EARL v. Little Treasures–Petits Tresors, et al., Defendants. (2026)

Order, Supreme Court, New York County (Hasa A. Kingo, J.), entered October 22, 2024, which denied the motions of defendants Aisha Brownlee and The City of New York for summary judgment dismissing the complaint against them, unanimously reversed, on the law, without costs, and the motions granted.  The Clerk is directed to enter judgment accordingly.

Defendant Aisha Brownlee demonstrated prima facie entitlement to summary judgment dismissing the complaint against her through the affidavit of an infectious disease physician who averred that Brownlee, an early intervention therapist, did not expose the infant to the virus that caused his death (see generally Diel v. Flintkote Co., 204 A.D.2d 53, 54, 611 N.Y.S.2d 519 [1st Dept. 1994]).  Plaintiff testified that the infant's symptoms began on March 1, which was the day before the session during which plaintiff claims Brownlee was coughing.  Even if we were to disregard plaintiff's own testimony and admissions, and assume that the infant's symptoms began later on the same day when that session was held, the infant's illness could not have been caused by contact with Brownlee.  Brownlee's expert averred that the virus at issue has an incubation period of five to seven days.  Plaintiff's claim that the exposure could have occurred at an earlier visit is unsupported by the record.  Notably, plaintiff did not proffer an expert to contradict Brownlee's expert on the incubation period of the virus.

In light of the fact that plaintiff failed to raise an issue of fact in support of her theory that the infant's virus was caused by Brownlee, the complaint against the City, which administers the early intervention services program, should also be dismissed.