EDTPA Repeal Is Not Retroactive; Nursing Homes May Obtain CPLR 3211 Dismissal When Documentary Proof Establishes COVID-Response Immunity

1. Introduction

In Byington v North Sea Assoc., LLC (2025 NY Slip Op 07372), the Appellate Division, Second Department reversed Supreme Court, Suffolk County’s denial of a nursing home’s pre-answer motion to dismiss and dismissed the complaint in its entirety. The plaintiff (as administrator of the decedent’s estate) alleged the decedent contracted COVID-19 while residing at the defendant nursing home (October 2019 to June 2020) and died on June 15, 2020. The pleading asserted claims for, among other things, wrongful death, gross negligence, and a statutory claim under Public Health Law § 2801-d.

The central issue on appeal was whether the defendant was immune from suit under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082), and specifically whether EDTPA’s repeal in April 2021 applied retroactively to conduct in 2020. The Second Department also addressed what a defendant may submit on a CPLR 3211 motion to conclusively establish EDTPA immunity at the pleading stage and what a plaintiff must allege to invoke EDTPA’s exceptions (e.g., gross negligence).

2. Summary of the Opinion

The Second Department held that the Supreme Court erred by treating EDTPA’s repeal as retroactive. Applying EDTPA as it existed during the relevant 2020 period, the court concluded the defendant established immunity because the record demonstrated all three statutory conditions were satisfied and no statutory exception (willful/intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm) was adequately pleaded or otherwise applicable. The court therefore granted dismissal under CPLR 3211(a).

3. Analysis

3.1 Precedents Cited

A. Pleading standards on CPLR 3211(a)(7)

Martinez v NYC Health & Hosps. Corp. (223 AD3d 731) (quoting Watts v City of New York (186 AD3d 1577)): The court reiterated the familiar rule that, on a CPLR 3211(a)(7) motion, pleadings receive liberal construction, facts are assumed true, and plaintiffs receive every favorable inference—but only to determine whether alleged facts fit a cognizable theory.
Lockwood v CBS Corp. (219 AD3d 1326) (quoting Young v 101 Old Mamaroneck Rd. Owners Corp. (211 AD3d 771); citing Godfrey v Spano (13 NY3d 358)): The court emphasized that conclusory allegations—bare legal conclusions without factual specificity—cannot survive dismissal.
Lam v Weiss (219 AD3d 713) and Monaghan v Roman Catholic Diocese of Rockville Ctr. (165 AD3d 650): Used to reinforce that a pleading must be sufficiently particularized so a cause of action may reasonably be found.
Mera v New York City Health & Hosps. Corp. (220 AD3d 668) (quoting Cordell Marble Falls, LLC v Kelly (191 AD3d 760): The court noted that evidentiary material may be considered on a CPLR 3211(a)(7) motion.
Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc. (228 AD3d 618) (quoting Martinez v NYC Health & Hosps. Corp.): When evidentiary materials are considered, the question becomes whether the pleader has a cause of action, not merely whether one is stated. The court also relied on Sokol v Leader (74 AD3d 1180) for the same criterion.
Kluska v Montefiore St. Luke's Cornwall (227 AD3d 690) (quoting Mera v New York City Health & Hosps. Corp.): Dismissal is warranted when necessary elements lack factual support or allegations do not allow an enforceable recovery.

B. CPLR 3211(a)(1) documentary evidence

Ajaka v Mount Sinai Hosp. (189 AD3d 963) (citing Goshen v Mutual Life Ins. Co. of N.Y. (98 NY2d 314)): Dismissal under CPLR 3211(a)(1) is proper only when documentary evidence “utterly refutes” allegations and conclusively establishes a defense. The court’s analysis tracks this framework in evaluating the nursing home’s proof of EDTPA immunity.

C. EDTPA immunity, its conditions, and the non-retroactivity of repeal

Gonnelly v Newburgh Operations, LLC (236 AD3d 866): Provided the court’s operative articulation of EDTPA’s three immunity prerequisites and the scope of “health care services” covered. The Second Department also relied on Gonnelly to support the holding that EDTPA’s repeal does not apply retroactively.
Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc. (228 AD3d 618): Cited alongside Gonnelly for the same key point—EDTPA repeal is not retroactive.
Ruth v Elderwood at Amherst (209 AD3d 1281): Cited for EDTPA’s statutory exception language—immunity does not apply for willful/intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
Whitehead v Pine Haven Operating LLC (222 AD3d 104) and Whitehead v Pine Haven Operating, LLC (222 AD3d 104): Used to reinforce that conclusory “gross negligence” labels, without supporting detail, are insufficient to pierce EDTPA immunity at the pleading stage.

3.2 Legal Reasoning

A. The court treated EDTPA immunity as a threshold, dispositive defense for COVID-era care

EDTPA, as initially enacted, granted broad immunity to health care facilities (including nursing homes) for harms alleged to have resulted from acts or omissions in arranging for or providing health care services during the COVID-19 emergency, so long as three conditions were met:

The services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
The act or omission was impacted by decisions or activities in response to the COVID-19 outbreak and in support of the State’s directives; and
The services were arranged or provided in good faith.

The Second Department applied these statutory elements (Public Health Law former § 3082[1]) in a practical, record-driven way: it evaluated whether the defendant’s submissions—policies, protocols, DOH directives, and patient progress notes—demonstrated that the alleged conduct fell within pandemic response healthcare services and was undertaken in good faith under governing directives.

B. Non-retroactivity of EDTPA repeal controlled the governing law

The plaintiff argued that EDTPA’s 2021 repeal stripped the defendant of immunity for 2020 conduct. The Second Department rejected that position, holding the Supreme Court erred in determining the repeal applied retroactively. By anchoring the analysis to Gonnelly v Newburgh Operations, LLC and Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., the court reinforced an important interpretive rule: later repeal does not automatically remove an immunity that existed at the time of the challenged conduct.

C. Use of evidentiary material allowed dismissal where immunity was conclusively established

Although CPLR 3211(a)(7) typically tests pleadings, the court reiterated that it may consider evidentiary material submitted by a defendant; when it does, the inquiry becomes whether the plaintiff has a cause of action at all (not simply whether the complaint is artfully pleaded). Here, the defendant’s submissions included:

an affidavit from the acting director of nursing (in 2020),
COVID-19 pandemic-related policies and protocols,
directives issued by the New York State Department of Health, and
progress notes regarding the decedent.

The court held these materials conclusively established the EDTPA immunity requirements were met—satisfying the stringent “utterly refutes”/ “conclusively establishes a defense” concept associated with CPLR 3211(a)(1), while also fitting the “has a cause of action” framework under CPLR 3211(a)(7) when evidentiary material is considered.

D. The EDTPA exceptions require particularized factual allegations—labels are not enough

EDTPA immunity is unavailable if the harm was caused by willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm (Public Health Law former § 3082[2]). The plaintiff pleaded “gross negligence,” but the court found the allegations were merely bare legal conclusions without factual specificity—insufficient to trigger the exception and survive dismissal (citing Lockwood v CBS Corp., Young v 101 Old Mamaroneck Rd. Owners Corp., and Whitehead v Pine Haven Operating LLC).

E. Pre-pandemic regulatory-violation theories did not salvage the complaint

The plaintiff also referenced alleged negligence predating the COVID-19 pandemic, including alleged violations of state and federal regulations. The court held these allegations either (i) were conclusory and thus insufficient, or (ii) were conclusively defeated by the defendant’s evidence, including infection-control policies developed before the pandemic and the director of nursing’s affidavit.

3.3 Impact

Byington consolidates several practical litigation consequences for New York COVID-era nursing home cases:

EDTPA repeal non-retroactivity remains a decisive barrier for claims arising from conduct during the immunity period, absent a well-pleaded exception.
Defendants can win early on CPLR 3211 by submitting operational records (policies, directives, progress notes) showing EDTPA conditions were met. This encourages immunity disputes to be resolved at the pleadings stage rather than after discovery.
Pleading discipline is heightened: plaintiffs must allege concrete facts showing reckless/grossly negligent conduct (not simply assert the label) to invoke EDTPA’s exceptions.
Regulatory-violation allegations (including those framed under Public Health Law § 2801-d) may still be dismissed if they are conclusory or if documentary proof negates essential elements or establishes immunity.

4. Complex Concepts Simplified

CPLR 3211(a)(7) (failure to state a cause of action): A pre-answer motion arguing that, even if the complaint’s facts are assumed true, the law does not provide a valid claim. Courts generally read the complaint generously, but they will not accept mere legal buzzwords without factual detail.
CPLR 3211(a)(1) (documentary evidence): A dismissal tool available when documents (the kind courts treat as reliably authoritative) completely contradict the complaint and establish a complete defense.
EDTPA immunity: A COVID-era statutory shield that protected healthcare providers from liability for certain pandemic-impacted care decisions, if they acted under applicable rules/directives and in good faith, with narrow carve-outs for egregious misconduct (e.g., gross negligence).
Retroactivity: Whether a later change in the law applies to earlier events. Here, the court held EDTPA’s 2021 repeal did not reach back to eliminate immunity for 2020 conduct.
Gross negligence (in this context): More than ordinary carelessness. To pierce EDTPA immunity, a plaintiff must allege specific, concrete facts that plausibly show extreme disregard or recklessness— not just state “gross negligence” as a conclusion.

5. Conclusion

Byington v North Sea Assoc., LLC reinforces a clear rule in New York’s COVID-era healthcare litigation: the EDTPA’s repeal is not retroactive, and nursing homes may obtain dismissal at the pleading stage when their submissions conclusively establish the statute’s immunity conditions and the complaint fails to plead a non-conclusory basis for an exception such as gross negligence. The decision underscores that, in EDTPA cases, outcomes often turn on (i) the governing time period, (ii) the provider’s documented compliance with pandemic directives and protocols, and (iii) the plaintiff’s ability to plead detailed facts showing misconduct outside EDTPA’s protective scope.