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FILED: ERIE COUNTY CLERK 12/08/2023 06:00 PM INDEX NO. 300004/2023
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2023
EXHIBIT 20
FILED: ERIE
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To commence the statutory time period for
appeals as of right [CPLR 5513(a)], you
are advised to serve a copy of this order,
with notice of entry upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
-------------------------------------x
DEBRA RAGO, as Executor of the Estate
of CONNIE WALTER, Deceased,
DECISION & ORDER
Plaintiff,
Index # 56854/2022
-against- Mot. Seq. No. 1
SKY VIEW REHABILITATION AND HEALTH CARE
CENTER LLC, EPIC HEALTHCARE MANAGEMENT
LLC, ABC CORPORATION and ABC PARTNERSHIP,
Defendants.
--------------------------------------x
QUINN KOBA, J.
By Notice of Motion (the “Motion”), defendants SKY VIEW
REHABILITATION AND HEALTH CARE CENTER, LLC s/h/a SKY VIEW
REHABILITATION AND HEALTH CARE CENTER LLC (“Sky View”), and EPIC
HEALTHCARE MANAGEMENT, LLC, s/h/a EPIC HEALTHCARE MANAGEMENT LLC
(“Epic”) seek an order dismissing the complaint pursuant to CPLR
3211(a)(2) and CPLR 3211(a)(7) and granting such further and other
relief as the court may deem just and proper.
The following papers were considered in determining the
Motion:
Papers NYSCEF DOC. No.
Notice of motion, 14-37
Affirmation in support,
Memorandum of law,
Exhibits A – U
Affirmation in opposition, 40-57
Memo of law in opposition,
Exhibits A – P
Reply memorandum, 58-62
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Exhibits W-Y
Sur-reply, 63-64
Exhibit Z
NYSCEF file
Upon the foregoing papers, this motion is determined as follows:
FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2020, Connie Walter, plaintiff’s mother, died
after contracting COVID-19 while she was living at Sky View, a
nursing home facility located in Westchester County, New York. On
February 24, 2022, plaintiff commenced this action against Sky
View and Epic, the owner and operator of the facility, by filing
a summons and a complaint alleging causes of action for negligence,
gross negligence, wrongful death, and nursing home malpractice.
Specifically, plaintiff alleges that from the beginning of the
pandemic through January 31, 2022, Sky View reported more than two
hundred twelve COVID-19 positive cases and over forty deaths from
COVID-19 (NYSCEF Doc. No. 17 at ¶ 231). Plaintiff further alleges
Sky View failed to take proper steps, such as actively screening
all persons entering the building for symptoms of COVID-19,
ensuring all health care professionals and residents wore a face
covering inside the facility, and separating residents in
accordance with local, state, and federal guidance, to prevent the
spread of COVID-19 in the facility (id. at ¶¶ 262-274). Plaintiff
also alleges the defendants allowed staff and patients who had
tested positive for COVID-19 to mingle with other residents in the
facility who did not have COVID-19 (id. at ¶ 233).
On May 16, 2022, defendants filed this motion contending the
action is barred by the immunity from liability conferred by the
federal Public Readiness and Emergency Preparedness Act (“PREP
Act”)1 and the New York state Emergency or Disaster Treatment
Protection Act (“EDTPA”)2 to qualifying entities regarding claims
arising from their response to the COVID-19 pandemic. Defendants
argue that they are immune from liability for plaintiff’s claims
involving pandemic-related countermeasures under the PREP Act and
that the federal cause of action based on willful misconduct under
the PREP Act preempts plaintiff’s state-law claims. Defendants
further argue the EDTPA’s repeal was not retroactive and assert
plaintiff did not sufficiently plead a gross negligence cause of
action that would fall within the exception to the immunity
11
42 U.S.C. §§ 247d-6d, 247d-6e.
2
Public Health Law (“PHL”), Article 30-D, §§ 3080-3082.
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provided by the EDTPA.
In support of their motion, defendants submit the sworn
affidavit of registered nurse Kimberly D. Putsai (“Putsai”), the
current Director of Nursing at Sky View, which affidavit is based
on her personal knowledge (NYSCEF Doc. No. 36). In her affidavit,
Putsai states she was informed that this matter relates to health
care and nursing home services allegedly rendered to the decedent
at the Sky View facility from May 14, 2016 to April 21, 2020,
particularly after the pandemic began through April 21, 2020 (id.
at ¶ 3). Putsai was employed as a floor nurse at the facility
during the period of January 2020 through April 21, 2020, and her
duties included following infection control policies and COVID-19
screening protocols for Sky View staff, screening residents for
symptoms of COVID-19 and participating in training on the use of
personal protection equipment (“PPE”) and infection control (id.
at ¶ 5). She avers the following COVID-19 protocols were utilized
at Sky View commencing in March 2020 and continuing thereafter to
prevent the spread of, diagnose, treat and/or monitor individuals
with COVID-19: testing for COVID-19; using PPE, hand sanitizers,
thermometers, pulse oximeters, and diagnostic equipment;
implementing social distancing policies; suspending communal
dining; and implementing visitation restrictions and screening of
staff, visitors, and residents (id. at ¶¶ 9, 16).
Putsai also attested that she reviewed the decedent’s medical
and nursing records in connection with her affidavit. She states
all healthcare personnel within close proximity to residents,
including the decedent, wore PPE when providing services. The
decedent’s temperature and oxygen saturation levels were monitored
daily before she tested positive for COVID-19, diagnostic tests
were performed, multiple COVID-19 tests were administered and
medications were administered for possible COVID-19 infection and
fever (NYSCEF Doc. No. 36 at ¶ 18). The affidavit, however, does
not explicitly refute plaintiff’s allegations that the facility
allowed staff and patients who had tested positive for COVID-19 to
mingle with the residents at Sky View who did not have COVID-19
(id.).
In opposition, plaintiff contends the immunity from liability
provided by the PREP Act applies only to claims arising from injury
attributable to the use and administration of pandemic-related
countermeasures, not to the failures at the crux of plaintiff’s
complaint. Plaintiff also argues the federal cause of action for
willful misconduct under the PREP Act does not pre-empt the subject
state law claims sounding in negligence, gross negligence, and
nursing home malpractice. Plaintiff further argues the repeal of
the EDTPA was retroactive. Alternatively, plaintiff argues the
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gross negligence cause of action as pleaded in the complaint is
sufficiently stated and falls outside the EDTPA immunity.
In reply, defendants emphasize that pronouncements from the
Department of Health and Human Services do not limit the scope of
PREP Act immunity to injuries directly caused by the use of a
covered countermeasure. Rather, defendants contend the PREP Act
immunity also applies to any claims arising from the failure to
allocate or administer covered countermeasures.
ANALYSIS
1. Immunity under the PREP Act
The PREP Act provides broad immunity “from suit and liability
under Federal and state law 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” during a public-health emergency (42 USC § 247d-
6d[a][1]). Under the PREP Act, the Secretary of the Department of
Health and Human Services (“HHS Secretary”) has the authority to
publish a declaration that (1) announces a disease or health
condition is a public emergency and (2) defines appropriate covered
countermeasures (id. at § 247d-6d[b][1]).
Effective February 4, 2020, the HHS Secretary declared
“COVID-19 ... a public health emergency” and defined “covered
countermeasures” as any “antiviral, drug, biologic, diagnostic,
device, or vaccine used to treat, diagnose, cure, prevent, or
mitigate COVID-19” (85 Fed Reg 15198, 15198-01 [2020]). Claims
arising from the improper administration or use of a covered
countermeasure (see Parker v St Lawrence County Pub. Health Dept,
102 AD3d 140, 141-142 [3d Dept 2012]), or an injury from a
vaccination (see Perez v Oxford University, 2022 WL 1446543 *5,
2022 US Dist LEXIS 84504 [SDNY 2022]), fall within the scope of
the PREP Act immunity from liability. After initially limiting
immunity under the PREP Act “[t]o physical provision of a
countermeasure to a recipient, such as vaccination or handing drugs
to patients” (85 Fed Reg at 15200), the Department of Health and
Human Services later advised that “not administering a covered
countermeasure to a particular individual” can fall within the
PREP Act’s liability protections (id. at 79194).
The PREP Act immunity, however, does not bar the plaintiff’s
claims because plaintiff’s allegations involve the defendants’
alleged failure to take proper measures to prevent the decedent’s
exposure to COVID-19 inside the facility, such as failing to
enforce social distancing, failing to screen everybody in the
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building for symptoms of COVID-19, and failing to prevent the
decedent’s direct exposure to staff and patients who had tested
positive for COVID-19 (NYSCEF Doc. No. 17 at ¶¶ 232-234). Where
similar allegations have been alleged, courts have found the
defendants are not immune from liability under the PREP Act (see
Dupervil v All. Health Operations, LCC, 516 FSupp3d 238, 255-56
[EDNY 2021] [collecting cases]; Shapnik v Hebrew Home for Aged at
Riverdale, 535 FSupp3d 301, 321 [SDNY 2021]; Whitehead v Pine Haven
Operating LLC, 75 Misc 3d 985, 989 [Sup Ct, Columbia Co. 2022],
citing Parker v St Lawrence County Pub. Health Dept., 102 AD3d at
141-42).
Further, the federal cause of action available under the PREP
Act does not pre-empt the plaintiff’s alleged state-law claims.
The PREP Act contains one exception to immunity - claims “for death
or serious physical injury proximately caused by willful
misconduct” (42 USC § 247d-6d[d][1]). The PREP Act defines willful
misconduct as “an act or omission that is taken (i) intentionally
to achieve a wrongful purpose; (ii) knowingly without legal or
factual justification; and (iii) in disregard of a known or obvious
risk that is so great as to make it highly probable that the harm
will outweigh the benefit” (id. at § 247d-6d[c][1][A]).
In reviewing the scope of the willful misconduct exception to
immunity under the Prep Act, the Second Circuit held that “state-
law claims for malpractice, negligence and gross negligence do not
fall within the scope of the PREP Act’s exclusive cause of action
for willful misconduct” (Solomon v St. Joseph Hosp., 62 F4th 54,
58 [2d Cir 2023]). “Negligence and gross negligence do not rise to
the level of willful misconduct, which the PREP Act defines as ‘a
standard for liability that is more stringent than a standard of
negligence in any form’” (id. at 58, citing 42 U.S.C. § 247d-
6d[c][1][B] (emphasis added in original). “On its face, then, the
statute excludes negligence ‘in any form’ – including ‘willful’
negligence – from the scope of a misconduct claim” (Leroy v Hume,
2023 WL 2928353 *3, 2023 US App LEXIS 8824 *10-*11 [2d Cir 2023],
citing Solomon v St. Joseph Hosp., 62 F4th at 61). Thus, the PREP
Act “specifies that no form of negligence can constitute willful
misconduct” (Solomon v St. Joseph Hosp., 62 F4th at 61, n. 3).
Here, plaintiff’s references to “willful” conduct in the
complaint are related to her cause of action for gross negligence
(NYSCEF Doc. No. 17 at ¶¶ 237, 308-309), which conduct, under New
York state law, does not rise to the same level as willful
misconduct under the PREP Act (see Leroy v Hume, 2023 WL 2928353
at *3, 2023 US App LEXIS 8824 at *10-*11; Rivera-Zayas v Our Lady
of Consolation Geriatric Care Center, 2023 WL 2926286 *2, 2023 US
App LEXIS 8827 *3 [2d Cir 2023]). The PREP Act does not, therefore,
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pre-empt plaintiff’s state-law claims grounded in negligence and
malpractice.
2. Immunity under the EDTPA
Generally, under the EDTPA, nursing homes and health care
professionals are immune from lawsuits relating to their
diagnosis, prevention, or treatment of COVID-19 during the COVID-
19 emergency declaration (see Ruth v Elderwood at Amherst, 209
AD3d 1281, 1281 [4th Dept 2022]). However, immunity under the EDTPA
does 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”
(PHL, former art 30-D, § 3082[2]). On April 6, 2021, the EDTPA was
repealed. In authority binding on this court (see Maple Medical,
LLP v Scott, 191 AD3d 81 [2d Dept 2020]), the Appellate Division,
Fourth Department held the repeal of the EDTPA is not retroactive
(see Ruth v Elderwood at Amherst, 209 AD3d at 1291). Accordingly,
plaintiff’s causes of action for simple negligence, negligence per
se, and nursing home malpractice are barred under the EDTPA and
are dismissed.
The remaining question is whether the plaintiff has stated a
cause of action for gross negligence, which falls outside the scope
of the EDTPA immunity. “In assessing the adequacy of a complaint
under CPLR 3211(a)(7), the court must afford the pleading a liberal
construction, accept the facts alleged in the complaint to be true,
and accord the plaintiff the benefit of every possible favorable
inference” (Feldman v Byrne, 210 AD3d 646, 648 [2d Dept 2022]; see
also Ripa v Petrosyants, 203 AD3d 768 [2d Dept 2022]). “To
constitute gross negligence, a party’s conduct must smack of
intentional wrongdoing or evince a reckless indifference to the
rights of others” (Skywest, Inc. v Ground Handling, Inc., 150 AD3d
922, 923 [2d Dept 2017], citing J. Petrocelli Contr., Inc. v
Morganti Group, Inc., 137 AD3d 1082, 1083 [2d Dept 2016]; Ryan v
IM Kapco, Inc., 88 AD3d 682, 683 [2d Dept 2011]). “Ordinarily, the
question of gross negligence is a matter to be determined by the
trier of fact” (see Dolphin Holdings, Ltd. v Gander & White
Shipping, Inc., 122 AD3d 901, 902 [2d Dept 2014], citing Food
Pageant v Consolidated Edison Co., 54 NY2d 167, 172–173 [1981]).
Where, as here, the court considers evidentiary material
submitted by a defendant in support of a motion to dismiss under
CPLR 3211(a)(7), the question becomes “whether the proponent of
the pleading has a cause of action, not whether he has stated one”
(Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d
at 902). “Affidavits submitted by a defendant ‘will almost never
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warrant dismissal under CPLR 3211 unless they establish
conclusively that [the plaintiff] has no cause of action’” (Bianco
v L. Offs. of Yuri Prakhin, 189 AD3d 1326, 1326 [2d Dept 2020];
Lawrence Graubard v Miller, 11 NY3d 588, 595 [2008]). “[U]nless it
has been shown that a material fact as claimed by the pleader to
be one is not a fact at all and unless it can be said that no
significant dispute exists regarding it, again dismissal should
not eventuate” (Bianco v L. Offs. of Yuri Prakhin, 189 AD3d at
1327-28, citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
Here, plaintiff adequately pleaded gross negligence in that
she alleges defendants knowingly permitted COVID-19 positive staff
and visitors direct contact with residents and “[a]cted in so
careless a manner as to show complete disregard for the rights and
safety of plaintiff’s decedent (NYSCEF Doc. No. 1 at ¶ 304);
[a]cted and/or failed to act knowing that their conduct would
probably result in injury or damages to plaintiff’s decedent (id.
at ¶ 305); and [a]cted in so reckless a manner and/or failed to
act in circumstances where an act was clearly required, so as to
indicate complete disregard of the consequences of their actions
and/or inactions (id. at ¶ 306). Plaintiff contends said conduct
was reckless, willful and wanton (id. at ¶¶ 307-310). Putsai’s
affidavit does not conclusively establish that plaintiff does not
have a cognizable cause of action. Accepting the aforementioned
allegations as true, as the court must on a motion to dismiss, it
can be rationally inferred that by knowingly allowing the elderly
residents of a nursing home to be directly exposed to individuals
with COVID-19, defendants evinced a “reckless indifference”
amounting to gross negligence (see Belcastro v Roman Cath. Diocese
of Brooklyn, New York, 213 AD3d 800, 802 [2d Dept 2023], citing
Dolphin Holdings, Ltd v Gander & White Shipping, Inc., 122 AD3d at
901; Bennett v State Farm Fire & Cas. Co., 161 AD3d at 926).
Accordingly, the branch of the motion seeking dismissal of the
gross negligence cause of action is denied.
All other arguments raised on this motion and evidence
submitted by the parties in connection therewith have been
considered by this Court, notwithstanding the specific absence of
reference thereto.
Accordingly, it is hereby
ORDERED that the Motion is granted to the extent that the
first, second, third, seventh and eighth causes of action are
dismissed and the motion is otherwise denied; and it is further
ORDERED that the moving defendants shall file an answer to
the remaining causes of action contained in the complaint within
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ten days after service of a copy of this decision and order with
notice of entry.
The foregoing constitutes the decision and order of this
Court.
Dated: White Plains, New York
May 10, 2023
ENTER:
____________________________
HON. NANCY QUINN KOBA, J.S.C.
TO: All Counsel VIA NYSCEF
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FILED: ERIE COUNTY CLERK 12/08/2023 06:00 PM INDEX NO. 300004/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 12/08/2023 EXHIBIT 20 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 To commence the statutory time period for appeals as of right [CPLR 5513(a)], you are advised to serve a copy of this order, with notice of entry upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -------------------------------------x DEBRA RAGO, as Executor of the Estate of CONNIE WALTER, Deceased, DECISION & ORDER Plaintiff, Index # 56854/2022 -against- Mot. Seq. No. 1 SKY VIEW REHABILITATION AND HEALTH CARE CENTER LLC, EPIC HEALTHCARE MANAGEMENT LLC, ABC CORPORATION and ABC PARTNERSHIP, Defendants. --------------------------------------x QUINN KOBA, J. By Notice of Motion (the “Motion”), defendants SKY VIEW REHABILITATION AND HEALTH CARE CENTER, LLC s/h/a SKY VIEW REHABILITATION AND HEALTH CARE CENTER LLC (“Sky View”), and EPIC HEALTHCARE MANAGEMENT, LLC, s/h/a EPIC HEALTHCARE MANAGEMENT LLC (“Epic”) seek an order dismissing the complaint pursuant to CPLR 3211(a)(2) and CPLR 3211(a)(7) and granting such further and other relief as the court may deem just and proper. The following papers were considered in determining the Motion: Papers NYSCEF DOC. No. Notice of motion, 14-37 Affirmation in support, Memorandum of law, Exhibits A – U Affirmation in opposition, 40-57 Memo of law in opposition, Exhibits A – P Reply memorandum, 58-62 1 1 of 8 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 Exhibits W-Y Sur-reply, 63-64 Exhibit Z NYSCEF file Upon the foregoing papers, this motion is determined as follows: FACTUAL AND PROCEDURAL BACKGROUND On April 21, 2020, Connie Walter, plaintiff’s mother, died after contracting COVID-19 while she was living at Sky View, a nursing home facility located in Westchester County, New York. On February 24, 2022, plaintiff commenced this action against Sky View and Epic, the owner and operator of the facility, by filing a summons and a complaint alleging causes of action for negligence, gross negligence, wrongful death, and nursing home malpractice. Specifically, plaintiff alleges that from the beginning of the pandemic through January 31, 2022, Sky View reported more than two hundred twelve COVID-19 positive cases and over forty deaths from COVID-19 (NYSCEF Doc. No. 17 at ¶ 231). Plaintiff further alleges Sky View failed to take proper steps, such as actively screening all persons entering the building for symptoms of COVID-19, ensuring all health care professionals and residents wore a face covering inside the facility, and separating residents in accordance with local, state, and federal guidance, to prevent the spread of COVID-19 in the facility (id. at ¶¶ 262-274). Plaintiff also alleges the defendants allowed staff and patients who had tested positive for COVID-19 to mingle with other residents in the facility who did not have COVID-19 (id. at ¶ 233). On May 16, 2022, defendants filed this motion contending the action is barred by the immunity from liability conferred by the federal Public Readiness and Emergency Preparedness Act (“PREP Act”)1 and the New York state Emergency or Disaster Treatment Protection Act (“EDTPA”)2 to qualifying entities regarding claims arising from their response to the COVID-19 pandemic. Defendants argue that they are immune from liability for plaintiff’s claims involving pandemic-related countermeasures under the PREP Act and that the federal cause of action based on willful misconduct under the PREP Act preempts plaintiff’s state-law claims. Defendants further argue the EDTPA’s repeal was not retroactive and assert plaintiff did not sufficiently plead a gross negligence cause of action that would fall within the exception to the immunity 11 42 U.S.C. §§ 247d-6d, 247d-6e. 2 Public Health Law (“PHL”), Article 30-D, §§ 3080-3082. 2 2 of 8 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 provided by the EDTPA. In support of their motion, defendants submit the sworn affidavit of registered nurse Kimberly D. Putsai (“Putsai”), the current Director of Nursing at Sky View, which affidavit is based on her personal knowledge (NYSCEF Doc. No. 36). In her affidavit, Putsai states she was informed that this matter relates to health care and nursing home services allegedly rendered to the decedent at the Sky View facility from May 14, 2016 to April 21, 2020, particularly after the pandemic began through April 21, 2020 (id. at ¶ 3). Putsai was employed as a floor nurse at the facility during the period of January 2020 through April 21, 2020, and her duties included following infection control policies and COVID-19 screening protocols for Sky View staff, screening residents for symptoms of COVID-19 and participating in training on the use of personal protection equipment (“PPE”) and infection control (id. at ¶ 5). She avers the following COVID-19 protocols were utilized at Sky View commencing in March 2020 and continuing thereafter to prevent the spread of, diagnose, treat and/or monitor individuals with COVID-19: testing for COVID-19; using PPE, hand sanitizers, thermometers, pulse oximeters, and diagnostic equipment; implementing social distancing policies; suspending communal dining; and implementing visitation restrictions and screening of staff, visitors, and residents (id. at ¶¶ 9, 16). Putsai also attested that she reviewed the decedent’s medical and nursing records in connection with her affidavit. She states all healthcare personnel within close proximity to residents, including the decedent, wore PPE when providing services. The decedent’s temperature and oxygen saturation levels were monitored daily before she tested positive for COVID-19, diagnostic tests were performed, multiple COVID-19 tests were administered and medications were administered for possible COVID-19 infection and fever (NYSCEF Doc. No. 36 at ¶ 18). The affidavit, however, does not explicitly refute plaintiff’s allegations that the facility allowed staff and patients who had tested positive for COVID-19 to mingle with the residents at Sky View who did not have COVID-19 (id.). In opposition, plaintiff contends the immunity from liability provided by the PREP Act applies only to claims arising from injury attributable to the use and administration of pandemic-related countermeasures, not to the failures at the crux of plaintiff’s complaint. Plaintiff also argues the federal cause of action for willful misconduct under the PREP Act does not pre-empt the subject state law claims sounding in negligence, gross negligence, and nursing home malpractice. Plaintiff further argues the repeal of the EDTPA was retroactive. Alternatively, plaintiff argues the 3 3 of 8 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 gross negligence cause of action as pleaded in the complaint is sufficiently stated and falls outside the EDTPA immunity. In reply, defendants emphasize that pronouncements from the Department of Health and Human Services do not limit the scope of PREP Act immunity to injuries directly caused by the use of a covered countermeasure. Rather, defendants contend the PREP Act immunity also applies to any claims arising from the failure to allocate or administer covered countermeasures. ANALYSIS 1. Immunity under the PREP Act The PREP Act provides broad immunity “from suit and liability under Federal and state law 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” during a public-health emergency (42 USC § 247d- 6d[a][1]). Under the PREP Act, the Secretary of the Department of Health and Human Services (“HHS Secretary”) has the authority to publish a declaration that (1) announces a disease or health condition is a public emergency and (2) defines appropriate covered countermeasures (id. at § 247d-6d[b][1]). Effective February 4, 2020, the HHS Secretary declared “COVID-19 ... a public health emergency” and defined “covered countermeasures” as any “antiviral, drug, biologic, diagnostic, device, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19” (85 Fed Reg 15198, 15198-01 [2020]). Claims arising from the improper administration or use of a covered countermeasure (see Parker v St Lawrence County Pub. Health Dept, 102 AD3d 140, 141-142 [3d Dept 2012]), or an injury from a vaccination (see Perez v Oxford University, 2022 WL 1446543 *5, 2022 US Dist LEXIS 84504 [SDNY 2022]), fall within the scope of the PREP Act immunity from liability. After initially limiting immunity under the PREP Act “[t]o physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients” (85 Fed Reg at 15200), the Department of Health and Human Services later advised that “not administering a covered countermeasure to a particular individual” can fall within the PREP Act’s liability protections (id. at 79194). The PREP Act immunity, however, does not bar the plaintiff’s claims because plaintiff’s allegations involve the defendants’ alleged failure to take proper measures to prevent the decedent’s exposure to COVID-19 inside the facility, such as failing to enforce social distancing, failing to screen everybody in the 4 4 of 8 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 building for symptoms of COVID-19, and failing to prevent the decedent’s direct exposure to staff and patients who had tested positive for COVID-19 (NYSCEF Doc. No. 17 at ¶¶ 232-234). Where similar allegations have been alleged, courts have found the defendants are not immune from liability under the PREP Act (see Dupervil v All. Health Operations, LCC, 516 FSupp3d 238, 255-56 [EDNY 2021] [collecting cases]; Shapnik v Hebrew Home for Aged at Riverdale, 535 FSupp3d 301, 321 [SDNY 2021]; Whitehead v Pine Haven Operating LLC, 75 Misc 3d 985, 989 [Sup Ct, Columbia Co. 2022], citing Parker v St Lawrence County Pub. Health Dept., 102 AD3d at 141-42). Further, the federal cause of action available under the PREP Act does not pre-empt the plaintiff’s alleged state-law claims. The PREP Act contains one exception to immunity - claims “for death or serious physical injury proximately caused by willful misconduct” (42 USC § 247d-6d[d][1]). The PREP Act defines willful misconduct as “an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit” (id. at § 247d-6d[c][1][A]). In reviewing the scope of the willful misconduct exception to immunity under the Prep Act, the Second Circuit held that “state- law claims for malpractice, negligence and gross negligence do not fall within the scope of the PREP Act’s exclusive cause of action for willful misconduct” (Solomon v St. Joseph Hosp., 62 F4th 54, 58 [2d Cir 2023]). “Negligence and gross negligence do not rise to the level of willful misconduct, which the PREP Act defines as ‘a standard for liability that is more stringent than a standard of negligence in any form’” (id. at 58, citing 42 U.S.C. § 247d- 6d[c][1][B] (emphasis added in original). “On its face, then, the statute excludes negligence ‘in any form’ – including ‘willful’ negligence – from the scope of a misconduct claim” (Leroy v Hume, 2023 WL 2928353 *3, 2023 US App LEXIS 8824 *10-*11 [2d Cir 2023], citing Solomon v St. Joseph Hosp., 62 F4th at 61). Thus, the PREP Act “specifies that no form of negligence can constitute willful misconduct” (Solomon v St. Joseph Hosp., 62 F4th at 61, n. 3). Here, plaintiff’s references to “willful” conduct in the complaint are related to her cause of action for gross negligence (NYSCEF Doc. No. 17 at ¶¶ 237, 308-309), which conduct, under New York state law, does not rise to the same level as willful misconduct under the PREP Act (see Leroy v Hume, 2023 WL 2928353 at *3, 2023 US App LEXIS 8824 at *10-*11; Rivera-Zayas v Our Lady of Consolation Geriatric Care Center, 2023 WL 2926286 *2, 2023 US App LEXIS 8827 *3 [2d Cir 2023]). The PREP Act does not, therefore, 5 5 of 8 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 pre-empt plaintiff’s state-law claims grounded in negligence and malpractice. 2. Immunity under the EDTPA Generally, under the EDTPA, nursing homes and health care professionals are immune from lawsuits relating to their diagnosis, prevention, or treatment of COVID-19 during the COVID- 19 emergency declaration (see Ruth v Elderwood at Amherst, 209 AD3d 1281, 1281 [4th Dept 2022]). However, immunity under the EDTPA does 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” (PHL, former art 30-D, § 3082[2]). On April 6, 2021, the EDTPA was repealed. In authority binding on this court (see Maple Medical, LLP v Scott, 191 AD3d 81 [2d Dept 2020]), the Appellate Division, Fourth Department held the repeal of the EDTPA is not retroactive (see Ruth v Elderwood at Amherst, 209 AD3d at 1291). Accordingly, plaintiff’s causes of action for simple negligence, negligence per se, and nursing home malpractice are barred under the EDTPA and are dismissed. The remaining question is whether the plaintiff has stated a cause of action for gross negligence, which falls outside the scope of the EDTPA immunity. “In assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts alleged in the complaint to be true, and accord the plaintiff the benefit of every possible favorable inference” (Feldman v Byrne, 210 AD3d 646, 648 [2d Dept 2022]; see also Ripa v Petrosyants, 203 AD3d 768 [2d Dept 2022]). “To constitute gross negligence, a party’s conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others” (Skywest, Inc. v Ground Handling, Inc., 150 AD3d 922, 923 [2d Dept 2017], citing J. Petrocelli Contr., Inc. v Morganti Group, Inc., 137 AD3d 1082, 1083 [2d Dept 2016]; Ryan v IM Kapco, Inc., 88 AD3d 682, 683 [2d Dept 2011]). “Ordinarily, the question of gross negligence is a matter to be determined by the trier of fact” (see Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d 901, 902 [2d Dept 2014], citing Food Pageant v Consolidated Edison Co., 54 NY2d 167, 172–173 [1981]). Where, as here, the court considers evidentiary material submitted by a defendant in support of a motion to dismiss under CPLR 3211(a)(7), the question becomes “whether the proponent of the pleading has a cause of action, not whether he has stated one” (Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d at 902). “Affidavits submitted by a defendant ‘will almost never 6 6 of 8 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action’” (Bianco v L. Offs. of Yuri Prakhin, 189 AD3d 1326, 1326 [2d Dept 2020]; Lawrence Graubard v Miller, 11 NY3d 588, 595 [2008]). “[U]nless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate” (Bianco v L. Offs. of Yuri Prakhin, 189 AD3d at 1327-28, citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Here, plaintiff adequately pleaded gross negligence in that she alleges defendants knowingly permitted COVID-19 positive staff and visitors direct contact with residents and “[a]cted in so careless a manner as to show complete disregard for the rights and safety of plaintiff’s decedent (NYSCEF Doc. No. 1 at ¶ 304); [a]cted and/or failed to act knowing that their conduct would probably result in injury or damages to plaintiff’s decedent (id. at ¶ 305); and [a]cted in so reckless a manner and/or failed to act in circumstances where an act was clearly required, so as to indicate complete disregard of the consequences of their actions and/or inactions (id. at ¶ 306). Plaintiff contends said conduct was reckless, willful and wanton (id. at ¶¶ 307-310). Putsai’s affidavit does not conclusively establish that plaintiff does not have a cognizable cause of action. Accepting the aforementioned allegations as true, as the court must on a motion to dismiss, it can be rationally inferred that by knowingly allowing the elderly residents of a nursing home to be directly exposed to individuals with COVID-19, defendants evinced a “reckless indifference” amounting to gross negligence (see Belcastro v Roman Cath. Diocese of Brooklyn, New York, 213 AD3d 800, 802 [2d Dept 2023], citing Dolphin Holdings, Ltd v Gander & White Shipping, Inc., 122 AD3d at 901; Bennett v State Farm Fire & Cas. Co., 161 AD3d at 926). Accordingly, the branch of the motion seeking dismissal of the gross negligence cause of action is denied. All other arguments raised on this motion and evidence submitted by the parties in connection therewith have been considered by this Court, notwithstanding the specific absence of reference thereto. Accordingly, it is hereby ORDERED that the Motion is granted to the extent that the first, second, third, seventh and eighth causes of action are dismissed and the motion is otherwise denied; and it is further ORDERED that the moving defendants shall file an answer to the remaining causes of action contained in the complaint within 7 7 of 8 FILED: ERIE WESTCHESTER COUNTY CLERK COUNTY12/08/2023 CLERK 05/10/2023 06:00 PM 03:45 PM INDEX INDEXNO. NO.300004/2023 56854/2022 NYSCEF DOC. NO. 53 72 RECEIVED NYSCEF: 12/08/2023 05/10/2023 ten days after service of a copy of this decision and order with notice of entry. The foregoing constitutes the decision and order of this Court. Dated: White Plains, New York May 10, 2023 ENTER: ____________________________ HON. NANCY QUINN KOBA, J.S.C. TO: All Counsel VIA NYSCEF 8 8 of 8