Supreme Court, Orange County, September 13, 2021

Kaufman Borgeest & Ryan LLP, Valhalla (Shannon Maureen Henderson of counsel), for Montgomery Operating Co., LLC, doing business as Montgomery Nursing and Rehabilitation Center, defendant.

Finkelstein & Partners, Newburgh (Ann R. Johnson of counsel), for plaintiffs.

It is ordered that the motion of defendant Montgomery Operating Co., LLC doing business as Montgomery Nursing and Rehabilitation Center for dismissal in part of the plaintiffs' claims against it is disposed of as follows:

I. Plaintiffs' Complaint

Plaintiffs commenced this action to recover for personal injuries allegedly sustained by plaintiff Elaine Crampton while a resident of the Montgomery Nursing and Rehabilitation Center during the period May 21, 2020, to July 1, 2020. Plaintiffs allege that Ms. Crampton sustained injuries including pressure ulcers and fungal dermatitis, and in addition that she was sexually assaulted by one of Montgomery's female employees. The complaint asserts causes of action for (1) violation of Public Health Law § 2801-d, (2) negligence, (3) gross negligence, and (4) the sexual assault.

Plaintiffs allege that Montgomery violated Public Health Law § 2801-d in that it:

- "failed to know or fully understand Plaintiff's physical, mental, psychosocial and medical conditions and needs" (complaint ¶ 50);

- "failed to timely and/or properly assess Plaintiff" (¶ 51);

- "failed to timely and/or properly prepare and/or modify comprehensive care plans to meet Plaintiff's . . . conditions and needs" (¶ 52);

- "failed to timely and/or properly implement interventions necessary to meet Plaintiff's . . . conditions and needs" (¶ 53);

- "failed to timely and/or properly provide necessary treatments, care and/or services necessary to meet Plaintiff's . . . conditions and needs" (¶ 54);

- "did not have sufficient staff to meet Plaintiff's . . . conditions and needs" (¶ 55);

- "failed to provide sufficient staff to meet Plaintiff's . . . conditions and needs" (¶ 56);

- "did not properly hire, train and supervise staff to meet Plaintiff's . . . conditions and needs" (¶ 57); and

- "failed to properly hire, train and supervise staff to meet Plaintiff's . . . conditions and needs" (¶ 58).

The complaint further alleges that "the failures and deprivations set forth herein constitute the willful and/or reckless deprivation of Plaintiff's rights and/or benefits pursuant to and in accordance with New York Public Health Law §§ 2801-d [and other statutes]." (¶ 61.)

Plaintiffs allege that Montgomery was negligent in that it:

- "did not have sufficient qualified nursing and medical staff in order to provide and implement appropriate care plans" (¶ 70);

- "did not properly train nursing and medical staff in or to provide required daily care to Plaintiff" (¶ 72);

- "did not properly supervise nursing and medical staff in or to provide required daily [*2]care to Plaintiff" (¶ 74);

- "failed to employ or otherwise provide sufficient qualified nursing and medical staff in or to provide required daily care to Plaintiff" (¶ 76);

- "failed to employ or otherwise provide sufficient qualified nursing and medical staff in or to provide and implement appropriate care plans" (¶ 78);

- "failed to properly train nursing and medical staff in or to provide required daily care to Plaintiff" (¶ 80);

- "failed to properly supervise nursing and medical staff in or to provide required daily care to Plaintiff" (¶ 82);

- "failed to ensure that its nursing and medical staff were apprised of their responsibility to understand, protect and promote the rights of each resident including Plaintiff" (¶ 84); and

- "failed to use ordinary and reasonable care in the employment, training and supervision of employees and agents" (¶ 86).

{**73 Misc 3d at 547}Based on the foregoing, plaintiffs assert a claim for gross negligence in these terms:

"93. That the NH Defendants knew that its acts and/or omissions would likely lead to serious injuries for the Plaintiff and/or other residents throughout the facility.

"94. That the conduct of the NH Defendants was also grossly negligent, willful, wanton, and in reckless disregard of the potential consequences to Plaintiff.

"95. That the NH Defendants, their employees and agents, acted in so reckless a manner as to show a complete disregard for the rights and safety of Plaintiff and while knowing that their conduct would likely result in injury, and/or in recklessly failing to act under circumstances where an act was clearly required so as to indicate a conscious disregard of the consequences of such inaction." (Complaint ¶¶ 93-95.)

II. Public Health Law § 3082 Immunity

Defendant Montgomery Operating Co., LLC doing business as Montgomery Nursing and Rehabilitation Center (Montgomery) moves for dismissal of the plaintiffs' claims—except insofar as they relate to the sexual assault—asserting that those claims are barred by Public Health Law § 3082.

In response to the COVID-19 pandemic, the New York Legislature passed the Emergency or Disaster Treatment Protection Act. The act's "Declaration of Purpose" states:

"A public health emergency that occurs on a statewide basis requires an enormous response from state and federal and local governments working in concert with private and public health care providers in the community. The furnishing of treatment of patients during such a public health emergency is a matter of vital state concern affecting the public health, safety and welfare of all citizens. It is the purpose of this article to promote the public health, safety and welfare of all citizens by broadly protecting the [*3]health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency." (Public Health Law § 3080 [emphasis added].)

{**73 Misc 3d at 548}To that end, the legislature enacted in Public Health Law § 3082 a broadly defined "immunity from any liability" for health care facilities and professionals, effective March 7, 2020, and throughout the entire period of Ms. Crampton's May 21-July 1, 2020 residency at Montgomery, as follows:

"§ 3082. Limitation of liability

"1. Notwithstanding any law to the contrary, except as provided in subdivision two of this section, any health care facility^[FN1] or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages^[FN2] alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services,^[FN3] if:

"(a) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;

"(b) the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility's [*4]or health care professional's{**73 Misc 3d at 549} decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives; and

"(c) the health care facility or health care professional is arranging for or providing health care services in good faith.

"2. The immunity provided by subdivision one of this section shall not apply 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 providing health care services, provided, however, that acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm." (Emphasis added.)

III. Defendant Montgomery's Motion for Dismissal

Defendant Montgomery moves pursuant to CPLR 3211 (a) (7) for dismissal of the plaintiffs' claims—except insofar as they relate to the sexual assault—asserting that those claims are barred by Public Health Law § 3082. In support of its motion, Montgomery proffers the affidavit of Maureen Palffy, its director of nursing during the entire period of Ms. Crampton's residency. Asserting direct personal knowledge of "Montgomery's response efforts to COVID-19 and its impact on the operations of the facility including its staffing" (aff ¶ 1), Ms. Palffy avers:

"6. Montgomery arranged for or provided health care services pursuant to New York State's COVID-19 emergency rule and applicable laws. During the time frame referenced in plaintiff's Complaint (May 21, 2020 to July 1, 2020), Montgomery was and remains a healthcare provider.

"7. Starting in March 2020, and continuing through and beyond Plaintiff Elaine Crampton's admission, Montgomery attempted in good faith to follow guidance concerning COVID-19 as issued by New York State and federal sources, including the Centers for Disease Control and Prevention (CDC). In an effort to curtail community exposure to COVID-19, Montgomery followed CDC guidance as recommended{**73 Misc 3d at 550} by New York State. As a result of COVID-19 pandemic and compliance with the federal and state guidelines and recommendations in an effort to reduce the spread of COVID-19, Montgomery's staffing and how care was provided to all residents was substantially impacted. In sum, staffing at the facility was limited and the staff in place at the facility was re-assigned and restricted, thereby [a]ffecting the care provided to all residents including Plaintiff Elaine Crampton.

"8. Montgomery had its first COVID-19 positive case in the facility in the mid/end of March 2020. Beginning in March 2020 and continuing through and beyond Plaintiff Elaine Crampton's admission, residents diagnosed with or suspected of COVID-19 were cohorted and separated from the other residents. Montgomery began actively screening employees in March 2020. If any employee was found ill upon such screening, they were sent home and were told to contact their primary care physician immediately. Employee screening [*5]included checks for fever, cough, difficulty breathing, or other respiratory symptoms, including temperature checks upon the start of each shift. In addition, beginning in March 2020, Montgomery prohibited employees and all others who were sick from coming to work. If they showed symptoms, such as fever, lower respiratory infection, shortness of breath, cough, nasal congestion, runny nose, sore throat, nausea, vomiting, and/or diarrhea, they were prohibited from entering Montgomery until seven (7) days after any or all such symptoms appeared, and, in further accordance with NYSDOH guidance, were required to be fever free for at least 3 days before returning. Upon return, staff was monitored for symptoms every eight (8) hours. Additionally, in accordance with CDC guidelines, Montgomery placed any person under investigation for COVID-19 under quarantine for 14 days.

"9. Beginning as of March 10, 2020, and continuing through and beyond Plaintiff Elaine Crampton's admission, communal activities and meals were stopped for all residents. Visitation was restricted and families could only visit the residents though the window. Residents were kept in their rooms with the doors closed. Only pertinent and essential staff{**73 Misc 3d at 551} was permitted to enter the residents' rooms. Ancillary staff such as activities and recreation could not perform rounds or have in person contact with the residents including Plaintiff Elaine Crampton. Employees had to wear full PPE including gowns, coverings, masks and eyewear before entering all residents' rooms. It took the staff additional time to take on and off the PPE which in turn impacted the amount of time spent with the resident. All residents, including Plaintiff Elaine Crampton, were provided with PPE (masks), and temperature checks were regularly performed. Furthermore, all new admissions including Plaintiff Elaine Crampton were tested for COVID-19 upon admission and monitored for signs and symptoms of COVID-19 before being placed on the unit.

"10. Hallways were devised with arrows limiting how employees traveled and to avoid backtracking. This meant that if an employee provided care to a resident on the COVID-19 unit, that employee could not return to the other unit and provide care to the other[ ] residents. Montgomery selected designated staff to provide care to the residents on [the] COVID-19 unit. This changed the way the staff performed care and rounds for all residents including Plaintiff Elaine Crampton.

"11. As early as March 2020, and continuing through and beyond Plaintiff Elaine Crampton's admission, Montgomery's staffing was substantially impacted by the COVID-19 pandemic. Staff began calling out of work due to illnesses and/or the fear of contracting CO[V]ID-19. Montgomery faced daily difficulties to make sure it had enough employees to staff the facility. All departments were faced with staffing shortages including nursing, and housekeeping.

"12. In order to address the shortage of staff, Montgomery increased the use of agency nurses and agency certified nursing assistants. From May through July 2020, Montgomery utilized a significant percentage of agency nurses. Staff worked overtime and double shifts. Montgomery offered increased 'hazard pay' to essential workers at this time to, incentivize them. Staff from other facilities were also recruited to work at Montgomery and{**73 Misc 3d at 552} provided with incentives. Additionally, the Town of Montgomery provided certain [*6]Montgomery employees with hotel rooms so staff did not have to return to their homes in fear of contracting or spreading COVID-19. These measures were directly in response to the pandemic and unprecedented.

"13. Moreover, in light of the wide-spread nursing shortage in New York State, the New York State Department of Health waived the certified nursing assistant requirement and permitted people to work as temporary nurse aides in training during the pandemic. Montgomery employed temporary nurse aides in training as a result of the pandemic to provide health care services.

"14. In order to respond to the COVID-19 pandemic, Montgomery was compelled to make decisions concerning, among other things, prioritizations of PPE, cohorting residents, reassigning staff, suspending visitation, and employing other measures pursuant to CDC and New York State guidance. Throughout the pandemic, Montgomery was and remains acutely focused on the COVID-19 health care crisis and mitigation measures. To that end, the care provided to the Plaintiff Elaine Crampton during her residency from May 21, 2020 to July 1, 2020 cannot be extricated from the COVID-19 crisis.

"15. Montgomery attempted, in good faith, to follow CDC and New York State recommended measures, including the non-medical and long-term care specific recommendations, all of which were designed in the effort to try to limit the spread of COVID-19 among its residents, without certain assurance that doing so would guaranty prevention." (Palffy aff ¶¶ 6-15 [emphasis added].)

Plaintiffs oppose dismissal on two grounds: (1) Montgomery did not conclusively establish entitlement to statutory immunity because it failed to demonstrate that Ms. Crampton's treatment was impacted by its decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives, as required by Public Health Law § 3082 (1) (b); and (2) the complaint sufficiently alleges an exception to section 3082 immunity, to wit, that plaintiffs' damages were caused by acts or omissions constituting gross negligence or reckless misconduct.{**73 Misc 3d at 553}

IV. Legal Analysis

A. The Standard Governing CPLR 3211 (a) (7) Motions

"In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (JDI Display Am., Inc. v Jaco Elecs., Inc., 188 AD3d 844, 845 [2d Dept 2020]; see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]; Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002].)

However, CPLR 3211 (c) expressly authorizes the submission of "any evidence that could properly be considered on a motion for summary judgment" on a section 3211 (a) motion to dismiss the complaint. (See Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976].) "If the court considers evidentiary material, the criterion then becomes 'whether the proponent of the pleading has a cause of action, not whether he has stated one.' " (Clarke v Laidlaw Tr., Inc., 125 AD3d 920, 922 [2d Dept 2015], quoting Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010], quoting [*7]Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977].) Dismissal may eventuate if "the affidavits establish conclusively that plaintiff has no cause of action." (Rovello v Orofino Realty Co., 40 NY2d at 636; see Liberty Affordable Hous., Inc. v Maple Ct. Apts., 125 AD3d 85, 89-91 [4th Dept 2015].)

Finally, "[a]lthough on a motion to dismiss plaintiffs' allegations are presumed to be true and accorded every favorable inference, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss." (Godfrey v Spano, 13 NY3d 358, 373 [2009]; see Matter of Kenneth Cole Prods., Inc., Shareholder Litig., 27 NY3d 268, 278 [2016]; JDI Display Am., Inc. v Jaco Elecs., Inc., 188 AD3d at 845.)

B. The Nature of Public Health Law § 3082 Immunity and its Bearing on the Parties' Respective Burdens of Proof

A critical question bearing on determination of the motion before the court is this: Is Public Health Law § 3082 an affirmative defense that must be pleaded and proved by the defendant health care facility? Or, does section 3082 establish{**73 Misc 3d at 554} substantive law regarding the duty owed by health care facilities operating under conditions imposed by the COVID-19 emergency and New York State directives responding thereto?

The nature of affirmative defenses was elucidated by the Second Department in US Bank N.A. v Nelson (169 AD3d 110 [2d Dept 2019], affd 36 NY3d 998 [2020]):

"CPLR 3018, which governs responsive pleadings, draws a distinction between denials and affirmative defenses. Denials generally relate to allegations setting forth the essential elements that must be proved in order to sustain the particular cause of action. Thus, a mere denial of one or more elements of the cause of action will suffice to place them in issue, and 'there is no reason to [additionally] assert as an affirmative defense the opposite of what the pleading party is [already] required to prove' (5 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3018.00). Conversely, where the answering party wishes to interpose new matter in defense to the cause of action that goes beyond the essential elements of the cause of action, the statute indicates that the party must plead, as an affirmative defense, 'all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading' (CPLR 3018 [b]). Accordingly, where a defendant seeks to inject into the litigation 'matters [that] are not the plaintiff's burden to prove as part of the cause of action,' those matters must be affirmatively pleaded as defenses (Siegel & Connors, NY Prac § 223 [6th ed & Dec. 2018 Update]; see CPLR 3014; 5 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3018.02)." (169 AD3d at 113.)

It has been generally stated that "[i]n New York, privileges and immunities of any type are considered to be affirmative defenses and therefore something that must be raised by the defendant and on which the defendant has the burden of proof." (Avila v State of New York, 39 Misc 3d 1064, 1068 [Ct Cl 2013]; see Goncalves v Regent Intl. Hotels, 58 [*8]NY2d 206, 217 [1983] [construing General Business Law § 200 limitation on liability of proprietors for loss of guests' property]; Abate v County of Erie, 195 AD3d 1531 [4th Dept 2021] [immunity under Executive Law § 25 is an affirmative defense]; but cf. Marsala v Weinraub, 208 AD2d 689, 690 [2d Dept 1994] [CPLR art 16 limitation{**73 Misc 3d at 555} of liability need not be pleaded as an affirmative defense]; contra Ryan v Beavers, 170 AD2d 1045 [4th Dept 1991].)

Illustrative of this principle is the Court of Appeals' approach to the common-law doctrine of governmental function immunity. (See Valdez v City of New York, 18 NY3d 69 [2011].) In Valdez, the Court of Appeals distinguished between (1) the "special duty rule," whereby plaintiffs may establish a tort duty of care on the part of municipal defendants, and (2) the governmental function immunity defense, which "precludes liability [for discretionary acts] even when all elements of a negligence claim—including duty—have been proved." (18 NY3d at 77-78.) Thus:

" '[A] public employee's discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality's liability even when the conduct is negligent' (Lauer [v City of New York], 95 NY2d at 99). In other words, even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority." (Id. at 76; see also Pitts v State of New York, 166 AD3d 1505, 1506 [4th Dept 2018], lv denied 35 NY3d 910 [2020].)

However, the Court of Appeals adopted a different analytical approach to the immunity from liability afforded property owners by the recreational use statute, General Obligations Law § 9-103. That statute provides in pertinent part:

"§ 9-103. No duty to keep premises safe for certain uses . . .

"1. Except as provided in subdivision two,

"a. an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for hunting, fishing, . . . canoeing, [etc., enumerating specific recreational uses] . . . ;

"b. . . . .

"c. . . . .

"2. This section does not limit the liability which would otherwise exist

"a. for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or{**73 Misc 3d at 556}

"b. for injury suffered in any case where permission to pursue any of the activities enumerated in this section was granted for a consideration . . . ; or

"c. for injury caused, by acts of persons to whom permission to pursue any of the activities enumerated in this section was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owed a duty to keep the premises safe or to warn of danger."

[*9]In Ferres v City of New Rochelle (68 NY2d 446 [1986]), the defendant neither pleaded General Obligations Law § 9-103 as an affirmative defense nor moved for dismissal on that ground, citing the statute for the first time at trial. Rejecting the plaintiff's claim that the statutory defense had been waived, the Court of Appeals ruled: "General Obligations Law § 9-103 is not an affirmative defense that must be pleaded (CPLR 3018 [b]; see, 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.13). If the statute is applicable, its sole effect is to establish the substantive law defining the extent of the duty owed to plaintiff . . . ." (Ferres, 68 NY2d at 450 [emphasis added].) The Ferres Court accordingly held:

"General Obligations Law § 9-103, for claims within its reach, effectively immunizes the landowner from suit, except for a willful or malicious act or omission. As we stated in Sega v State of New York (60 NY2d 183, 192), if the 'statute applies, plaintiff must prove that the defendant willfully or maliciously failed to guard or to warn against a dangerous condition, use, structure, or activity. The defendant's negligence, if any, is immaterial.' " (Ferres, 68 NY2d at 450-451 [emphasis added].)

To be sure, the recreational use statute explicitly references the landowner's "duty." However, in Burke v State of New York (65 Misc 3d 397 [Ct Cl 2019]), the Court of Claims applied the Ferres Court's analysis to Environmental Conservation Law § 27-1313, a statute which—like Public Health Law § 3082—speaks in terms of "immunity from liability" instead of "duty." Environmental Conservation Law § 27-1313 ("Remedial programs") provides in pertinent part:

"1. a. The department shall be responsible, as provided in this section, for inactive hazardous waste disposal site remedial programs . . . .

"b. The department shall have the authority to {**73 Misc 3d at 557}require the development and implementation of a department-approved inactive hazardous waste disposal site remedial program.

"c. Section eight of the court of claims act or any other provision of law to the contrary notwithstanding, the state shall be immune from liability and action with respect to any act or omission done in the discharge of the department's aforesaid responsibility pursuant to this section; provided, however, that this paragraph shall not limit the liability which may otherwise exist for unlawful, willful or malicious acts or omissions on the part of the state, state agencies, or their officers, employees or agents . . . ." (Emphasis added.)

After quoting Ferres, the Court of Claims held: "As in Ferres, Environmental Conservation Law § 27-1313 (1) (c) sets forth the substantive law regarding the extent of the duty owed to claimants." (Burke, 65 Misc 3d at 403.)

[1] Public Health Law § 3082 is fundamentally akin to General Obligations Law § 9-103 and Environmental Conservation Law § 27-1313 in that all three statutes provide for broad immunity from liability coupled with an exception for conduct [*10]evincing a heightened degree of culpability, be it willfulness, maliciousness, recklessness or gross negligence.

The legislature explicitly declared in Public Health Law § 3080 its intent to create an immunity "broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency." The extraordinary breadth of this immunity is reflected in the all-encompassing definitions of (1) the "health care facilities" protected (Public Health Law § 3081 [3]), (2) the types of "harm" and "damages" for which they are insulated from liability (Public Health Law § 3081 [1], [2]), and, perhaps most importantly, (3) the kinds of "health care services" to which the immunity applies (Public Health Law § 3081 [5]).

Health care facilities, including Montgomery, were immunized from liability not only for services relating to "the diagnosis, prevention, or treatment of COVID-19" (Public Health Law § 3081 [5] [a]) and "the assessment or care of an individual with a confirmed or suspected case of COVID-19" (Public Health Law § 3081 [5] [b]), but also for services relating to "the care of any other individual who presents at a health care facility{**73 Misc 3d at 558} . . . during the period of the COVID-19 emergency declaration." (Public Health Law § 3081 [5] [c] [emphasis added].)^[FN4] Moreover, the factual predicate for invoking this broad immunity is minimal. Where, as here, a plaintiff sues a health care facility for an act or omission which occurred in the course of the facility's in good faith arranging or providing for health care services "pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law," the facility, to avail itself of Public Health Law § 3082 immunity from liability, need demonstrate only that "the treatment of the individual is impacted by the health care facility's . . . decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives." (Public Health Law § 3082 [1] [a], [b].) As the only court to have addressed this issue observed, "the statute does not qualify how treatment must be affected—whether positively, negatively, or otherwise—it merely requires that treatment be 'impacted.' " (See Matos v Chiong, 2021 NY Slip Op 32047[U], *1 [Sup Ct, Bronx County 2021].)

In view of the foregoing, the court concludes that the conceptual framework articulated by the Court of Appeals in Ferres v City of New Rochelle applies here. Once the defendant health care facility invokes Public Health Law § 3082 and demonstrates pursuant to subdivision (1) thereof that the statute applies, then subdivision (2) thereof establishes the substantive law defining the scope of the facility's duty to the plaintiff (see 68 NY2d at 450-451), and the plaintiff must plead and prove that the harm or damages alleged "were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm." (Public Health Law § 3082 [2].)

C. Montgomery Demonstrated That Public Health Law § 3082 Immunity Applies

As noted above, a health care facility like Montgomery may invoke the broad Public Health Law § 3082 immunity with a minimal showing that the plaintiff's treatment was "impacted"—whether positively, negatively, or otherwise—by its "decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives." (Public Health Law § 3082 [1] [b].)

{**73 Misc 3d at 559}[2] Montgomery proffered the affidavit of Maureen Palffy, its director of nursing during the entirety of Ms. Crampton's period of residency. The affidavit reflects extensive personal knowledge of the implementation and effect of Montgomery's response to the COVID-19 emergency. Contrary to plaintiffs' assertion, Ms. Palffy has unequivocally demonstrated manifold ways in which the "treatment" of Ms. Crampton and other residents was "impacted" by measures adopted by Montgomery in response to COVID-19 and New York State COVID-19 directives:

"Beginning as of March 10, 2020, and continuing through and beyond Plaintiff Elaine Crampton's admission, communal activities and meals were stopped for all residents. Visitation was restricted and families could only visit the residents though the window. Residents were kept in their rooms with the doors closed. Only pertinent and essential staff was permitted to enter the residents' rooms. Ancillary staff such as activities and recreation could not perform rounds or have in person contact with the residents including Plaintiff Elaine Crampton. Employees had to wear full PPE including gowns, coverings, masks and eyewear before entering all residents' rooms. It took the staff additional time to take on and off the PPE which in turn impacted the amount of time spent with the resident. All residents, including Plaintiff Elaine Crampton, were provided with PPE (masks), and temperature checks were regularly performed. Furthermore, all new admissions including Plaintiff Elaine Crampton were tested for COVID-19 upon admission and monitored for signs and symptoms of COVID-19 before being placed on the unit." (Palffy aff ¶ 9.)

Among other things, then:

- Ms. Crampton's medical treatment was impacted because she was required to undergo COVID-19 testing, monitoring and temperature checks;

- her medical treatment was impacted because staff time with residents was reduced by the staff's need to comply with COVID-19 PPE requirements; and

- her treatment was impacted because COVID-19 prevention measures resulted inter alia in her communal activities and meals being stopped, her{**73 Misc 3d at 560} visitation being curtailed, and her being kept in her room with the door closed.

The court observes in this regard that Montgomery need not have demonstrated that Ms. Crampton's treatment was impacted in some particular manner different from that of other residents. Nor must Montgomery have demonstrated any particular manner in which her medical treatment was adversely affected. Montgomery's evidence unequivocally demonstrates the basic linkage—between the facility's COVID-19 measures and the treatment of Ms. Crampton—required per Public Health Law § 3082 (1) (b) for section 3082 immunity to attach.

D. Plaintiffs' Complaint Does Not Sufficiently Plead Gross Negligence or Reckless Misconduct

As set forth hereinabove, Public Health Law § 3082 (2) establishes the substantive law defining the scope of Montgomery's duty to Ms. Crampton, wherefore plaintiffs must plead and prove that the harm or damages alleged "were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm." (See id.)

[3] Putting aside the allegation of sexual assault, which is not the subject of this motion, plaintiffs do not allege willful or intentional criminal misconduct or intentional infliction of harm; and, while plaintiffs do make conclusory allegations of reckless misconduct (complaint ¶¶ 61-62, 94-95) and gross negligence (id. ¶ 94), their complaint is grounded in allegations of ordinary negligence. These allegations include:

a. a failure to provide sufficient staffing (complaint ¶¶ 55, 56, 70, 76, 78)

b. negligent hiring, training and supervision (¶¶ 57, 58, 72, 74, 80, 82, 84, 86)

c. a failure to know or understand Ms. Crampton's needs (¶ 50)

d. a failure to properly assess Ms. Crampton (¶ 51)

e. a failure to properly prepare comprehensive care plans (¶ 52)

f. a failure to provide necessary and proper interventions and treatments (¶¶ 53, 54).

Per Public Health Law § 3082 (2), acts or omissions resulting from "a resource or staffing shortage" may not be considered to be gross negligence or reckless misconduct (see id.), and{**73 Misc 3d at 561} plaintiffs' other claims likewise evince ordinary negligence—not gross negligence or reckless misconduct—resulting in typical nursing home conditions such as pressure ulcers.

"Although on a motion to dismiss plaintiffs' allegations are presumed to be true and accorded every favorable inference, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss." (Godfrey v Spano at 373; see Matter of Kenneth Cole Prods., Inc., Shareholder Litig.; JDI Display Am., Inc. v Jaco Elecs., Inc.) Plaintiffs' bald assertions of gross negligence and reckless misconduct are just that—bare legal conclusions with no factual specificity—and they are insufficient to sustain the complaint in the face of Montgomery's motion for dismissal on the basis of its Public Health Law § 3082 immunity from liability.

It is therefore ordered that the motion is granted in its entirety, and it is further ordered that the first, second and third causes of action against defendant Montgomery Operating Co., LLC doing business as Montgomery Nursing and Rehabilitation Center in plaintiffs' complaint are dismissed without prejudice and with leave to replead, and it is further ordered that the time of defendant Montgomery Operating Co., LLC doing business as Montgomery Nursing and Rehabilitation Center to answer the complaint is extended for a period of 30 days after the date of this decision and order.

"services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to . . . the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration." (Public Health Law § 3081 [5] [c] [emphasis added].)

The term "COVID-19 emergency declaration" is defined as "the state disaster emergency declared for the entire state by executive order number two hundred two and any further amendments or modifications." (Public Health Law § 3081 [7].) It is not disputed that plaintiffs' injuries and damages were allegedly sustained as a result of an act or omission in the course of arranging for or providing health care services, within the meaning of the statute.

Footnote 4:After the period of Ms. Crampton's residency at Montgomery, as the COVID-19 emergency abated, the legislature in recognition of the diminished need for immunity of such extraordinary scope amended the law by deleting Public Health Law § 3081 (5) (c). (See L 2020, ch 134.)