In a lawsuit brought in Supreme Court, Rockland County, Jennifer A. Levine secured dismissal of an action on summary judgment, with allegations of wrongful death, negligence, negligence per se, professional malpractice, vicarious liability, and statutory violations of the New York Public Health Law §2801-d and §2803-c.

The plaintiff alleged that the defendant Assisted Living Facility (“ALF”) failed to establish and maintain proper infection control protocols, causing the decedent to contract Covid-19 and eventually die. The complaint also alleged the defendant failed to monitor the decedent, or follow governmental guidelines for maintaining the safety of its residents. 

Sheeley LLP made out the ALF’s prima facie entitlement to summary judgment in proving that the plaintiff did not have a private right of action under Article 28.  Moreover, the Court found the defendant’s nursing expert properly laid a foundation for her opinion based on her training and experience working in an ALF during the pandemic and that the ALF met the standard of care at that time. The Court found the plaintiff’s expert physician affidavit conclusory and speculative.  Ultimately, the Court held there were no deviations from the standard of care by the ALF, and the ALF acted in accordance with CDC/DOH guidance related to Covid-19, and no purported departures were the proximate cause of the decedent’s death.

Accordingly, the Court dismissed the plaintiff’s claims against the ALF as a matter of law.