This action arises from defendant's (alleged lack of) treatment of and care for a nursing-home resident. Plaintiff is Gladys Figueroa, the administrator of the Estate of Aida Figueroa. Defendant is Jewish Home Life Care, Manhattan, a nursing home. Aida Figueroa, the decedent, moved into defendant's facility in 2013. She remained at the facility until her death in April 2020.

According to plaintiff, decedent's death resulted from defendant's negligence and malpractice in failing to implement proper procedures and administer care to decedent during the COVID-19 pandemic.

Plaintiff asserts claims for (i) violations of New York's Public Health Law (first cause of action); (ii) negligence in failing to take measures to protect decedent from COVID-19 (second [*2]and third causes of action); (iii) negligence from which decedent suffered from falls and urinary tract infections (fourth cause of action); (iv) negligence per se related to defendant's conduct during the COVID-19 pandemic (fifth cause of action); conscious pain and suffering due to falls and urinary tract infections (sixth cause of action); wrongful death (seventh cause of action); gross negligence (eighth cause of action); and nursing-home malpractice (ninth cause of action). (See NYSCEF No. 1 [complaint].)

This is the third time that plaintiff has asserted these claims against defendant. In 2022 and 2024, plaintiff brought actions against defendant on very similar grounds. Both actions were dismissed because plaintiff had no capacity—in the form of letters of administration—to bring the action on behalf of decedent's estate.

Defendant now moves under CPLR 3211 (a) (5) to dismiss plaintiff's complaint based on expiration of the statutes of limitations, res judicata, and collateral estoppel; under CPLR 3211 (a) (2) for lack of subject-matter jurisdiction; and under CPLR 3211 (a) (7) for failure to state a cause of action.

Plaintiff's claims based on allegations that decedent suffered from falls and urinary tract infections are dismissed under CPLR 3211 (a) (5). The rest of plaintiff's action is dismissed under CPLR 3211 (a) (7).

I. Statutes of Limitations

A. COVID-19-Related Claims

Most of plaintiff's claims in this action duplicate the claims she asserted in her 2022 and 2024 actions, which were dismissed for lack of capacity. Defendants argue that plaintiff may not re-assert those claims in this action, because their statutes of limitations have since expired. This court disagrees.

In 2022, plaintiff brought her first action against defendant for negligence and wrongful death related to defendant's care for decedent during the COVID-19 pandemic (Index No. 153520/2022). (See NYSCEF No. 8 [2022 summons and complaint].) That action was assigned to Justice John J. Kelley. As relevant here, defendant moved to dismiss the action for plaintiff's lack of capacity. In an October 2023 decision, Justice Kelley held that plaintiff lacked capacity to bring the action on behalf of decedent's estate, because she had not yet begun the process to be "appointed as the representative of the decedent's estate." (Figueroa v Jewish Home Lifecare Manhattan, 2023 NY Slip Op 33765[U], *2-3 [Sup Ct, NY County 2023].) He therefore dismissed the action—but did so without prejudice to plaintiff's bringing a new action within six months, as permitted by CPLR 205 (a). (Id. at *4.)

Plaintiff then brought her second action against defendant in April 2024 (Index No. 153703/2024). In that action, also before Justice Kelley, defendant moved to dismiss on the same lack-of-capacity grounds. In October 2024, Justice Kelley granted that motion and dismissed the action, without prejudice to commencing another new action within six months under CPLR 205 (a). (See Figueroa v Jewish Home Lifecare, Manhattan, 2024 NY Slip Op 33613[U], *4 [Sup Ct, NY County 2024].)

Defendant then moved to reargue the portion of Justice Kelley's decision that dismissing [*3]the action without prejudice to recommencement. On March 31, 2025, Justice Kelley granted the motion to reargue and dismissed the action with prejudice. (Figueroa v Jewish Home Lifecare Manhattan, 2025 NY Slip Op 31010[U], *6-7 [Sup Ct, NY County 2025].) That decision relied on a decision of the U.S. Court of Appeals for the Second Circuit, applying New York law, holding that "CPLR 205(a) 'does not permit a litigant to file an otherwise untimely 'new action' within six months of a 'prior action,' where that prior action was, itself, only made timely by a previous application of section 205(a).'" (Id. at *4, quoting Ray v Ray, 22 F4th 69, 75 [2d Cir 2021].)

On March 11, 2025—while the motion to reargue remained pending before Justice Kelley—plaintiff brought her third action, the one now before this court.

In moving to dismiss, defendant again argues that plaintiff's COVID-19-related claims are time-barred, and that plaintiff is forbidden to "invoke the 6-month grace period under CPLR 205(a)" to resuscitate them a second time—as Justice Kelley had held on reargument. (NYSCEF No. 7 at 3-4.) But two months after the reargument decision, the Appellate Division, Second Department, held that a plaintiff could use CPLR 205 (a) to recommence dismissed actions more than once. (See Tumminia v Staten Island Univ. Hosp, 241 AD3d 17, 27 [2d Dept 2025].) Under the binding authority of the Second Department's decision in Tumminia, this court holds that plaintiff's claims—to the extent they relate back to the 2022 and 2024 actions—are not time-barred.

In Tumminia, plaintiff commenced two actions "as the proposed executor of the decedent's estate without having been appointed the estate's personal representative." (Id. at 22.) Supreme Court had dismissed the first of those actions without prejudice to refiling an action within six months of the dismissal under CPLR 205 (a). (See id. at 20.) Plaintiff refiled the action—again without having been appointed estate representative. (See id. at 20-21.) Supreme Court dismissed the second action with prejudice. (See id. at 21.) Plaintiff then sought to refile the action a second time. Plaintiff's bringing his action a third time presented the question whether "CPLR 205(a) permits a litigant to file an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, only made timely by a previous application of CPLR 205(a)." (Id. at 26.)

The Second Department in Tumminia, treating this question as one of first impression in the New York courts, disagreed with the Second Circuit's holding in Ray v Ray and held that CPLR 205 (a) permitted an action to be recommenced multiple times. (See id. at 26-27.) The Second Department noted that "when a timely complaint is dismissed because the plaintiff, as proposed administratrix of a decedent's estate, lacks capacity to commence the action, such a plaintiff who subsequently obtains letters of administration may take advantage of CPLR 205(a)"; and that plaintiff may "commence a new action within six months of the dismissal of the prior action, even if the statute of limitations would have otherwise expired in the interim." (Id. at 23, citing Carrick v Central Gen. Hosp., 51 NY2d 242, 246—253 [1980].) The Second Department concluded, therefore, that the new action should be considered "timely commenced" even if it is timely only by operation of CPLR 205 (a). (Id. at 27.) Thus, "when there are three successive actions filed, with the second and third being commenced within six months of the dismissal of the previous action, the third action 'would have been timely commenced at the time of commencement of' the second action because, as a result of CPLR 205(a), the second action was timely." (Id.)

Tumminia squarely addresses the circumstances in this action. Justice Kelley dismissed the 2022 action for lack of capacity. Plaintiff then brought the 2024 action within six months of that dismissal—making that action timely under CPLR 205 (a). Justice Kelley then dismissed the second action, again for lack of capacity. Under Tumminia, plaintiff is allowed to bring a third action for the same claims if brought within six months of the dismissal of the second action—and that is what plaintiff did here.

One question remains, however. Plaintiff filed this action in March 2025, which was before the Second Department issued its decision in June 2025. The Second Department did not consider whether its ruling applied to actions brought before the ruling issued. But this court must do so here.

This court concludes that the holding of Tumminia applies to plaintiff's action. In determining whether an appellate decision applies retroactively, "[t]he threshold question . . . is whether [the case whose retroactivity is at issue] is really a 'new' rule of law at all." (Roberts v Tishman Speyer Props., L.P., 89 AD3d 444, 446 [1st Dept 2011] [internal quotation marks omitted].) If a judicial decision "constru[es] the words of a statute," it has not created a new rule of law, and that decision applies retroactively. (Id. [internal quotation marks omitted].)

Tumminia announced no new rule. To the contrary, the Second Department reached its conclusion based on the language of CPLR 205 (a). Accordingly, this court concludes that Tumminia applies to actions pending when it was issued.

The branch of defendant's motion to dismiss the portions of plaintiff's claims that were presented in the 2022 and 2024 actions—i.e., the claims relating to COVID-19—is denied.^[FN1]

B. New Allegations

Plaintiff also alleges in this action that decedent "suffered falls which caused her bruising, swelling and bleeding, and developed urinary tract infections, all of which caused her extensive conscious pain and suffering right up until her death." (NYSCEF No. 1 at ¶ 117; see also id. at ¶ 129.) Defendant argues that claims stemming from those allegations are untimely, because they do not relate back to allegations in the prior two actions. (See NYSCEF No. 7 at 5, citing CPLR 205 [a].) Plaintiff does not dispute this contention.

The portions of plaintiff's negligence claim (ninth cause of action) relating to decedent's falls and urinary-tract infections are dismissed as time-barred. Plaintiff's claim for non-COVID [*4]negligence (fourth cause of action); conscious pain and suffering (sixth cause of action) and non-COVID-19 negligence per se claim (fifth cause of action) are dismissed for the same reason.

II. PREP Act

Defendant contends that it is immune from plaintiff's claims under the federal Public Readiness and Emergency Preparedness Act (PREP Act), 42 USC § 247d—6d et seq., and that this court lacks subject-matter jurisdiction to adjudicate this action. Plaintiff contends that her claims lie outside the PREP Act's scope.

The PREP Act affords covered persons "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." (Kluska v Montefiore St. Luke's Cornwall, 227 AD3d 690, 691-692 [2d Dept 2024], quoting Solomon v. St. Joseph Hosp., 62 F4th 54, 58 [2d Cir 2023]; see 42 USC § 247d—6d [a] [1].)

Covered countermeasures include (1) "a qualified pandemic or epidemic product"; (2) a security countermeasure; (3) a drug, biological product, or device authorized for emergency use; and (4) a respiratory protective device determined to be "a priority for use during a public health emergency." (42 USC § 247d-6d (i) (1); see Declaration Under the PREP Act for Medical Countermeasures Against COVID-19, 85 Fed Reg 15198-01, 15202 (Mar. 17, 2020) ["Covered Countermeasures are any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19."].) Administrating a covered countermeasure includes "physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution, and dispensing of the countermeasures to recipients; management and operation of countermeasure programs; or management and operation of locations for purpose of distributing and dispensing countermeasures." (85 Fed Reg 15198-01 at 15200.)

Notably, "[s]tate courts addressing immunity defenses under the PREP Act are required to answer only whether the plaintiff's claims fall within the PREP Act's immunity provision. If the answer is no . . . there is no federal law left to apply and the case can proceed under state law." (Kluska, 227 AD3d at 692 [internal citation and quotation marks omitted].) If the answer is yes, the state court lacks subject-matter jurisdiction to adjudicate the case. (See id.)

The parties do not dispute that defendant would qualify as a covered person under the PREP Act. They dispute whether decedent's injury was related to the administration of a covered countermeasure. This court concludes that defendants have not sufficiently shown such a relationship.

The number of products considered to be covered countermeasures is large. (See 85 Fed Reg 15198-01 at 15199-15200.) But plaintiff does not allege that "that decedent's [death] arose from the use of an approved countermeasure under the PREP Act." (Sweatman v Hurlbut, 237 AD3d 1598, 1601 [4th Dept 2025] [emphasis added].) The crux of plaintiff's allegations is that defendant failed to administer COVID tests to decedent and to follow infectious-disease protocols resulting in decedent's death. (See generally NYSCEF No. 1 [complaint].) These allegations do not amount to the administration of countermeasures under the PREP Act. (See e.g. Escobar v Mercy Med. Ctr., 2024 NY Slip Op 50704[U], *3 [Sup Ct, Nassau County 2024] [noting that a "developing body of case law in 'failure to act' cases have held that immunity [*5]applies only where a covered countermeasure is in scarce supply and is not administered due to prioritization or purposeful allocation"]; Adler v Troy, 2023 NY Slip Op 33804[U], *6 [Sup Ct, NY County 2023] [same], vacated on renewal on other grounds 2024 NY Slip Op 33106[U] [Sup Ct, NY County 2024]; Whitehead v Pine Haven Operating LLC, 75 Misc 3d 985, 991-992 [Sup Ct, Columbia County 2022] [holding that plaintiff's allegations did not involve administration of countermeasures absent allegations like "that the decedent was injured by administration of the vaccine, or the administration of treatment, or the use of a diagnostic test, or use of any personal protective equipment"], revd on other grounds 222 AD3d 104 [3d Dept 2023].)

Defendant contends that covered countermeasures include almost any medical product, including personal protective equipment (PPE); and that plaintiff's allegations are not about defendant's failure to use covered countermeasures but about defendant's failure to use them properly. (NYSCEF No. 73 at 12.) This court disagrees.

Plaintiff's complaint revolves around allegations that defendant failed to have or to implement proper protocols to combat infectious diseases—particularly COVID-19. The complaint alleges that defendant failed to test decedent for COVID-19 timely or to effectively isolate and monitor decedent to prevent her from catching COVID-19. (See NYSCEF No. 1 at 23-26].) The complaint does not specify countermeasures that defendant is alleged to have improperly used or administered. Nor do defendant's motion papers. Defendant argues more broadly that allegations in the complaint of defendant's failure to adopt proper practices, protocols, staffing allocations, and so on relate to administration of countermeasures. But those kinds of allegations do not "establish that decedent's injuries arose from the use of an approved countermeasure under the PREP Act." (Sweatman, 237 AD3d at 1601.)

Defendant has not shown that plaintiff's claims fall within the PREP Act's scope. This court has subject-matter jurisdiction over this action. The court does not reach the parties' remaining arguments about the PREP Act.

III. EDTPA

New York's Emergency or Disaster Treatment Protection Act (EDTPA) (former Public Health Law art 30-D, §§ 3080-3082) was enacted in April 2020; applied retroactively starting from March 2020; and repealed in April 2021. (See Ruth v Elderwood at Amherst, 209 AD3d 1281, 1283 [4th Dept 2022].) The EDTPA provided that "any health care facility or health care professional 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 providing health care services." (Public Health Law former § 3082 [1].)

To be entitled to immunity, defendant must establish three criteria: (1) "the services were arranged for or provided pursuant to a COVID—19 emergency rule or otherwise in accordance with applicable law"; (2) "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 (3) "the services were arranged or provided in good faith." (Mera v New York City Health & Hosps. Corp., 220 AD3d 668, 669 [2d Dept 2023], citing Public Health Law former § 3082 [1].) A defendant is excluded from immunity "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." (Public Health Law [*6]former § 3082 [2].)

A. Immunity

Defendant argues that it is immune to plaintiff's claims under the EDTPA, because defendant is a healthcare facility that provided healthcare services to decedent and because those services were impacted by defendant's response to COVID-19. (See NYSCEF No. 7 at 17-18.) Plaintiff argues that defendant has not satisfied its burden of proof to show entitlement to immunity. According to plaintiff, Sandra Mundy, defendant's administrator, failed to "conclusively establish that Defendant's treatment of the decedent was impacted by their decisions or activities in response to the pandemic and in support of the State's directives, as required by the now-repealed immunity." (NYSCEF No. 72 at 13-14 [internal quotation marks omitted].) The court agrees with defendant.

Plaintiff relies heavily on the First Department's decision in Holder v Jacob, which held that to show entitlement to dismissal on immunity grounds, defendant must provide conclusive evidence of the three criteria. (231 AD3d 78, 87 [1st Dept 2024]; see NYSCEF No. 72 at 15-16.).) But Holder is distinguishable from this action. There, the patient was treated for ulcerative colitis; and the question was whether the patient's ulcerative-colitis treatment was impacted by defendant's response to COVID-19. The court held that the defendant had not conclusively established as much. (See Brito v Harlem Ctr. for Nursing and Rehabilitation, LLC, 2025 NY Slip Op 33763[U], *13-14 [Sup Ct, NY County 2025] ["[T]he First Department held that the [EDTPA] was not applicable to those facts as defendant was unable to establish that "the treatment of [plaintiff was] impacted by [defendants'] decisions or activities in response to or as a result of the Covid- 19 outbreak."].)

Here, plaintiff's allegations center around defendant's COVID-related treatment of decedent. Mundy's affidavit details changes made to the operation of the nursing home and the treatment of patients in response to the COVID-19 pandemic. See NYSCEF No. 33 at 5-8.) The affidavit explains how those changes impacted decedent's treatment. (See id.) Her representations are more than mere conclusions. Defendant also provides decedent's medical records showing decedent's treatment after being suspected of, and later having, COVID-19. (See NYSCEF No. 34 at 7, 10, 16, 22, 77-78 [pdf pagination].) Those records further support defendant's immunity argument. (See Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation Ctr., 241 AD3d 645, 647 [2d Dept 2025] [holding that "the complaint, the decedent's medical records, the defendant's COVID—19 protocols, an affidavit of an administrator at the defendant, and an affidavit of an attending physician at the defendant, conclusively established" EDTPA immunity].) This court concludes that defendant has conclusively shown that COVID-19 affected its treatment of decedent.

Defendant has shown that plaintiff's claims come within the scope of EDTPA immunity.

B. Gross Negligence/Reckless Conduct

Plaintiff argues that it has sufficiently pleaded that defendants acted recklessly or with gross negligence, and therefore come within the EDTPA immunity exclusion. (NYSCEF No. 72 at 17.) Plaintiff further contends that "there are also questions of fact at to what exactly the Defendant's infection protocols were, when they were effectively implemented, and whether they [*7]were tailored to the needs of the decedent." (Id. at 21.) Defendant, on the other hand, contends that "there is no allegation that Defendant was not rendering services 'in good faith'" and that plaintiff's claims for gross-negligence and reckless essentially duplicate her claims for negligence. (NYSCEF No. 7 at 22.) This court agrees with defendant.

Gross negligence "differs in kind, not only degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing." (Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824 [1993] [internal quotation marks omitted].)

Most of plaintiff's gross-negligence/reckless-misconduct allegations are conclusory. They comprise allegations that defendant failed to adhere to federal and state regulations for implementing measures to prevent the spread of infectious disease generally and in response to the COVID-19 pandemic. Plaintiff does not provide factual allegations tying these asserted failures to decedent's death. And Mundy's affidavit and decedent's medical records reflect implementation of "at least some policies directed toward" caring for COVID-19 patients and "preventing the spread of disease." (Hasan v Terrace Acquisitions II, LLC, 224 AD3d 475, 479 [1st Dept 2024].)

The closest plaintiff comes to asserting claims for gross negligence/reckless misconduct is through her allegations that defendant failed to test decedent timely for COVID-19. Plaintiff alleges that decedent's family member requested that decedent be tested for COVID-19 when defendant's nurse practitioner told her that decedent had a cough and low-grade fever. (See NYSCEF No. 1 at 23-24 [complaint].) Plaintiff alleges that after receiving no update, the family member called defendant to follow up on the COVID-19 test only to learn that defendant could not find the test. (Id. at 24.) The family member then asked for a second test to be administered to decedent, but that second test was ultimately never administered. Only on its third attempt did defendant administer the test. (Id.) Plaintiff also alleges that defendant failed to notify decedent's family members when decedent was transferred to a different floor after exposure to a resident with COVID-19. (Id.)

As evidenced by Mundy's affidavit and decedent's medical records (NYSCEF Nos. 33 and 34), defendant "did not abandon the patient and its conduct was not wanton or malicious or activated by evil or reprehensible motives." (Anzolone v Long Is. Care Ctr., Inc., 26 AD3d 449, 450-451 [2d Dept 2006] [internal quotations marks and citation omitted].) This court is unpersuaded that defendant's conduct constitutes gross negligence or recklessness.

The action is therefore dismissed on grounds of EDTPA immunity. The court does not reach the parties' remaining arguments for and against dismissal of this action.

Accordingly, it is

ORDERED that the branch of defendant's motion to dismiss plaintiff's complaint on statute-of-limitations grounds is granted in part and denied in part as described above; and it is further

ORDERED that the branch of defendant's motion to dismiss plaintiff's complaint on the basis of PREP Act immunity is denied; and it is further

ORDERED that the branch of defendant's motion to dismiss plaintiff's complaint on the basis of EDTPA immunity is granted, and the action is dismissed against defendant, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that defendants shall serve notice of entry on plaintiff; and shall serve notice [*8]of entry on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.