SCHAPERS v. WEST LAWRENCE CARE CENTER LLC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), dated July 28, 2023.  The order granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is denied.

From January 1, 2013, through May 7, 2020, John Schapers (hereinafter the decedent) was a resident of a facility operated by the defendant, West Lawrence Care Center, LLC, and under the care of its employees.  The decedent allegedly contracted COVID–19 while under the defendant's care, resulting in his death from related complications on May 7, 2020.  The plaintiff, the administrator of the decedent's estate, commenced this action against the defendant, asserting causes of action alleging violations of Public Health Law §§ 2801–d and 2803–c, negligence, gross negligence, and wrongful death.

The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint, contending, inter alia, that it was immune from liability pursuant to the provisions of the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30–D, §§ 3080–3082, repealed by L 2021, ch 96, § 1), and that the repeal of the EDTPA did not apply retroactively.  In an order dated July 28, 2023, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, a court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994];  see Mera v. New York City Health & Hosps. Corp., 220 A.D.3d 668, 669, 197 N.Y.S.3d 278 [2d Dept. 2023]).  “Although a court may consider materials submitted by the defendant in support of its motion, the materials must establish conclusively that the plaintiff has no cause of action” (USCHAG Corp. v. Flagstar Bank, FSB, 220 A.D.3d 823, 824, 198 N.Y.S.3d 153 [2d Dept. 2023]).

During the early stages of the COVID–19 pandemic, the New York State Legislature passed the EDTPA in an effort to provide a measure of relief for health care facilities in their attempts to care for patients with the disease.  The EDTPA initially provided, with exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” (Mera v. New York City Health & Hosps. Corp., 220 A.D.3d at 669, 197 N.Y.S.3d 278 [internal quotation marks omitted]).  To qualify for immunity, a health care facility is required to demonstrate that it met three requirements:  that (1) the services were arranged for or provided pursuant to a COVID–19 emergency rule or otherwise in accordance with applicable law, (2) the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID–19 outbreak and in support of the State's directives, and (3) the services were arranged or provided in good faith (see Mera v. New York City Health & Hosps. Corp, 220 A.D.3d at 669, 197 N.Y.S.3d 278).  The Legislature repealed the EDTPA in 2021.

The plaintiff contends, among other things, that the Supreme Court erred in determining that the repeal of the EDTPA does not apply retroactively.  This argument is unavailing.  This Court has concluded that the repeal of the EDTPA does not apply retroactively (see Damon v. Clove Lakes Healthcare and Rehabilitation Ctr., Inc., 228 A.D.3d 618, 213 N.Y.S.3d 133 [2d Dept. 2024]), a conclusion that has been reached by all of the Appellate Division departments in the State of New York (see, e.g., Hasan v. Terrace Acquisitions II, LLC, 224 A.D.3d 475, 203 N.Y.S.3d 325 [1st Dept. 2024];  Whitehead v. Pine Haven Operating LLC, 222 A.D.3d 104, 201 N.Y.S.3d 697 [3d Dept. 2023];  Ruth v. Elderwood at Amherst, 209 A.D.3d 1281, 175 N.Y.S.3d 811 [4th Dept. 2022]).

Nevertheless, the defendant's submissions to the Supreme Court did not conclusively establish that the three requirements for immunity under the EDTPA were satisfied so as to show that the plaintiff had no cause of action (see Damon v. Clove Lakes Healthcare and Rehabilitation Ctr., Inc., 228 A.D.3d at 619, 213 N.Y.S.3d 133;  see also Holder v. Jacob, 231 A.D.3d 78, 216 N.Y.S.3d 134 [1st Dept. 2024]).

Accordingly, the Supreme Court should have denied the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

IANNACCI, J.P., BRATHWAITE NELSON, VOUTSINAS and LANDICINO, JJ., concur.