White Plains, New York, associates Steven V. DeBraccio and Kathryn M. Lang achieved a pre-answer dismissal for a nursing home in Bronx County Supreme Court, which was affirmed by the First Department. The plaintiff alleged that the decedent died of COVID-19 due to gross negligence, wrongful death and violation of the decedent’s rights under Public Health Law § 2801-d. Kathryn and Steven argued that the plaintiff’s complaint was subject to pre-answer dismissal due to the immunity afforded to nursing homes in the Emergency or Disaster Treatment Protection Act (EDTPA). Kathryn supported the motion with a comprehensive affidavit from the nursing home’s director of nursing, which outlined the numerous pre-COVID-19 and COVID-19-related infection control policies the facility instituted. The Bronx County Supreme Court granted our motion to dismiss. The plaintiff appealed to the First Department, and Steven argued that based on previous appellate division case law and the principles of retroactivity, the statute was only repealed prospectively not retroactively, and the affidavit from the director of nursing established in 14 paragraphs how the nursing home’s response to the COVID-19 pandemic impacted its treatment and care of the decedent. Finally, he argued that the cookie-cutter, boilerplate allegations of gross negligence did not undermine the nursing home’s showing of good faith under the EDTPA. The First Department unanimously agreed with the defense arguments, and the decision granting dismissal was affirmed.