Supreme Court, Bronx County, May 18, 2023

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Kathryn M. Lang of counsel), for defendant.

Krentsel Guzman Herbert, LLP, New York City (Jonathan J. Panarella of counsel), for plaintiff.

This is a pre-answer motion in which defendant seeks dismissal of plaintiff's complaint for failing to state a cause of action (CPLR 3211 [a] [7]). By way of background, decedent was a resident at defendant's long-term care facility from July 25, 2019, through April 13, 2020, and [*2]April 21, 2020, through May 6, 2020. Decedent was confirmed to be COVID-19 positive during his hospitalization between admissions (i.e., Apr. 13-21), and died due to COVID-19 related complications on May 6, 2020. Plaintiff commenced this action in December 2022 alleging four causes of action: first is a violation of Public Health Law §§ 2801-d (private actions by patients) and 2803-c (rights of patients), second is negligence (including negligent hiring, retention and supervision), third is gross negligence, and fourth is wrongful death. According to defendant, the immunity defense provided by the Emergency or Disaster Treatment Protection Act (EDTPA) under Public Health Law article 30-D precludes plaintiff from maintaining the first (Public Health Law), second (negligence) and fourth (wrongful death) claims. Defendant also argues that the complaint fails to allege facts beyond ordinary negligence; therefore, plaintiff's third cause of action for gross negligence must likewise be dismissed.

[1] On April 3, 2020, New York passed the EDTPA, which was made retroactive to March 7, 2020, and provided immunity to health care workers and facilities from liability that may result from the treatment of individuals with COVID-19. The{**79 Misc 3d at 1023} immunity conferred by 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 worker or facility. As previously mentioned, defendant argues that the immunity provided by the EDTPA warrants dismissal of plaintiff's first, second and fourth claims. In opposition, plaintiff argues that the EDTPA was repealed on April 6, 2021, and that this repeal was retroactive and therefore cannot provide any immunity to defendant. Although there is no dispute that the EDTPA was repealed on April 6, 2021, the legislation simply provided that the repeal would take effect immediately. Whether the repeal was retroactive was left for the courts to resolve, and in October 2022, the Appellate Division, Fourth Department, answered this question in the negative. (Ruth v Elderwood at Amherst, 209 AD3d 1281 [4th Dept 2022].) The Fourth Department's decision that the repeal is not retroactive is the only appellate department decision on this issue, and this court, as a matter of law, must follow this precedent (Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984]).

[2] As for plaintiff's third claim, in order to state a cause of action for gross negligence, the complaint must allege facts that demonstrate and/or rise to the level of willful or wanton negligence or recklessness. (Rosenberg, Minc & Armstrong v Mallilo & Grossman, 39 AD3d 335 [1st Dept 2007]; Mancuso v Rubin, 52 AD3d 580 [2d Dept 2008].) And in reviewing a motion to dismiss a complaint for failing to state a cause of action, the court must give the complaint a liberal construction, accept the allegations as true and provide plaintiff with the benefit of every favorable inference. (Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 30 NY3d 572 [2017].) Here, plaintiff's complaint is replete with conclusory and vague allegations, and is devoid of any facts that would constitute gross negligence. Essentially the complaint centers around an alleged failure by defendant "to maintain an infection control program with policies designed to provide a safe, sanitary, and comfortable environment in which residents vulnerable to infection reside" and "to have an infection control program which investigated, controlled and took action to prevent infections in the facility and to determine what procedures, such as isolation, should be utilized."

While these alleged facts may demonstrate negligence, they do not rise to the level of willful conduct that evidences a high{**79 Misc 3d at 1024} degree of moral culpability. (Rey v Park View Nursing Home, 262 AD2d 624 [2d Dept 1999].) In addition, there are no affidavits from individuals with personal knowledge [*3]included in the opposition papers to somehow demonstrate that plaintiff does have a claim for gross negligence despite the complaint's defects. (Leon v Martinez, 84 NY2d 83 [1994].) Given the aforementioned, defendant's motion to dismiss this action is granted, and the clerk shall enter judgment accordingly. Defendant is directed to serve a copy of this decision/order with notice of entry by first-class mail upon plaintiff within 30 days of receipt of copy of same.