Estate of Vivien Boninti v South Shore Rehabilitation, LLC
Attorneys and Parties
Brief Summary
Nursing home COVID-19 liability and whether a facility could obtain dismissal at the pleading stage based on immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) [law enacted to broadly protect health care facilities and professionals from liability arising from treatment during the COVID-19 public health emergency].
The Supreme Court granted the defendant nursing home's motion under CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action] and dismissed the estate's claims for violations of Public Health Law §§ 2801-d and 2803-c [statutory claims asserted concerning nursing home resident rights], negligence, and nursing home malpractice/professional negligence, accepting the defendant's EDTPA immunity defense.
The Appellate Division reversed the order insofar as appealed from and denied dismissal of those claims against South Shore Rehabilitation, LLC.
Although the EDTPA repeal was not retroactive, the defendant failed to conclusively establish entitlement to EDTPA immunity under Public Health Law former § 3082(1) [immunity applied only if health care services were provided pursuant to COVID-19 emergency rules or applicable law, the act or omission was impacted by COVID-19 response decisions supporting state directives, and the services were provided in good faith]. Its motion papers contained no evidence about the decedent's treatment, and on a CPLR 3211(a)(7) motion the burden does not shift to the plaintiff to disprove an asserted defense.
Background
In June 2020, Vivien Boninti was a resident of a nursing home operated by South Shore Rehabilitation, LLC. The estate alleged that she contracted COVID-19 there and died on June 5, 2020. The estate then sued, asserting claims including violations of Public Health Law §§ 2801-d and 2803-c [statutory claims asserted concerning nursing home resident rights], negligence, and nursing home malpractice/professional negligence. South Shore moved to dismiss under CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action], arguing that it was immune under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) [law enacted to broadly protect health care facilities and professionals from liability arising from treatment during the COVID-19 public health emergency].
Lower Court Decision
The Supreme Court, Nassau County, granted the branches of South Shore's motion seeking dismissal of the Public Health Law, negligence, and nursing home malpractice/professional negligence causes of action insofar as asserted against it, based on the claimed EDTPA immunity defense.
Appellate Division Reversal
The Appellate Division held that the complaint had to be liberally construed under CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action], and that dismissal based on evidentiary submissions is proper only when the defendant conclusively shows the plaintiff has no cause of action. While the court agreed that the EDTPA's repeal did not apply retroactively, it found that South Shore's submissions did not conclusively establish the statutory prerequisites for immunity under Public Health Law former § 3082(1) [immunity conditioned on qualifying COVID-19-related health care services and good faith]. Because the defendant offered no evidence regarding the decedent's treatment, dismissal was improper. The order was therefore reversed insofar as appealed from, with costs, and the dismissal branches of the motion were denied.
Legal Significance
This decision reinforces two points in New York COVID-19 nursing home litigation: first, repeal of the EDTPA does not retroactively eliminate immunity for conduct occurring while the statute was in effect; second, a defendant cannot secure pleading-stage dismissal on EDTPA immunity grounds without conclusively proving that the statutory conditions for immunity were satisfied. The case underscores that on a CPLR 3211(a)(7) motion [rule allowing dismissal for failure to state a cause of action], the plaintiff is not required to rebut an affirmative defense unless the defense is established as a matter of law.
A nursing home invoking EDTPA immunity at the motion-to-dismiss stage must submit enough evidence to conclusively show that the resident's care fell within the statute's protection; absent that showing, negligence and resident-rights claims may proceed.