FINELLI v. FULTON COMMONS CARE CENTER INC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Eileen C. Daly–Sapraicone, J.), entered May 9, 2024.  The order granted the motion of the defendant Fulton Commons Care Center, Inc., pursuant to CPLR 3211(a)(7) to dismiss the amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Fulton Commons Care Center, Inc., pursuant to CPLR 3211(a)(7) to dismiss the amended complaint is denied.

From August 2018 through April 2020, Gloria Finelli (hereinafter the decedent) was a resident of a facility operated by the defendant Fulton Commons Care Center, Inc. (hereinafter the defendant), and under the care of its employees.  The decedent allegedly contracted COVID–19 while under the defendant's care, resulting in her death on April 7, 2020.  The plaintiffs, as proposed executors of the decedent's estate, commenced this action against the defendant, among others, asserting causes of action alleging, inter alia, wrongful death and gross negligence.

The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint, contending, 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under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30–D, §§ 3080–3082, repealed by L 2021, ch 96, § 1).  In an order entered May 9, 2024, the Supreme Court granted the motion.  The plaintiffs appeal.

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable theory” (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 Lee v. Sapphire Ctr. for Rehabilitation & Nursing of Cent. Queens, LLC, 243 A.D.3d 904, 905, 247 N.Y.S.3d 126).  “ ‘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’ ” (Martinez v. NYC Health & Hosps. Corp., 223 A.D.3d 731, 732, 203 N.Y.S.3d 653, quoting Sokol v. Leader, 74 A.D.3d 1180, 1181–1182, 904 N.Y.S.2d 153).

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 COVID–19.  The EDTPA initially provided, in relevant part, and 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” (Public Health Law former § 3082[1];  see Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d at 619, 213 N.Y.S.3d 133).  “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” (Schapers v. West Lawrence Care Ctr., LLC, 241 A.D.3d 1381, 1383, 241 N.Y.S.3d 451).

Here, the defendant's submissions did not establish that the three requirements for immunity were satisfied so as to show that the plaintiffs had no cause of action (see Gonnelly v. Newburgh Operations, LLC, 236 A.D.3d 866, 868, 229 N.Y.S.3d 592;  Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d at 619, 213 N.Y.S.3d 133;  cf.  Mera v. New York City Health & Hosps. Corp., 220 A.D.3d 668, 669, 197 N.Y.S.3d 278).

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

In light of the foregoing, we need not reach the plaintiffs' remaining contention.

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.