Brian Andrews, Dylan Braverman and Megan Lawless Obtain Pre-Answer Dismissal of COVID-19, Nursing Home and Wrongful Death Claims Against Nursing Home

The COVID-19 team prevailed in a pre-answer motion to dismiss an almost 50-page Complaint containing Eight Causes of Action against a New York City Nursing Home.  Plaintiff claimed that there was poor infection control policies and a failure to comply with CDC and New York Department of Health COVID-19 policies, leading to the patient’s exposure of COVID-19 causing her death. Plaintiff also claimed violations of various laws governing Nursing Homes as well as gross negligence. Plaintiff argued that the COVID-19 immunity was repealed and that the nursing home failed to establish that the patient’s care was impacted by COVID-19. The court rejected the claim of retroactivity, finding that the EDTPA was only prospectively repealed. The court also ruled that the nursing home established that COVID-19 impacted the patient’s care by submission of an Affidavit from the facility’s Executive Director and Administrator detailing the patient’s care. Finally, the court ruled that the gross negligence fail as they were general and without any specific facts to support the claim. The COVID-19 team will continue to aggressively seek dismissal of all claims brought against our clients during the COVID-19 pandemic.