Steven DeBraccio (Of Counsel-White Plains, NY) achieved grant of a motion to dismiss in Richmond County Supreme Court in a case alleging negligence, violations of Public Health Law §§ 2801-d and 2803-c, gross negligence, and wrongful death, stemming from the decedent’s stay at our client’s nursing home. Steven moved to dismiss based on New York state immunity under the Emergency Disaster Treatment Protection Act (EDTPA) and the federal Public Readiness and Emergency Preparedness Act (PREP Act). At oral argument, Steven detailed the distinctions in our case from a similar prior case and gently discussed the proper application of the appellate cases (in particular, the Holder decision from the First Department) that were applicable to this action, and methodically discussed the statutory requirements, gross negligence, and prematurity, and comprehensively clarified why plaintiff did not plead a cause of action. As to the gross negligence argument, Steven discussed the particular differences in motions to dismiss under CPLR 3211 (a) (1) based on documentary evidence and CPLR 3211 (a) (7) for failure to plead a cause of action, and how the First Department in Hasan treated such gross negligence claims in the context of the EDTPA. Notwithstanding the court’s prior decision, the court granted our motion and dismissed plaintiff’s complaint in its entirety.