On January 9, 2026, Andrew T. Sheeley and David Gorelick secured a unanimous defense verdict on behalf of a 520-bed skilled nursing and rehabilitation facility following a jury trial in Supreme Court, Kings County, New York, before The Hon. Anne J. Swern.

This was a trial of first impression in New York as our client was claiming immunity from suit pursuant New York’s Emergency or Disaster Treatment Protection Act (“EDTPA”). The facts were straight forward and not in dispute. In July 2020, at the height of the Covid 19 Pandemic, the 67-year-old patient fell from her bed during care provided by a Certified Nurse Assistant resulting in bi-lateral leg fractures requiring corrective surgery. The resident died shortly thereafter. The Aid caring for the patient at the time did not follow the care plan requiring 2 caregivers to assist in providing care to this patient.
Early in the litigation, on behalf of our client, we moved to dismiss claiming our client was immune from suit pursuant to the immunity provisions of the EDTPA. Our motion was denied and the case proceeded to trial.

At trial the Court was presented with substantive and procedural issues of first impression. At the defense’s request, the Court concluded that application of the EDTPA immunity would be decided by the Court on a motion for directed verdict and based solely on the facts developed at trial.

At trial the jury heard from the facility’s Director of Nursing who, in detail, relived the moment she learned of an unusual respiratory illness rapidly spreading through the facility and causing severe illness. She explained that guidance from governmental agencies, including the N.Y.S. DOH, CMS and CDC, was initially limited and focused on symptoms-based screening and identification of possible carriers of the virus. The witness went on to testify how, despite the reallocation of staff and resources needed to comply with the frequently changing regulatory guidance on preventative measures in response to the pandemic, patients continued to get sick and the death toll increased–and not just at our client’s facility, but many health care institutions. In emotional testimony, the witnesses provided intimate examples of how patient care was impacted as a direct consequence of her facility’s response to the pandemic. She explained that although no patient was ever neglected or left without care, the timely delivery of care to patients was impacted through staffing challenges; initial individual screening of staff and visitors and then the devastating moment when all family members were restricted from visiting patients; cohorting / quarantining of patients; and the use of PPE, among other causes.

Through the Aid’s testimony we were able to demonstrate that this patient’s care and treatment was directly impacted by the facility’s decisions and activities in response to and as a direct consequence of the Covid-19 outbreak. This Aid testified she decided to deviate from the 2 person assist care plan and provide care to this individual patient by herself because, after a diligent search, she was unable to get assistance due to staffing challenges during the height of Covid-19 outbreak.

Following the close of evidence, we moved the Court to dismiss the action arguing that based on the thorough record made at trial, the facility was immune from suit under the EDTPA. The Court reserved ruling on the motion. During summation, we argued that although the Aid deviated from this individual’s care plan on the subject date and time, she acted reasonably under the circumstances given the Covid-19 breakout and the impact it had on the delivery of care at the facility in general AND given the immediate need to provide care for this patient in light of her risk for infection. The jury unanimously returned a verdict finding that, although the Aid was negligent in deviating from the care plan, her decision was not a substantial factor in bringing about the occurrence and injury given the realities of the Covid-19 pandemic and its impact on the timely delivery care. The jury’s verdict rendered the defendant’s motion moot.