Gillis v. Carmel Richmond Nursing Home Inc.

Unpublished Opinion

Plaintiff is represented by:

Joseph Leonard Ciaccio Esq.

Napoli Shkolnik, PLLC

Defendant is represented by

Brian Michael Andrews Esq.

Barker Patterson Nichols, LLP

Catherine M. DiDomenico, J.

Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion.

Numbered
Sequence Number	001
Summons and Complaint,	1
Notice of Motion by Defendant	(001), 2
Affidavit and Affirmation in Opposition by Plaintiff,	3
Reply and Affirmation by Plaintiff	4

Upon the foregoing cited papers, the Decision and Order is as follows:

Procedural and Factual History

The present action was commenced by the filing of a Summons with Verified Complaint on April 10, 2022. Therein, Plaintiff asserts eight causes of action relating to the death of Joseph Lisciandri ("Decedent"), her father, who was a resident of Defendant's nursing home. Decedent was initially admitted to Carmel Richmond Nursing Home for rehabilitation on June 3, 2017. He was admitted with a primary diagnosis of advanced Parkinson's disease and secondary diagnoses of dementia and hypertension. Plaintiff alleges that her father became infected with SARS-CoV-2 ("COVID-19") while in Defendant's care and passed away on April 10, 2020. Plaintiff alleges that Decedent passed away as a result of Defendant's acts and omissions by failing to take proper precautions against the spread of the disease.

On April 2, 2020, Decedent began experiencing COVID-19 symptoms including fever, cough, and poor appetite. He was tested for COVID-19 and classified as a "Person Under Investigation" within the facility while his results were pending. As a result of this classification, he was immediately placed on "contact droplet precaution" to prevent the spread of the disease throughout the facility. On the following day, April 3, 2020, his COVID-19 test came back positive, and he was treated with Hydroxychloroquine, antibiotics, IV hydration, and supplemental oxygen. Despite these good faith efforts at treatment, Decedents condition continued to decline and ultimately resulted in his death on April 10, 2020. Decedent's cause of death was allegedly related to complications from his COVID-19 infection.

On December 19, 2023, Defendant moved by pre-answer Notice of Motion (Seq. No. 001) for an order dismissing Plaintiff's Complaint pursuant to CPLR §§ 3211(a)(7) and (a)(2). Specifically, Defendant claims it is immune from liability under New York's Emergency or Disaster Treatment Protection Act ("EDTPA") and the Federal Public Readiness and Emergency Preparedness Act ("PREP Act"). Plaintiff opposed the motion, arguing that Defendant failed to conclusively establish that it is entitled to immunity under either statute. In the alternative, Plaintiff argues that if immunity applies, it has plead causes of action for gross negligence and other claims that are exempt from EDTPA immunity. After receipt of Plaintiff's reply papers, the present motion was submitted for decision with oral argument waived by both parties.

Applicable Law

When considering a motion to dismiss pursuant to CPLR § 3211(a)(7), for a failure to state a cause of action, a complaint is liberally construed, the facts alleged therein are presumed to be true and the plaintiff is afforded the benefit of every favorable inference. See Watts v. City of New York, 129 N.Y.S.3d 340 (2d Dept. 2020). However, bare legal conclusions and factual claims that are flatly contradicted by evidence in the motion record are not entitled to this presumption. See Pincus v. Wells, 35 A.D.3d 569 (2d Dept. 2006). The defendant bears the burden of establishing that the complaint fails to state a cause of action. See Connolly v. Long Island Power Auth., 30 N.Y.3d 719 (2018).

Generally, the role of the court is to determine only whether the facts alleged in the complaint fall within a cognizable legal theory. See Martinez v. NYC Health & Hosps. Corp., 203 N.Y.S.3d 653 (2d Dept. 2024). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR §3211(a)(7). See Bokhour v. GTI Retail Holdings, Inc., 941 N.Y.S.2d 675 (2d Dept. 2012). If a court considers evidentiary material but does not convert the motion into one for summary judgment, the relevant question becomes whether the proponent of the pleading has a cause of action, not simply whether he or she has stated one. See Sokol v. Leader, 904 N.Y.S.2d 153 (2d Dept. 2010). However, this is not equivalent to a summary judgment standard as a plaintiff is not required to supplement his pleading with an affidavit and "will not be penalized because he has not made an evidentiary showing in support of his complaint." Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976); 106 N. Broadway, LLC v. Lawrence, 189 A.D.3d 733 (2d Dept. 2020); E&D Group, LLC v. Vialet, 134 A.D.3d 981 (2d Dept. 2015).

Decision

Under the EDTPA, which was enacted on April 3, 2020, 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. See Former Public Health Law §3082(1); see also Martinez v. NYC Health & Hosps. Corp., 203 N.Y.S.3d 653 (2d Dept. 2024). However, this immunity does not apply to claims for "willful or intentional criminal conduct, 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." See Former Public Health Law §3802(2); see also Est. of Alechko by Dingee v. Sprain Brook Manor Rehab, LLC, 203 N.Y.S.3d 865 (NY Sup. Ct. 2024). It is the moving defendant's initial burden to satisfy that they qualify for EDTPA immunity.

For immunity to attach, Defendant must establish three requirements: (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. See Former Public Health Law 3082(1); see also Mera v. New York City Health & Hosps. Corp., 197 N.Y.S.3d 278 (2d Dept. 2023). A nursing home may support its motion to dismiss by submitting an affidavit from a treating physician, or from the medical director of the facility who has personal knowledge of its response to the COVID-19 pandemic. See Whitehead v. Pine Haven Operating LLC, 201 N.Y.S.3d 697 (3d Dept. 2023); See also Crampton v. Garnet Health, 155 N.Y.S.3d 699 (NY Sup. Ct. 2021).

a. Repeal of the EDTPA.

As a threshold matter, Plaintiff argues that the EDTPA is not applicable to this case at all, as it was retroactively repealed on April 7, 2021. However, the appellate courts of this state have repeatedly held that the EDTPA was not repealed retroactively but prospectively. See Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 2024 NY Slip Op. 03029 (2d Dept. 2024); see also Whitehead v. Pine Haven Operating LLC, 222 A.D.3d 104 (3rd Dept. 2023). Thus, the EDTPA remains as controlling law for this proceeding as the present causes of action accrued before the repeal date. See Ruth v. Elderwood at Amherst, 175 N.Y.S.3d 811 (4th Dept. 2022). Having determined that the EDTPA is controlling law, the Court must now...