Conyers v Isabella Geriatric Ctr., Inc. 2024 NY Slip Op 33661(U) October 15, 2024 Supreme Court, New York County Docket Number: Index No. 153668/2022 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 10/16/2024 12:04 PM INDEX NO. 153668/2022 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/16/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice -------------------X INDEX NO. 153668/2022 PAMELA CONYERS, as Administrator of the Estate of MOTION DATE 07/12/2024 JAMES CONYERS,
Plaintiff, MOTION SEQ. NO. 001
-v- lSABELLA GERIATRIC CENTER, INC., ABC DECISION + ORDER ON CORPORATION, and ABC PARTNERSHIP, MOTION
Defendants. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27, 28,29, 30, 31, 32, 33,34, 35, 36, 37, 38, 39,40,41,42,43,44,45,46, 47,48,49,50,51,52,53,54,55,56,57,58,59,60,61,62,63,64,65,66,67,68,69, 70, 71 were read on this motion to/for DISMISS
In this action to recover damages, inter alia, for statutory nursing home negligence,
medical malpractice, and wrongful death, the defendant Isabella Geriatric Center, Inc. (Isabella
Geriatric), moves pursuant to CPLR 3211(a) to dismiss the complaint as against it on the
ground that the complaint fails to state a cause of action (CPLR 3211[a][7]) and for lack of
subject matter jurisdiction (CPLR 3211[a][2]). The plaintiff opposes the motion. The motion is
granted, inasmuch as the complaint fails to state a cause of action against Isabella Geriatric by
virtue of the immunity from civil liability conferred upon it by the Emerge.ncy or Disaster
Treatment Protection Act (Public Health Law former§§ 3080-3082; hereinafter EDTPA).
The plaintiff's decedent, James Conyers (Conyers), was a resident of Isabella Geriatric
from approximately April 2013 until his death on April 30, 2020. In her complaint, which she
filed on April 28, 2022, the plaintiff alleged that Isabella Geriatric first became aware of the
growing COVID-19 pandemic in or around January 2020, and that it failed to provide Conyers
with the appropriate care or with customary nursing and rehabilitation services during his time
there. The plaintiff further alleged that Conyers contracted COVI D-19 while at Isabella Geriatric, 153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page 1 of9 Motion No. 001
[* 1] 1 of 9 FILED: NEW YORK COUNTY CLERK 10/16/2024 12:04 PM INDEX NO. 153668/2022 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/16/2024
and that the facility failed to take the proper precautions to prevent and control the spread of
infections, such as enforcing social distancing, restricting visitors, providing residents and staff
with the-proper personal protective equipment (PPE), and actively screening everyone that
entered the building for COVID-19 symptoms. Finally, the plaintiff alleged that Conyers died
from COVID-19 as a result of Isabella Geriatric's failures.
In its motion, ·Isabella Geriatric argued that the complaint should be dismissed since
EDTPA and New York Governor's Executive Order 202.10 each conferred immunity upon it
from civil actions such as the plaintiff's action here, while the federal Public Readiness and
Emergency Preparedness Act (42 USC § 247d-6d, et seq.; hereinafter the PREP Act) provided
broad, federal immunity, since the claims here related both to healthcare services provided in
response to the COVID-19 pandemic and to "covered countermeasures" employed in the
diagnosis or treatment of COVID-19. In opposition, the plaintiff argued that the EDTPA may not
be invoked by the defendant since the act has since been repealed. The plaintiff also argued
that the defendant has not conclusively established that the decedent's care was affected by
their response to the pandemic within the meaning of EDTPA. In addition, the plaintiff claimed
that the PREP Act is not applicable to this case. Finally, the plaintiff argued that her claims for
gross negligence and recklessness are not subject to statutory immunity.
When assessing the adequacy of a pleading in the context of a motion to dismiss under
CPLR 3211 (a)(7), the court's role is "to determine whether [the] pleadings state a cause of
action" (511 W 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). To
determine whether a claim adequately states a cause of action, the court must "liberally
construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible
favorable inference" (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881 [2013];
Simkin v Blank, 19 NY3d 46 [2012]), and determine only whether the facts, as alleged, fit within
any cognizable legal theory (see Taxi Tours, Inc. v Go New York Tours, Inc., 41 NY3d 991, 993
[2024]; Hurrell-Harring v State of New York, 15 NY3d 8 [2010]; Leon v Martinez, 84 NY2d 83 153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page 2 of9 Motion No. 001 ·
[* 2] 2 of 9 FILED: NEW YORK COUNTY CLERK 10/16/2024 12:04 PM INDEX NO. 153668/2022 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/16/2024
[1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st
Dept 2004]; CPLR 3026). "The motion must be denied if from the pleading's four comers
factual allegations are discerned which taken together manifest any cause of action cognizable
at law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation
marks omitted]; see Leon v Martinez, 84 NY2d at 87-88; Guggenheimer v Ginzburg, 43 NY2d
268 [1977]). Where, however, the court considers evidentiary material beyond the complaint, as
it does here, the criterion becomes "whether the proponent of the pleading has a cause of
action, not whether he [or she] has stated one" (Guggenheimer v Ginzburg, 43 NY2d at 275),
but dismissal will not eventuate unless it is "shown that a material fact as claimed by the pleader
to be one is not a fact at all" and that "no significant dispute exists regarding it"
(id.). Nonetheless, "conclusory allegations-claims consisting of bare legal conclusions with no
factual specificity-are insufficient to survive a motion to dismiss" ( Godfrey v Spano, 13 NY3d
358, 373 [2009]).
Subject matter jurisdiction
"refers to the power of the court to hear the kind of case that is presently before it for adjudication (Matter of Newham v Chile Exploration Co., 232 NY 37; Matter of Rougeron, 17 NY2d 264; Thrasherv United States Liab. Ins. Co., 19 NY2d 159; Hunt v Hunt, 72 NY 217). Whether a court has subject matter jurisdiction is determined by the Constitution, statutes and (occasionally) the rules which confer jurisdiction. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 78, CPLR 3211, C3211 :11, at 17), and not by the particular facts of any case. (Hunt v Hunt, supra.) The question to be resolved is whether the court has jurisdiction over the 'type' of case, not whether it has jurisdiction over 'this particular' case. ( 1890 Realty Co. v Ford, 121 Misc 2d 834; Treiman,. Subject Matter Jurisdiction in Summary Proceedings, NYLJ, Mar. 2, 1990, at 1, col 1; Hunt v Hunt, supra.)"
(New York County Dist.
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Conyers v Isabella Geriatric Ctr., Inc. 2024 NY Slip Op 33661(U) October 15, 2024 Supreme Court, New York County Docket Number: Index No. 153668/2022 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 10/16/2024 12:04 PM INDEX NO. 153668/2022 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/16/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice -------------------X INDEX NO. 153668/2022 PAMELA CONYERS, as Administrator of the Estate of MOTION DATE 07/12/2024 JAMES CONYERS,
Plaintiff, MOTION SEQ. NO. 001
-v- lSABELLA GERIATRIC CENTER, INC., ABC DECISION + ORDER ON CORPORATION, and ABC PARTNERSHIP, MOTION
Defendants. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27, 28,29, 30, 31, 32, 33,34, 35, 36, 37, 38, 39,40,41,42,43,44,45,46, 47,48,49,50,51,52,53,54,55,56,57,58,59,60,61,62,63,64,65,66,67,68,69, 70, 71 were read on this motion to/for DISMISS
In this action to recover damages, inter alia, for statutory nursing home negligence,
medical malpractice, and wrongful death, the defendant Isabella Geriatric Center, Inc. (Isabella
Geriatric), moves pursuant to CPLR 3211(a) to dismiss the complaint as against it on the
ground that the complaint fails to state a cause of action (CPLR 3211[a][7]) and for lack of
subject matter jurisdiction (CPLR 3211[a][2]). The plaintiff opposes the motion. The motion is
granted, inasmuch as the complaint fails to state a cause of action against Isabella Geriatric by
virtue of the immunity from civil liability conferred upon it by the Emerge.ncy or Disaster
Treatment Protection Act (Public Health Law former§§ 3080-3082; hereinafter EDTPA).
The plaintiff's decedent, James Conyers (Conyers), was a resident of Isabella Geriatric
from approximately April 2013 until his death on April 30, 2020. In her complaint, which she
filed on April 28, 2022, the plaintiff alleged that Isabella Geriatric first became aware of the
growing COVID-19 pandemic in or around January 2020, and that it failed to provide Conyers
with the appropriate care or with customary nursing and rehabilitation services during his time
there. The plaintiff further alleged that Conyers contracted COVI D-19 while at Isabella Geriatric, 153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page 1 of9 Motion No. 001
[* 1] 1 of 9 FILED: NEW YORK COUNTY CLERK 10/16/2024 12:04 PM INDEX NO. 153668/2022 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/16/2024
and that the facility failed to take the proper precautions to prevent and control the spread of
infections, such as enforcing social distancing, restricting visitors, providing residents and staff
with the-proper personal protective equipment (PPE), and actively screening everyone that
entered the building for COVID-19 symptoms. Finally, the plaintiff alleged that Conyers died
from COVID-19 as a result of Isabella Geriatric's failures.
In its motion, ·Isabella Geriatric argued that the complaint should be dismissed since
EDTPA and New York Governor's Executive Order 202.10 each conferred immunity upon it
from civil actions such as the plaintiff's action here, while the federal Public Readiness and
Emergency Preparedness Act (42 USC § 247d-6d, et seq.; hereinafter the PREP Act) provided
broad, federal immunity, since the claims here related both to healthcare services provided in
response to the COVID-19 pandemic and to "covered countermeasures" employed in the
diagnosis or treatment of COVID-19. In opposition, the plaintiff argued that the EDTPA may not
be invoked by the defendant since the act has since been repealed. The plaintiff also argued
that the defendant has not conclusively established that the decedent's care was affected by
their response to the pandemic within the meaning of EDTPA. In addition, the plaintiff claimed
that the PREP Act is not applicable to this case. Finally, the plaintiff argued that her claims for
gross negligence and recklessness are not subject to statutory immunity.
When assessing the adequacy of a pleading in the context of a motion to dismiss under
CPLR 3211 (a)(7), the court's role is "to determine whether [the] pleadings state a cause of
action" (511 W 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). To
determine whether a claim adequately states a cause of action, the court must "liberally
construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible
favorable inference" (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881 [2013];
Simkin v Blank, 19 NY3d 46 [2012]), and determine only whether the facts, as alleged, fit within
any cognizable legal theory (see Taxi Tours, Inc. v Go New York Tours, Inc., 41 NY3d 991, 993
[2024]; Hurrell-Harring v State of New York, 15 NY3d 8 [2010]; Leon v Martinez, 84 NY2d 83 153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page 2 of9 Motion No. 001 ·
[* 2] 2 of 9 FILED: NEW YORK COUNTY CLERK 10/16/2024 12:04 PM INDEX NO. 153668/2022 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/16/2024
[1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st
Dept 2004]; CPLR 3026). "The motion must be denied if from the pleading's four comers
factual allegations are discerned which taken together manifest any cause of action cognizable
at law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation
marks omitted]; see Leon v Martinez, 84 NY2d at 87-88; Guggenheimer v Ginzburg, 43 NY2d
268 [1977]). Where, however, the court considers evidentiary material beyond the complaint, as
it does here, the criterion becomes "whether the proponent of the pleading has a cause of
action, not whether he [or she] has stated one" (Guggenheimer v Ginzburg, 43 NY2d at 275),
but dismissal will not eventuate unless it is "shown that a material fact as claimed by the pleader
to be one is not a fact at all" and that "no significant dispute exists regarding it"
(id.). Nonetheless, "conclusory allegations-claims consisting of bare legal conclusions with no
factual specificity-are insufficient to survive a motion to dismiss" ( Godfrey v Spano, 13 NY3d
358, 373 [2009]).
Subject matter jurisdiction
"refers to the power of the court to hear the kind of case that is presently before it for adjudication (Matter of Newham v Chile Exploration Co., 232 NY 37; Matter of Rougeron, 17 NY2d 264; Thrasherv United States Liab. Ins. Co., 19 NY2d 159; Hunt v Hunt, 72 NY 217). Whether a court has subject matter jurisdiction is determined by the Constitution, statutes and (occasionally) the rules which confer jurisdiction. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 78, CPLR 3211, C3211 :11, at 17), and not by the particular facts of any case. (Hunt v Hunt, supra.) The question to be resolved is whether the court has jurisdiction over the 'type' of case, not whether it has jurisdiction over 'this particular' case. ( 1890 Realty Co. v Ford, 121 Misc 2d 834; Treiman,. Subject Matter Jurisdiction in Summary Proceedings, NYLJ, Mar. 2, 1990, at 1, col 1; Hunt v Hunt, supra.)"
(New York County Dist. Attorney's Office v Oquendo, 147 Misc 2d 125, 127-128 [Civ Ct, N.Y.
County 1990]). Thus, subject matter jurisdiction
"'refers to objections that are 'fundamental to the power of adjudication of a court.' 'Lack of jurisdiction' should not be used to mean merely 'that elements of a cause of action are absent,' but that the matter before the court was not the kind of matter on which the court had power to rule"
153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page 3 of 9 Motion No. 001
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(Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200,203 [2013], quoting Lacks v
Lacks, 41 NY2d 71, 74 [1976]; see Garcia v Government Emps. Ins. Co., 130 AD3d 870,871
[2d Dept 2015]). "Subject matter jurisdiction is a 'power to adjudge concerning the general
question involved' in litigation, and 'is not dependent upon the state of facts which may appear
in a particular case'" (Henry v New Jersey Tr. Corp., 39 NY3d 361, 371 [2023], quoting Hunt v
Hunt, 72 NY 217, 229 [1878]). Pursuant to NY Constitution, art VI,§ 7(a), "[t]he supreme court
shall have general original jurisdiction in law and equity." "A plaintiffs lack of standing does not
raise a question of subject matter jurisdiction" (Hereida v Hereida, 203 AD2d 524, 524-525 [2d
Dept 1994]; see Matter of Elmer Q., 250 AD2d 256, 258 [3d Dept 1998]). Nor is lack of subject
matter jurisdiction implicated where a complaint fails to state a cause of action because a claim
is barred by an exclusive administrative remedy (see Hernandez v 2075-2081 Wallace Ave.
Owners Corp., 176 AD3d 467,467 [1st Dept 2019]). Crucially, immunity from suit is a waivable
defense and, hence, cannot be the basis for the invocation of lack of subject matter jurisdiction
(Henry v New Jersey Tr. Corp., 39 NY3d at 369-372; Gillis v Carmel Richmond Nursing Home,
Inc., 83 Misc3d 1256[A], 2024 NY Slip Op 50984[U], *5, 2024 NY Misc LEXIS 3283, *13 [Sup
Ct, Richmond County, Jul. 29, 2024]). This court thus has subject matter jurisdiction over the
instant medical malpractice action.
Nonetheless, the complaint fails to state a cause of action, inasmuch as, under the
circumstances of this case, EDTPA confers immunity upon Isabella Geriatric.
In March 2020, then-Governor Andrew Cuomo signed Executive Order No. 202 (9
NYCRR 8.202), declaring a disaster emergency in New York state, and Executive Order No.
202.10 (9 NYCRR 8.202.10), and conferring, upon healthcare workers and facilities, immunity
from civil liability for any injury or death alleged to have been sustained directly as a result of the
provision of medical services in support of New York's response to the COVID-19 pandemic,
except where such injury or death was caused by gross negligence or recklessness. On April 3,
2020, the Legislature passed the EDTPA, granting any healthcare facility or healthcare 153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page4of9 Motion No. 001
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professional immunity from civil or criminal liability related to the care of patients with COVID-19,
provided that:
"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; 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 the health care facility or health care professional is arranging for or providing health care services in good faith"
(Public Health Law former § 3082[2]). The immunity did not apply where an act or omission
constituted willful or intention criminal misconduct, gross negligence, reckless misconduct, or
intentional infliction of harm (id.). The EDTPA was effective retroactive to March 7, 2020,
making it applicable to acts or omissions that occurred on or after that date. On April 6, 2021,
the legislature repealed the EDTPA, with the repeal to take effect immediately.
On March 17, 2020, in response to the pandemic, the Secretary of the United States
Department of Health and Human Services issued a declaration invoking and implementing the
PREP Act, pursuant to which Congress had provided immunity from liability to covered persons
for loss caused by or relating to the administration or use of a "covered countermeasure" in
times of a public health emergency (see 42 USC§ 247d-6d[a][1]). "Covered countermeasures"
included any drug or device used to treat, diagnose, or mitigate the spread of COVID-19, as well
as PPE and COVID-19 tests, that had been approved by United States Food and Drug
Administration (FDA), as well as common medical devices such as thermometers and
ventilators (see Escobarv Mercy Med. Ctr., 83 Misc 3d 1213[A], 2024 NY Slip Op 50704[U]
[Sup Ct, Nassau County, Jun. 11, 2024]). The only exception to the PREP Act was "for death or
serious physical injury proximately caused by willful misconduct" by a covered person, and
allowed an action to be instituted by the person who suffered such an injury, or by any
representative of such a person (see 42 USC§§ 247d-6d[d][1], [2]).
153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page5of9 Motion No. 001
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With respect to the issue of whether the repeal of the EDTPA was retroactive, thus
negating statutory immunity for acts or omissions between March 7, 2020 and April 6, 2021, the
courts have determined that it is not (see Hasan v Terrace Acquisitions II, LLC, 224 AD3d 475,
477 [1st Dept 2024] [finding that not only did the statutory text use no retroactivity language, but
many other factors used in determining whether a statute is retroactive also were not
applicable]; Whitehead v Pine Haven Operating LLC, 222 AD3d 104, 107 [3d Dept 2023]
[determining that both the text of the statute and the legislative history of the repeal weighed .
against a retroactive application]; Ruth v Elderwood At Amherst, 209 AD3d 1281, 1287 [4th
Dept 2022] [finding that the expressions of the legislative intent were insufficient to show that
the repeal was meant to apply retroactively]).
The court thus concludes that, pursuant to the EDTPA, Isabella Geriatric is entitled to
immunity from the claims asserted by the plaintiff here. With respect to the criteria imposed by
the EDTPA, it is evident that Isabella Geriatric was arranging for or providing health care
services to Conyers within the meaning of that statute, and was doing so in good faith. The
court further concludes that the treatment of Conyers indeed was affected or impacted by those
of Isabella Geriatric's medical and nursing determinations or activities that had been made in
response to, or as result of, the COVID-19 outbreak, and that those determinations and
activities had been made in response to, as result of, or in support of the State's COVID-19
directives. The statute does not indicate that the "treatment of the individual" must be impacted
one way or another, that is, it does not specify that the treatment be affected positively,
negatively, or otherwise, it does not require the patient to have been uniquely impacted as
compared to other patients, and it does not identify any particular aspect of, or assign weight to,
any aspect of the treatment that must be impacted by such determinations and activities (see
Holder v Jacob, _ __,AD3d. _ _, 2024 NY Slip Op 03864, *5 [1st Dept, Jul. 18, 2024]).
In showing that its treatment of Conyers was impacted by COVID-19 and by its
determinations and activities addressed thereto, Isabella Geriatric submitted its COVID-19 153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page6 of9 Motion No. 001
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policies, New York State Department of Health advisories, letters sent to patients' families, a
certified copy of Conyers's medical records, and the affidavit of Christina Young, RN., who was
one of its nurse managers during the pandemic, detailing the impact that the pandemic had on
the care specifically provided to Conyers during that time. These submissions established the
very entitlement to immunity that the EDTPA was meant to provide (see Hasan v Terrace
Acquisitions II, LLC, 224 AD3d at 477; Whitehead v Pine Haven Operating LLC, 222 AD3d at
110; Martinez v NYC Health & Hosps. Corp., 223 AD3d 731, 732 [2d Dept 2024]; Mera v NY
City Health & Hosps. Corp., 220 AD3d 668, 670 [2d Dept 2023]; see also Holder v Jacob,
_____AD3d_ _, *7-8 ["where, as here, the CPLR 3211(a)(7) motion is predicated on what is
asserted to be a complete defense, and that motion is supported by evidence, the evidence of
the defense must be conclusive"]; but cf. Damon v Clove Lakes Healthcare & Rehabilitation Ctr.,
Inc., 228 AD3d 618, 619 [2d Dept 2024] [finding that the defendant's submission did not.
establish that the three requirements for immunity were met]).
Finally, the plaintiff argued that her claims for gross negligence and recklessness were
not subject to statutory immunity. The decedent's medical records, the COVID-19 policies, and
the Department of Health advisories negated such claims for gross negligence (see Hasan v
Terrace Acquisitions II, LLC, 224 AD3d at 479) and hence, with respect to the allegations of
gross negligence, a fact to be alleged a fact by the plaintiff is not a fact at all. Additionally, the
plaintiff's allegation that the defendant had been cited 21 times between 2018 and 2022 "for
violations of public and safety health codes" does not sufficiently support a gross negligence
claim (see id.). In any event, allegations purporting to support a gross negligence claim that are
devoid of factual specificity and replete with legal conclusions cannot survive dismissal (see
Lociero v Park Avenue Operating, LLC [Sup Ct, Nassau County, Index No. 615904/2022, Sep.
26, 2023], citing Godfrey v Spano, 13 NY3d at 373). Thus, the gross negligence exception is
not applicable, and Isabella Geriatric is entitled to immunity under the EDTPA.
153668/2022 CONYERS, PAMELA vs. !SABELLA GERIATRIC CENTER, INC. ET AL Page 7of9 Motion No. 001
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In light of the court's determination with respect to EDTPA immunity, it need not address
Isabella Geriatric's contention that it also was conferred immunity from suit by virtue of the
federal PREP Act. Were the court to address that issue, it would be constrained to conclude
that it is not entitled to PREP Act immunity. In a state court action, when addressing an
immunity defense pursuant to the PREP Act, the court first must determine whether the
plaintiff's claims fall within the act's immunity provision (see 42 uses§ 247d-6d[a][1]; Thomas
v Highland Care Ctr., 2024 NYLJ LEXIS 3209 [Sup Ct, Queens County, Sep. 27, 20241). The
PREP Act is triggered only where there are allegations that the defendant administered
countermeasures improperly, causing injury (Whitehead v Pine Haven Operating LLC, 2022 NY
Slip Op 34685[U], *5, 2022 NY Misc LEXIS 35761, *5 [Sup Ct, NY County, Nov. 29, 2022], citing
Parker v St. Lawrence County Pub. Health Dept., 102 AD3d 140, 141-142 [3d Dept 20121). In
this instance, the plaintiffs claims pertain only to the defendant's failures to act, and such
allegations do not amount to the administration of countermeasures (see id.; see also Adler v
Troy, 2023 NY Slip Op 33804[U], *8, 2023 NY Misc LEXIS 11547, *11-12 [Sup Ct, N.Y. County,
Oct. 18, 2023] citing Oupervil v Alliance Health Operations, LLC, 516 F Supp 3d 238, 255 [ED
NY 20211). Thus, Isabella Geriatric is not entitled to immunity under the PREP Act. This
conclusion, however, does not affect the immunity conferred upon it by EDTPA.
With respect to the defendants denominated as "ABC Corporation" and "ABC
Partnership," the plaintiff made no showing of any efforts that she made to identify these
fictitious defendants. Since they were never identified, the plaintiff is precluded from relying on
CPLR 1024 to maintain this action against those parties (see generally Fountain v Ocean View
II Assocs., L.P., 266 AD2d 339 [2d Dept 19991), and the complaint must be dismissed as
against them.
This court has considered the parties' remaining contentions and find them unavailing.
Accordingly, it is,
153668/2022 CONYERS, PAMELA vs. lSABELLA GERIATRIC CENTER, INC. ET AL Page 8 of 9 Motion No. 001
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ORDERED that the motion of the defendant Isabella Geriatric Center, Inc., to dismiss ·
the complaint insofar as asserted against it is granted, and the complaint is dismissed insofar as
asserted against it; and it is further,
ORDERED that, on the court's own motion, the complaint is dismissed insofar as
asserted against "ABC Corporation" and "ABC Partnership"; and it is further,
ORDERED, that the Clerk of the court shall enter judgment dismissing the entirety of the
complaint.
This constitutes the Decision and Order of the court.
10/15/2024 DATE
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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