Macru v Shorefront Operating, LLC
Attorneys and Parties
Brief Summary
COVID-19-era nursing home liability, asserted immunity under emergency statutes, and timeliness of wrongful death claims.
The Supreme Court, Kings County denied the defendant's CPLR 3211(a) motion to dismiss the complaint.
The Appellate Division dismissed the wrongful death cause of action as time-barred but otherwise affirmed the denial of dismissal.
Under New York CPLR 3211 [rule allowing dismissal for failure to state a cause of action and based on documentary evidence], the defendant did not conclusively establish immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) [Public Health Law former art 30‑D protecting health care facilities and professionals from liability for acts or omissions in providing COVID-19-related care if statutory criteria are met], Executive Order No. 202.10 [COVID-19 executive order addressing health care operations; not an independent liability shield], or the Public Readiness and Emergency Preparedness Act (PREP Act) [federal law granting immunity for claims causally related to the use or administration of covered countermeasures]. However, the wrongful death claim was filed more than two years after the tolling period ended and is time-barred under EPTL 5-4.1 [two-year statute of limitations for wrongful death].
Background
The decedent, a nursing home resident since approximately 2014, allegedly contracted COVID-19 in early 2020, developed respiratory distress and hypoxia, and died on April 17, 2020. On March 8, 2023, the plaintiff (as proposed administrator) sued the nursing facility alleging violations of resident-rights statutes, negligence, gross negligence, and wrongful death. The defendant moved to dismiss under CPLR 3211(a), claiming immunity under the EDTPA, Executive Order No. 202.10, and the PREP Act, or alternatively to dismiss the wrongful death claim as untimely.
Lower Court Decision
The Supreme Court, Kings County denied the defendant's request to dismiss the complaint, rejecting its immunity arguments and leaving all causes of action, including wrongful death, intact at the pleading stage.
Appellate Division Reversal
Modified. The court held the defendant did not conclusively establish the three EDTPA immunity elements at the CPLR 3211 stage given plaintiff’s contrary allegations and the lack of specific implementation details in the defendant’s affidavit; Executive Order No. 202.10 does not independently confer immunity; and the PREP Act defense failed because the submissions did not show the injuries arose from a covered countermeasure or a decision not to employ one. But the wrongful death cause of action was dismissed as time-barred because the action commenced on March 8, 2023, more than two years after the November 3, 2020 end of the COVID tolling period.
Legal Significance
Confirms that EDTPA immunity is not automatic and cannot be resolved on a motion to dismiss without specific, conclusive proof of the statute’s three elements; general assertions of good-faith compliance are insufficient. Clarifies that Executive Order No. 202.10 does not provide an independent liability shield and that PREP Act immunity requires a causal link to a covered countermeasure. Reinforces that wrongful death claims must comply with EPTL 5-4.1’s two-year limitations period, measured here from the end of the pandemic tolling on November 3, 2020.
At the pleading stage, nursing homes must offer concrete, documentary proof to obtain EDTPA or PREP Act immunity; absent that, negligence-based COVID claims survive, but wrongful death claims remain strictly subject to the two-year statute of limitations after pandemic tolling ends.