Glixon v. Highland Care Ctr., Inc.
Opinion
Glixon v Highland Care Ctr., Inc.
2026 NY Slip Op 05010
August 19, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Scott Glixon, etc., respondent,
v
Highland Care Center, Inc., etc., appellant, et al., defendants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 19, 2026
2024-08100, 2025-01422, (Index No. 707852/22)
Francesca E. Connolly, J.P.
Linda Christopher
Lourdes M. Ventura
Donna-Marie E. Golia, JJ.
Barker Patterson Nichols, LLP, Garden City, NY (Megan A. Lawless of counsel), for appellant.
Napoli Shkolnik PLLC, Melville, NY (Joseph L. Ciaccio and Aparna Pujar of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for wrongful death, the defendant Highland Care Center, Inc., appeals from (1) an order of the Supreme Court, Queens County (Anna Culley, J.), entered May 6, 2024, and (2) an order of the same court entered January 13, 2025. The order entered May 6, 2024, denied that defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it. The order entered January 13, 2025, denied that defendant's motion for leave to renew and reargue its prior motion to dismiss the complaint insofar as asserted against it.
ORDERED that the order entered May 6, 2024, is reversed, on the law, and the motion of the defendant Highland Care Center, Inc., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it is granted; and it is further,
ORDERED that the appeal from so much of the order entered January 13, 2025, as denied that branch of the motion of the defendant Highland Care Center, Inc., which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the appeal from so much of the order entered January 13, 2025, as denied that branch of the motion of the defendant Highland Care Center, Inc., which was for leave to renew its prior motion to dismiss the complaint insofar as asserted against it is denied as academic in light of our determination on the appeal from the order entered May 6, 2024; and it is further,
ORDERED that one bill of costs is awarded to the defendant Highland Care Center, Inc.
In April 2022, the plaintiff, as administrator of the estate of Alan G. Glixon (hereinafter the decedent), commenced this action against, among others, the defendant Highland Care Center, Inc. (hereinafter the defendant), the nursing home where the decedent resided prior to his death. The plaintiff alleged that the decedent was infected with COVID-19 while residing at the nursing home, which ultimately resulted in his death on April 10, 2020. The plaintiff asserted causes [*2]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)(7) to dismiss the complaint insofar as asserted against it, 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 6, 2024, the Supreme Court denied the defendant's motion. In an order entered January 13, 2025, the court denied the defendant's motion for leave to renew and reargue its prior motion. The defendant appeals.
"Generally on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Brathwaite v Eubanks, 235 AD3d 826, 826 [internal quotation marks omitted]; see Connolly v Long Is. Power Auth., 30 NY3d 719, 728). "When evidentiary material is submitted in support of a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one" (Brathwaite v Eubanks, 235 AD3d at 826; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). "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" (Coalition of Landlords, Homeowners, & Merchants, Inc. v Glass, 242 AD3d 1172, 1173 [internal quotation marks omitted]; see Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142).
"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 requirements were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, 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 the services were arranged or provided in good faith" (Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d 618, 619, quoting Public Health Law former § 3082[1]; see Mera v New York City Health & Hosps. Corp., 220 AD3d 668, 669-670). "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" (Mera v New York City Health & Hosps. Corp., 220 AD3d at 669-670; 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 does not apply, however, "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]; see Mera v New York City Health & Hosps. Corp., 220 AD3d at 670).
Here, the Supreme Court should have granted the defendant's motion to dismiss the complaint insofar as asserted against it on the ground of immunity under the EDTPA (see Estate of Pierro v Carmel Richmond Healthcare & Rehabilitation Ctr., 241 AD3d at 647). The defendant's submissions in support of its motion, including the complaint, the decedent's medical records, the defendant's COVID-19 protocols, and an affidavit of the defendant's chief nursing officer, conclusively established that the defendant was providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the alleged act or omission occurred in the course of providing health care services, and the treatment of the decedent was impacted by the defendant's decisions or activities in response to, or as a result of, the COVID-19 outbreak and in support of the State's directives; and the def
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