Cacace v Grandell Rehabilitation & Nursing Ctr., Inc.

Summary

The Appellate Division, Second Department held that the defendant nursing facility was not shown to have PREP Act immunity because the submissions did not establish that the decedent’s injuries arose from use of an approved countermeasure. It also held that the EDTPA repeal was not retroactive and that the defendant established EDTPA immunity for negligence claims based on conduct occurring on or after March 7, 2020. The court further directed dismissal of the gross-negligence causes of action and dismissed the appeal from the superseded amended order.

Holdings

1. The gross-negligence causes of action must be dismissed because the complaint's factual allegations were insufficient to support a claim for gross negligence.
2. The defendant did not establish immunity under the PREP Act because its submissions failed to show that the decedent's injuries arose from the use of an approved covered countermeasure.
3. The defendant established immunity under the EDTPA for the negligence claims based on conduct occurring on or after March 7, 2020, and those claims must be dismissed.

Questions Presented

1. Whether the complaint adequately alleged causes of action for gross negligence.
2. Whether the defendant established immunity from the plaintiff's claims under the federal Public Readiness and Emergency Preparedness Act.
3. Whether the defendant established immunity under New York's Emergency or Disaster Treatment Protection Act for alleged negligence occurring on or after March 7, 2020.
4. Whether repeal of the Emergency or Disaster Treatment Protection Act was retroactive.

Disposition

reversed_and_remanded