Kathryn Lang (Associate-White Plains) and Katherine McCrink (Partner-White Plains) moved to dismiss a COVID-19 nursing home case pursuant to New York's Emergency Disaster Treatment Protection Act (EDTPA). The plaintiff's decedent was admitted to the facility from July 25, 2019 through April 13, 2020, and April 21, 2020 through May 6, 2020; however, the allegations appear to pertain only to the very end of the admission, when the decedent contracted COVID-19 leading to his death. Although the plaintiff alleged gross negligence, the court found plaintiff's arguments to be unavailing in that they were conclusory, vague and not supported by an affidavit from any individuals with personal knowledge (in opposition) containing facts that show that our client's conduct rises to the level of “willful or wanton.” The court also found that the repeal of the COVID-19 immunity statute was not retroactive (based on a Fourth Department case, which is binding as no other appellate departments have issued decisions on the issue), and as such, it was a valid defense given the subject time frame.
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