YVETTE WHITE v. New York City Health & Hospital Corp., Defendant. (2026)

The following papers numbered 1 to 3 read on this motion.

PAPERS NUMBERED

NOTICE OF MOTION, AFFIDAVITS AND MEMO OF LAW 1

ANSWERING AFFIDAVITS AND EXHIBITS 2

REPLY AFFIRMATION 3

UPON THE FOREGOING CITED PAPERS, THIS MOTION IS DENIED AS FOLLOWS:

Defendant seeks dismissal of this medical malpractice action for failing to state a cause of action (CPLR 3211[a][7]), based on the premise that it is immune from liability under the New York Emergency Disaster Treatment Protection Act (EDTPA) (former Public Health Law (PHL) art 30-D, §§ 3080 - 3082). According to plaintiffs, this action arises from the negligent management of a traumatic mandibular (jawbone) fracture in an immunocompromised patient (i.e., plaintiff, William White), and the subsequent failure to properly monitor, recognize and treat an infection that led to abscess formation, malunion, additional surgeries and prolonged suffering. By way of background, in July 2020, William White presented to defendant after being assaulted, and was diagnosed with a comminuted pathologic mandibular fracture. It appears that after consulting with defendant's physician, Dr. Stupak, plaintiff decided to undergo a closed reduction rather than an open reduction internal fixation (ORIF). There is no dispute that the time in question corresponds with the effective period of the EDTPA, which was enacted to address the burdens of health care providers who were stretched thin by the COVID pandemic.

Immunity under the EDTPA requires, inter alia, that the alleged negligent act occurred in the course of arranging for or providing health care services, and that the treatment of the individual was impacted (emphasis added) by the health care facility's decisions or activities in response to or as a result of the COVID-19 outbreak. (PHL § 3082[1].) The EDTPA does not qualify how (positively or adversely) or what treatment must be affected, except that it be impacted. (Holder v Jacob, 231 AD3d 78 [1st Dept 2024].) Nor does it require that William White's treatment be uniquely impacted as compared to other patients. (Id.) In addition, although defendant seeks dismissal under CPLR 3211(a)(7), it is not contending that the complaint fails to adequately assert a cause of action for medical malpractice. Rather, the motion relies on the premise that defendant is immune from liability under the EDTPA. Where as here the sufficiency of the complaint alone is not being challenged, but instead evidentiary material (i.e., doctor's affirmation) is being used to support the motion, then the focus is no longer merely on the adequacy of the complaint and whether plaintiffs have stated a cause of action. (Goldman v Metropolitan, 5 NY3d 561 [2005].) Instead the inquiry is whether plaintiffs have a cause of action, and therefore, under these circumstances, the evidence that defendant relies upon must conclusively establish (emphasis added) a defense as a matter of law (Id).

In support of the motion is an affirmation by Dr. Stupak, who refers to "multiple policies related to the Covid-19 (sic) virus" implemented by defendant for the time in question, and describes how he discussed with Mr. White the multiple possibilities of treatment. According to Dr. Stupak, treatment essentially fell into two main categories: ORIF and closed reduction. He discussed the pros and cons of each with Mr. White. For example, Dr. Stupak told him that ORIF included the placement of permanent hardware that carried the risk of injuring tissue, rejection, erosion and infection. Dr. Stupak further explained that a closed reduction eliminated the need for an incision into the tissue or permanent hardware, and required "less time in the hospital and . . . lessened the chances of his contracting Covid-19 (sic)." According to Dr. Stupak, plaintiff decided to go with a closed reduction. The surgery took place on July 29, 2020, and Dr. Stupak states that Mr. White tolerated the procedure well and was discharged that same day. Follow-up visits took place on August 5 and September 2, 2020, and according to Dr. Stupak, Mr. White was recovering well. Dr. Stupak states that he never saw plaintiff again after the September visit.

The EDTPA is not intended to immunize medical malpractice merely because it occurred during the pandemic, and any immunity that it does confer must be strictly construed. (Brown v Bowery, 51 NY2d 411 [1980]; Holder, 231 AD3d 78.) A nexus must be demonstrated between the alleged malpractice and the health care facility's decisions or activities in response to or as a result of the COVID-19 outbreak. (Madourie v Montefiore, 246 AD3d 467 [1st Dept 2026].) As plaintiffs correctly point out, the decision to perform a closed reduction instead of ORIF was not mandated or curtailed by a COVID related policy or mandate. Nor was there any evidence that a COVID related policy or mandate somehow delayed or restricted either the surgery itself or the infection monitoring. Mr. White was given the option of either a closed reduction or ORIF, and it was he who decided upon a closed reduction. In addition, Mr. White was provided timely follow-up visits without any delay and he was never a COVID patient. Given the aforementioned, it cannot be said that the EDTPA provided defendant with immunity as a matter of law to warrant dismissal under CPLR 3211(a)(7). Therefore, defendant's motion is denied, and plaintiff is directed to serve a copy of this decision with notice of entry upon defendant within 20 days of receipt of copy of same. This constitutes the decision of this court.

Dated 6/12/26

Joseph E. Capella, J.S.C.

Joseph E. Capella, J.