant’s position that because the instant motion was filed prior to the commencement of discovery, “factual determinations, such as e.g., whether Defendant did or did not follow relevant government health advisories or instructions, when plaintiff-decedent’s treatment was by impacted by the Covid-19 pandemic, and precisely when and how plaintiff-decedent contracted Covid-19, are appropriately reserved until discovery has taken place.” With respect to the retroactivity of the EDTPA, Claimant’s counsel, relying on Robertson v. Humboldt House Rehabilitation & Nursing Center, Erie County, Index No. 805232/2021, submits to this Court that the repeal should be for the same period in which the EDTPA was put into effect retroactively, to wit: March 7, 2020 through April 6, 2020, thereby stripping the Defendant of immunity from suit in this action for misconduct occurring during this period. For reasons stated below, the Court must reject this contention. Next, Claimant’s counsel argues that because there has been no discovery in this matter, Claimant has had no opportunity to depose any representative of Defendant regarding what procedural changes were made and implanted at Defendant’s facility in response to COVID-19, and how the Decedent’s specific care was affected. Counsel further notes that LISVH was cited by the New York State Department of Health for ‘”widespread’” COVID-19 related deficiencies in the Statement of Deficiencies dated December 27, 2022, and January 3, 2023, however, it states that “the specifics of these deficiencies are not available at this time but include failures to report C[OVID-19 related] deaths as required by law.” Based on this, it is counsel’s position that Defendant’s motion is premature and discovery should be allowed to proceed. In response to Defendant’s argument that Claimant’s allegations that Defendant’s acts or omissions were grossly negligent, reckless, willful, or intentional are only conclusory with no substantive factual allegations, Claimant states that the Claim sets forth “various publicly known events and warnings from governments and health organizations that occurred in January, February, and March of 2020 which [Claimant] alleges put Defendant on notice of the dangers of COVID-19 and the need to take appropriate steps to protect[ ]the residents at [LISVH]“. Claimant alleges that: amongst other acts and omissions, Defendant acted willfully and recklessly in disregarding public health guidelines and otherwise failing to prepare and implement appropriate infection control policies within its facility (id.), including policies for preventing, identifying, reporting, investigating and controlling infections and communicable diseases for residents, staff, volunteers, and visitors (id.). These alleged failures included, but were not limited to, a failure to properly implement the required use of masks, facial coverings, proper hand hygiene, social distancing among residents and staff; failing to provide residents the option to be discharged; improperly admitting and keeping residents while knowing the facility did not have sufficient ventilator capacity (id.) [Claimant] explicitly alleges that these failures were conducted willfully and/or recklessly, and that in any event they constitute acts of gross negligence. Counsel further avers that New York State Department of Health cited LISVH for ‘”widespread’” COVID-19 related deficiencies in surveys dated 11/16/20 and11/24/2020, and that the latter citation relates specifically to failures of infection control policies during COVID-19. Counsel states that “[t]he specifics of the deficiencies from the 11/16/20 citation are not available at this time” and as such, “Defendant’s motion is premature and discovery should be allowed to proceed.” Counsel vehemently argues that “[w]hether these alleged acts or omissions did in fact rise to the level of gross negligence or recklessness, or were performed willfully or intentionally, cannot be determined on the pleadings in this case prior to discovery.” Claimant alleges that Defendant disregarded its duties to Claimant-Decedent and “disregarded [his] rights by ignoring the known need for safeguards to protect [him] from a potentially deadly virus, causing [him] to become infected with COVID-19 and die.” Claimant, therefore, argues that “[w]here a nursing home or rehabilitation facility violates Public Health Law §2801-d by failing to prevent its patient’s unnecessary death, a jury can find that conduct to be grossly negligent or reckless, relying on Hairston v. Liberty Behavioral Mgt. Corp, 138 AD3d 467, 467-68 (1st Dept 2016). Claimant further argues that “[w]hether Defendant’s alleged failure to take proper steps or hire safe and qualified personnel to prevent plaintiff-decedent from contracting and dying from COVID-19 actually rose to the level of indifference to (fatal) consequence, recklessness, or even willful activity, will depend on Defendant’s agents’ knowledge and motivations, on whether what occurred involved ordinary error and negligence, or, a more deliberate failure to act due to, e.g., questions of cost, convenience, or simple indifference.” Again, it is counsel’s position that these issues “must be resolved by evidence and facts which cannot be articulated in greater detail than they have been prior to discovery.” Counsel further argues that in Irving v. Four Seasons Nursing and Rehabilitation Center, 121 AD3d 1046 (2d Dept 2014), the Second Department, consistent with CPLR §3013, explicitly stated that the pleadings come first in order and proof comes second in order, after discovery. It is counsel’s position that “[i]n a PHL §2801-d case, this necessarily includes allegations of willfulness and/or recklessness because such allegations are relevant and/or are elements of the statutory cause of action.” With respect to PHL §2801-d, counsel states that “[t]he case at bar consists of two separate and distinct causes of action (gross negligence and an action pursuant New York State Public Health §2801-d). It is primarily a PHL §2801-d action to recover damages for serious injuries suffered by Mr. LOGAN while he was a resident at the Defendant’s nursing home facility. The violation of both Federal and State regulations that govern the operation of a nursing home and established for the wellbeing of all nursing home patients, including Mr. LOGAN, serves as the basis of the PHL §2801-d claim.”…Pursuant to the statute, compensatory damages and punitive damages are recoverable for deprivation of rights, including violations of Federal and State regulations as stated above. Pursuant to [PHL] §2801-d, “any residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation, except as hereinafter provided. For purposes of this section a ‘right or benefit’ of a patient of a residential health care facility shall mean any right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation” (such as 10 NYCRR 415.12[c]. With regard to the elements underlying a cause of action pursuant to PHL, counsel argues that the First Department, in Zeides v. Hebrew Home for the Aged at Riverdale, 300 AD2d 178, 178-179 (1st Dept 2002), stated, that “the statutory basis of liability 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, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient.” As for Claimant’s wrongful death cause of action, counsel argues that “[t]he New York State Constitution provides the right to a cause of action for wrongful death which cannot be extinguished through the Emergency or Disaster Treatment Protection Act…(and [e]ven if the [C]ourt found the [D]efendants were immune from liability and the EDTPA was not retroactive, the New York State Constitution prohibits any legislative act from removing the right to bring a civil action for wrongful death). Counsel cites to Article I, §16 of the New York Constitution which provides that: “[t]he right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.’” It is counsel’s position that “[t]his provision made a cause of action for wrongful death part of our fundamental law and, as such, it is immune to modifications limiting recovery.” Counsel further states that ‘”[t]he Judiciary has created a Litigation Coordination Panel to address actions brought by individuals and estate representatives across the State of New York against nursing homes, skilled nursing facilities and similar health care facilities alleging malfeasance and resulting COVID-19 deaths. Therefore, a jurisdiction has been created to protect the right to bring wrongful death causes of action in the setting of COVID-19 deaths.” Counsel argues that Defendant’s “failed to conclusively establish that Defendant’s treatment of the plaintiff-decedent was specifically impacted by defendants’ response to the COVID-19 pandemic and the [S]tate’s directives, as required under §3082, as well as the standard recently set forth by Matos v. Chiong, (2021 WL 2766674 [Supreme Court, Bronx County, May 27, 2021]).” Counsel further argues that the Affidavit of Fred S. Sganga, fails to address whether LISVH was ‘”arranging for or providing health care services in good faith’” as required by Section [1][c] (PHL §3082[1][c]). According to Claimant’s counsel, the Claim contains, inter alia, specific causes of action sounding in gross negligence and reckless misconduct. Specifically, Defendant’s gross negligence and reckless misconduct in failing to create, maintain and implement a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals. Counsel further argues that the Claim also alleges that Defendant intentionally and with reckless disregard for the rights and well-being of the Decedent, failed to timely and properly isolate residents known to be infected with COVID-19, failed to properly and timely test residents and staff for COVID-19, failed to appropriately train its staff in the use of PPE and infection control interventions, and failed to ensure staff members exposed to residents infected with COVID-19 did not work with residents not infected with COVID-19. With respect to Claimant’s constitutional challenge to EDTPA, Defendant’s counsel argues, in reply, that the EDPTA does not violate Article I §16 of the Constitution “because Claimant’s right to recover for the alleged wrongful death of her father was not ‘abrogated’…[but] [r]ather the EDTPA simply established a higher burden of proof for this [C]laim.” With respect to Claimant’s argument that the State acted in bad faith, counsel argues that Claimant has failed to “point to anything specific to Mr. Logan’s care,” but rather “points to a report by the Office of the Attorney General following an investigation into the COVID-19 response by New York’s nursing homes generally, as well as statistics regarding the number of COVID-19 deaths at the LISVH.” Counsel further argues that Claimant has not cited to anything in the Decedent’s medical records “that would even suggest that the LISVH engaged in in bad faith when it treated him.” As for Claimant’s contention that Defendant’s motion to dismiss is premature because no discovery has taken place, that the documentary evidence submitted by the State should not be considered because this is a §3211(a)(7) motion, and that this Court should only look between the four corners of the Claim to determine if she has asserted a claim upon which relief can be granted, Defendant’s counsel argues that under the EDTPA, a Court can and should grant a 3211(a)(7) motion, even though no discovery has taken place, when the Defendant demonstrates its entitlement to the immunity conferred by the EDTPA. Counsel further argues that a Court reviewing a motion to dismiss can go beyond just the four corners of the complaint/claim, and look at the evidence submitted by the Defendant to establish the applicability of the EDTPA. Lastly, counsel argues that unlike a typical §3211(a)(7) motion in a malpractice/negligence or nursing home case, it is not enough for a Claimant to simply rest on their pleading and argue simply that they have pled sufficient facts, which if proven true would entitle them to relief, but rather, once a defendant established their entitlement to immunity under the EDTPA, the claimant has the a burden to affirmatively establish an exception to this immunity. LAW AND ANAYSIS Motion to Dismiss — Standard of Review On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim, the facts alleged in the complaint are typically accepted as true and the claimant is accorded every favorable inference (see Brown v. University of Rochester, 216 AD3d 1328, 1330, 189 NYS3d 801 [3d Dept 2023]), and “the Court is tasked with determining whether the alleged facts in the complaint fit within ‘any cognizable legal theory’ “(Yearwood v. Richmond Center for Rehabilitation and Specialty Healthcare, 81 Misc3d 1246[A] [Supreme Court Richmond County February 22, 2024], citing Maursky, supra; Grocery Leasing Corp. v. 104 16 LLC., 197 AD3d 628 [2d Dept 2021]). “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]). However, where the claimant provides evidence extrinsic to the complaint in support of the motion, a court “need not assume the truthfulness of the pleaded allegations. Instead, the criterion is whether the proponent of the pleading actually has a cause of action, not whether he [or she] has properly stated one” (Henderson v. United Parcel Serv., Inc., 252 AD2d 865, 866 [3d Dept 1998] [internal quotation marks, ellipsis, brackets and citations omitted]; see Matter of Parvaz v. Public Serv. Commn., 201 AD3d 1211, 1213-1214 [3d Dept 2022], lv dismissed & denied 38 NY3d 1029, [2022]). In such instance, the plaintiff “no longer can rely only on the unsupported factual allegations of the pleading, but must submit evidence demonstrating the existence of a cause of action or defense” (Whitehead v. Pine Haven Operating LLC, 222 AD3d 104, 109-10 [3d Dept 2023] citing, Matter of La Barbera v. Town of Woodstock, 29 AD3d 1054, 1055 [3d Dept. 2006], lv dismissed 7 NY3d 844, [2006]). As to the required substance of a complaint, CPLR §3013 governs and states, “[s]tatements in a pleading shall be sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action.” Notice and elements of the actions are the only requirements. If notice and the elements are present, a CPLR 3211(a)(7) must fail. The pleadings must be liberally construed. Draftsmanship and form are immaterial in relation to the subject motion. The “Emergency or Disaster Treatment Protection Act” The New York State Legislature enacted the EDTPA with the stated purpose of “promot[ing] the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency” (Public Health Law former §3080). The EDTPA was deemed to be in full force and effect as of March 7, 2020, was amended on August 3, 2020, and repealed on April 6, 2021. Initially, Claimant’s counsel argued that the repeal of EDTPA was retroactive, however, it is now well-settled among the Fourth and Third Departments that it is not.2 Accordingly, the protections were in place in April of 2020. Initially, the EDTPA provided, with certain exceptions, that a health care facility “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 providing health care services” if 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 (Id. former §3082[1]; Mera v. New York City Health & Hosps. Corp., 220 AD3d 668, 669-70 [2d Dept 2023]). The following health care services were covered by the immunity provision: “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” (see Id. former §3081[5]; Mera v. New York City Health & Hosps. Corp., 220 AD3d at 669-70). A moving party’s showing of “impact” on relevant patient treatment triggers immunity on the EDTPA. The statute does not require qualification of the impact, e.g. positive, negative or neutral, but rather merely requires that the treatment be impacted by “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.” The only exception to immunity, according to Public Health Law former §3082(2), is where an individual’s alleged injuries were caused by gross negligence or intentional criminal misconduct. This provision further provides that “acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal conduct, gross negligence, reckless misconduct, or intentional infliction of harm.” Retroactivity of the Repeal of the “Emergency or Disaster Treatment Protection Act” The EDTPA was repealed on April 6, 2021 (L 2021, ch 96, §1). Claimant’s argument that the legislation repealing the EDTPA should be applied retroactively, thereby exposing defendants to potential liability, is without merit. In Whitehead v. Pine Haven Operating LLC, (222 AD3d 104 [3d Dept 2023]), the Appellate Division, Third Judicial Department (hereinafter, the “Third Department”), held that the repeal of the EDTPA was not retroactive (Id. at 109). Similarly, in Ruth v. Elderwood at Amherst (209 AD3d 1281 [4th Dept 2022]), the Fourth Department held that the repeal of the EDTPA was not retroactive (Id. at 1291). Most recently, the First Department, in Hasan v. Terrace Acquisitions II, LLC, d/b/a Fordham Nursing and Rehabilitation Center a/k/a Kings Terrace Nursing Home (203 NYS3d 325 [1st Dept 2024]), held that the repeal was intended to be prospective and was, therefore, not to be applied retroactively. “[T]he rule in New York is that the trial courts must follow an Appellate Division precedent set in any department in the State until its own Appellate Division decides otherwise” (Stewart v. Volkswagen of America, Inc., 181 AD2d 4, 7 [2d Dept 1992], revd on other grounds 81 NY2d 203 [1993]). Accordingly, this Court must also hold that the repeal of the EDTPA was not retroactive. Having determined that the repeal of EDTPA is not retroactive, the Court must next determine whether the Defendant has established its entitlement to dismissal of the Claim based upon on the grounds provided by the EDTPA. Pre-Action Disclosure — CPLR 3102 CPLR 3102 governs the methods of obtaining disclosure. Relative to pre-action disclosure, sub section (c) provides in part: “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Courts have consistently held that the purpose of pre-action disclosure is to obtain information material and necessary to frame a complaint; to learn the identity of potential defendants; and/or to preserve evidence (Hughes v. Witco Corp, 175 AD 2d 486, 488 [3d Dept 1991]; Stewart v. New York Transit Authority, 113 AD 2d 939, 940 [2d Dept 1985]). “Pre-action disclosure is not allowed to determine whether facts supporting a cause of action exist” (Gleich v. Kissinger, 111 AD2d 130, 131 [1st Dept 1985]). Further, it is not proper to invoke CPLR 3102(c) to explore alternative theories of liability (Matter of Uddin v. New York City Transit Authority, 27 AD 3d 265, 266 [1st Dept 2006]). Though the determination to grant or deny a petition for pre-action disclosure is discretionary, when a petitioner seeks information to aid in bringing a cause of action, the Court must determine whether the petitioner established a prima facie cause of action (Ero v. Graystone Materials, 952 AD 2d 812, 814 [3d Dept 1998]). When assessing if a prima facie cause of action has been established, “the evidence presented must ‘be considered in the aspect most favorable to [claimant] and…[claimant is] entitled to the benefit of every favorable inference which can reasonably be drawn from [the evidence]‘ ” (Id., citing to McCummings v. New York City Transit Authority, 81 NY2d 923, 926 [1993]). Documents and affidavits submitted to demonstrate the existence of a prima facie cause of action must be based on first-hand knowledge (Id.; and Nicol v. Rotterdam, 134 AD2d 754, 755 [3d Dept 1987]). Suspicion and conjecture are insufficient (Gleich v. Kissinger, 111 AD 2d 130, 131 [1st Dept 1985]; In Re MacDonald, 149 AD2d 923 [4th Dept 1989]). Once a court determines the existence of a prima facie cause of action, it must next determine whether “the information sought is material and necessary to the actionable wrong” (Holzman v. Manhattan & Bronx Surface Transit Operating Authority, 271 AD 2d 346, 347 [1st Dept 2000] [where the court denied an application for pre-action disclosure, because the information sought was not material and necessary and petitioner had sufficient information to frame a complaint]; see also, Matter of Henry 43 AD 3d 1445, 1446 [4th Dept 2007]). Gross Negligence To establish gross negligence, a claimant must demonstrate that the defendant’s conduct involved intentional wrongdoing or evinced a reckless indifference to the rights of others (see Skywest, Inc. v. Ground Handling, Inc., 150 AD3d 922, 923 [2d Dept 2017]). Here, the Claimant failed to sufficiently plead the cause of action alleging gross negligence. Specifically, Claimant failed to allege specific acts or omissions by the Defendant demonstrating an intentional wrongdoing or reckless indifference to the Decedent. Furthermore, Claimant’s allegations, even if assumed to be true, are defeated by the Affidavit of Mr. Sganga, and other exhibits establish, inter alia, that that LISVH had an infection control policy prior to COVID-19 and that it implemented procedures in response to the COVID-19 pandemic. Accordingly, the Claimant does not have a cause of action for gross negligence and, thus, dismissal of that cause of action is warranted pursuant to CPLR 3211(a)(7). Punitive Damages Claimant’s request for punitive damages is dismissed. The Court of Appeals has held that punitive damages may not be awarded against the State (Sharapata v. Town of Islip, 56 NY2d 332 [1982]). DECISION AND ORDER Here, the Claim contains conclusory and bare-bone allegations that the Defendant’s acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. Defendant has satisfactorily established that, in light of the EDTPA, Claimant does not have causes of action for negligence, violations of the Public Health Law, or wrongful death. Furthermore, the Affidavit of Mr. Sganga, and other exhibits, established that the Decedent’s treatment was impacted by LISVH’s response to the COVID-19 pandemic, and that LISVH arranged for and provided health care services for the Decedent in good faith (see Martinez v. NYC Health & Hosps. Corp., 223 AD3d 732-733 [2d Dept 2024]; Mera v. New York City Health & Hosps. Corp., 220 AD3d at 668). Having, therefore, failed to make a prima facie showing that the conduct was such that exceptions to the immunity provisions of the EDTPA cannot and do not apply to the Defendant, the Claim must be dismissed. Accordingly, pursuant to CPLR 3211(a)(7), it is hereby ORDERED that Claim No. 137695, alleging causes of action for negligence, violations of Public Health Law, and wrongful death, is DISMISSED; and it is further ORDERED that the Clerk shall close the file. Dated: May 16, 2024
