Published by MCB Appellate Practice Group
Barbara D. Goldberg, Gregory A. Cascino, Richard Wolf
In "<u>Hasan v. Terrace Acquisitions II, LLC </u>"(Case No. 2023-02779),plaintiff’s decedent was a resident of defendant’s nursing home from mid-2019until April 13, 2020, when he was hospitalized and diagnosed with COVID-19, and again from April 21, 2020 until his death on May 6, 2020. Plaintiff commenced an action against the nursing home asserting claims for negligence, gross negligence, wrongful death, and violation of the decedent's rights under the Public Health Law. The nursing home defendants thereafter moved to dismiss the complaint, arguing they were entitled to immunity under the New York State Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080–3082 [hereinafter the “EDTPA”]).The Supreme Court granted the motion, and plaintiff appealed.
The threshold issue before the First Department was whether the April 2021 repeal of the immunity provided by the EDTPA was retroactive. This was an issue of first impression in the First Department; however, both the Fourth Department and Third Department had already held that the repeal was not retroactive in "<u>Ruth v. Elderwood at Amherst</u>" , 209 A.D.3d 1281 (4thDep’t 2022) and "<u>Whitehead v. Pine Haven Operating LLC</u>", 222 A.D.3d 104(3d Dep’t 2023) respectively.
In agreeing with the Fourth and Third Departments and finding that the repeal was not retroactive, the First Department noted that the statutory text repealing the EDTPA uses no retroactivity language, in contrast to the enactment of the EDTPA, which did use such language. Other factors considered by the Court included that the repeal did not rewrite “an unintended judicial interpretation,” nor did it “reaffirm a legislative judgment,” as the Legislature terminated the previous year’s grant of immunity. Furthermore, the statutory language did not evince a sense of urgency, and although the statute was remedial in nature, this alone does not automatically overcome the strong presumption of prospectivity. There also was nothing in the legislative history that supported retroactivity, nor did the sponsors’ memoranda in support or the floor debate demonstrate a retroactive intent.
Having upheld the applicability of the EDTPA immunity post-repeal, the First Department went on to hold that the nursing home defendants demonstrated their entitlement to dismissal, through the submission of several pandemic related policies, State Department of Health directives, and more than 1,600 pages of the decedent’s medical records, which demonstrated that the nursing home 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” defendants’“ 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.”
Only the Second Department has yet to specifically rule on the retroactivity issue; however, it has dismissed multiple COVID-19 claims based on the EDTPA where the plaintiff did not argue for retroactive immunity repeal, and in each instance the Second Department cited the Fourth Department’s decision in "<u>Ruth</u>" favorably. "<u>See Martinez v. New York City Health & Hospitals Corporation</u>", 223 A.D.3d 731 (2d Dep’t 2024); "<u>Mera v. New York CityHealth & Hospitals Corporation</u>", 220 A.D.3d 668 (2d Dep’t 2023). Thus, there appears to be a high likelihood that when the issue does reach the Second Department, it will be inclined to find against retroactivity, and affirm the liability protection given to healthcare workers who labored under extremely dangerous and taxing circumstances during the initial months of the COVID-19 pandemic.