MICHEL v. PROSPECT PARK OPERATING LLC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries and wrongful death, the defendant appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated April 18, 2024.  The order, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging gross negligence and willful and reckless conduct.  The order, insofar as cross-appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging negligence.

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging gross negligence and willful and reckless conduct is granted;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The plaintiff, as administrator of the estate of Virginia Andre (hereinafter the decedent), commenced this action against the defendant nursing facility, inter alia, to recover damages for personal injuries and wrongful death.  The plaintiff alleged, among other things, that the defendant was negligent, grossly negligent, and willful and reckless in its care of the decedent, resulting in the decedent's death in April 2020 in violation of Public Health Law §§ 2801–d and 2803–c.  The defendant joined issue and raised an affirmative defense that it was immune from liability pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA) (id. former art 30–D, §§ 3080–3082, repealed by L 2021, ch 96, § 1).

Thereafter, the defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint.  In an order dated April 18, 2024, the Supreme Court granted that branch of the defendant's motion which was to dismiss the causes of action alleging negligence and denied that branch of the defendant's motion which was to dismiss the causes of action alleging gross negligence and willful and reckless conduct.  The defendant appeals, and the plaintiff cross-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 AD3d 668, 668–669).  “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and dismissal shall not eventuate unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Lara v S & J Operational, LLC, 237 AD3d 1186, 1187).

“At the outset of the COVID–19 pandemic, the New York State Legislature enacted the EDTPA with the stated purpose of ‘promot[ing] the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID–19 under conditions resulting from circumstances associated with the public health emergency’ ”(id., quoting Public Health Law former § 3080;  see Mera v New York City Health & Hosps.  Corp., 220 AD3d at 669).  “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” (Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation Ctr., 241 AD3d 645, 646–647 [internal quotation marks omitted];  see Public Health Law former § 3082[1];  Mera v New York City Health & Hosps.  Corp., 220 AD3d at 669).  However, immunity under EDTPA does not apply “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] ).

Here, with respect to the defendant's care of the decedent on or after March 7, 2020, the date on which former Governor Andrew Cuomo declared a state of emergency due to COVID–19, the defendant's submission of an affidavit of its director of nursing, Dorett Williams, conclusively established that the defendant was providing health care services pursuant to a COVID–19 emergency rule or otherwise in accordance with applicable law, that the alleged acts or omissions were impacted by decisions or activities in response to, or as a result of, the COVID–19 outbreak and in support of the State's directives, and that the defendant was providing health care services in good faith (see id. former § 3082[1];  Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation Ctr., 241 AD3d at 647;  Martinez v NYC Health & Hosps.  Corp., 223 AD3d 731, 732).  Thus, the defendant conclusively established that it was entitled to immunity under the EDTPA for the plaintiff's allegations of ordinary negligence pertaining to care rendered to the decedent on or after March 7, 2020.

Contrary to the defendant's contention, however, the EDTPA did not provide immunity prior to former Governor Cuomo's declaration of a state of emergency on March 7, 2020.  The statute provided that it would “take effect immediately and shall be deemed to have been in full force and effect on or after March 7, 2020,” and that it would apply to acts or omissions that “occurred on or after the date of the COVID–19 emergency declaration” (L 2020, ch 56, § 1, part GGG, § 2;  see Holder v Jacob, 231 AD3d 78, 80).  Nevertheless, the defendant's submission of Williams's affidavit conclusively established that the defendant was not negligent in its care of the decedent prior to March 7, 2020.  Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the causes of action alleging negligence.

Further, the factual allegations in the complaint were insufficient to state a cause of action alleging gross negligence and willful and reckless conduct (see Lara v S & J Operational, LLC, 237 AD3d at 1188–1189).  Accordingly, the Supreme Court should have also granted that branch of the defendant's motion which was to dismiss the causes of action alleging gross negligence and willful and reckless conduct.

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

DUFFY, J.P., WOOTEN, LANDICINO and QUIRK, JJ., concur.