RODRIGUEZ WILLIAMS v. JOHN ANDRUS MEMORIAL INC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (David Everett, J.), dated July 29, 2024, and (2) a judgment of the same court entered August 14, 2024.  The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.  The judgment, upon the order, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

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

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

The plaintiff, as administrator of the estate of the decedent, commenced this action against the defendant, a nursing home where the decedent resided prior to his death.  The plaintiff alleged that while residing at the nursing home, the decedent was infected with COVID–19, which ultimately resulted in his death on April 28, 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) 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under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30–D, §§ 3080–3082, repealed by L 2021, ch 96, § 1).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 plaintiff opposed the motion.  In an order dated July 29, 2024, the Supreme Court granted the defendant's motion.  On August 14, 2024, a judgment was entered in favor of the defendant and against the plaintiff dismissing the complaint.  The plaintiff appeals.

“ ‘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 legal theory’ ” (Martinez v. NYC Health & Hosps.  Corp., 223 AD3d 731, 732, quoting Watts v. City of New York, 186 AD3d 1577, 1578).  “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)” (Mera v New York City Health & Hosps.  Corp., 220 AD3d 668, 669 [internal quotation marks omitted];  see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 761–762).  “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 AD3d 618, 618 [internal quotation marks omitted];  see Martinez v. NYC Health & Hosps.  Corp., 223 AD3d at 732).  “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” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142;  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” (Gonnelly v. Newburgh Operations, LLC, 236 AD3d 866, 867 [internal quotation marks omitted];  see Public Health Law former § 3082[1];  Mera v New York City Health & Hosps.  Corp., 220 AD3d at 669).  “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 AD3d at 867–868 [alteration and internal quotation marks omitted];  see Public Health Law former § 3081[5];  Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation Ctr., 241 AD3d 645, 647).  “The immunity conferred by EDTPA did not apply, however, ‘if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional’ ” (Ruth v. Elderwood at Amherst, 209 AD3d 1281, 1283, quoting Public Health Law former § 3082[2];  see Byington v. North Sea Assoc., LLC, 244 AD3d 1177, 1179).

Here, the defendant's submissions in support of its motion, including, inter alia, the affidavit of its nursing home administrator in 2020 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];  Costiera v. MMR Care Corp., 244 AD3d 1180, 1182;  Byington v. North Sea Assoc., LLC, 244 AD3d at 1179).

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 were no more than bare legal conclusions with no factual specificity, which were insufficient to survive a motion to dismiss (see CPLR 3211[a][7];  Costiera v. MMR Care Corp., 244 AD3d at 1182;  Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation Ctr., 241 AD3d at 647).

Additionally, either the plaintiff's allegations of negligence by the defendant prior to the COVID–19 pandemic were bare legal conclusions with no factual specificity, which were insufficient to survive a motion to dismiss (see CPLR 3211[a][7];  Costiera v. MMR Care Corp., 244 AD3d at 1182;  Byington v. North Sea Assoc., LLC, 244 AD3d at 1179), or the defendant's submissions, including, inter alia, the affidavit of its nursing home administrator in 2020 and the decedent's medical records, conclusively established its defense to such allegations (see Martinez v. NYC Health & Hosps.  Corp., 223 AD3d at 732–733).

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

The defendant's remaining contentions need not be reached in light of our determination.

DUFFY, J.P., WARHIT, VENTURA and OTTLEY, JJ., concur.