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HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively, and (2), the EDTPA did not provide COVID-related immunity for defendants’ treatment of plaintiff in March, 2020, but did provide immunity for defendants’ treatment of plaintiff in April, 2020:

On March 16, 2020, the plaintiff sought treatment for nausea, constipation, and vomiting from the defendant Joseph Tromba and was examined at Tromba’s medical office at the defendant Long Island Gastroenterology, P.C. On March 23, 2020, the medical office was closed pursuant to the emergency declaration in New York State during the COVID-19 pandemic, but Tromba spoke to the plaintiff on the telephone on April 1, April 3, and April 6, 2020. On April 6, 2020, the plaintiff presented to a hospital and underwent emergency surgery for a bowel obstruction. * * *

“[T]he EDTPA  … provided … that a health care facility ‘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] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, 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 the services were arranged or provided in good faith” … .

… [T]he defendants’ submissions in support of their motion for summary judgment failed to establish … that the treatment of the plaintiff on March 16, 2020, was impacted by the defendants’ 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.  * * *

[Defendants established] the three requirements for immunity were satisfied with respect to their treatment of the plaintiff on April 1, April 3, and April 6, 2020 … . Tromba testified at his deposition that from March 23, 2020, through May 2020, his office was closed pursuant to the emergency declaration and he was “dealing with” his patients “as well as [he could] without seeing them physically.” Regarding the plaintiff specifically, Tromba testified that he could not see her in his office due to the COVID-19 pandemic and her reticence to leave the house. He also testified that he wanted the plaintiff to go for an X-ray in order to see the quantity of stool in her bowel. However, due to the COVID-19 pandemic, the only place that the plaintiff could obtain an X-ray was an emergency room. The plaintiff testified at her deposition, among other things, that she did not want to go for an X-ray because she had COPD, her husband had emphysema, and it “was in the middle of COVID.” Although she also testified that she would have gone for an X-ray if she thought it would have helped her, she nevertheless testified that this “was when COVID was going on” and she “didn’t even know where [she] could get an X-ray at that point.” This testimony was sufficient to establish, prima facie, that the plaintiff’s treatment on April 1, April 3, and April 6, 2020, 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 … . Sapienza v Tromba, 2025 NY Slip Op 04672, Second Dept 8-13-25

Practice Point: Consult this decision for an example of how the COVID-related immunity codified in the Emergency or Disaster Treatment Protection Act (EDTPA) can be applied in a medical malpractice action.

 

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ALTHOUGH PETITIONER NURSING HOME, A LIMITED LIABILITY COMPANY, HAD AN EXCELLENT INFECTION CONTROL PROGRAM, IT WAS PROPERLY FINED FOR A VIOLATION OF THE INFECTION-CONTROL REGULATIONS BY ONE OF ITS EMPLOYEES (THIRD DEPT).

The Third Department, confirming the findings of the administrative law judge, in a full-fledged opinion by Justice Egan, determined the petitioner nursing-home-facility was subject to fines for violations of the COVID-19 infection-control regulations. The regulations required nursing home employees to change gowns and glove after being in a unit with COVID-19 positive residents. The court noted that petitioner, as a limited liability company, can be penalized for the intentional violation of regulations by its employees under an agency theory:

… [P]etitioner [limited liability company], like corporations and similar entities, may be penalized “for the intentional acts of its agents that are either (1) in violation of positive prohibitions or commands of statutes regarding corporate acts, (2) authorized through action of its officers or which are done with the acquiescence of its officers, or (3) performed on behalf of the corporation if undertaken within the scope of the agents’ authority, real or apparent” … . As it is alleged here that a regulation governing petitioner’s conduct was intentionally violated by one of its employees in the course of his work, petitioner may be penalized for that conduct, if proven. * * *

Petitioner had no deficiencies in the five infection control surveys conducted in the months leading up to the December 2020 survey, counsel for the Department conceded at the hearing that it “had a great infection control program for many months,” and the surveyor who witnessed the violation acknowledged that petitioner had developed an appropriate infection control plan and properly trained employees about their obligations under it. Respondent was nevertheless free to credit the proof that the aide violated that policy on one occasion in December 2020 and, notwithstanding petitioner’s efforts to argue otherwise, we are satisfied that such constitutes substantial evidence in the record for the determination that petitioner’s employee “violate[d], disobey[ed] or disregard[ed]” multiple provisions of 10 NYCRR 415.19 and the infection control program in the course of his work and that such rendered petitioner liable (Public Health Law § 12). Matter of RSRNC, LLC v McDonald, 2025 NY Slip Op 04131, Third Dept 7-10-25

Practice Point: Here a violation of Public Health Law regulations concerning COVID-19 infection control by an employee of petitioner nursing home, a limited liability company, warranted imposing a penalty on the nursing home.

 

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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION, COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION” EXTENSION (SECOND DEPT).​ ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice LaSalle, determined the “savings provision” of CPLR 205(a) allows a second six-month extension of the time to file a new action after a dismissal which is not on the merits. In this wrongful death and Public Health Law 2801-d action against a nursing home and hospital, the complaint was filed an served while the application for appointment of an executor was pending. The complaint was dismissed because the plaintiff did not have standing. Although the statute of limitations had run, the initial action was timely because of the savings provision in CPLR 205(a). The action was commenced again whiled the application for appointment of an executor was still pending. This time the complaint was dismissed with prejudice on the ground the six-month extension in CPLR 205(a) is only available once:​

The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State apellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v Ray, 22 F4th 69 [2d Cir]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice. ​​Tumminia v Staten Is. Univ. Hosp., 2025 NY Slip Op 03352, Second Dept 6-4-25

Practice Point: Here an action which was timely only by the application of the six-month “savings provision” extension in CPLR 205(a), and which was dismissed for lack of standing, did not preclude a second identical action which could only be deemed timely by a second application of the CPLR 205(a) savings provision.​

 

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THE LAWSUIT AGAINST DEFENDANT RESIDENTIAL NURSING FACILITY STEMMING FROM PLAINTIFF’S DECEDENT’S COVID-19-RELATED DEATH IS PRECLUDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA); THE REPEAL OF THE ACT IS NOT RETROACTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence-based lawsuit against defendant residential nursing facility stemming from plaintiff’s decedent’s death from COVID-19 was precluded by the immunity conferred by the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082, repealed by L 2021, ch 96, § 1) (EDTPA). The repeal of the EDTPA was not retroactive:

The EDTPA, as effective August 3, 2020, to April 5, 2021, provided, with certain exceptions, that a health care facility “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,” if: (a) the health care facility “is providing health care services in accordance with applicable law, or where appropriate pursuant to a COVID-19 emergency rule”; (b) the act or omission occurs in the course of providing health care services and the treatment of the individual is impacted by the health care facility’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 “is providing health care services in good faith” (Public Health Law former § 3082[1][a]-[c]). …

Here, the Supreme Court should have granted the defendant’s motion to dismiss the complaint on the ground of immunity … . Contrary to the plaintiff’s contention, the repeal of the EDTPA is not retroactive … . Lara v S&J Operational, LLC, 2025 NY Slip Op 02582, Second Dept 4-30-25

Practice Point: Although the EDTPA has been repealed. the repeal is not applied retroactively. The COVID-19-related immunity conferred by the act precluded the lawsuit here.

 

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PLAINTIFF FELL AT HER NURSING HOME AND EMERGENCY PERSONNEL FOUND HER UNATTENDED ON THE FLOOR WITH NO IDENTIFICATION BAND; DEFENDANT’S EXPERT, A CARDIAC CRITICAL CARE PHYSICIAN, DID NOT DEMONSTRATE FAMILIARITY WITH NURSING HOME CARE AND DID NOT ADDRESS ALL THE ALLEGATIONS IN THE PLEADINGS; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice/Public Health Law 2801-d action should not have been granted. The defendant relied on the expert opinion of a physician who did not demonstrate familiarity with nursing home care and did not address the allegations that plaintiff’s decedent was left unattended on the floor after she fell and defendant’s personnel did not cooperate with the EMS personnel who attended the decedent:

“On a motion for summary judgment dismissing the complaint in a medical malpractice action, a defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure” … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … .

“Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient. …

… [W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . …

… [T]he defendant relied on an expert affirmation of a physician who engaged in, inter alia, the practice of cardiac critical care. This affirmation did not indicate that the physician had training in geriatric or nursing home care or what, if anything, the physician did to become familiar with the standard of care for these specialties … . … [T]he defendant’s expert failed to specifically address the allegations that the defendant’s staff members left the decedent on the floor unattended while awaiting the arrival of EMS and failed to cooperate with EMS personnel upon their arrival … . … [T]he EMS report reflected that the defendant failed to provide EMS personnel with more than mere transfer paperwork. … [T]he decedent initially could not be identified because she did not have an identification band, and EMS personnel did not know whether the patient was on blood thinners or subject to any “advance directives.” Deitch v Sands Point Ctr. for Health & Rehabilitation, 2025 NY Slip Op 02317, Second Dept 4-23-25

Practice Point: Consult this decision for a clear explanation of the very different nature of a medical malpractice action as compared with a Public Health Law 2801-d action.

Practice Point: Here plaintiff’s decedent fell at her nursing home. Defendant’s expert, a cardiac physician, did not demonstrate any familiarity with nursing home care, rendering his affidavit insufficient.

Practice Point: In a medical malpractice/Public Health Law 2801-d action, the expert’s failure to address all the allegations in the pleadings renders the expert evidence insufficient.

 

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THE COMPLAINT DID NOT SUFFICIIENTLY ALLEGE DEFENDANT ASSISTED LIVING FACILITY FUNCTIONED AS A DE FACTO RESIDENTIAL HEALTH CARE FACILITY BY PROVIDING HEALTH-RELATED SERVICES; THEREFORE THE PUBLIC HEALTH LAW CAUSES OF ACTION, AVAILABLE ONLY FOR SUITS AGAINST RESIDENTIAL HEALTH CARE FACILITIES, SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the allegations in the complaint did not sufficiently allege that defendant assisted living facility operated as a de facto residential health care facility. Therefore the Public Health Law causes of action, which are available only for suits against residential health care facilities, should have been dismissed. The concurring justices argued that the case which allowed assisted living facilities to be considered de facto residential health care facilities if they provide health-related services should be overruled:

… Supreme Court erred in denying their motion with respect to the second and third causes of action. We have held that an assisted living facility licensed pursuant to Public Health Law article 46-B … could operate as a de facto residential health care facility subject to liability under Public Health Law article 28 if it provides health-related services (see Cunningham v Mary Agnes Manor Mgt., L.L.C., 188 AD3d 1560, 1562 [4th Dept …]. We conclude that, unlike the complaint in Cunningham, the complaint here failed to “sufficiently allege[ ] facts to overcome defendants’ argument that the facility is an assisted living facility and not subject to . . . sections [2801-d and 2803-c] of the Public Health Law” … .

From the concurrence:

… [W]e would overrule our prior decision in Cunningham to the extent that it authorizes a cause of action under article 28 of the Public Health Law against an assisted living facility indisputably licensed pursuant to article 46-B of the Public Health Law … . Kingston v Tennyson Ct., 2025 NY Slip Op 01522, Fourth Dept 3-14-25

Practice Point: Private causes of action pursuant to the Public Health Law are available only for suits against residential health care facilities, and not suits against assisted living facilities. In the Fourth Department, however, the Public Health Law causes of action can be viable against an assistant living facility if the facility offers health-related services. The two concurring justices in the instant decision would overrule that “assisted living facility” caveat. which conflicts with rulings in other appellate division departments.

 

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THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST “ASSISTED LIVING” AS OPPOSED TO “RESIDENTIAL HEALTH CARE” FACILITIES; COMPLAINT PROPERLY DISMSSED (THIRD DEPT).

The Third Department, affirming Supreme Court, in a full-fledged opinion by Justice Egan, determined the Public Health Law does not create a right of private action against an “assisted living facility” as opposed to a “residential health care facility.” Here the plaintiff attempted to sue the defendant assisted living facility for alleged deficiencies and the complaint was properly dismissed:

Public Health Law § 2801-d creates a private right of action distinct from traditional claims for medical malpractice and negligence, and it provides, in relevant part, that “[a]ny residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined [in Public Health Law article 28], shall be liable to [the] patient for injuries suffered as a result of said deprivation” (Public Health Law § 2801-d [1] …). A residential health care facility is defined, in turn, as “a nursing home or a facility providing health-related service” (Public Health Law § 2801 [3]; see Public Health Law § 2801 [4] [b]).

An assisted living facility, in contrast, is governed by Public Health Law article 46-B instead of Public Health Law article 28, being defined as a facility that “provides or arranges for housing, on-site monitoring, and personal care services and/or home care services (either directly or indirectly), in a home-like setting to five or more adult residents unrelated to the assisted living provider” (Public Health Law § 4651 [1]). DeRusso v Church Aid of the Prot. Episcopal Church in the Town of Saratoga Springs, Inc., 2025 NY Slip Op 00008, Third Dept 1-2-25

Practice Point: The statutory private right of action created by the Public Health Law for suits against “residential health care facilities” does not apply to “assisted living facilities.”

 

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THE PUBLIC HEALTH LAW REGULATIONS CONTROLLING HOW NURSING HOMES MUST ALLOCATE THEIR INCOME AND HOW MUCH PROFIT THEY CAN MAKE WERE DEEMED CONSTITUTIONAL TO THE EXTENT THEY WERE RIPE FOR CONSTITUTIONAL REVIEW (THIRD DEPT).

The Third Department, in a comprehensive full-fledged opinion by Justice Mackey too detailed to fairly summarize here, determined the Public Health Law regulations controlling how nursing homes must allocate their income and how much profit they can make are constitutional to the extent they are ripe for constitutional review:

On November 17, 2022, the [Public Health] Commissioner adopted a regulation, 10 NYCRR 415.34, to implement the provisions of Public Health Law § 2828, including the spending mandate and the excess-revenue cap, which applied retroactively to April 1, 2022. The regulation provides:

“By January 1, 2022, residential health care facilities shall comply with the following minimum expenditures:

(1) 70[%] of revenue shall be spent on direct resident care; and

(2) 40[%] of revenue shall be spent on resident-facing staffing.

(i) All amounts spent on resident-facing staffing shall be included as a part of amounts spent on direct resident care;

(ii) 15[%] of costs associated with resident-facing staffing that are contracted out by a facility for services provided by registered professional nurses, licensed practical nurses, or certified nurse aides shall be deducted from the calculation of the amount spent on resident-facing staffing and direct resident care” … .

The regulation further provides for recoupment by the Commissioner of “excessive total operating revenue” where “the facility’s total operating revenue exceeds total operating and non-operating expenses by more than five percent of total operating revenue” … . Grand S. Point, LLC v Bassett, 2024 NY Slip Op 03364, Third Dept 6-20-24

Practice Point: The Public Health Law regulations controlling how nursing homes must allocate their income and how much profit they can make were deemed constitutional or unripe for constitutional review.

 

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ALTHOUGH THE FORMER “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA)” PROVIDED IMMUNITY TO HEALTHCARE PROVIDERS RE: COVID-19, HERE DEFENDANT NURSING HOME DID NOT DEMONSTRATE THE THREE REQUIREMENTS FOR IMMUNITY WERE MET (SECOND DEPT).

The Second Department reversing Supreme Court, determined defendant nursing home did not demonstrate the three statutory requirements for immunity for COVID-related treatment were met. Plaintiff alleged plaintiff’s decedent, during his admission to defendant’s facility in March 2020, was infected with SARS-CoV-2 and COVID-19:

… [T]he EDTPA [Emergency or Disaster Treatment Protection Act] initially provided, with certain exceptions, that a health care facility “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” as long as three requirements were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, 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 the services were arranged or provided in good faith (Public Health Law former § 3082[1] …).

* * * [W]hile the EDTPA “immunized healthcare facilities from civil liability for certain acts or omissions in the treatment of patients for COVID-19 during the period of the COVID-19 emergency declaration” … , the defendant’s submissions did not establish that the three requirements for immunity were satisfied … . Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 2024 NY Slip Op 03029, Second Dept 6-5-24

Practice Point: The repeal of the former Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively.

Practice Point: A healthcare provider asserting immunity from COVID-related injury under the former EDTPA must demonstrate the three statutory requirements for immunity have been met.

 

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DEATH RECORDS KEPT BY THE DEPARTMENT OF HEALTH ARE EXEMPT FROM DISCLOSURE TO THE PETITIONER, A NON-PROFIT WHICH PROMOTES GENEALOGICAL RESEARCH (THIRD DEPT). ​

The Third Department, reversing Supreme Court, over a two-justice dissent, determined petitioner’s request for the “New York State Death Index” through December 31, 2017, should have been denied:

Petitioner is a not-for-profit organization that promotes public access to government records for historical and genealogical purposes. Respondent is statutorily charged with “procur[ing] the faithful registration of . . . deaths,” except in the City of New York … .  * * *

While petitioner’s interest in seeking information to assist in genealogical research promotes a legitimate public interest, such a request does not “further the policies of FOIL, which are to assist the public in formulating intelligent, informed choices with respect to both the direction and scope of governmental activities” … . * * *

We agree with respondent’s contention that Public Health Law § 4174 (1) (a) provides an exemption authorizing the withholding of the requested information. That statute allows respondent to release “either a certified copy or a certified transcript of the record of any death” to seven specific categories of applicants. The provision concludes with a qualifier that “no certified copy or certified transcript of a death record shall be subject to disclosure under [FOIL]” … . The term certified transcript is broadly defined as “a computer generated or other reproduction of information abstracted from the original state or local record the elements of which shall be as determined by the commissioner and certified by the commissioner . . . as being an accurate abstract of information contained in the original record” … . We recognize that petitioners are not requesting copies of death certificates or any “certified” records. Even so, in our view, the import of the statute is to limit the disclosure of these records to applicants who fall within the defined categories, whose needs require that the records be certified. The express qualifier precludes a FOIL request otherwise made by a nonqualifying member of the general public. In this context, the statutory focus is not on the certification component but on maintaining the confidentiality of the underlying information … . Matter of Reclaim the Records v New York State Dept. of Health, 2024 NY Slip Op 02854, Third Dept 5-23-24

Practice Point: The Public Health Law  limits the disclosure of death records kept by the health department to specific categories of applicants and state the records are not subject to disclosure under FOIL. Here the request by a non-profit promoting genealogical research was denied in its entirety.

 

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