ODEKIRK v. FULTON COMMONS CARE CENTER INC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Nassau County (Catherine Rizzo, J.), entered January 30, 2025.  The order granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, as administrator of the estate of Gloria Slocum (hereinafter the decedent), commenced this action against the defendant, the operator of a nursing home where the decedent resided prior to her death, inter alia, to recover damages for gross negligence and wrongful death.  The plaintiff alleged, among other things, that the decedent was infected with COVID–19 while residing at the nursing home, which resulted in her death in April 2020.  The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint, contending, inter alia, that it was immune from liability under the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30–D, §§ 3080–3082, repealed by L 2021, ch 96, § 1).  The plaintiff opposed.  In an order entered January 30, 2025, the Supreme Court granted the defendant's motion.  The plaintiff appeals.  We affirm.

“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” (Watts v City of New York, 186 AD3d 1577, 1578;  see Leon v Martinez, 84 NY2d 83, 87–88).  “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 AD3d 731, 732 [internal quotation marks omitted];  see Sokol v Leader, 74 AD3d 1180, 1181–1182).

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’ ” (Young v 101 Old Mamaroneck Rd. Owners Corp., 211 AD3d 771, 774, quoting Godfrey v Spano, 13 NY3d 358, 373;  see Byington v North Sea Assoc., LLC, 244 AD3d 1177, 1180).  Thus, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging gross negligence.

The plaintiff's remaining contentions are improperly raised for the first time on appeal.

Accordingly, we affirm the order.

DUFFY, J.P., GENOVESI, DOWLING and MCCORMACK, JJ., concur.