Last week, Queens County Supreme Court ordered that the complaint against the City of New York be dropped in a wrongful death suit of a Queens Assistant Principal who died of swine flu in 2009. The suit, filed by the decedent’s family, claimed that the city failed to warn the decedent that he had been in contact with students who carried the swine flu virus, that the city did not act quickly to stop the spread of the virus, and failed to disseminate information about the virus.
The City, along with co-defendants the NYC Department of Health and Mental Hygeine, NYC Department of Education, and the Board of Ed for NYC, moved to dismiss the Complaint pursuant to New York CPLR Section 3211(a)(7), stating that the plaintiffs’ pleading failed to state a cause of action. In finding for the defendants and dismissing the claim, the court stated that “[T]he city’s response to a possible outbreak of a communicable disease is a discretionary action.” Further, citing McLean v. City of New York, 12 NY3d 194, 203 , a government action may not be the basis for liability if such action is discretionary. Based on this reasoning, the court dismissed the wrongful death complaint against the City.
Website Resource: New York Law Journal