Nieves v Islam

Supreme Court, Kings County

Decided on June 16, 2026

Index No. 532453/2022

Consuelo Mallafre Melendez, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review:

NYSCEF #s: 91-108, 131-135, 136-137

Defendants Zohirul Islam, M.D. ("Dr. Islam"), Elizabeth Paul, M.D. ("Dr. Paul"), Asim Elbuburak Imam, M.D. ("Dr. Imam"), Sofya Kostanyan, M.D. ("Dr. Kostanyan"), and New York Presbyterian-Brooklyn Methodist Hospital ("NYPBM") move for an Order, pursuant to CPLR 3211 (a) (2), to dismiss Plaintiff's Complaint against them for failure to state a cause of action, on the grounds that the movants are immune from liability under New York's Emergency or Disaster Treatment Protection Act, NY Pub. Health Law §§ 3080-3082 ("EDTPA"). In the alternative, Defendants move to dismiss pursuant to CPLR 3211 (a) (7) and the federal Public Readiness and Emergency Preparedness Act ("PREP Act") for lack of subject matter jurisdiction. Plaintiff opposes the motion.

Plaintiff commenced this action on November 7, 2022, asserting claims of medical malpractice in connection to his treatment at NYPBM hospital between April 9, 2020 through May 26, 2020^FN1. Plaintiff alleges that the hospital, through its physicians and staff including the moving co-defendants, departed from good and accepted medical standards in prevention and treatment of pressure ulcers.

Plaintiff was 66 years old at the time of the events at issue. He was first admitted to the hospital on April 8, 2020 with a fever, cough, shortness of breath, and an abnormal EKG. He tested positive for COVID-19. On April 13, he was intubated due to respiratory distress. He was able to be weaned off the ventilator on April 26. On May 13, 2020, after testing negative for COVID-19, he was deemed stable for discharge to non-moving co-defendant Atrium Rehabilitation Center. During this admission, he developed pressure ulcers and tissue injuries on his sacrum, left heel, and right ear.

On May 14, 2020, Plaintiff was readmitted to NYPMH with a GI bleed. On May 18, he tested positive again for COVID-19 and remained in the hospital until he tested negative. He was transferred back to Atrium Rehabilitation Center on May 26.

The NYPBM defendants move to dismiss the Complaint against them in its entirety on the basis of the EDTPA (Public Health Law former art. 30-D, §§ 3080-3082). These statutes were enacted and signed into law at the height of New York's inundation and response to the COVID-19 pandemic in April 2020, and in the context of a host of executive orders declaring a statewide public health emergency. Recognizing the treatment of patients with COVID-19 as a "matter of vital state concern," the act afforded broad liability protections to health care facilities [*2]and professionals "from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency." The act was effective retroactively to March 7, 2020.

The original version of Public Health Law § 3082 (1) read:

"1. Notwithstanding any law to the contrary, except as provided in subdivision two of this section, 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 arranging for or providing health care services, if:

(a) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;

(b) the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility's or health care professional's decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives; and

(c) the health care facility or health care professional is arranging for or providing health care services in good faith." [Emphasis added.]

Subdivision (2) of the statute provided an exception wherein facilities and providers could be held liable for "willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm . . . provided, however, that acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm."

At the time of enactment, Public Health Law § 3081 (5) defined "health care services" broadly to include "the care of any individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration," and that version of the statute remains the applicable law for patients treated from March 7, 2020 until August 3, 2020 (see L 2020, ch 56, pt. GGG; Mera v New York City Health and Hosps. Corp., 220 AD3d 668, 669-670 [2d Dept 2023]; Ruth v Elderwood at Amherst, 209 AD3d 1281 [4th Dept 2022]).

The scope of the EDTPA was later narrowed by the legislature. Under the second version of Public Health Law §§ 3081 and 3082, effective August 3, 2020, the "any individual who presents at a health care facility" subclause was deleted. From that date forward, the act applied only to health care services specifically related to "(a) the diagnosis or treatment of COVID-19, or (b) the assessment or care of an individual as it relates to COVID-19, when such individual has a confirmed or suspected case of COVID-19" (see L 2020, ch 134; Lara v S&J Operational, LLC, 237 AD3d 1186, 1188 [2d Dept 2025]).

The EDTPA was repealed on April 6, 2021. The bill contained no express language on whether the repeal was retroactive, but it has been consistently held by all four Appellate Divisions that the repeal was not retroactive and that the act remains in force for claims that arose before the repeal date. Thus, covered health care facilities and professionals are still immune from liability with respect to treatment and care rendered on the dates when the original and amended versions of the EDTPA were in effect (see Gonnelly v Newburgh Operations, LLC, 236 AD3d 866, 868 [2d Dept 2025]; Damon v Clove Lakes Healthcare and Rehabilitation Ctr., [*3]Inc., 228 AD3d 618, 619 [2d Dept 2024]).

In a motion to dismiss based on EDTPA immunity, the moving defendant must demonstrate "that the conditions for its entitlement to immunity under the EDTPA were satisfied" (Gonnelly at 868). It is essentially the defendant's burden to establish prima facie that (1) the defendant was a health care facility or professional acting in good faith, (2) the alleged acts or omissions occurred in the course of providing health care services during the COVID-19 emergency period, and (3) "the treatment of the individual is impacted by the health care facility's or health care professional's decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives" (Pub Health Law §§ 3082 [1]).

In support of their motion, the NYPBM defendants submit an expert affirmation from Ashley Mattia, R.N. ("R.N. Mattia"), a registered nurse who was the Director of Nursing and Critical Care at NYPBMH at the time of Plaintif's treatment.

R.N. Mattia opines from her personal knowledge that the first wave of the COVID-19 pandemic "greatly affected staff working in the Intensive Care Unite and Respiratory Care Unit," where Plaintiff was treated. She notes that Plaintiff himself was admitted with COVID-19 during his first admission and also tested positive in his second admission. During that time, she affirms that NYPBMH was implementing new procedures to treat such patients, while also dealing with staffing and resource shortages. She notes that the ICU normally had 36 beds available with 18 occupied at one time, but during the April-May 2020 period when Plaintiff was treated, there were "as many as 136 occupied ICU beds, a figure NYPBMH had never come close to before." Similarly, she states that during a pre-COVID flu season, the ICU can normally expect 10-19 ventilated patients, but "there were many times that every single patient in the ICU was ventilated" with COVID-19, while the use of other respiratory devices such as BiPAP increased from 40-50 per day to 200 per day. This impacted the personal care available to Plaintiff, who was ventilated during his first admission at the height of the pandemic.

Due to the conditions "exceeding maximum capacity," R.N. Mattia also states that other spaces including operating rooms, the post-anesthesia care unit, and a psychiatry unit were converted to accommodate more ICU beds. Further, she notes that there were staffing shortages caused by nurses contracting COVID-19 themselves and being required by law to quarantine, and some staff members were reassigned from other areas of the hospital or different facilities. She states that all these conditions impacted the nurse-to-patient ratio, and that ICU nurses who would normally treat "no more than one critically ill patient at a time" were handling 3-4 critically ill patients with the assistance of "lower competency" nurses who were not trained in ICU procedure.

Additionally, R.N. Mattia opines that there was a shortage of resources and equipment. This equipment included specialized mattresses used to prevent skin breakdown and machines that aid in turning and positioning patients, both of which are normally part of a pressure ulcer prevention protocol. Thus, she opines that the COVID-19 emergency responses greatly impacted the care related to Plaintiff's development of pressure ulcers, the main allegation of this case. She further states that due to his mechanical ventilation, the ability to implement pressure ulcer prevention measures was further impacted by "the increased number of ventilated patients and burdensome responsibilities newly thrust on the staff."

The movants also submit an affirmation from Natalie Torrance-Watson, R.N. ("R.N. Torrance-Watson"), a registered nurse who was a Clinical Nurse Manager at NYPBMH at the time of Plaintiff's treatment.

R.N. Torrance-Watson affirms from her personal knowledge that the ongoing COVID-19 emergency in April-May 2020 greatly impacted the care and treatment of patients like Plaintiff. She notes that the high volume of critically ill patients during the first wave of COVID forced regular medical floors to be converted to makeshift ICU units. She also notes that Plaintiff specifically was placed on isolation orders due to suspected COVID-19, which was confirmed by a positive test on April 8, 2020, the first day of his admission.

R.N. Torrance-Watson further affirms that the floor where Plaintiff was treated was "operating at maximum capacity" while the hospital was dealing with staffing shortages, equipment shortages, and additional monitoring, testing, and disinfectant protocols putting additional strain on the nursing staff. She describes the Personal Protective Equipment which nurses were required to put on and remove before interacting with COVID-positive patients, and the limitations on patient visitation which required nurses to facilitate phone and video calls. She states that due to the influx of patients, staffing shortages, and toll of additional tasks undertaken by the nursing staff, the nurses did not have "the same amount of time to attend to each patient" for pressure ulcer prevention and treatment, and the priority was the patient's diagnosis and treatment for COVID.

Based on these submissions, the NYPBM movants have met their prima facie burden of establishing that the EDTPA applies to the claims against them herein. First, it is undisputed that NYPBM was a health care facility which was authorized to provide health care services under the Public Health Law and did so in good faith. The individual providers Dr. Islam, Dr. Paul, Dr. Imam, and Dr. Kostanyan were also "health care professionals" covered by the statute.

Second, the alleged acts and omissions occurred "in the course of arranging for or providing health care services." As previously discussed, the first version of Public Health Law § 3081 (5) was effective throughout Plaintiff's two admissions to NYPBM in April-May 2020, and it remains the applicable law for claims that arose during that period. That version of the statute defined "health care services" very broadly to include treatment of any individual who "presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration."

Finally, the movants' affirmations from medical personnel have demonstrated prima facie that Plaintiff's care was directly "impacted" by the COVID-19 pandemic, in ways such as staffing shortages which led to less one-on-one care for ICU patients and difficultly providing supportive mattresses and turning and positioning assistive devices.

Contrary to Plaintiff's argument in opposition, the Court finds that the hospital's submitted affirmations deal directly with the type of care at issue in this case, including pressure ulcer prevention and treatment, and sufficiently establish that response and results of the COVID-19 pandemic impacted the patient's care.

The only exceptions to the EDTPA's immunity provisions are acts and omissions which constitute "willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm . . . provided, however, that acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm."

Generally, a claim for gross negligence in the context of medical malpractice requires that the acts evince "a high degree of moral culpability or willful or wanton negligence or recklessness" (Woehrle v Buono, 232 AD3d 820, 822 [2d Dept 2024], quoting Dmytryszyn v Herschman, 78 AD3d 1108, 1109 [2d Dept 2010]).

Although Plaintiff's Complaint generally alleges that care was rendered in a "careless, negligent, wanton, reckless, heedless, and willful manner." However, there is nothing in the underlying facts to support a claim of wanton or willful misconduct. Plaintiff submits an expert affirmation opining that the defendants did not comply with "the minimum level of the standard of care" and failure to do so "represents gross negligence." The expert specifically states:

"The standard nursing protocols with regard to pressure ulcer prevention were not followed. This would include pressure reducing mattress, turning and positioning every two hours, use of pillows for off-loading, etc. The defendants failed to both recognize the need for preventive measures and failed to implement minimal measures that were necessary and this was a gross deviation from the standard of care." (Emphasis added.)

The expert further sets forth an opinion, based on the patient's weight loss during her admission, that the hospital's "failure to provide adequate nutritional assessments and support constitutes gross negligence and are clear departures from the standard of care." Finally, the expert states that an inconsistent discharge note and patient review note from the same date regarding the presence of a pressure ulcer demonstrated "reckless disregard for accurate medical documentation."

With respect to gross negligence and recklessness, the Court finds the above opinions conclusory and unsupported by the evidence in the submitted medical records. Plaintiff fails to raise a genuine issue of fact that the treatment of the patient's pressure ulcers or nutritional support from April-May 2020 rises to the level of gross negligence, rather than standard alleged medical malpractice. For this reason, the Court finds the exception for "willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm" unrelated to staffing or equipment shortages is not applicable to this case.

Accordingly, the motion to dismiss Plaintiff's Complaint against NYPBM , Dr. Islam, Dr. Paul, Dr. Imam, Dr. Kostanyan, and NYPBMH on the grounds that said defendants are immune from liability claims under the EDTPA is granted.

Because the motion to dismiss is granted on the basis of state law, the Court need not reach the issue of whether they are immune from suit under the federal PREP Act (42 USCA § 247d-6d).

It is hereby:

ORDERED that Dr. Islam, Dr. Paul, Dr. Imam, Dr. Kostanyan, New York Presbyterian-Brooklyn Methodist Hospital's motion (Seq. No. 4) to dismiss this action pursuant to CPLR 3211 (a) (2) and the EDTPA is granted; and it is further

ORDERED that Plaintiff's Complaint against the moving defendants is dismissed with prejudice; and it is further

ORDERED that the caption is amended to read:

FRANCISCO NIEVES,

Plaintiff,

against

ORLANDO CARPIO, M.D. and ATRIUM CENTER

Defendants.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez, J.S.C.