The e-filed papers bearing NYSCEF Doc. Nos. 10-46, 49-103, and 106-124 were read on the motion brought by defendant HIGHLAND CARE CENTER INC. d/b/a HIGHLAND CARE CENTER (the "Defendant" or "Highland") for an Order pursuant to CPLR 3211(a)(7) dismissing all claims against it with prejudice, based on inter alia, the Defendant's immunity from liability under the New York Emergency or Disaster Treatment Protection Act ("EDTPA") and the Public Readiness and Emergency Preparedness Act (the "PREP Act"), and on the cross motion of the Plaintiff seeking a declaration that the EDPTA is unconstitutional under Article I, Section 16 of the New York State Constitution.

John Sergeant ("Sergeant") became a resident of Highland in 2018 (see Affidavit of Andrea Gibbon; NYSCEF Doc. No. 13, ¶ 32). As early as April 18, 2020, Sergeant was under suspicion for having COVID 19 (id., ¶ 37). Following examination, Sergeant was transferred to Flushing Hospital (id., ¶ 41). He was returned to Highland on April 24, 2020 (id., ¶ 42). On April 27, 2020, it was reported that Sergeant had tested positive for COVID 19 (id., ¶ 45). Sergeant was examined on April 28, 29, 30 and May 1, 2020 (id., ¶ 46-50). On May 2, 2020, he was transferred to Flushing Hospital for further evaluation and returned to Highland on May 5, 2020 (id., ¶ 50-51). On May 6, 2020, Sergeant was returned to the Hospital due to poor oral intake and altered mental status as well as COVID-19 pneumonia (id., ¶ 54). On that day, he was then transferred back to Highland (id., ¶ 54). On May 7, 2020, he was observed at Highland and appeared comfortable and without obvious distress (id., ¶ 56). On May 9, 2020, Sergeant was found unresponsive and pronounced dead (id., ¶ at 57).

A. The Emergency or Disaster Treatment Protection Act

"[T]he EDTPA immunized healthcare facilities from civil liability for certain acts or omissions in the treatment of patients for COVID-19 during the period of the COVID-19 emergency declaration" (Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d 618, 619 [2d Dept 2024] [internal citation and quotations omitted). The Second Department in Mera v New York City Health and Hosps. Corp. (220 AD3d 668, 669-670 [2d Dept 2023]), explained the immunity conferred on health care facilities by virtue of the EDTPA:

"As is relevant here, the EDTPA initially 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 arranging for or providing health care services" as long as 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]). The health care services covered by the immunity provision included 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 [*2]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])."

The statute, however, specifically exempted from coverage "acts or omissions constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm" by the health care facility or health care provider (Mera, 220 AD3d at 670).

Effective April 6, 2021, the EDPTA was repealed (see e.g. Townsend v Penus, 2021 NY Misc LEXIS 5963 [Sup Ct, Bronx County, June 1, 2021]). However, it is now settled law that the repeal of the EDTPA does not apply retroactively (see Damon, 228 AD3d 618; Hasan v Terrace Acquisitions II, LLC, 224 AD3d 475 [1st Dept 2024]; Whitehead v Pine Haven Operating LLC, 222 AD3d 104 [3d Dept 2023]; Ruth v Elderwood at Amherst, 209 AD3d 1281 [4th Dept 2022]).

B. Public Readiness and Emergency Preparedness Act

A recent decision in Queens County had occasion to address the parameters of the PREP ACT. In Estate of Thomas v Highland Care Center, Inc. (2024 NY Misc LEXIS 13838, *21 [Sup Ct, Queens County, Sep. 27, 2024]), the Supreme Court explained that:

"In 2005 the [PREP Act] was enacted to address public health emergencies. 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. The PREP Act provides limited, temporary immunity from civil liability for 'covered persons' in relation to 'covered countermeasures' during epidemics and pandemics. 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. 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)" [internal citation and quotations omitted].

C. Article I, Section 16 of the New York State Constitution

Article I, Section 16 of the New York State Constitution provides: "The 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." This section embodies "New York's public policy prohibiting the imposition of limits on such damages" Kilberg v. Northeast Airlines, Inc., 9 NY2d 34 [1961]; see also Miller v Miller, 28 AD2d 899, 899 [2d Dept 1967], affd, 22 NY2d 12 [1968]). Here, at least one court has found that the EDTPA did not suspend nor amend the constitutional right of the citizens of New York to recover damages for injuries resulting in death, or otherwise limit the amount of damages that can be recovered in a wrongful death action (see Estate of Rivera v. Jopal, 2024 NY Misc LEXIS 10117 [Sup Ct, Bronx County, Apr. 12, 2024]).

A. Standard for Motion to Dismiss

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Basile v Wiggs, 98 AD3d 640, 640-41 [2d Dept 2012]). "At the same time, defendants bear the burden of establishing that the complaint fails to state a viable cause of action" (Connolly v Long Is. Power Auth., 30 NY3d 719, 728 [2018]). "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a)(7). If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he or she has stated one. Since the evidentiary material is received for a limited purpose only, serving normally to remedy defects in the complaint, dismissal pursuant to CPLR 3211 (a)(7) is warranted only where the evidentiary material conclusively establishes that the plaintiff has no cause of action" (Martinez v NYC Health and Hosps. Corp., 223 AD3d 731, 732 [2d Dept 2024] [internal citations and quotations omitted]).

B. Application of Standard

Numerous courts have granted motions to dismiss in situations similar to that found here (see Damon v Clove Lakes Healthcare and Rehabilitation Center, 228 AD3d 618 [2d Dept 2024]; Martinez, 223 AD3d 731; Mera, 220 AD3d 668; Hasan, 224 AD3d 475; Barulich v Mary Manning Walsh Nursing Home Co., Inc., 2025 NY Slip Op 30925[U] [Sup Ct, New York County, Mar. 21, 2025]; Estate of Thomas v Highland Care Center, Inc., NY Misc LEXIS 13838 [Sup Ct, Queens County, Sep. 27, 2024]; Estate of Rivera v. Jopal, 2024 NY Misc LEXIS 10117 [Sup Ct, Bronx County, Apr. 12, 2024]). And many of these courts have even dismissed the case for failure to meet the gross negligence exception to the EDTPA (see Barulich, 2025 NY Slip Op. 30925[U]; Estate of Rivera, 2024 NY Misc LEXIS 10117; Martinez, 223 AD3d 731; Mera, 220 AD3d 668). On the other hand, other courts have found that the facility has failed to meet the elements set forth in the EDPTA for immunity (Gonnelly v Newburgh Operations, LLC, 2025 NY Slip Op 01611 [2d Dept, Mar. 19, 2025]; Holder v Jacob, 231 AD3d 78 [1st Dept 2024]).

As a threshold matter, critical for our analysis, is that dismissal pursuant to CPLR 3211 (a)(7) is warranted only where the evidentiary material "conclusively establish[es] that [the plaintiff] has no cause of action" (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]). Furthermore, and adding significantly to this burden, is that "[a] statute conferring immunity must be strictly construed and a party seeking its protections must conform strictly with its conditions" (Holder v Jacob, 231 AD3d 78, 88 [1st Dept 2024] [internal citations and quotations omitted]).

What all the cases that have addressed the instant issue have in common, however, is that the motion to dismiss was adjudicated solely based on the affidavit of a health care provider at the defendant's facility who is an individual that the Plaintiff had no chance to challenge either through discovery or cross examination. And of course, the individual presenting the facts is doing so exclusively from the defendant's perspective and tailoring the affidavit to be consistent [*3]with the statute and its elements. Indeed, and consistent with this, is that reference can be made to the affidavit of Andrea Gibbon filed in Estate of Thomas v Highland Care Center, Inc., 2024 NY LEXIS 13838 [Sup Ct, Queens County, Sep. 27, 2024] where, as here, Highland also appeared as the Defendant. The similarity between the affidavit filed in that case and in this one is obvious and the understandable effort to track the statute is unmistakable.

However, as shown, analysis of the applicability of the statute here requires a fact-intensive inquiry. Accordingly, "[w]hether or not defendants may ultimately be able to demonstrate that they are entitled to immunity, it is premature to deem the analysis completed at this juncture" (Holder, 231 AD3d at 88). This conclusion is reinforced by the strict requirements for the granting of the instant motion. And also, in that the CPLR provides for assorted discovery rights (see CPLR 3101-3140). Further, the conclusion is reinforced by the recognition that Article I, Section 16 of the New York State Constitution specifically focuses on the right of individuals to recover damages for the death of a party and expresses concern that that right neither be abrogated nor the amount recoverable be subjected to any statutory limitation.

But even more than that, this conclusion is reinforced by fundamental principles of fairness. This case involves the death of a person, in a matter that involves a fact-intensive inquiry. Under such circumstances, at the very least, the Plaintiff should have the opportunity to properly evaluate the statements of the Defendant. Indeed, this seems appropriate regarding all elements of the statute but particularly in the analysis of the "good faith" element (Mera, 220 AD3d at 668). In this regard, the Defendant in the last paragraph of the Gibbons affidavit writes, in conclusory fashion, that "Mr. Sergeant's care was provided in good faith" (NYSCEF Doc. No. 13, ¶ 59). One singular line to make that significant point! It may very well be that the Defendant did act in good faith, but good faith is defined as being "honest in belief or purpose, faithfulness to one's duty or obligation or absence of intent to defraud" (Black's Law Dictionary [8th ed 2004]). And such can hardly be gleaned by consideration of a cold piece of paper, prepared to demonstrate such a mindset, without any real opportunity to question that mindset. Ultimately, to be good, faith must be examined and evaluated to demonstrate its authenticity and strength.

Likewise, the Prep Act creates an exception to immunity for death or serious physical injury caused by willful misconduct (42 USC sec 247d-6d[a][1],[2]). Consistent with the above, the Plaintiff should be able to test this issue, and the others raised relating to qualifying for immunity under this statute, through the discovery process.

Accordingly, it is hereby,

ORDERED that the Defendant's motion is denied in its entirety, and that any of the Defendant's contentions not specifically addressed herein are denied as being subsumed within the above-referenced decision or otherwise lacking in merit; and it is further,

ORDERED, that the Plaintiff's cross motion is denied in its entirety, as not ripe for review nor necessary for resolution of this motion, given the above determination.

This constitutes the Decision and Order of the Court.