Preview
FILED: WESTCHESTER COUNTY CLERK 01/26/2024 02:57 PM INDEX NO. 55407/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/26/2024
FILED: WESTCHESTER
QUEENS COUNTY
COUNTY
CLERKCLERK
10/30/2023
01/26/2024
01:1902:57
PM PM INDEX
INDEXNO.
NO.701226/2023
55407/2023
NYSCEF DOC. NO. 31
39 RECEIVED NYSCEF: 01/26/2024
10/30/2023
INDEX NO. 61757 /2022
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023
fo 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
______------------------------------____--_______Ç
RICHARD T.
DeFONCE, as Proposed Executor of the
Estate of RICHARD P. DeFONCE, Deceased,
Plaintiff,
DECISION & ORDER
-against-
Index No.: 61757/2022
Seq Nos. 2&3
SKY VIEW REHABILITATION AND HEALTH CARE
CENTER,
Defendant.
--- --------------------------------_______Ç
WOOD, J.
New York State Courts Electronic Filing ("NYSCEF") Documents Numbers 22-71,
were read in connection with the pre-answer motion by defendant, Sky View Rehabilitation and
Health Care Center, located at 1280 Albany Post Rd, in Croton-On-Hudson ("Sky View"),
pursuant to CPLR 3211(a)(3), dismissing this action for lack of legal capacity or standing to sue;
or, in the alternative pursuant to CPLR 3211(a)(2), dismissing this action for lack of subject
matter jurisdiction; or, in the alternative pursuant to CPLR 3211(a)(7), dismissing this action for
failure to state a cause of action.
According to the complaint, the claims against Sky View are premised on a violation of
residents rights laws pursuant to Public Health Law §2801-d, negligence and gross negligence,
and wrongful death involving the care and treatment of plaintiff's decedent, Richard P. DeFonce
("decedent"). Plaintiff also seeks recovery for punitive damages from Sky View based upon its
1 Plaintiff's as plaintiff failed to follow this Part's Court Rules.
sur-reply will not be considered by the court,
1
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NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023
alleged negligent and reckless actions in failing to protect residents from
longstanding grossly
harm.
Based upon the foregoing, the court considering the papers submitted, the motions are
decided as follows:
CPLR 3211(a)(7) provides that "upon a motion to dismiss for failure to state a cause of
action, the sole criterion is whether the subject pleading states a cause of action, and if, from the
four corners of the complaint, factual allegations are discemed which, taken together, manifest
any cause of action cognizable at law, then the motion will fail. The court must afford the
pleading a liberal construction, acceptthe facts alleged in the pleading as true, accord the
plaintiff the benefit of every possible inference, and determine only whether the facts as alleged
theory"
fit within any cognizable legal (Esposito v Noto, 90 AD3d 825 [2d Dept 2011]; (Sokol v
Leader. 74 AD3d 1180 [2d Dept 2010]).
According to the complaint, Sky View failed to adequately care for and protect its elderly
and vulnerable residents. Specifically, on or about December 9, 2019, through on or about July
13, 2020, decedent was admitted to Sky View's facility. During his admission, the decedent was
infected withSARS-CoV-2 and COVID-19, and developed respiratory distress and hypoxia,
which resulted in his death on July 13, 2020.
Sky View claims that it is immune from this suit and seeks the protection under CPLR
3211(a)(2) and (a)(7) pursuant to the Federal Public Readiness and Emergency Preparedness Act
("PREP Act"), 42 U.S.C. §§ 247d -6d, 247d-6e, and the New York Emergency or Disaster
Treatment Protection Act ("EDTPA"), Public Health Law Article 30-D, P.H.L.§§ 3080-3082,
Executive Order 202.10 (Mar. 2020)- which grants such as Sky
23, nursing homes, View,
2
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CLERKCLERK
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NYSCEF DOC. NO. 31
39 RECEIVED NYSCEF: 01/26/2024
10/30/2023
FILED WESTCHESTER COUNTY CLERK INDEX NO. 61757/2022
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NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023
and medical providers immunity from suit in cases where damages and death occurred as a result
of COVID-19, and its countermeasures and treatments.
The EDPTA provides health care facilities and professionals with immunity from, inter
alia, civil liability for negligence and medical malpractice while providing health care services
under the requisite conditions during the COVID-19 emergency (see Public Health Law former §
[4d'
3082 [1], [2]) (Ruth v Elderwood at Amherst, 209 AD3d 1281 Dept 2022]). The EDTPA
was deemed to be in full force and effect on or after March 7, 2020, and that it would apply to
acts or omissions that occurred on or after that date of COVID-19 emergency declaration (L
2020, ch 56, § 1; part GGG, § 2). The legislature amended EDTPA in August 2020, to limit
certain aspects of the immunity which would apply to claims for harm or damages if the act or
omission occurred on or after the effective date of the amendment, Just over one year after it was
first enacted, EDTPA was repealed on April 6, 2021 (Ruth v Elderwood at Amherst, 209 AD3d
1281).
Plaintiff argues that the repeal of EDTPA must be applied retroactively to effectuate the
legislative intent. The Fourth Department is the only appellate court to rule on this issue to date,
and after a thorough analysis, found that the repeal of EDTPA does not apply retroactively
(Ruth v Elderwood at Amherst, 209 AD3d at 1285-91 [4th Dept. 2022]). Since the doctrine
of stare decisis requires trial courts in this department to follow precedents set by the Appellate
Division of another department until the Court of Appeals or the Second Department holds
otherwise, this court has no choice but to follow the Fourth Department precedent at this time
(Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]); (Seror v
Clearview Operating Co., LLC, No. 706390/2022, 2022 WL 17733516, at 1 [Sup. Ct. Queens
Cty Nov. 18, 2022]),
3
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CLERKCLERK
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55407/2023
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TER CLEttk 01/ 0 8/2023 11 : 12 Ali
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023
In any plaintiff argues the EDTPA was not intended to apply blanket immunity to
event,
General James- who asserts that the
healthcare facilities, as evidenced by a Report by Attorney
EDTPA's intent was to support health care professionals making impossible health care
decisions in good faith this unprecedented crisis. The Attorney General cites that the
during
investigations illustrate instances of facility decisions that relate to or affect resident
preliminary
care that are financially motivated, rather than clinically motivated. OAG investigations will
continue as to acts both prior to, and after, the August 3 amendments to Public Health Law
Article 30-D (NYSCEF#62).
Nonetheless, no competent evidence has been set forth here, on these papers, specific to
Sky View's conduct, to support the AG's Report's general findings that facilities may have
deliberately used the cloak of immunity to intentionally understaff or underinvest in supplies,
and other maladies.
In fact, from this record, plaintiff's claim indeed falls within the scope of the EDPTA.
facility"
First, the EDTPA defines "health care inclusive of a nursing home. Here, the services
law"
were rendered "in accordance with applicable because Sky View was licensed to operate
and provide services under New York law.
"impacted"
Importantly, the EDTPA applies if the services at issue are by the defendant's
"decisions or activities in response to or as a result of the COVID-19 outbreak and in support of
directives"
the state's P.H1. § 3082(1)(b).
In this regard, Sky View offers the Affidavit of Kimberly D. Pustai, BSN-RN, the
Director of Nursing at Sky View (NYSCEF#45) to discuss the impacts of Sky View's decisions.
The Director contends that generally the development of infection control protocols and
activities within the facility required that decisions be made to balance the practical need for
4
4 of 7
FILED: WESTCHESTER
QUEENS COUNTY
COUNTY
CLERKCLERK
10/30/2023
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NO.701226/2023
55407/2023
NYSCEF DOC. NO. 31
39 RECEIVED NYSCEF: 01/26/2024
10/30/2023
STCHESTER COUNTY CLERK 01/06/2023 11:12 INDEX NO. 61757/2022
AM|
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023
close physical contact to provide care to Sky View residents against the risk of human-to-human
transmission of a disease with limited scientific information available. Thus, to provide
continuous care to residents during the pandemic, such decisions required the consideration and
use of, among other things, COVID-19 tests, PPE, hand sanitizers, thermometers, pulse
oximeters, and supplemental oxygen to reduce the chance of transmission. In addition, from
March 2020 to July 2020 (and thereafter), Sky View implemented and maintained several
policies and practices in response to the COVD-19 pandemic, and in a good faith attempt to
comply with then-applicable public health guidance regarding the same (id, p.4).
The Director also reviewed the medical records and specifically confirmed several
impacts that Sky View's response had on the services rendered to the decedent, including regular
monitoring of symptomology, administration of several covered countermeasures, a room
change, and suspension of visitation, communal dining, and activities, specifically in the
following ways:
a. Healthcare personnel within close proximity to residents, including
Mr. DeFonce, wore PPE when providing services;
b. All residents, including Mr. DeFonce, received daily monitoring for
abnormal temperature and oxygen saturation levels (using FDA
approved thermometers and pulse oximeters);
c. Visitation, communal dining, and activities were suspended for all
residents, including Mr. DeFonce;
d. All residents, including Mr. DeFonce, were provided alternative
methods of communication with would-be visitors (e.g., video calls);
e. On May 5, 2020, Mr. DeFonce received a nasal swab for COVID-19
testing (EUA authorized), which results were returned as negative on
May 8, 2020;
f. On May 13, 2020, Mr. DeFonce received another nasal swab for
COVID19 testing (EUA authorized) after his temperature was noted to
be 100 degrees (via FDA-approved thermometer), and his room was
5
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changed pending the results, which were returned as negative on May
16, 2020;
g. On May 25, 2020, Mr. DeFonce was found to have an elevated
temperature of 100.6 degrees (via FDA-approved thermometer), he
received a nasal swab for COVID-19 testing (EUA authorized), and was
transferred to another room pending the results, w.hich were returned as
positive on May 30, 2020;
h. On May 26, 2020, Mr. DeFonce received a chest x-ray in response to
his perceived COVID-19 status;
i. Mr. DeFonce received orders for Lovenox (an FDA-approved drug) for
10 days, and vitamins, in response to his perceived COVID-19 status;
j. Mr. DeFonce's vital signs were regularly monitored, including via
FDA approved thermometers and pulse oximeters, in response to his
perceived COVID-19 status (id. pgs. 5-6).
In light of the foregoing, it cannot be said that the services provided to the decedent were
"impacted"
not by Sky View's response to COVID-19.
Plaintiff also opposes the motion on the grounds that plaintiffs claims that Sky View was
grossly negligent and reckless are not subject to statutory immunity. The EDTPA applies to
faith"
services rendered "in good and creates an exception for "willful or intentional criminal
harm,"
misconduct, gross negligence, reckless misconduct, or intentional infliction of P.H.L. §
3082(1)(c), (2). "To constitute gross negligence, a party's conduct must smack of intentional
others"
wrongdoing or evince a reckless indifference to the rights of (Dolphin Holdings, Ltd. v.
Gander & White Shipping, Inc” 122 AD3d 901, 902 [2d Dept 2014]). While the complaint does
allege the elements of a cause of action for gross negligence, the complaint fails to specify any
facts constituting willful misconduct or gross negligence (J Petrocelli Contr., Inc. v Morganti
Group, Inc., 137 AD3d 1082 [2d Dept 2016]). Plaintiff's bald assertions of gross negligence and
reckless misconduct are just that - bare legal conclusions with no factual specificity. Plaintiff
has failed to adequately plead any such conduct, and therefore fails to invoke these exceptions,
6
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COUNTY
CLERKCLERK
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NYSCEF DOC. NO. 31
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NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023
of the this court determines that Sky View is entitled to the immunity
In light foregoing,
conferred EDTPA . Sky View offered competent evidence as to how the
from liability by
decedent's care was impacted the facility's response to COVID-19,and established that it
by
had acted in good faith.
court has considered the remainder of the factual and legal contentions of the parties
The
and to the extent not addressed herein, finds them to be either without merit or
specifically
rendered moot other aspects of this decision. This constitutes the decision and order of the
by
court. Accordingly, it is hereby
that View's pre-answer motion to dismiss the claim is Granted, the
ORDERED, Sky
complaint is dismissed, and the clerk is directed to enter judgment accordingly,
The Clerk shall mark his records accordingly.
Dated: White Plains, New York
January 6, 2023
HON. CHARLES D. WO D
Justice of the Supreme ourt
To: All Parties by NYSCEF
7
FILED: WESTCHESTER
QUEENS COUNTY
COUNTY
CLERKCLERK
10/30/2023
01/26/2024
01:1902:57
PM PM INDEX
INDEXNO.
Preview
FILED: WESTCHESTER COUNTY CLERK 01/26/2024 02:57 PM INDEX NO. 55407/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/26/2024 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO. NO.701226/2023 55407/2023 NYSCEF DOC. NO. 31 39 RECEIVED NYSCEF: 01/26/2024 10/30/2023 INDEX NO. 61757 /2022 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023 fo 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 ______------------------------------____--_______Ç RICHARD T. DeFONCE, as Proposed Executor of the Estate of RICHARD P. DeFONCE, Deceased, Plaintiff, DECISION & ORDER -against- Index No.: 61757/2022 Seq Nos. 2&3 SKY VIEW REHABILITATION AND HEALTH CARE CENTER, Defendant. --- --------------------------------_______Ç WOOD, J. New York State Courts Electronic Filing ("NYSCEF") Documents Numbers 22-71, were read in connection with the pre-answer motion by defendant, Sky View Rehabilitation and Health Care Center, located at 1280 Albany Post Rd, in Croton-On-Hudson ("Sky View"), pursuant to CPLR 3211(a)(3), dismissing this action for lack of legal capacity or standing to sue; or, in the alternative pursuant to CPLR 3211(a)(2), dismissing this action for lack of subject matter jurisdiction; or, in the alternative pursuant to CPLR 3211(a)(7), dismissing this action for failure to state a cause of action. According to the complaint, the claims against Sky View are premised on a violation of residents rights laws pursuant to Public Health Law §2801-d, negligence and gross negligence, and wrongful death involving the care and treatment of plaintiff's decedent, Richard P. DeFonce ("decedent"). Plaintiff also seeks recovery for punitive damages from Sky View based upon its 1 Plaintiff's as plaintiff failed to follow this Part's Court Rules. sur-reply will not be considered by the court, 1 1 of 7 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO. NO.701226/2023 55407/2023 NYSCEF DOC. NO. 31 39 RECEIVED NYSCEF: 01/26/2024 10/30/2023 ni.su wssTcussTsif LUUNT CIRRK INDEX NO. 61757/2022 : y 01/06/2023 11: 12 AM| NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023 alleged negligent and reckless actions in failing to protect residents from longstanding grossly harm. Based upon the foregoing, the court considering the papers submitted, the motions are decided as follows: CPLR 3211(a)(7) provides that "upon a motion to dismiss for failure to state a cause of action, the sole criterion is whether the subject pleading states a cause of action, and if, from the four corners of the complaint, factual allegations are discemed which, taken together, manifest any cause of action cognizable at law, then the motion will fail. The court must afford the pleading a liberal construction, acceptthe facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged theory" fit within any cognizable legal (Esposito v Noto, 90 AD3d 825 [2d Dept 2011]; (Sokol v Leader. 74 AD3d 1180 [2d Dept 2010]). According to the complaint, Sky View failed to adequately care for and protect its elderly and vulnerable residents. Specifically, on or about December 9, 2019, through on or about July 13, 2020, decedent was admitted to Sky View's facility. During his admission, the decedent was infected withSARS-CoV-2 and COVID-19, and developed respiratory distress and hypoxia, which resulted in his death on July 13, 2020. Sky View claims that it is immune from this suit and seeks the protection under CPLR 3211(a)(2) and (a)(7) pursuant to the Federal Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. §§ 247d -6d, 247d-6e, and the New York Emergency or Disaster Treatment Protection Act ("EDTPA"), Public Health Law Article 30-D, P.H.L.§§ 3080-3082, Executive Order 202.10 (Mar. 2020)- which grants such as Sky 23, nursing homes, View, 2 2 of 7 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO. NO.701226/2023 55407/2023 NYSCEF DOC. NO. 31 39 RECEIVED NYSCEF: 01/26/2024 10/30/2023 FILED WESTCHESTER COUNTY CLERK INDEX NO. 61757/2022 : 01/06/2023 11: 12 AM) NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023 and medical providers immunity from suit in cases where damages and death occurred as a result of COVID-19, and its countermeasures and treatments. The EDPTA provides health care facilities and professionals with immunity from, inter alia, civil liability for negligence and medical malpractice while providing health care services under the requisite conditions during the COVID-19 emergency (see Public Health Law former § [4d' 3082 [1], [2]) (Ruth v Elderwood at Amherst, 209 AD3d 1281 Dept 2022]). The EDTPA was deemed to be in full force and effect on or after March 7, 2020, and that it would apply to acts or omissions that occurred on or after that date of COVID-19 emergency declaration (L 2020, ch 56, § 1; part GGG, § 2). The legislature amended EDTPA in August 2020, to limit certain aspects of the immunity which would apply to claims for harm or damages if the act or omission occurred on or after the effective date of the amendment, Just over one year after it was first enacted, EDTPA was repealed on April 6, 2021 (Ruth v Elderwood at Amherst, 209 AD3d 1281). Plaintiff argues that the repeal of EDTPA must be applied retroactively to effectuate the legislative intent. The Fourth Department is the only appellate court to rule on this issue to date, and after a thorough analysis, found that the repeal of EDTPA does not apply retroactively (Ruth v Elderwood at Amherst, 209 AD3d at 1285-91 [4th Dept. 2022]). Since the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Second Department holds otherwise, this court has no choice but to follow the Fourth Department precedent at this time (Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]); (Seror v Clearview Operating Co., LLC, No. 706390/2022, 2022 WL 17733516, at 1 [Sup. Ct. Queens Cty Nov. 18, 2022]), 3 3 of 7 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO. NO.701226/2023 55407/2023 NYSCEF DOC. NO. 31 39 COUNTY¯ RECEIVED NYSCEF: 01/26/2024 10/30/2023 -RILED INDEX NO. 61757/2022 TER CLEttk 01/ 0 8/2023 11 : 12 Ali NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023 In any plaintiff argues the EDTPA was not intended to apply blanket immunity to event, General James- who asserts that the healthcare facilities, as evidenced by a Report by Attorney EDTPA's intent was to support health care professionals making impossible health care decisions in good faith this unprecedented crisis. The Attorney General cites that the during investigations illustrate instances of facility decisions that relate to or affect resident preliminary care that are financially motivated, rather than clinically motivated. OAG investigations will continue as to acts both prior to, and after, the August 3 amendments to Public Health Law Article 30-D (NYSCEF#62). Nonetheless, no competent evidence has been set forth here, on these papers, specific to Sky View's conduct, to support the AG's Report's general findings that facilities may have deliberately used the cloak of immunity to intentionally understaff or underinvest in supplies, and other maladies. In fact, from this record, plaintiff's claim indeed falls within the scope of the EDPTA. facility" First, the EDTPA defines "health care inclusive of a nursing home. Here, the services law" were rendered "in accordance with applicable because Sky View was licensed to operate and provide services under New York law. "impacted" Importantly, the EDTPA applies if the services at issue are by the defendant's "decisions or activities in response to or as a result of the COVID-19 outbreak and in support of directives" the state's P.H1. § 3082(1)(b). In this regard, Sky View offers the Affidavit of Kimberly D. Pustai, BSN-RN, the Director of Nursing at Sky View (NYSCEF#45) to discuss the impacts of Sky View's decisions. The Director contends that generally the development of infection control protocols and activities within the facility required that decisions be made to balance the practical need for 4 4 of 7 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO. NO.701226/2023 55407/2023 NYSCEF DOC. NO. 31 39 RECEIVED NYSCEF: 01/26/2024 10/30/2023 STCHESTER COUNTY CLERK 01/06/2023 11:12 INDEX NO. 61757/2022 AM| NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023 close physical contact to provide care to Sky View residents against the risk of human-to-human transmission of a disease with limited scientific information available. Thus, to provide continuous care to residents during the pandemic, such decisions required the consideration and use of, among other things, COVID-19 tests, PPE, hand sanitizers, thermometers, pulse oximeters, and supplemental oxygen to reduce the chance of transmission. In addition, from March 2020 to July 2020 (and thereafter), Sky View implemented and maintained several policies and practices in response to the COVD-19 pandemic, and in a good faith attempt to comply with then-applicable public health guidance regarding the same (id, p.4). The Director also reviewed the medical records and specifically confirmed several impacts that Sky View's response had on the services rendered to the decedent, including regular monitoring of symptomology, administration of several covered countermeasures, a room change, and suspension of visitation, communal dining, and activities, specifically in the following ways: a. Healthcare personnel within close proximity to residents, including Mr. DeFonce, wore PPE when providing services; b. All residents, including Mr. DeFonce, received daily monitoring for abnormal temperature and oxygen saturation levels (using FDA approved thermometers and pulse oximeters); c. Visitation, communal dining, and activities were suspended for all residents, including Mr. DeFonce; d. All residents, including Mr. DeFonce, were provided alternative methods of communication with would-be visitors (e.g., video calls); e. On May 5, 2020, Mr. DeFonce received a nasal swab for COVID-19 testing (EUA authorized), which results were returned as negative on May 8, 2020; f. On May 13, 2020, Mr. DeFonce received another nasal swab for COVID19 testing (EUA authorized) after his temperature was noted to be 100 degrees (via FDA-approved thermometer), and his room was 5 5 of 7 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO. NO.701226/2023 55407/2023 NYSCEF DOC. NO. 31 39 RECEIVED NYSCEF: 01/26/2024 10/30/2023 -lETLEDM5TCHESTER COUNTY CLERK 12 INDEX NO. 61757/2022 01/06/2023 11: AM| NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023 changed pending the results, which were returned as negative on May 16, 2020; g. On May 25, 2020, Mr. DeFonce was found to have an elevated temperature of 100.6 degrees (via FDA-approved thermometer), he received a nasal swab for COVID-19 testing (EUA authorized), and was transferred to another room pending the results, w.hich were returned as positive on May 30, 2020; h. On May 26, 2020, Mr. DeFonce received a chest x-ray in response to his perceived COVID-19 status; i. Mr. DeFonce received orders for Lovenox (an FDA-approved drug) for 10 days, and vitamins, in response to his perceived COVID-19 status; j. Mr. DeFonce's vital signs were regularly monitored, including via FDA approved thermometers and pulse oximeters, in response to his perceived COVID-19 status (id. pgs. 5-6). In light of the foregoing, it cannot be said that the services provided to the decedent were "impacted" not by Sky View's response to COVID-19. Plaintiff also opposes the motion on the grounds that plaintiffs claims that Sky View was grossly negligent and reckless are not subject to statutory immunity. The EDTPA applies to faith" services rendered "in good and creates an exception for "willful or intentional criminal harm," misconduct, gross negligence, reckless misconduct, or intentional infliction of P.H.L. § 3082(1)(c), (2). "To constitute gross negligence, a party's conduct must smack of intentional others" wrongdoing or evince a reckless indifference to the rights of (Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc” 122 AD3d 901, 902 [2d Dept 2014]). While the complaint does allege the elements of a cause of action for gross negligence, the complaint fails to specify any facts constituting willful misconduct or gross negligence (J Petrocelli Contr., Inc. v Morganti Group, Inc., 137 AD3d 1082 [2d Dept 2016]). Plaintiff's bald assertions of gross negligence and reckless misconduct are just that - bare legal conclusions with no factual specificity. Plaintiff has failed to adequately plead any such conduct, and therefore fails to invoke these exceptions, 6 6 of 7 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO. NO.701226/2023 55407/2023 NYSCEF DOC. NO. 31 39 RECEIVED NYSCEF: 01/26/2024 10/30/2023 INDEX NO. 61757/2022 R COUNTY CLERK 01/06/2023 11:12 AM| NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 01/06/2023 of the this court determines that Sky View is entitled to the immunity In light foregoing, conferred EDTPA . Sky View offered competent evidence as to how the from liability by decedent's care was impacted the facility's response to COVID-19,and established that it by had acted in good faith. court has considered the remainder of the factual and legal contentions of the parties The and to the extent not addressed herein, finds them to be either without merit or specifically rendered moot other aspects of this decision. This constitutes the decision and order of the by court. Accordingly, it is hereby that View's pre-answer motion to dismiss the claim is Granted, the ORDERED, Sky complaint is dismissed, and the clerk is directed to enter judgment accordingly, The Clerk shall mark his records accordingly. Dated: White Plains, New York January 6, 2023 HON. CHARLES D. WO D Justice of the Supreme ourt To: All Parties by NYSCEF 7 FILED: WESTCHESTER QUEENS COUNTY COUNTY CLERKCLERK 10/30/2023 01/26/2024 01:1902:57 PM PM INDEX INDEXNO.