COSTIERA v. MMR CARE CORP (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Nassau County (Felice J. Muraca, J.), entered January 20, 2023.  The order denied the defendant's motion pursuant to CPLR 3211(a) 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) to dismiss the complaint is granted.

The plaintiff, as administrator of the estate of the decedent, commenced this action against the defendant, the rehabilitation facility where the decedent resided prior to her death from December 2019 until March 2020.  The plaintiff alleged that the decedent was infected with COVID–19 while residing at the rehabilitation facility, which ultimately resulted in her death on April 11, 2020.

The plaintiff asserted causes of action, inter alia, to recover damages for a violation of Public Health Law § 2801–d, negligence, gross negligence, and wrongful death.  The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, arguing, among other things, that it was immune from liability under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30–D, §§ 3080–3082, repealed by L 2021, ch 96, § 1).  The Supreme Court denied the defendant's motion.  The defendant appeals.

“In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the pleadings are afforded a liberal construction, the facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every possible favorable inference” (Mera v. New York City Health & Hosps. Corp., 220 A.D.3d 668, 668–669, 197 N.Y.S.3d 278;  see Mikoma Elec., LLC v. Otek Bldrs., LLC, 233 A.D.3d 856, 858, 227 N.Y.S.3d 109).  “ ‘A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)’ ” (Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d 760, 761–762, 142 N.Y.S.3d 170, quoting Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153;  see CPLR 3211[c]).  “If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d 618, 618, 213 N.Y.S.3d 133 [internal quotation marks omitted];  see Martinez v. NYC Health & Hosps. Corp., 223 A.D.3d 731, 732, 203 N.Y.S.3d 653).  “ ‘Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery’ ” (Laine v. Empire HealthChoice Assur., Inc., 234 A.D.3d 833, 835, 226 N.Y.S.3d 258, quoting Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159).

“A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted ‘only where the documentary evidence utterly refutes the plaintiff's factual allegations’ ” (Popal v. DiLorenzo, 231 A.D.3d 1067, 1068, 221 N.Y.S.3d 572, quoting Bedford–Carp Constr., Inc. v. Brooklyn Union Gas Co., 215 A.D.3d 907, 908, 188 N.Y.S.3d 554).

“As is relevant here, the EDTPA initially provided, with certain 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 as long as three conditions were met:  [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” (Gonnelly v. Newburgh Operations, LLC, 236 A.D.3d 866, 867, 229 N.Y.S.3d 592 [internal quotation marks omitted];  see Public Health Law former § 3082[1]).  “The health care services covered by the immunity provision included[, at least initially,] those related to the diagnosis, prevention, or treatment of COVID–19;  the assessment or care of an individual with a confirmed or suspected case of COVID–19;  and the care of any other individual who presented at a health care facility or to a health care professional during the period of the COVID–19 emergency declaration” (Gonnelly v. Newburgh Operations, LLC, 236 A.D.3d at 867–868, 229 N.Y.S.3d 592 [internal quotation marks omitted];  see Public Health Law former § 3081[5]).  The immunity conferred by EDTPA does not apply, however, “if the harm or damages were caused by an act or omission constituting ․ gross negligence ․ by the health care facility” (Public Health Law former § 3082[2];  see Martinez v. NYC Health & Hosps. Corp., 223 A.D.3d at 732–733, 203 N.Y.S.3d 653;  Mera v. New York City Health & Hosps. Corp., 220 A.D.3d at 670, 197 N.Y.S.3d 278).

The defendant's submissions, including, inter alia, its various COVID–19 pandemic-related policies and protocols, the directives issued by the New York State Department of Health and the New York State Department of Health and Human Services, and the decedent's medical records, conclusively established that the defendant was entitled to immunity as the three requirements for immunity under the EDTPA were satisfied (see Public Health Law former § 3082[1];  Martinez v. NYC Health & Hosps. Corp., 223 A.D.3d at 732, 203 N.Y.S.3d 653;  Mera v. New York City Health & Hosps. Corp., 220 A.D.3d at 670, 197 N.Y.S.3d 278).

Moreover, here, no exception to the immunity provisions of the EDTPA is applicable (see Public Health Law former § 3082[2]).  With respect to the plaintiff's cause of action alleging gross negligence, the allegations are no more than “bare legal conclusions with no factual specificity[, which] are insufficient to survive a motion to dismiss” (Pinkesz v. Massachusetts Mut. Life Ins. Co., 234 A.D.3d 886, 888, 227 N.Y.S.3d 127 [internal quotation marks omitted];  see CPLR 3211[a][7];  Hasan v. Terrace Acquisitions II, LLC, 224 A.D.3d 475, 478, 203 N.Y.S.3d 325;  Whitehead v. Pine Haven Operating LLC, 222 A.D.3d 104, 111, 201 N.Y.S.3d 697).

Additionally, either the plaintiff's allegations of negligence by the defendant prior to the COVID–19 pandemic are “bare legal conclusions with no factual specificity[, which] are insufficient to survive a motion to dismiss” (Pinkesz v. Massachusetts Mut. Life Ins. Co., 234 A.D.3d at 888, 227 N.Y.S.3d 127 [internal quotation marks omitted];  see Whitehead v. Pine Haven Operating LLC, 222 A.D.3d at 111, 201 N.Y.S.3d 697), or the defendant's submissions, including, among other things, its infection control policies developed prior to the beginning of the COVID–19 pandemic, conclusively established their defense to such allegations (see Martinez v. NYC Health & Hosps. Corp., 223 A.D.3d at 732–733, 203 N.Y.S.3d 653).

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

In light of our determination, we need not reach the defendant's remaining contentions.

GENOVESI, J.P., FORD, LOVE and GOLIA, JJ., concur.