Specificity in Proving COVID‑19 Immunity and Strict Wrongful Death Limitation Periods: Commentary on Macru v. Shorefront Operating, LLC

I. Introduction

The Appellate Division, Second Department’s decision in Macru v. Shorefront Operating, LLC, 2025 NY Slip Op 07293 (Dec. 24, 2025), is a significant contribution to New York’s rapidly developing body of COVID‑19–related health care liability jurisprudence.

The case arises from the death of a nursing home resident during the earliest months of the COVID‑19 pandemic and addresses two primary legal questions:

• When, and on what evidentiary showing, may a nursing home obtain dismissal at the pleading stage based on COVID‑19 immunity provisions such as the Emergency or Disaster Treatment Protection Act (EDTPA), Executive Order 202.10, and the federal PREP Act?
• How is the statute of limitations for wrongful death actions calculated in light of the COVID‑19 executive order tolls, and what happens where suit is filed after that tolled period has expired?

The court’s answer is twofold:

• COVID‑19 immunity defenses are fact‑intensive and, at least at the CPLR 3211 stage, require specific, non‑conclusory documentary proof showing that each statutory requirement is met. Generalized assertions of compliance are insufficient.
• The two‑year limitations period for wrongful death (EPTL 5‑4.1), as tolled by the pandemic executive orders until November 3, 2020, is strictly enforced; a wrongful death claim commenced more than two years after that tolled deadline is time‑barred.

In short, Macru both narrows the practical utility of early motion practice based on pandemic‑era immunity statutes and reaffirms a rigid approach to wrongful death timeliness, even where the underlying events were themselves pandemic‑related.

II. Factual and Procedural Background

A. Parties and Underlying Events

The decedent, Rica Ursu, was admitted to a nursing facility operated by the defendant, Shorefront Operating, LLC, around 2014. At the outset of the COVID‑19 pandemic, in early 2020, she allegedly became infected with SARS‑CoV‑2/COVID‑19, developed respiratory distress and hypoxia, and died on April 17, 2020.

The plaintiff, Robert Macru, proceeding “as the proposed administrator” of the decedent’s estate, alleged that:

• As of February 28, 2023, the facility had nine confirmed COVID‑related deaths and a further 31 presumed COVID‑related deaths among residents who died outside the facility.
• The defendant failed to have or implement an effective infection control program, failed to isolate residents, and failed to sterilize and store equipment properly.
• The defendant acted with gross negligence in failing to test patients, residents, and staff adequately.

B. The Causes of Action

On March 8, 2023, the plaintiff commenced an action in Supreme Court, Kings County, asserting causes of action for:

• Violation of Public Health Law § 2801‑d (nursing home resident’s private right of action for deprivation of rights or benefits guaranteed by statute, regulation, or contract);
• Violation of Public Health Law § 2803‑c (nursing home resident’s rights);
• Common‑law negligence;
• Gross negligence; and
• Wrongful death.

C. The Defense Motion

The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint. Its central positions were:

1. It was immune from civil liability under:
   • The Emergency or Disaster Treatment Protection Act (EDTPA), former Public Health Law art 30‑D, §§ 3080–3082 (since repealed, but applicable to acts during its effective period);
   • Executive Order (A. Cuomo) No. 202.10; and
   • The federal Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. § 247d‑6d et seq.
2. In the alternative, the wrongful death cause of action was time‑barred under EPTL 5‑4.1.

The defendant submitted, among other things:

• The complaint;
• The decedent’s chart;
• Facility policies and procedures; and
• An affidavit from the facility’s administrator asserting that the facility maintained infection control programs and protocols, and screened staff, visitors, and residents according to written protocols, all in good faith and in compliance with applicable rules.

D. Supreme Court Ruling and Appeal

Supreme Court (Velasquez, J.) denied that branch of the motion seeking dismissal of the complaint, including the wrongful death claim. The defendant appealed to the Second Department.

The Appellate Division:

• Modified the order by dismissing the wrongful death cause of action as time‑barred; and
• Otherwise affirmed, leaving intact the remaining statutory and negligence‑based claims.

III. Summary of the Appellate Division’s Decision

The Second Department’s decision rests on two principal holdings.

A. COVID‑19 Immunity Defenses: Insufficient on a CPLR 3211 Record

The court held that the defendant was not entitled to dismissal under CPLR 3211(a)(1) (documentary evidence) or (a)(7) (failure to state a cause of action) based on:

• The EDTPA;
• Executive Order 202.10; or
• The PREP Act.

The court acknowledged that the EDTPA—despite its repeal—applied to conduct occurring at the outset of the pandemic, because the repeal was not retroactive. But it concluded that the defendant’s submissions failed to conclusively show that the statutory prerequisites for immunity were satisfied. Similarly, the submissions did not conclusively demonstrate that the decedent’s injuries arose from the administration or use (or reasoned non‑use) of a PREP Act “covered countermeasure.”

Moreover, relying on prior precedent, the court held that Executive Order 202.10 does not supply an independent basis for immunity sufficient to warrant dismissal.

B. Wrongful Death: Time‑Barred Even with COVID Tolling

By contrast, the court held that the wrongful death cause of action was time‑barred:

• The decedent died on April 17, 2020.
• The action was commenced on March 8, 2023.
• Wrongful death actions must be commenced within two years of death (EPTL 5‑4.1), subject to tolls.
• A series of COVID‑19 executive orders tolled litigation time limits until November 3, 2020, but this action was filed more than two years after that date.

Consequently, the defendant met its prima facie burden of establishing that the wrongful death claim was untimely, and the plaintiff failed to raise a material question of fact. The court therefore granted dismissal only of the wrongful death cause of action under CPLR 3211.

IV. COVID‑19 Immunity Defenses: Detailed Analysis

A. The EDTPA: Scope, Repeal, and Required Proof

1. Purpose and Key Provisions

The EDTPA was enacted at the outset of the pandemic to “broadly protect[] the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID‑19 under conditions resulting from circumstances associated with the public health emergency” (Public Health Law former § 3080; see Mera v New York City Health & Hosps. Corp., 220 A.D.3d 668, 669).

Former Public Health Law § 3082(1) granted immunity from civil and criminal liability for damages “as a result of an act or omission in the course of providing health care services,” provided three requirements were met:

1. Provision under applicable COVID‑19 rules or law: The facility or professional was “arranging for or providing health care services pursuant to a COVID‑19 emergency rule or otherwise in accordance with applicable law.”
2. Treatment impacted by COVID‑related decisions: The act or omission occurred in the course of arranging for or providing health care services, and the treatment of the individual was impacted by decisions or activities undertaken “in response to or as a result of the COVID‑19 outbreak and in support of the state’s directives.”
3. Good faith: The services were being provided in good faith.

The statute also expressly excluded certain misconduct—such as gross negligence or willful or intentional wrongdoing—from the scope of immunity, though that exclusion is not the focus of the Macru opinion.

2. Repeal and Retroactivity

The EDTPA was repealed by L 2021, ch 96, § 1. However, relying on Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d 618, 619, and Hasan v Terrace Acquisitions II, LLC, 224 A.D.3d 475, 476, the Second Department reaffirmed that this repeal is not retroactive. In other words:

• The EDTPA continues to govern conduct occurring during its effective period; and
• Providers can still invoke EDTPA immunity for pandemic‑era events, even though the statute has since been repealed.

Macru thus confirms that the repeal does not strip providers of immunity for qualifying acts or omissions that occurred while the EDTPA was in force.

3. Why Shorefront Could Not Obtain Dismissal Under the EDTPA

Despite acknowledging that the EDTPA applied temporally, the court held that the defendant’s submissions did not “conclusively establish that the three requirements for immunity were satisfied” (citing Gonnelly v Newburgh Operations, LLC, 236 A.D.3d 866; Damon, 228 A.D.3d at 619).

Key points:

• The complaint alleged specific failures:
  • No adequate infection control program;
  • Failure to isolate residents;
  • Failure to properly sterilize and store equipment; and
  • Gross negligence in failing to test patients, residents, and staff.
• The facility administrator’s affidavit asserted, in general terms, that:
  • An infection control program and protocols were in place;
  • Screening of staff, visitors, and residents occurred pursuant to written protocols; and
  • The facility provided services in good faith and in accordance with applicable law and emergency rules.

However, the affidavit lacked specifics as to implementation—i.e., it did not concretely demonstrate how, when, and to what extent those protocols were actually carried out with respect to the decedent or the facility’s operations during the relevant period.

Additionally, many assertions in the affidavit were squarely contradicted by the complaint’s factual allegations, which, at the CPLR 3211(a)(7) stage, must be accepted as true. Thus:

• Under CPLR 3211(a)(7), the court’s role is to ask whether the facts alleged “fit within any cognizable legal theory” (see Watts v City of New York, 186 A.D.3d 1577, 1578; Leon v Martinez, 84 N.Y.2d 83, 87–88).
• Under CPLR 3211(a)(1), dismissal is warranted only when documentary evidence “utterly refutes” the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Ripa v Petrosyants, 203 A.D.3d 770, 772; Mawere v Landau, 130 A.D.3d 986, 987).

The court found that the defendant’s submissions—even including the facility’s own records and policies—did not “utterly refute” the plaintiff’s allegations or conclusively establish that all EDTPA prerequisites were met.

Accordingly, EDTPA immunity could not be resolved on a pre‑answer motion; it remained at most a fact‑dependent affirmative defense to be tested on a fuller evidentiary record.

B. Executive Order 202.10: No Standalone Immunity Basis

Executive Order 202.10, issued by Governor Cuomo during the early pandemic, addressed various aspects of health care delivery and included provisions that, at least facially, appeared to limit liability for certain COVID‑related treatment decisions.

However, the Second Department, following Holder v Jacob, 231 A.D.3d 78, 89, reiterated that Executive Order 202.10 “does not provide an independent basis for immunity warranting dismissal of the complaint.” In other words:

• Executive Order 202.10 cannot be used as a freestanding shield to obtain pre‑answer dismissal of civil claims.
• Any immunity must be grounded in valid statutory authority (such as the EDTPA), properly construed and supported by a sufficient evidentiary showing.

Macru thus reinforces the principle that executive orders are not free‑floating sources of civil immunity; they operate within and in aid of statutory frameworks, not as independent replacements for them.

C. The PREP Act: Limited Reach in Nursing Home Negligence Claims

1. PREP Act Framework

The PREP Act, 42 U.S.C. § 247d‑6d, provides broad federal immunity for:

any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.

Key concepts:

• A “covered countermeasure” generally includes vaccines, drugs, devices, and certain protective equipment designated by federal authorities for use in a public health emergency.
• Immunity also potentially extends to some decisions not to administer a countermeasure, if that decision is itself a part of the allocation or implementation of covered countermeasures.

2. New York’s Application in Kluska and Adopted Here

In Kluska v Montefiore St. Luke’s Cornwall, 227 A.D.3d 690, 692, the Second Department previously held that the PREP Act’s immunity applies only to claims where the alleged injury is causally related to the administration or use (or certain non‑uses) of covered countermeasures. It does not automatically immunize all claims arising during the pandemic or all forms of alleged negligence in a health‑care setting.

Macru follows Kluska and further relies on federal appellate decisions interpreting the PREP Act’s scope, such as:

• Martin v Petersen Health Operations, LLC, 37 F.4th 1210, 1213–14 (7th Cir.) – emphasizing that not all nursing home COVID‑19 claims fall within PREP Act immunity; and
• Maney v Brown, 91 F.4th 1296 (9th Cir) – cited by the court as a contrasting example.

3. Why PREP Act Immunity Failed at the Pleading Stage in Macru

The court concluded that the defendant’s submissions, including the administrator’s affidavit, “failed to conclusively demonstrate that the decedent’s injuries arose from an approved countermeasure or a decision not to apply a countermeasure.”

This is crucial. The plaintiff’s allegations centered on:

• Systemic infection control failures;
• Lack of isolation and proper sterilization; and
• Gross negligence in testing practices.

Those allegations describe failures in basic infection control and facility operation, not harms directly caused by how a specific vaccine, drug, or piece of protective equipment was administered, used, or deliberately withheld in a covered way.

Without a clearly documented link between the decedent’s injuries and a specific covered countermeasure (or a protected decision not to apply one), PREP Act immunity could not be established conclusively on a CPLR 3211 record.

The Appellate Division thus refused to treat the PREP Act as a catch‑all shield for nursing homes against all COVID‑era negligence claims; its protection remains narrow and fact‑specific.

V. CPLR 3211 Standards and Their Role in the Outcome

A. Failure to State a Claim: CPLR 3211(a)(7)

Under CPLR 3211(a)(7), the court must:

• Afford the complaint a liberal construction;
• Presume the facts alleged are true;
• Grant the plaintiff every favorable inference; and
• Determine only whether the facts fit within any cognizable legal theory.

This standard is rooted in leading authorities such as:

• Leon v Martinez, 84 N.Y.2d 83, 87–88 – the seminal Court of Appeals case on CPLR 3211(a)(7);
• Watts v City of New York, 186 A.D.3d 1577, 1578 – applied in Macru; and
• Martinez v NYC Health & Hosps. Corp., 223 A.D.3d 731, 732; Sokol v Leader, 74 A.D.3d 1180, 1181–82 – clarifying that when evidentiary materials are considered, the question becomes whether the plaintiff has a cause of action, not just whether one is stated in technical terms.

Crucially, “affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action” (Sokol, 74 A.D.3d at 1182).

In Macru, the court held that the defendant’s affidavit—generic in content and contradicted by the complaint—fell far short of this “conclusive” standard. The plaintiff’s factual allegations, if credited, plainly supported cognizable negligence, gross negligence, and statutory claims.

B. Documentary Evidence: CPLR 3211(a)(1)

A motion under CPLR 3211(a)(1) requires that “documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” (Ripa v Petrosyants, 203 A.D.3d 770, 772; see Mawere v Landau, 130 A.D.3d 986, 987).

Typical “documentary evidence” includes:

• Contracts;
• Official records; and
• Unambiguous documents whose authenticity is undisputed.

In Macru, even though the defendant submitted policies, procedures, and records, those materials did not “utterly refute” the plaintiff’s allegations of deficient infection control and negligent handling of COVID‑19 at the facility. They showed what the facility claimed to have in place, but not necessarily what was actually done, nor did they resolve the factual conflict about implementation.

As a result, neither EDTPA nor PREP Act immunity could be treated as conclusively established “documentary” defenses at this preliminary stage.

VI. Wrongful Death Claim and Statute of Limitations

A. The Two‑Year Limit for Wrongful Death

EPTL 5‑4.1 provides that an action for wrongful death must be commenced within two years after the decedent’s death, absent specific statutory exceptions (not at issue here).

In Macru:

• Date of death: April 17, 2020.
• Commencement of action: March 8, 2023.

At first glance, this is almost three years after the death—on its face, beyond the two‑year limit. However, because the pandemic executive orders tolled (paused) certain deadlines, the court had to consider whether the action was saved by that toll.

B. COVID‑19 Executive Order Tolling

Governor Cuomo issued a series of executive orders beginning March 2020 that tolled civil litigation deadlines, including statutes of limitations. Courts have interpreted these orders as a toll (stopping the clock) rather than a mere suspension (see, e.g., Brash v Richards, 195 A.D.3d 582 [2d Dept 2021], though not cited here).

In Macru, the Second Department, citing Lastella v St. Joseph’s Hosp., 219 A.D.3d 1421, 1423, reiterated that:

• The executive orders tolled filing deadlines “until November 3, 2020.”
• As a result, for causes of action accruing during the toll period, the limitations “clock” effectively begins to run on November 4, 2020.

Because the decedent’s death occurred during the toll period (April 17, 2020), the two‑year limitations period for wrongful death did not begin to run until November 4, 2020. The effective deadline was therefore around November 3, 2022.

The plaintiff filed suit on March 8, 2023—more than four months after that extended deadline. Thus:

• The defendant met its burden by demonstrating that the wrongful death claim was commenced outside the applicable limitations period (EPTL 5‑4.1; Lastella, 219 A.D.3d at 1423).
• The plaintiff offered no evidence or argument sufficient to raise a triable issue or justify further tolling or extension.

Accordingly, the Second Department concluded that the wrongful death cause of action was time‑barred and should have been dismissed.

C. Survival of Other Claims

It is important to note that the dismissal of the wrongful death claim does not necessarily extinguish:

• Survival claims for the decedent’s pre‑death pain and suffering or personal injuries; or
• Statutory resident‑rights claims under Public Health Law §§ 2801‑d and 2803‑c.

The decision in Macru addresses only the wrongful death limitations issue; it does not hold that the entire action is time‑barred. The other causes of action—subject to their own limitation periods and accrual rules—remain pending.

VII. Precedents Cited and Their Influence

A. EDTPA and Pandemic Immunity Line of Cases

• Mera v New York City Health & Hosps. Corp., 220 A.D.3d 668 (2d Dept 2023)
  Defined the EDTPA’s broad protective purpose and set early parameters for when its immunity could be invoked. Macru quotes Mera to describe the EDTPA’s intent to protect health care providers treating COVID‑19 patients under emergency conditions.
• Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d 618 (2d Dept 2024)
  Held that the EDTPA’s repeal is not retroactive, so immunity remains available for conduct within the statute’s effective period. Macru explicitly relies on Damon for this non‑retroactivity principle.
• Hasan v Terrace Acquisitions II, LLC, 224 A.D.3d 475 (1st Dept 2024)
  The First Department’s parallel decision on EDTPA non‑retroactivity, reinforcing statewide consensus that EDTPA immunity can still be invoked for early‑pandemic conduct. Macru cites Hasan for this point.
• Gonnelly v Newburgh Operations, LLC, 236 A.D.3d 866 (2d Dept)
  Another nursing home COVID case in which the Second Department declined to find EDTPA immunity at the pleading stage, emphasizing the need for a robust factual showing. Macru follows this approach.

Collectively, these cases, including Macru, establish that EDTPA immunity:

• Is temporally available for early COVID‑19 events despite repeal; but
• Requires detailed, specific proof of compliance with statutory conditions; generalized or conclusory assertions are inadequate, especially on CPLR 3211 motions.

B. Executive Order 202.10: Holder v Jacob

In Holder v Jacob, 231 A.D.3d 78, 89, the Second Department held that Executive Order 202.10 is not an independent immunity shield. Macru adopts that holding wholesale, rejecting Shorefront’s attempt to rely on the executive order as a separate ground for dismissal.

C. PREP Act Interpretation: Kluska, Martin, and Maney

• Kluska v Montefiore St. Luke’s Cornwall, 227 A.D.3d 690 (2d Dept 2023)
  The Second Department held that PREP Act immunity applies only where there is a clear causal relationship between the alleged harm and the administration, use, or certain decisions not to use a “covered countermeasure.” Macru applies the same analytical framework and reaches a similar conclusion against dismissal.
• Martin v Petersen Health Operations, LLC, 37 F.4th 1210 (7th Cir.)
  The Seventh Circuit rejected broad attempts to subsume standard nursing home negligence under the PREP Act, emphasizing that not all COVID‑related claims fall within PREP immunity. Macru cites Martin as persuasive authority.
• Maney v Brown, 91 F.4th 1296 (9th Cir)
  Another federal appellate decision on the scope of PREP Act immunity, cited in Macru for contrast (“cf.”), underscoring that federal courts also recognize the Act’s limits.

These authorities collectively confirm that:

• PREP Act immunity is narrow, focused on countermeasures, and requires a close causal nexus.
• Generalized claims about poor infection control or systemic negligence will often fall outside its protective ambit, especially on the pleadings.

D. Statute of Limitations Tolling: Lastella v St. Joseph’s Hosp.

In Lastella v St. Joseph’s Hosp., 219 A.D.3d 1421, 1423, the Fourth Department held that:

• COVID‑19 executive orders tolled New York litigation deadlines until November 3, 2020.
• Where a cause of action accrued during that toll period, the statute of limitations must be calculated by effectively starting the clock on November 4, 2020.

Macru adopts the same calculation, cementing a uniform rule: actions accruing during the executive‑order toll period have their limitation periods effectively shifted forward by the length of the toll—but no further, absent some other statutory extension.

VIII. Simplifying Key Legal Concepts

A. EDTPA (Emergency or Disaster Treatment Protection Act)

In plain terms, the EDTPA was New York’s emergency “shield law” for health care providers during the initial COVID‑19 crisis. It:

• Protected hospitals, nursing homes, and staff from being sued for ordinary mistakes made while treating patients in the chaos of the pandemic;
• Covered treatment decisions affected by emergency conditions, such as staff shortages, resource scarcity, and rapidly changing guidelines; but
• Did not protect gross negligence, willful misconduct, or violations made in bad faith.

Macru emphasizes that to invoke this protection, a facility must show, with concrete facts, that:

• It was actually following COVID‑related rules and laws;
• The specific treatment decisions were driven by pandemic conditions and state directives; and
• It acted in good faith.

B. PREP Act and “Covered Countermeasures”

The PREP Act is a federal law that:

• Gives broad immunity from lawsuits to people and entities involved in developing and using government‑approved tools to fight a public health emergency—things like vaccines, antiviral drugs, and protective equipment;
• Shifts most claims for injury from these tools into a specialized federal compensation process.

A “covered countermeasure” is basically a government‑authorized medical product (or device, like certain PPE) used to prevent, diagnose, or treat the disease at the center of the emergency.

In the context of nursing homes:

• If a resident was seriously harmed because of how a COVID vaccine was given, the PREP Act might provide immunity (subject to narrow exceptions);
• If a resident was harmed because the facility allegedly had no adequate infection control policy, or failed to isolate residents or clean equipment, that type of claim is generally not about a “covered countermeasure” in the PREP Act sense.

C. Tolling vs. Suspension of Statutes of Limitations

A statute of limitations is the time limit you have to file a lawsuit. Two key mechanisms can affect that period:

• Tolling: The clock stops running completely for a period of time. When the toll ends, the clock resumes from where it left off. The days during the toll are essentially added on to the original deadline.
• Suspension/postponement: Sometimes used loosely, but in New York’s COVID orders context, courts have treated the orders as tolls, not mere postponements.

The pandemic executive orders tolled limitations periods until November 3, 2020. For claims that arose during that period (as in Macru), this meant:

• The limitations period did not begin to run until the toll ended; and
• The plaintiff effectively had the full statutory period starting from November 4, 2020.

D. Wrongful Death vs. Survival Claims

• Wrongful death (EPTL 5‑4.1): A claim by the personal representative of the estate for the economic losses suffered by the decedent’s distributees (family members) as a result of the death (lost financial support, funeral costs, etc.). It has a strict two‑year limitations period from the date of death (as tolled, where applicable).
• Survival claims: Claims that the decedent him- or herself could have brought—such as for pain and suffering or personal injuries—had they survived. These typically follow the standard negligence limitations rules (e.g., three years from injury in many cases) and are brought on behalf of the estate.

In Macru, only the wrongful death claim was held untimely; other claims remain.

E. Negligence vs. Gross Negligence

• Negligence: Failure to use reasonable care—what an ordinarily prudent person or facility would do under similar circumstances.
• Gross negligence: A much more serious form of negligence, often described as a reckless disregard for the rights or safety of others, or conduct that “smacks” of intentional wrongdoing.

Why it matters here: EDTPA immunity generally does not protect gross negligence. Thus, pleading gross negligence (and, eventually, proving it) can be a way for plaintiffs to escape EDTPA protection. The plaintiff in Macru alleged gross negligence in COVID testing and infection control practices.

IX. Impact and Future Implications

A. For Nursing Homes and Health Care Facilities

Macru sends a clear message to providers:

• COVID‑19 immunity defenses (EDTPA, PREP Act, and related executive orders) will rarely justify early dismissal under CPLR 3211 without detailed, case‑specific evidence of:
  • Actual implementation of infection control programs and protocols; and
  • How pandemic conditions concretely influenced treatment decisions.
• Generic affidavits stating that “we had protocols and acted in good faith” are insufficient to “utterly refute” plaintiff’s allegations or to conclusively prove statutory immunity.
• Facilities must be prepared to produce:
  • Contemporaneous records;
  • Specific descriptions of staffing, resource allocation, and infection control measures; and
  • Evidence tying their actions to state directives and emergency rules.

Operationally, this encourages facilities to:

• Improve documentation and recordkeeping of infection control activities;
• Carefully track how decisions were influenced by pandemic conditions; and
• Anticipate that pandemic immunity issues will often be resolved not on motion to dismiss, but at summary judgment or trial.

B. For Plaintiffs in COVID‑Era Health Care Cases

Macru is favorable to plaintiffs in several respects:

• It confirms that COVID‑19 immunity is not automatic. Plaintiffs can survive a motion to dismiss by:
  • Pleading specific factual failures in infection control, staffing, testing, and isolation;
  • Articulating how these failures deviated from then‑existing standards or regulations; and
  • Alleging gross negligence where the conduct appears especially egregious.
• It warns plaintiffs, however, that wrongful death claims are subject to a rigid two‑year period (as tolled through November 3, 2020), and that courts will enforce that limit strictly.

Practically, plaintiffs should:

• Calculate deadlines carefully, especially where the cause of action accrued during the COVID toll period;
• File early where possible, to avoid disputes over tolling and timeliness; and
• Consider alternative or supplemental claims (e.g., Public Health Law § 2801‑d) that may survive even if wrongful death is time‑barred.

C. For the Development of New York Pandemic‑Related Jurisprudence

Macru fits into a broader pattern in which New York courts:

• Recognize the existence and continuing effect of pandemic immunity statutes like the EDTPA; but
• Interpret them narrowly and demand robust proof before depriving plaintiffs of their day in court.

It also aligns state practice with federal appellate interpretations of the PREP Act, resisting efforts to transform that statute into a blanket immunity for all COVID‑related negligence in health care settings.

On limitations, Macru reinforces the uniform rule that the executive order tolls ended on November 3, 2020, and that the limitations periods must be recalculated accordingly—no more, no less.

X. Conclusion

Macru v. Shorefront Operating, LLC stands at the intersection of pandemic‑era immunity regimes and traditional procedural safeguards in civil litigation. Its central contributions can be distilled as follows:

• EDTPA and PREP Act immunity are not self‑executing. Defendants must offer detailed, concrete evidence that each statutory condition is satisfied. Conclusory affidavits and generic policy statements will not suffice to support dismissal at the pleading stage.
• Executive Order 202.10 cannot serve as an independent immunity basis. It must operate within the confines of statutory schemes and does not, by itself, extinguish common‑law or statutory causes of action.
• The PREP Act’s scope is narrow in the nursing home context. Only claims causally tied to the administration, use, or protected non‑use of covered countermeasures fall within its immunity; ordinary allegations of negligent infection control do not.
• Wrongful death limitation periods remain strictly enforced. Even in pandemic‑related cases, injured parties must heed the two‑year limitations period (as adjusted by the November 3, 2020 toll cutoff). Filing beyond that window will result in dismissal, as in Macru.

In the broader legal landscape, Macru confirms that courts will balance deference to the extraordinary challenges of the early pandemic with a strong commitment to procedural fairness and careful statutory construction. COVID‑19 immunity provisions will protect health care providers only where the statutory criteria are demonstrably and specifically met; otherwise, standard negligence and statutory claims will proceed, subject to ordinary defenses and limitations rules.