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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conferred by the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082, repealed by L 2021, ch 96, § 1) (EDTPA).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Practice Point: Although the EDTPA has been repealed.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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FOR-PROFIT NURSING HOMES’ CHALLENGE TO ADJUSTED MEDICAID REIMBURSEMENT RATES REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing (modifying) the Appellate Division, rejected petitioner for-profit nursing homes’ challenges to the adjusted Medicaid reimbursement rates which were to be implemented as of April 1, 2020:

… [W]e reject petitioners’ challenges to adjusted Medicaid reimbursement rates issued to comply with amended Public Health Law (“PHL”) § 2808 (20) (d), which mandates the elimination of one component from the computation formula used to set rates of for-profit residential health care facilities, on or after April 1, 2020. The amendment and the adjusted rates do not result in a retroactive effect and petitioners failed to establish that the rates are not “reasonable and adequate to meet costs” under PHL § 2807 (3) or that the rates violate their equal protection rights. We hold that respondents may implement the recalculated rates for services provided as of April 2, 2020 … . * * *

Petitioners, 116 for-profit nursing homes, filed this hybrid declaratory judgment and article 78 proceeding against State respondents—the Department [of Health] and its Commissioner and the Director of the Budget—challenging the Department’s implementation of the recalculated rates without the residual equity reimbursement factor. Simultaneously, petitioners moved for a preliminary injunction to prevent respondents from enforcing the equity elimination clause. Supreme Court granted petitioners’ motion for a preliminary injunction against enforcement of the clause pending a final determination of the proceeding. Matter of Aaron Manor Rehabilitation & Nursing Ctr., LLC v Zucker, 2024 NY Slip Op 02126, CtApp 4-23-24

Practice Point: The procedures and criteria for challenges to Medicaid reimbursement rates for for-profit nursing homes explained in depth.

 

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THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WAS NOT RETROACTIVE; THEREFORE DEFENDANT’S NURSING HOME WAS IMMUNE FROM SUIT STEMMING FROM PLAINTIFF’S DECEDENT’S DEATH FROM COVID-19 (FIRST DEPT).

The First Department determined the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) in April 2021 was not retroactive. Therefore defendant’s nursing home was immune from suit stemming from plaintiff’s decedent’s death from COVID-19. Although the Act does not confer immunity from gross negligence, gross negligence was not demonstrated because the Department of Health required nursing homes to admit COVID-positive patients:

As to the application of the EDTPA, defendant was entitled to immunity under that statute. The documents submitted with defendant’s motion to dismiss, including several pandemic-related policies, State Department of Health directives, and more than 1600 of pages of the decedent’s medical records, demonstrate that defendant was providing health care services to the decedent under the COVID-19 emergency orders when he was infected and, before that, “in accordance with applicable law”; the care provided was “impacted by” defendant’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 decedent was provided care “in good faith” … . Hasan v Terrace Acquisitions II, LLC, 2024 NY Slip Op 00739, First Dept 2-13-24

Practice Point: This decision includes an extensive discussion of when a statute can be deemed to apply retroactively.

 

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DEFENDANTS WERE ENTITLED TO IMMUNITY FROM THIS MEDICAL MALPRACTICE, WRONGFUL DEATH ACTION; PLAINITFF’S DECEDENT WAS ADMITTED TO THE HOSPITAL WITH COVID AND DIED FROM COVID; IMMUNITY IS PROVIDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice complaint should have been dismissed. Plaintiff’s decedent was admitted to defendants’ hospital with COVID-19 and died from COVID-19. Defendants are entitled to immunity from suit by the Emergency or Disaster Treatment Protection Act (EDTPA):

… [P]laintiff alleges that the decedent was diagnosed with COVID-19 after arriving at Elmhurst Hospital on March 30, 2020, and that he died from COVID-19 on April 9, 2020. The defendants’ submissions, including the complaint and the transcript of the plaintiff’s hearing pursuant to General Municipal Law § 50-h, conclusively established that the defendants were entitled to immunity under the EDTPA (see Public Health Law former § 3082 …). As the complaint makes no allegations that the defendants’ acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm, none of the exceptions to the immunity provisions of EDTPA apply (see Public Health Law former § 3082[2]). Martinez v NYC Health & Hosps. Corp., 2024 NY Slip Op 00186, Second Dept 1-17-24

Practice Point: The defendants in the medical malpractice, wrongful death action are immune from suit pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA). Plaintiff’s decedent was admitted to the hospital with COVID and died from COVID.

 

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