In this action to recover damages stemming from the decedent’s death from Covid-19 nursing home negligence, the Appellate Division, Second Department, in accordance with the Horn Appellate Group’s arguments on appeal, determined that the moving defendant’s submissions in support of its CPLR 3211(a)(7) motion, “including the complaint, the decedent’s chart, various policies and procedures, and the affidavit of the defendant’s administrator, failed to conclusively establish that the three requirements for [EDTPA] immunity were satisfied.” In addition, the court held that the moving defendant was not entitled to dismissal based upon its affirmative defense of federal immunity under the PREP Act.
