MICHAEL BARULICH v. MARY MANNING WALSH NURSING HOME COMPANY INC (2026)

Horn Appellate Group, Brooklyn (Scott T. Horn of counsel), for appellant.

Barker Patterson Nichols, LLP, Garden City (Megan A. Lawless of counsel), for respondent.

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about March 24, 2025, which granted the motion of defendant Mary Manning Walsh Nursing Home Company, Inc. pursuant to CPLR 3211(a)(7) to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's decedent was a resident at defendant's nursing home from 2018 until her death on April 1, 2020, due to COVID–19.  Plaintiff asserts causes of action for negligence, gross negligence, wrongful death, and violations of the decedent's rights under the Public Health Law.

Supreme Court properly granted defendant's motion to dismiss the complaint because defendant established as a matter of law that it was entitled to immunity from liability under the Emergency or Disaster Treatment Protection Act (EDTPA).  The documents submitted with defendant's motion to dismiss, including its pandemic-related policies, State Department of Health directives, and decedent's care and medical records demonstrate that defendant was a health care facility providing health care services to the decedent under the COVID–19 emergency order when she was infected and, before that, “in accordance with applicable law”;  the care provided was “impacted by” defendant's “decisions or activities in response to or as a result of the COVID–19 outbreak and in support of the state's directives”;  and the decedent was provided care “in good faith” (Public Health Law former § 3082[1][a]-[c];  see CPLR 3211[a] [7] ).  Specifically, defendant's evidence reflects that decedent was monitored for COVID–19 symptoms, subjected to defendant's pandemic-related policies, evaluated and treated for a COVID–19 infection, and eventually died due to COVID–19 while residing at defendant's facility (see Hasan v Terrace Acquisitions II, LLC, 224 AD3d 475, 478 [1st Dept 2024];  see also Madourie v. Montefiore Med. Ctr., 246 AD3d 467, 468 [1st Dept 2026] ).

As for plaintiff's claim asserting gross negligence, for which EDTPA immunity does not apply, defendant provided a defense as a matter of law (CPLR 3211[a][7] ).  The pandemic-related policies and the decedent's medical records negate the allegations that defendant engaged in gross negligence because it took no preparatory steps to prevent infection.  Defendant submitted decedent's comprehensive medical records which showed that defendant provided care in good faith by following its protocol of identifying COVID–19 patients as soon as possible and cohorting policies (see Hasan, 224 AD3d at 479;  cf.  De La Rosa v Isabella Geriatric Ctr., Inc., 248 AD3d 645, 646 [1st Dept 2026] ).  Similarly, the Department of Health policy requiring nursing homes to admit or readmit residents who were COVID-positive negates the allegation that defendant was grossly negligent by admitting infected residents (see Hasan, 224 AD3d at 479).  Allegations that defendant was intentionally short staffed during the pandemic for the purpose of financial gain are contradicted by defendant's engaging third-party services to hire additional staff.  Further, the allegation that defendant was cited 16 times including for failing to implement an appropriate infectious disease prevention plan, is insufficient to support a gross negligence claim.  Plaintiff alleges that the conduct was from before the pandemic through dates that include the pandemic but does not state which of the alleged citations concerned infection control.  Furthermore, plaintiff did not raise the issue of the alleged citations in opposition to defendant's motion (see id.).

We have considered plaintiff's remaining contentions and find them unavailing.