Thomas v. Highland Care Center

The following papers numbered EF 8-43, EF 48-92, and EF 96-117 read on this motion by defendant Highland Care Center, Inc. for an Order, pursuant to CPLR §3211(a)(7), dismissing this action with prejudice based upon defendant Highland Care Center, Inc.’s immunity from liability and read on the cross-motion of plaintiff The Estate of Margaret A. Thomas a/k/a Margaret Adele Thomas, by her Proposed Administrator, Davida Thomas, for an Order, pursuant to CPLR §3001, issuing a declaratory judgment, holding that the Emergency Disaster Treatment Protection Act (“EDTPA”), New York Public Health Law Article 30-D, PHL §§3080-3082, is unconstitutional, and for an Order denying defendant’s motion to dismiss in its entirety. PAPERS NUMBERED Notice of Motion Affid.-Exhibits       EF 8-43 Notice of Cross Motion Affid. — Exhibits        EF 48-92 Answering/Reply Affid. — Exhibits  EF 96-117 Memoranda of Law            EF 10, EF 50 The motion of defendant Highland Care Center, Inc. (“Defendant Highland”) for an Order, pursuant to CPLR §3211(a)(7), dismissing this action with prejudice based upon defendant Highland Care Center, Inc.’s immunity from liability and the cross-motion of plaintiff The Estate of Margaret A. Thomas a/k/a Margaret Adele Thomas, by her Proposed Administrator, Davida Thomas (“Plaintiff Thomas”), for an Order issuing a declaratory judgment, pursuant to CPLR §3001, declaring that the Emergency Disaster Treatment Protection Act (“EDTPA”) is unconstitutional, and for an Order denying defendant’s motion to dismiss in its entirety, are determined as follows: The present action commenced by the filing of a Summons with Verified Complaint on November 3, 2022, asserts eight Causes of Action relating to the death of Margaret A. Thomas, caused by her contraction of COVID-19 at defendant nursing home. Plaintiff Davida Thomas is the daughter of the decedent, Margaret A. Thomas and the proposed Administrator of her Estate. Defendant Highland is a nursing home and long-term care facility (Public Health Law §2801[2], [3], [4]). According to the complaint, Margaret A. Thomas was a resident of defendant Highland from January 2020 until her death on April 9, 2020 at the age of seventy-seven (77) years old. The Complaint alleges that Margaret A. Thomas was in good health when she contracted COVID-19 at defendant Highland, resulting in her transfer to Jamaica Hospital Medical Center, Queens, New York, where she died. Plaintiff’s claims against defendant Highland cover two periods of time: (1) from the time of her admittance in January 2020, prior to the pandemic, when defendant is alleged to have failed to have appropriate policies, procedures, staffing and otherwise failed to be prepared for a foreseeable event such as an infectious disease outbreak; and (2) during the onset of the pandemic, when defendant Highland failed to properly respond to it. Plaintiff alleges that her mother died as a result of defendant Highland’s acts and omissions and failure to implement policies or take the necessary precautions against the spread of COVID-19. Plaintiff alleges violations of the Public Health Law §§2801-d and 2803-c, Negligence pre-and post-COVID, including negligent hiring, training and supervision, Negligence Per Se, Conscious Pain and Suffering, Wrongful Death, Gross Negligence and Nursing Home Malpractice/Professional Negligence Resulting in Wrongful Death. The complaint alleges that (1) defendant Highland failed to take proper steps to protect patients from COVID-19, including proper staffing levels, protocols and policies; (2) defendant failed to establish and maintain an infection prevention and control program (“IPCP”) designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections as there were one hundred and twenty (120) complaints and thirty-eight (38) citations for violations of public and safety health codes against defendant issued by the Department of Health between 2018 and 2022; (3) defendant failed to monitor local, state, and federal health guidance on the Coronavirus for maintaining the safety of its residents; (4) defendant’s failures with respect to COVID-19, caused the death of Margaret A. Thomas, a resident at the nursing home, who died on April 9, 2020. Plaintiff’s First Cause of Action alleges that from the time of her admission in January 2020, defendant Highland deprived Margaret A. Thomas of rights pursuant to Public Health Law §2803-c, entitled “The Rights of Patients in Certain Medical Facilities” and Public Health Law §2801-d, entitled “Private Actions by Patients of Residential Health Care Facilities.” The Second and Third Causes of Action allege that defendant owed a duty to residents of their nursing home facility, including decedent, to protect their rights pursuant to Public Health Law §2801-d, and as enumerated in Public Health Law §2803-c, and pursuant to common law. Plaintiff alleges that both in February and March 2020 and then once the COVID-19 pandemic took hold, defendant breached its duty in its medical and nursing care, treatment and services rendered to Margaret A. Thomas and such care was rendered carelessly, unskillfully, negligently, and not in accordance with accepted standards of care, practice, treatment, and services, resulting in Margaret A. Thomas’ death. The Third Cause of Action alleging Negligence during the COVID-19 pandemic, claims that the death of Margaret A. Thomas, as a resident/patient was a direct result of defendant Highland’s failures to take measures to protect her at the nursing home facility from the deadly COVID-19 virus and because of their negligence. The Fourth Cause of Action claims that as a consequence of defendant’s failure to adhere to their duties, including statutory, licensing, and regulatory rules of the United States, State of New York, and County of Queens, defendant is liable under the principals of Negligence Per Se. The Fifth and Sixth Causes of Action allege that as a result of defendant’s actions, Margaret A. Thomas was caused to suffer conscious pain and suffering and a wrongful death. The Seventh Cause of Action claims Gross Negligence, alleging that defendant Highland consciously disregarded the health and safety of residents, including Margaret A. Thomas, by both failing to hire additional staff members, and failing to implement additional facility-wide infection control and prevention protocols in compliance with its own written policies and procedures and the appropriate standards of practice. Based on Department of Health citations it received in the past for the failure to comply with infection control and prevention regulations and procedures, defendant claims that it was foreseeable that residents of that facility would suffer from serious medical complications and death upon the outbreak of a highly contagious and communicable respiratory illness. Under this cause of action, plaintiff lists twenty-eight (28) alleged acts and omissions of defendant Highland, regarding the development of infection control prevention and policies preparedness for any infectious disease and the acts and omissions in its care of residents, including Margaret A. Thomas, during the outbreak of COVID-19, that plaintiff claims were wilful, reckless, and wanton. The Ninth and Tenth Causes of Action allege Nursing Home Malpractice/Professional Negligence Resulting in Wrongful Death and Nursing Home Malpractice/Resulting in Conscious Pain and Suffering, respectively. These claims allege that the medical care, treatment, and services were rendered carelessly, unskillfully, negligently, and not in accordance with the acceptable and prevailing standards of care, treatment, and services. Plaintiff claims these acts constitute nursing home malpractice and a breach of duty owed to Margaret A. Thomas, resulting in her conscious pain and suffering and wrongful death. CROSS MOTION FOR A DECLARATORY JUDGMENT The cross-motion seeks a Declaratory Judgment pursuant to CPLR §3001, holding that the law relevant to this action, Emergency Disaster Treatment Protection Act (“EDTPA”), is unconstitutional as contrary to Article I, Section 16 of the New York State Constitution. In view of the breadth of the relief sought, the Cross-Motion will now be addressed. The purpose of a Declaratory Judgment is “to adjudicate the parties’ rights before a ‘wrong’ actually occurs in the hope that later litigation will be unnecessary” (Klostermann v. Cuomo, 61 NY2d 525, 538 [1984]; Trovato v. Galaxy Sanitation Servs. of N.Y., Inc., 171 AD3d 832, 834 [2019]). It is well established that a declaratory judgment is a cause of action (Matter of Morgenthau v. Erlbaum, 59 NY2d 143, 148 [1983], cert denied 464 US 993 [1983]). As such, a request for a Declaratory Judgment must be in the pleadings (CPLR §3001; Alliance Natl Ins Co v. Hagler, 219 AD3d 1393, 1396 [2023]). Here, there is no cause of action in the complaint seeking declaratory relief. Further, a declaratory judgment, like a permanent injunction, is not a provisional remedy and may not be obtained in a motion prior to joinder of issue (Durkin v. Durkin Fuel Acquisition Corp., 224 AD2d 574, 575 [1996]). Accordingly, the cross motion for a Declaratory Judgment is denied. MOTION TO DISMISS On a motion to dismiss for failure to state a claim under CPLR §3211(a)(7), the Court must afford the pleading “a liberal construction” and must “accept the facts as alleged as true, accord [the nonmoving party] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; see also, Taxi Tours Inc. v. Go N.Y. Tours, Inc., _ NY3d _ [2024]; 2024 NY Slip Op 01333; (Campaign for Fiscal Equity v. State of New York, 86 NY2d 307, 318 [1995]). The question for the Court is whether the Complaint adequately alleges facts giving rise to a Cause of Action, “not whether [it] properly labeled or artfully stated one” (Chanko v. American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]). Where, as here, a party offers evidentiary material in support of a motion to dismiss for failure to state a cause of action, a Court is permitted to consider that material pursuant to CPLR §3211 (c) (Martinez v. NYC Health & Hosps. Corp., 223 AD3d 731, 732 [2024]). When evidentiary material is considered, “the criterion becomes whether the plaintiff has a Cause of Action, not whether the plaintiff has stated one” (Kluska v. Montefiore St. Luke’s Cornwall, 227 AD3d 690, 691 [2024] quoting Bodden v. Kean, 86 AD3d 524, 526 [2011]; see also, Guggenheimer v. Ginzberg, 43 NY2d 268, 275 [1977]). The focus is no longer on the adequacy of the complaint’s allegations, the evidentiary material must conclusively establish a defense to plaintiff’s claims as a matter of law (Lawrence v. Graubard Miller, 11 NY3d 588, 595-596 [2008]; Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005]). Considering the evidentiary material is not equivalent to converting the motion to one for summary judgment as a plaintiff is not required to supplement the pleading with an affidavit and “will not be penalized because he [or she] has not made an evidentiary showing in support of [the] complaint” (Rovello v. Orofino Realty Co., 40 NY2d 633 [1976]). Dismissal under CPLR §3211(a)(7) is warranted if a 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” (Mera v. New York City Health & Hosps. Corp., 220 AD3d 668, 669 [2023], quoting Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). In opposition to a CPLR §3211(a)(7) motion, as long as the pleading is facially sufficient, “a plaintiff is not obligated to come forward with claim-sustaining proof in response to a motion to dismiss” (Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]). Pursuant to CPLR §2214 (a), a Notice of Motion shall specify the time and place of the hearing on the motion, the supporting papers upon which it is based, the relief demanded, and the grounds therefor. A Court typically lacks the jurisdiction to grant relief that is not requested in the moving papers when rendering dispositive orders (Tirado v. Miller, 75 AD3d 153, 158 [2010]; see also, Wells Fargo Bank, N.A. v. St. Louis, _ AD3d _ (2024), 2024 NY Slip Op 02948). Defendant’s supporting papers argue for dismissal of the Complaint for lack of subject matter jurisdiction pursuant to CPLR §3211(a)(2), a dispositive form of relief not included in the Notice of Motion. Thus, this request for relief will not be considered here. CONTENTIONS OF THE PARTIES Defendant Highland maintains that the Complaint should be dismissed arguing that defendant is immune from liability based on the strong protections passed by the state and federal governments in favor of frontline healthcare providers and entities who worked to overcome the COVID-19 pandemic. In support of the motion, defendant Highland argues for dismissal under two independent grounds: (1) as the Complaint alleges that the decedent Margaret A. Thomas suffered harm as a result of an act or omission in the course of “the diagnosis, prevention, or treatment of COVID-19,” the immunity provisions of the EDTPA are invoked necessitating dismissal (PHL §§3080-82); and (2) as the Complaint pleads a “claim[] for loss…relating to” the administration of various covered countermeasures to prevent the spread of COVID-19, the immunity provisions in the federal Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 USC §247d-6d, et seq., are triggered. In this regard, defendant contends that as plaintiff’s claims focus on the countermeasures which the PREP Act describes as relating to the use or administration of PPE, COVID-19 testing, supplemental oxygen, medication, or other such “covered countermeasures,” to diagnose, treat, prevent, or mitigate the spread of COVID-19, the PREP Act provides an independent basis for dismissal. Defendant argues that these immunity protections were meant to allow medical care providers, like nursing homes and their staff, to work in unfamiliar territory at great personal risk without fear of liability. In addition to its arguments for dismissal, defendant submits evidentiary material in admissible form in support of the motion. This alters the criterion for the analysis of the motion to whether plaintiff has a cause of action, not whether he or she has stated one (Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d 618 [2024]). In support of its claim for immunity and with regard to all the claims, including the claims alleging gross negligence, defendant Highland submits the affidavit of Andrea Gibbon, the Chief Nursing Officer at defendant Highland who has worked there since 2014 and, in 2020, was the Director of Nursing during the relevant time period as relates to the decedent Margaret A. Thomas. She alleges that during Ms. Thomas’s admission, and due to her presumed COVID-19 positive status, she was subject to various COVID-19 protocols implemented by defendant Highland to prevent the spread of the virus within the facility. Chief Nursing Officer Gibbon attests that defendant Highland was not negligent in the care and treatment of Margaret A. Thomas and further attests that she has personal knowledge as to how the events at defendant Highland and its COVID-19 policies and guidelines impacted the care of Ms. Thomas. Ms Gibbons attests to the following: (1) defendant Highland has over three hundred residential healthcare beds, eight patient care unit floors with forty beds on each; (2) since 2018, and revised on April 7, 2020, a transmission-based precautions policy was in place to address the risk of spreading infection; (3) during March and April 2020, there were extensive staff shortages which impacted the care of Margaret A. Thomas including that six of the eight Registered Nurse supervisors resigned and staff members who contracted COVID-19, called in sick to quarantine; (4) staff shortages impacted care to Ms. Thomas since the remaining staff had an increased number of residents to care for due to the COVID-19 emergency response; (5) travel nurses were hired to assist with the staff shortages, further impacting Ms. Thomas’s care; (6) patients not suspected of COVID-19 were cohorted separately from patients who were COVID-19 positive or under suspicion for COVID-19; (7) in March 2020, COVID-19 diagnostic tests were not available, rendering it almost impossible to screen patients and protect residents such as Margaret A. Thomas from exposure to COVID-19; (8) communal dining was shut down and social distancing practices were in place; and (9) visitation was closed consistent with directives from governmental agencies. In her affidavit, Chief Nursing Officer Andrea Gibbon avers that she has firsthand knowledge of the infection control policies and procedures that were enacted in response to the COVID-19 pandemic and that defendant Highland followed the governmental directives even as those directives sometimes changed daily. The affiant sets forth the directives and guidelines of the governing public health agencies, including the Centers for Disease Control and Prevention (“CDC”) and the State of New York’s Department of Health (“DOH”), the Department for Health and Human Services’ Centers for Medicare and Medicaid Services (“CMS”), followed by defendant Highland. She provides a detailed description of defendant Highland’s own Novel Coronavirus policy and procedures, effective on March 11, 2020, and revised on March 12, 2020. All of these procedures, according to the affiant, impacted the care of decedent Margaret A. Thomas. Chief Nursing Officer Andrea Gibbon further describes defendant Highland’s policy, practices and procedures as follows: (a) procedures for reducing the risk of COVID-19 transmission through education, surveillance, and infection control strategies; (b) procedures for screening patients, staff and visitors for both COVID-19 exposure and acute respiratory illness and if a resident displayed COVID-19 symptoms, isolating them in a private room and requiring facemasks; (c) the requirement of staff to wear appropriate PPE in the presence of such residents and to contact the DOH and the hospital if the resident was to be transferred there; (d) daily, confirmed cases and interventions were reviewed; (e) the families of a resident who displayed COVID-19 symptoms were sent a letter requesting that they refrain from visiting; (f) staff, physicians, consultants, and approved visitors were to undergo health screenings upon entering the facility for temperatures of 99.OF and anyone with an elevated temperature was not permitted to enter; (g) staff members, physicians or consultants who had an elevated temperature were recorded in a logbook and assessed by facility staff; (h) residents, including Ms. Thomas, were only permitted to attend outside medical appointments that were deemed absolutely necessary and were screened upon their return; (i) new residents and re-admissions were pre-screened for COVID-19; (j) all deliveries were accepted at the front desk and no deliveries of food from restaurants or family members were permitted; (k) when a COVID-19 case was identified, admissions to that unit were suspended, high risk staff would be reassigned, emergency staffing protocol was implemented, and staff ensured the maintenance of adequate staffing levels; and (1) staff education was provided on COVID-19, different transmission precautions, appropriate use of PPE, hand hygiene, as was available support for healthcare workers. In addition, defendant Highland annexes the medical records of the decedent Margaret A. Thomas. These records indicate that Ms. Thomas was admitted to defendant Highland on December 6, 2019 with Acute Chronic Diastolic (Congestive) Heart Failure, in February 2020, she was diagnosed with lobar pneumonia and, on March 29, 2020, Ms. Thomas was discharged to Jamaica Hospital. Plaintiff opposes the motion and argues that: (1) the EDTPA is not applicable to this case at all, as it was retroactively repealed on April 7, 2021; (2) even if it was not repealed retroactively, defendant has failed to establish a defense under the EDTPA; (3) the EDTPA contains exceptions for gross negligence claims; and (4) plaintiff’s claims do not fall within the scope of the PREP Act and, as such, are not preempted by the federal statute. In addition, plaintiff argues that the case should not be decided summarily without any discovery. Plaintiff maintains that prior to the pandemic, defendant Highland failed to have the appropriate policies, procedures, staffing and otherwise failed to be prepared for a foreseeable event such as an infectious disease exposure and outbreak, which would have mitigated or completely avoided its effects, and after the pandemic begun, failed to properly respond to the pandemic. Plaintiff argues that the Complaint alleges that defendant Highland was negligent and grossly negligent in the manner in which such countermeasures were used and allocated by defendant Highland to diagnose and treat Margaret A. Thomas, once diagnosed with COVID-19. It is plaintiff’s position that defendant failed to conclusively establish that it is entitled to immunity under either statute. Plaintiff further argues that even if immunity applies, the Complaint contains causes of action for Gross Negligence and other claims that are exempt from EDTPA immunity. Gross negligence exists where a defendant’s conduct “smack[ed] of intentional wrongdoing or evince[d] a reckless indifference to the rights of others” or the defendants “fail[ed] to exercise even slight care or slight diligence” (Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 AD3d 901 [2014]; see Bennett v. State Farm Fire & Cas. Co., 161 AD3d 926 [2018]). Gross Negligence “differs in kind, not only degree, from claims of ordinary negligence” (Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 NY2d 821, 823 [1993]). Dismissal of a claim of Gross Negligence is warranted where the Complaint does “not allege conduct which smacks of intentional wrongdoing, evinces a reckless indifference to the rights of others” or does not demonstrate “the failure to exercise even slight care or slight diligence” (Weiss v. Vacca, 219 AD3d 1375, 1377 [2023]). Generally, the question of whether conduct constitutes Gross Negligence is a matter to be determined by the trier of fact (Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 AD3d 901). COVID-19 STATUTES As a result of the COVID-19 pandemic, both the federal and state governments passed legislation providing for immunity of certain health care workers directly involved in the treatment of COVID-19, with certain conditions. A. Executive Order On March 23, 2020, New York State Governor Andrew Cuomo issued an Executive Order which provides, in pertinent part: [A]ll physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the Gross Negligence of such medical professional. (Executive Order [A. Cuomo] No. 202.10 [9 NYCRR §8.202.10]). B. The New York Emergency or Disaster Treatment Protection Act The New York Emergency or Disaster Treatment Protection Act (“EDTPA”) was enacted on April 3, 2020, made retroactive to March 7, 2020, in response to the global COVID-19 pandemic (Public Health Law Article 30-D, §§3080-3082). The statute granted immunity to 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. Its goal was to protect the health care facilities and health care professionals from liability that could result from treatment of patients with COVID-19 during what the statute described as a public health emergency (Public Health Law §3080). The EDTPA included a nursing home in its definition of “health care facility” (Public Health Law §3081[3]). Pursuant to §3081(5), healthcare services were defined as services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to: (a) the diagnosis, prevention, or treatment of COVID-19; (b) the assessment or care of an individual with a confirmed or suspected case of COVID-19; or (c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration. Pursuant to Public Health Law §3082, “Limitation of Liability,” the broad civil and criminal immunity extended to providers who rendered health care services related to the COVID-19 pandemic, provided the following requirements were met: 1. (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 facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives; and (c) the health care facility or health care professional is arranging for or providing health care services in good faith. 2. The immunity provided by subdivision one of this section shall not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional providing health care services, provided, however, that acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be a willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm [emphasis added]. For immunity to attach three requirements must be met: (1) that health care services at issue were arranged for or provided pursuant to a COVID-19 emergency rule or applicable law; (2) the act or omission was “impacted” by decisions or activities responsive to COVID-19 and in support of the State’s directives; and (3) the health care services to the patient were provided in good faith (PHL §3082(1); see also, Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d at 619; Mera v. New York City Health & Hosps. Corp., 220 AD3d 668). In sum, the EDTPA granted broad immunity for health care services rendered in response to the COVID-19 pandemic, with limited exceptions (Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d at 619; Martinez v. NYC Health & Hosps. Corp., 223 AD3d 731; Mera v. New York City Health & Hosps. Corp., 220 AD3d at 668). Addressing defendant Highland’s claims of EDTPA immunity, Chief Nursing Officer Andrea Gibbon’s affidavit establishes that defendant followed, developed and implemented policies and procedures in response to the COVID-19 pandemic and in compliance with directives from the New York State Department of Health and the Federal Centers for Disease Control. The affidavit provides great detail in the ways in which Margaret A. Thomas’ care as a resident defendant Highland was impacted by the policies, preventative measures and protocols implemented to address COVID-19. C. Public Readiness and Emergency Preparedness Act In 2005, the Public Readiness and Emergency Preparedness Act (“PREP Act”) was enacted to address public health emergencies (42 USC §247d-6d[b][1]). Effective February 4, 2020, COVID-19 was declared a public health emergency and the PREP Act thereafter provided immunity from suit and liability under federal and state law for any person with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure in the treatment of COVID-19 (Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19,85 Fed. Reg. 15198 [March 17, 2020]; 42 USC §247d-6d; see also, Kluska v. Montefiore St. Luke’s Cornwall, 227 AD3d at 692). The PREP Act provides limited, temporary immunity from civil liability for “covered persons” in relation to “covered countermeasures” during epidemics and pandemics (42 USC §§247d-6d[a][1], 247d-6e). The countermeasures included the use or administration of PPE, COVID-19 testing, supplemental oxygen, medication to diagnose, treat, prevent, or mitigate the spread of COVID-19 (42 USC §247d-6d et seq.). In an action in state court, when addressing an immunity defense pursuant to the PREP Act, it must first be determined whether the plaintiff’s claims fall within the immunity provision of 42 USC §247d-6d(a)(1). D. Exceptions to Immunity Provisions: The EDTPA and PREP Act As above stated, under the EDTPA, nursing homes were granted immunity from civil and criminal liability for any alleged harm or damages sustained from providing health care services during the COVID-19 pandemic (PHL §3082(1); Martinez v. NYC Health & Hosps. Corp., 223 AD3d 731). Acts or omissions that are exceptions to the EDTPA immunity provisions are: willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the defendant facility, provided these claims did not result from “a resource or staffing shortage” (PHL §§3081[c], 3082[2]; Mera v. New York City Health & Hosps. Corp., 220 AD3d at 670). The PREP Act creates a an exception to immunity of covered persons “for death or serious physical injury proximately caused by willful misconduct…by such covered person” and permits an action to be brought for wrongful death or serious physical injury by any person who suffers such injury or by any representative of such a person (42 USC §247d-6d[a][1], [2]). E. Repeal of The New York Emergency or Disaster Treatment Protection Act Effective April 6, 2021, the Legislature repealed Public Health Law Article 30-D (L 2021, ch 96, §1). While the statute is silent as to whether the repeal was to be applied retroactively, the Appellate Division, Second Department has held conclusively that the repeal of the EDTPA did not apply retroactively but rather applied prospectively (Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d at 619). As the relevant time period in this action is prior to its repeal, the EDTPA controls. CONCLUSION As the EDTPA was repealed prospectively and not retroactively, its provisions control (Public Health Law Article 30-D; Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d at 619). On this motion to dismiss, pursuant to CPLR §3211(a)(7), which motion has been supported by an affidavit of facts, the analysis is whether plaintiff has plead a sustainable cause of action under the law in the face of defendant’s claimed complete defense of immunity (see, Kluska v. Montefiore St. Luke’s Cornwall, 227 AD3d at 691). Here, defendant has established, conclusively, that defendant Highland was providing health care services in good faith to decedent Margaret A. Thomas under the COVID-19 emergency orders when the decedent was infected with the Coronavirus and “the treatment of the individual [was] impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak” (PHL §3082[1][b]), such that defendant Highland is entitled to immunity from liability for the acts and omissions underlying plaintiff’s claims. In view of its submissions, including the affidavit of Ms. Gibbons who had personal knowledge of the nursing home’s response to the COVID-19 pandemic, defendant Highland has met the three-prong test necessary to qualify for immunity under the EDTPA by demonstrating that: (1) the health care services were provided to the patient pursuant to a COVID-19 emergency rule or applicable law; (2) that the services were “impacted” by decisions or activities responsive to the COVID-19 pandemic and in support of the state’s directives; and (3) and the health care services to the patient were provided in good faith and did not amount to Gross Negligence or recklessness. Once a defendant establishes its entitlement to immunity under the EDTPA, the Court must thereafter determined whether plaintiff asserts non-conclusory factual allegations sufficient to constitute an exception to EDTPA immunity (Martinez v. NYC Health & Hosps. Corp., 223 AD3d 731 [2024]). In this case, defendant has demonstrated its immunity under the EDTPA and that its submissions, including the affidavit of Chief Nursing Officer Andrea Gibbon and other exhibits, establish that Margaret A. Thomas’ treatment was impacted by defendant Highland’s response to the COVID-19 pandemic. In light of defendant Highland’s established immunity, the EDTPA mandates dismissal of certain of plaintiff’s claims, as set forth below. As the Complaint, however, makes many allegations that defendant Highland’s acts or omissions constituted willful or intentional misconduct, gross negligence or reckless misconduct, invoking the exceptions to the immunity provisions of the EDTPA, those allegations are also addressed infra. Public Health Law §3082(2) specifies “that acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.” Any cause of action or any portion of a cause of action that alleges that defendant is liable for acts, omissions, or decisions resulting from a resource including lack of PPE equipment or a staffing shortage, are dismissed based on defendant’s complete defense of immunity. Defendant Highland has demonstrated entitlement to immunity pursuant to EDTPA for acts of ordinary negligence connected to their treatment of plaintiff from March 7, 2020 to April 9, 2020, when she passed away. Thus, the only remaining issue is whether plaintiff has plead a cause of action for gross negligence. As set forth below, (1) the causes of action for negligence and those that are founded in negligence (violations of federal and state health laws, Nursing Home Malpractice, Conscious Pain and Suffering and Wrongful Death) are dismissed with prejudice; and (2) the causes of action alleging gross negligence remain. Plaintiff’s First Cause of Action alleging statutory violations and Fourth Cause of Action alleging Negligence Per Se are dismissed as plaintiff’s conclusory and vague allegations are devoid of any facts and, moreover, the immunity conferred by EDTPA conclusively establishes a defense to this Cause of Action as a matter of law. The motion to dismiss is denied as to plaintiff’s Second Cause of Action alleging Negligence for the period after Margaret A. Thomas’s admission to defendant Highland and prior to the effective date of the EDTPA and its immunity provisions. The motion is granted as to plaintiff’s Third Cause of Action alleging Negligence for the period of time from March 7, 2020, the effective date of the EDTPA, until March 29, 2020, the date Margaret A. Thomas was discharged from the nursing home based on the immunity provisions of the EDTPA. Pursuant to EDPTA, defendant is immune from liability since the allegations pertain to the diagnosis or treatment of COVID-19 in relation to defendant’s care of the decedent Margaret A. Thomas. Plaintiff’s Fourth Cause of Action alleging Negligence Per Se pursuant to 42 CFR §483.25 of the OBRA Regulations is dismissed as plaintiff’s conclusory and vague allegations are devoid of any facts and, moreover, the immunity conferred by EDTPA post-March 7, 2020, conclusively establishes a defense to this cause of action as a matter of law. Plaintiff’s Fifth, Sixth, Eighth and Ninth Causes of Action alleging Conscious Pain and Suffering, Wrongful Death, Nursing Home Malpractice and Professional Negligence Resulting in Wrongful Death and Nursing Home Malpractice Resulting in Conscious Pain and Suffering for the period of time after March 7, 2020, are dismissed as each of these claims is rooted in Negligence and defendant is immune from such claims pursuant to the EDTPA. The motion to dismiss plaintiff’s Seventh Cause of Action alleging Gross Negligence is granted in part and denied in part. That portion of the cause of action that alleges Gross Negligence based on defendant’s staffing levels and the use and availability of personal protective equipment, i.e. acts, omissions, or decisions resulting from a resource or staffing shortage (PHL §3082[2]), is dismissed. The motion to dismiss this cause of action and its remaining contentions is denied as the factual allegations are sufficient to establish a viable cause of action for Gross Negligence, especially given the pre-answer posture of the case. Plaintiff’s complaint alleges that, as a consequence of defendant Highland’s alleged improper use and allocation of PPE and COVID-19, Margaret A. Thomas contracted COVID-19 which caused her death. As these allegations and theories of liability are countermeasures pursuant to the PREP Act, defendant Highland is covered by the Act’s immunity provision and any claim or portion of a claim involving these countermeasures, is dismissed. Any remaining requests for relief not specifically addressed herein are denied. In view of the foregoing, defendant is directed to serve and file an Answer within twenty (20) days after service of a copy of this Order together with Notice of Entry. Dated: September 27, 2024