Macru v. Shorefront Operating, LLC

Summary

The Appellate Division, Second Department, modified an order denying a nursing facility's motion to dismiss claims arising from a resident's COVID-19-related death. The court held that the defendant had not conclusively established immunity under New York's Emergency or Disaster Treatment Protection Act, Executive Order No. 202.10, or the federal PREP Act at the pleading stage. However, it dismissed the wrongful death cause of action as time-barred because the action was commenced more than two years after the decedent's death, even accounting for pandemic-related tolling.

Holdings

1. The defendant was not entitled to dismissal based on EDTPA immunity because its submissions did not conclusively establish that all three statutory immunity requirements were satisfied.
2. Executive Order No. 202.10 did not provide an independent basis for immunity warranting dismissal of the complaint.
3. The defendant was not entitled to dismissal under the PREP Act because its submissions did not conclusively demonstrate that the decedent's injuries arose from an approved covered countermeasure or from a decision not to apply one.
4. The wrongful-death cause of action was barred because it was commenced more than two years after the decedent's death and after the applicable COVID-19 tolling period ended.

Questions Presented

1. Whether the defendant conclusively established immunity from liability under the Emergency or Disaster Treatment Protection Act.
2. Whether Executive Order No. 202.10 provided an independent basis for dismissing the claims on immunity grounds.
3. Whether the Public Readiness and Emergency Preparedness Act required dismissal based on alleged use of or failure to use a covered countermeasure.
4. Whether the wrongful-death cause of action was barred by the two-year statute of limitations, considering COVID-19 executive-order tolling.

Disposition

other