NYSCEF docs. 12-47, 48-51 were read and considered in deciding this motion.

Defendant, Grand South Point, LLC D/B/A The Grand Rehabilitation and Nursing at South Point (hereinafter "South Point" or "defendant"), moves pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint with prejudice for failure to state a cause of action, and based upon the immunity defenses provided by the New York State Emergency or Disaster Treatment Protection Act (hereinafter "EDTPA," codified as Public Health Law former art 30-D, §§ 3080-3082, repealed by L 2021, ch 96, § 1), the federal Public Readiness and Emergency Preparedness Act (hereinafter the "PREP Act," codified as 42 USC § 247d-6d), and New York State Executive Order (A. Cuomo) No. 202.10, entitled "Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency" (codified as 9 NYCRR 8.202.10). The motion is opposed.

South Point is a long-term care facility licensed under New York State Public Health Law §§ 2801-d and 2803-c. Plaintiff's decedent, Leila Alexander (hereinafter "Leila" or "decedent"), was a resident of South Point from January 7, 2020, until April 1, 2020, with her [*2]residency corresponding with the height of the COVID-19 pandemic. Leila died on April 1, 2020.

Plaintiff alleges that defendant "failed to maintain a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals, and defendant's failure to adequately care for and protect its elderly and vulnerable residents, which led to the death of the decedent, Leila Alexander, from COVID-19 infection on April 1, 2020" (Complaint, ¶1). Plaintiff submits that "from September 14, 2017 through August 11, 2021, South Point was cited by government inspectors and regulators 11 times, including for failing to provide and implement an infection prevention and control program" (id., ¶2). Plaintiff alleges that "prior to the COVID-19 emergency in New York, on February 6, 2020, South Point was placed on notice by Centers for Medicare and Medicaid Services that coronavirus infections can rapidly appear and spread, and that it was critical that the nursing home be prepared by planning for infectious and diseases response, including having sufficient personal protective equipment available" (id., ¶3). Plaintiff alleges that "South Point failed to take proper precautions to help prevent the development of infections prior to and leading up to the COVID-19 pandemic [and that] [a]s a direct and foreseeable consequence of the defendants' [sic] failure, as of April 5, 2022, there was a confirmed COVID-related death count of 3 residents who died inside South Point due to COVID-19 and 4 resident deaths outside of the facility" (id., ¶4).

The complaint alleges four causes of action, to wit: (1) violation of Public Health Law §§ 2801-d and 2803-c, (2) negligence, (3) gross negligence, and (4) wrongful death. Plaintiff also seeks punitive damages from the defendant based upon its allegedly longstanding grossly negligent and reckless actions in failing to protect residents from harm (id., ¶5).

In seeking pre-answer dismissal of the complaint, the defendant asserts that dismissal of the negligence, Public Health Law, and wrongful death causes of action are warranted under the EDPTA; that the gross negligence cause of action cannot be sustained as a matter of law; and finally, that the PREP Act also entitles the defendant to dismissal of the complaint.

In opposition, the plaintiff argues that her claims are not subject to dismissal under the EDTPA because the EDTPA was retroactively repealed in its entirety and does not offer any immunity to defendant. Plaintiff further argues that the EDTPA was not intended to apply blanket immunity to health care facilities. Plaintiff submits that the gross negligence cause of action is sufficiently pled. As to the PREP Act, plaintiff maintains that plaintiff's claims do not arise out of covered countermeasures and that the courts have subject matter jurisdiction over the claims herein. Additionally, plaintiff maintains that plaintiff's claims do not fall within Executive Order 202.10. Finally, plaintiff argues that this matter must be coordinated pursuant to the final order from the Litigation Coordinating Panel.

In reply, defendant argues that plaintiff's failure to address any of the factual arguments or documentary evidence, including the affidavit Mayer Spilman ^[FN1] (NYSCEF doc 27), relative to [*3]its EDTPA argument, is a concession that the decedent's care and treatment was impacted by South Point's response to the pandemic, and South Point is therefore entitled to immunity from liability. Additionally, the defendant argues that, as there is no authority from the Appellate Division, Second Judicial Department or the Court of Appeals on this point, the holding of the Appellate Division, Fourth Judicial Department (hereinafter Fourth Department), in Ruth v Elderwood at Amherst (209 AD3d 1281 [4th Dept 2022]), that the repeal of the EDPTA was not retroactive, is binding on this Court. As to the PREP Act, the defendant submits that plaintiff's claims are encompassed therein and therefore immune by the PREP Act. Finally, the defendant argues that plaintiff failed to sufficiently plead gross negligence, that her claims fall within Executive Order 202.10, and that this matter cannot be transferred due to a temporary restraining order in place preventing coordination of cases through May 16, 2023.

The defendant also notes that plaintiff's counsel, Krentsel Guzman Herbert, LLP, has commenced identical actions throughout New York against hundreds of nursing homes asserting nursing home negligence, violations of the Public Health Law, gross negligence, and wrongful death for their alleged failure to prevent the transmission of COVID-19. The defendant points out that in each of those actions, plaintiff's counsel uses identical language as the factual predicate for the causes of action, and that plaintiff's counsel takes no effort whatsoever to distinguish the cases from each other or more importantly, the individual facilities from each other. The defendant notes that not only are the facts and causes of action identical, but so are the paragraph numbers.

The defendant asserts that, in light of the EDTPA, the plaintiff does not have causes of action for negligence, violations of Public Health Law, or wrongful death.

The EDTPA, which was enacted on April 6, 2020, and made retroactive to March 7, 2020 (see L 2020, ch 56, pt GGG, § 2; Whitehead v Pine Haven Operating LLC, 222 AD3d 104 [3d Dept 2023]; Ruth v Elderwood at Amherst, 209 AD3d at 1283), provided, 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 course 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 [*4]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 providing health care services in good faith.

The EDTPA thus provided immunity to health care workers and facilities providing health care services with regard to the diagnosis, prevention or treatment of COVID-19 and the assessment or care of an individual with a confirmed or suspected case of COVID-19 (Public Health Law former § 3081[5][a-b]). The EDTPA sought to "broadly protect[ ] 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). Thus, the EDTPA conferred immunity for health care services rendered in response to the COVID-19 pandemic, with limited exceptions (see Public Health Law former §§ 3081, 3082; see also Martinez v NYC Health & Hosps. Corp., — AD3d —; 2024 NY Slip Op 00186 [2d Dept 2024]; Mera v New York City Health & Hosps. Corp., 220 AD3d 668 [2d Dept 2023]; Ruth v Elderwood at Amherst, 209 AD3d at 1282-1283).

On August 3, 2020, the EDTPA was amended to narrow the scope of its liability protections. Specifically, services relating to the prevention of COVID-19 were no longer provided with immunity under the EDTPA, and the "heath care services" covered by the EDTPA were limited to only those services relating to (a) the diagnosis or treatment of COVID-19, or (b) the assessment or care of an individual as it related to COVID-19, when such individual had a confirmed or suspected case of COVID-19 (L 2020, ch 134, §§ 1-2). The August 3, 2020 amendment thus eliminated the broad immunity originally offered to health care providers during the pandemic.

The EDTPA was repealed on April 6, 2021 (L 2021, ch 96, § 1).^[FN2]

"In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Green 333 Corp. v RNL Life Science, Inc., 186 AD3d 1334, 1335 [2d Dept 2020], citing Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 38 [2018]; Korsinsky v Rose, 120 AD3d 1307, 1308 [2d Dept 2014]). Where "evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Graphic Arts Mut. Ins. Co. v Pine Bush Cent. Sch. Dist., 159 AD3d 769, 771 [2d Dept 2018] citing [*5]Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Sposato v Paboojian, 110 AD3d 979, 979 [2d Dept 2013]).

Here, the defendant established that, in light of the EDTPA, the plaintiff does not have causes of action for negligence, violations of the Public Health Law, or wrongful death. The defendant's submissions, including the affidavit of Mayer Spilman and other exhibits, established that the decedent's treatment was impacted by South Point's response to the COVID-19 pandemic (see Martinez v NYC Health & Hosps. Corp., — AD3d at —; 2024 NY Slip Op 00186 at *2; Mera v New York City Health & Hosps. Corp., 220 AD3d at 670).

In opposition, the plaintiff failed to raise a question of fact. Plaintiff argues that the legislation repealing the EDTPA should be applied retroactively, thereby exposing defendants to potential liability. This contention 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). "[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]). The determination of the Third Department and Fourth Department that the repeal of the EDTPA was not retroactive is binding on this Court. Therefore, this Court holds that the repeal of the EDTPA was not retroactive.

The plaintiff also contends the EDTPA was not intended to apply blanket immunity. However, the EDTPA's broad immunity was limited only after August 3, 2020. Prior to August 3, 2020, a facility only needed to demonstrate that, "the treatment of the individual is impacted by the health care facility's . . . decisions or activities in response to or as a result of the COVID-19 outbreak" (Public Health Law § 3082[1][b]; see Crampton v Garnet Health, 73 Misc 3d 543 [Sup Ct, Orange County 2021]). Indeed, as the Crampton court observed, "the statute does not qualify how treatment must be affected—whether positively, negatively, or otherwise—it merely requires that treatment be 'impacted'" (id. at 557, quoting Matos v Chiong, 2021 NY Slip Op 32047[U], *1 [Sup Ct, Bronx County 2021]). Accordingly, plaintiff's position that the EDTPA was not intended to apply blanket immunity to health care facilities prior to August 3, 2020, lacks merit. Blanket immunity is exactly what the legislature intended in enacting EDTPA, as can be seen by the language in the legislative memorandum that repealed EDTPA (see Ruth v Elderwood at Amherst, 209 AD3d at 1291, citing Assembly Introducer's Mem in Support, Bill Jacket, L 2021, ch 96; see also Sponsor's Mem, 2021 NY Senate Bill S5177 ["In particular, EDTPA egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence"]). Therefore, it is apparent that the legislature decided that the need to ensure medical care was provided during the pandemic outweighed the costs of providing blanket immunity to those providing it.

Based on the foregoing, in light of the EDTPA, the plaintiff does not have causes of action for negligence, Public Health Law, or wrongful death, and dismissal of those cause of action is warranted pursuant to CPLR 3211(a)(7).

To establish gross negligence, a plaintiff 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 plaintiff failed to sufficiently plead the cause of action alleging gross negligence. Specifically, plaintiff failed to allege specific acts or omissions by the defendant demonstrating an intentional wrongdoing or reckless indifference to decedent. Furthermore, plaintiff's allegations, even if assumed to be true, are defeated by the sworn affidavit of Mayer Spilman which establishes, inter alia, that that South Point had an infection control policy prior to COVID-19 and that South Point implemented procedures in response to the COVID-19 pandemic.

Accordingly, the plaintiff 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).

In light of the EDTPA, the defendant is entitled to dismissal of the causes of action alleging negligence, violations of the Public Health Law, and wrongful death pursuant to CPLR 3211(a)(7). The defendant is also entitled to dismissal of the gross negligence cause of action pursuant to CPLR 3211(a)(7).

The plaintiff's contention regarding the State Litigation Coordination Panel is without merit.

In light of these determinations, the parties' remaining contentions need not be reached.

Accordingly, it is now hereby,

ORDERED that the defendant's motion to dismiss the complaint is GRANTED; and it is further,

ADJUDGED, that the complaint is dismissed.

Any relief not specifically granted herein is DENIED.

This constitutes the decision and order of this Court.