On March 7, 2020, the New York State Legislature enacted the Emergency or Disaster Treatment Protection Act (EDTPA), codified at Public Health Law §§ 3080–3082.
The EDTPA bestowed qualified immunity upon health care providers, so long as three statutory requirements were met:1. The health care facility or professional must have been arranging for or providing health services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
2. The act or omission must have occurred in the course of arranging for or providing health care services and the treatment of the individual was impacted by the facility’s decision or activities in response to or as a result of COVID-19 and in support of the state’s directives; and
3. The facility must have been arranging for or providing health care services in good faith.
The law carved out exceptions to the qualified immunity in instances of gross negligence, willful or intentional misconduct, or reckless conduct. As such, even if a medical service provider met the three statutory requirement for EDTPA immunity, acts of gross negligence, etc. remained actionable. The EDPTA’s immunity provision quickly became a matter of controversy following reports of widespread neglect in nursing homes. On January 30, 2021, the New York State Office of the Attorney General (OAG) released a report, titled “Nursing Home Response to COVID-19 Pandemic” (OAG Report), which memorialized the results of its investigation into the matter. The OAG’s investigation found that more nursing home residents had died from COVID-19 than was reflected in official Department of Health data; many facilities failed to comply with infection control protocols, increasing residents’ risk of harm; and the State’s reimbursement model may have incentivized for-profit homes to prioritize profits over patient well-being. Critically, the OAG Report condemned the immunity afforded by the EDTPA, noting that the statute could be “wrongly used to provide any individual or entity immunity from liability, even if those decisions were not made in good faith or were motivated by financial incentives.” In the wake of the OAG Report, the Legislature repealed the EDTPA just one year after its enactment. Fast forward to 2025, and we have seen a substantial body of recent precedent develop in real-time, primarily in the First and Second Departments. Without exception, the intermediate appellate courts had not permitted a single gross negligence cause of action to survive the interposition of EDTPA immunity. Simply put, the gross negligence carve-out that was provided by the Legislature amounted to an empty promise.However, that situation recently changed with the Second Department’s decision in
Sterlacci v. Clove Lakes Healthcare and Rehabilitation Center (2025 NY Slip Op 05714 [2d Dept., 2025]).
The decedent in Sterlacci was admitted to the defendant’s nursing facility in April 2020, and subsequently became infected with COVID-19, which resulted in his death. Thereafter, the Plaintiff, as the administrator of the decedent’s estate, commenced an action against the Defendants, asserting causes of action sounding in negligence and gross negligence. With reference to the gross negligence claims, Plaintiff, inter alia, alleged:
· Defendants were guilty of an “abject and longstanding failure to maintain a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases * * *;”
· Defendants were twice cited “by governmental inspectors and regulators for violation of federal and state regulations for failing to establish and maintain an infection prevention and control program * * *,” including in January 2020;
· As a direct consequence of Defendant’s failure to take proper precautions to help prevent the development of infections prior to and leading up to the COVID-19 pandemic, “there was a confirmed COVID-related death count of 17 residents who died inside [Defendant’s facility] due to COVID-19 26 resident deaths outside the facility;”
· The acts and omissions of Defendant “were pervasive events which occurred since at least 2019 when Defendants were cited for improper infection control violations, and continued throughout [Decedent’s] residency;” and,
· Defendants acted willfully, intentionally and recklessly and with gross negligence by knowingly implementing policies, “including accepting COVID-19 positive patients and residents, failing to test patients, failing to test patients, residents and staff, etc. with the knowledge that the policies implemented would increase the risk of contracting disease, causing sickness and death in patients and residents.”
Defendant thereafter moved to dismiss the Complaint pursuant to CPLR 3211(a)(7), which was granted by the lower court. On appeal, the Second Department, inter alia, modified the lower court’s order by deleting the provision thereof which had granted the dismissal motion vis-à-vis the gross negligence claims and denied said motion. In reinstating the gross negligence claims, the Second Department reasoned as follows:An exception to EDTPA immunity exists for “allegations that the defendants’ acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm” [quoting Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 AD3d 901, 902 [2d Dept., 2014][citation omitted].
Here, the complaint alleged sufficient facts to state a cause of action alleging gross negligence. Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged gross negligence.
In this manner, the Second Department determined the Plaintiff had alleged sufficient facts to overcome a pre-answer dismissal of his gross negligence claims. As the first appellate determination of its kind in the State, Sterlacci may very well signal the opening of a new front in COVID-19-related nursing home litigation. Sterlacci v. Clove Lakes Healthcare and Rehabilitation Center