Alexander v. Cuomo et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NICHOLAS ALEXANDER, As Executor
of The Estate of Nicholas A. Alexander,
Deceased,
Plaintiff,
– against –
ANDREW M. CUOMO, MELISSA
DEROSA, HOWARD A. ZUCKER, M.D.,
GREATER NEW YORK HOSPITAL
ASSOCIATION, KENNETH E. RASKE,
NORTHWELL HEALTH, INC., MICHAEL
DOWLING, JOHN DOES 1-10,
Defendants.
MEMORANDUM & ORDER
24-cv-02179 (NCM) (ST)
NATASHA C. MERLE, United States District Judge:
Plaintiff Nicholas Alexander brings this lawsuit as the executor of the estate of his
deceased grandfather (“decedent”). Am. Compl. (“AC”) ¶ 34, ECF No. 45. He sues former
New York State government officials, a hospital trade group and its leader, a healthcare
network and its leader, and several John Does. AC ¶¶ 35–43. The complaint alleges that
defendants engaged in a conspiracy during the COVID-19 pandemic, culminating in the
issuance of an improper emergency executive order (the “Order”) that resulted in an
increase of COVID-positive patients being admitted to nursing homes. AC ¶¶ 2, 9, 98. The
Order, issued on March 25, 2020, directed that “[n]o resident shall be denied re-admission
to a nursing home solely based on a confirmed or suspected diagnosis of COVID-19.” AC ¶
94.1 Plaintiff further alleges that decedent had been a nursing home resident at the start of
1 	Throughout this Order, the Court omits all internal quotation marks, footnotes, and
citations, and adopts all alterations, unless otherwise indicated.
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the pandemic and contracted a fatal case of COVID-19 on March 26, 2020, the day after
the issuance of the Order. AC ¶ 48. All named defendants have moved to dismiss the
complaint. For the reasons stated below, defendants’ motions are GRANTED.
BACKGROUND
Defendants in this action are Andrew M. Cuomo (“Cuomo”), a former governor of
New York; Melissa DeRosa (“DeRosa”), defendant Cuomo’s former chief of staff; Howard
A. Zucker, M.D. (“Zucker”), a former Commissioner of the New York State Department of
Health; the Greater New York Hospital Association (“GNYHA”), a trade association
representing over 200 hospitals across New York; Kenneth E. Raske (“Raske”), the
President and Chief Operating Officer of GNYHA; Northwell Health, Inc. (“Northwell”), a
healthcare and hospital network that is New York State’s largest healthcare provider;
Michael Dowling (“Dowling”), the President and Chief Executive Officer of Northwell; and
John Does 1–10. AC ¶¶ 35–43.
Plaintiff in this action, Nicholas Alexander, is the grandson of decedent, Nicholas A.
Alexander. AC ¶¶ 33–34. Decedent was born in 1944. AC ¶ 33. On May 16, 2019, decedent
was admitted to Grandell Rehabilitation and Nursing Center (“GRNC”), a nursing home
located in Long Beach, New York. AC ¶ 46. At the time of his admission, decedent had not
incurred COVID-19 and had no symptoms thereof. AC ¶ 47. Prior to contracting COVID-19,
decedent had been “in declining health, suffering from high blood pressure and diabetes.”
AC ¶ 45.
On March 1, 2020, the first case of COVID-19 was confirmed in New York. AC ¶ 83.
On March 24, 2020, Cuomo announced that the state had reached 25,000 cases and at
least 210 deaths. AC ¶ 93. During the month of March, Cuomo met on several occasions
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with leaders of hospitals and medical groups, including seven meetings with Raske and six
meetings with Dowling. AC ¶ 85.
On March 25, 2020, Governor Cuomo issued an administrative directive—the
Order—citing the “urgent need to expand hospital capacity.” AC ¶ 94. The Order directed
that “[n]o resident shall be denied re-admission to a nursing home solely based on a
confirmed or suspected diagnosis of COVID-19.” AC ¶ 94. The Order also prohibited
nursing homes “from requiring a hospitalized resident who is determined medically stable
to be tested for COVID-19 prior to admission or readmission.” AC ¶ 94. An identical order
was issued to the State’s assisted living facilities on April 7, 2020. AC ¶ 94. Plaintiff alleges
that due to the Order and its twin order for assisted living facilities, “over 9,000 COVID-
19 positive patients were admitted to New York State nursing homes and assisted living
facilities who otherwise would not have been, resulting in over 20,000 unnecessary
COVID-19 deaths.” AC ¶ 98.
On March 26, 2020, the day after the issuance of the Order, decedent began
experiencing COVID-19 symptoms and was admitted to a hospital. AC ¶ 48. Decedent died
three days later, on March 29, 2020, at the age of 75. AC ¶ 48. Decedent’s death certificate
lists his cause of death as “Cardiopulmonary failure due to COVID-19.” AC ¶ 48.
On March 25, 2024, plaintiff brought the instant suit against defendants. See
Compl. 90, ECF No. 1.2 Plaintiff filed an amended complaint on November 1, 2024. See
AC. The amended complaint raises five claims: (1) violation of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c); (2) RICO conspiracy, 18
U.S.C. § 1962(d); (3) violation of plaintiff’s civil rights under 42 U.S.C § 1983; (4) common
2 	Throughout this Order, page numbers for docket filings refer to the page numbers
assigned in ECF filing headers.
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law fraud; and (5) common law civil conspiracy. AC ¶¶ 307–54. Each claim is brought
against all defendants. AC ¶¶ 307–54.
In April 2025, all named defendants moved to dismiss. See DeRosa Motion to
Dismiss (“MTD”), ECF No. 63-1; Cuomo MTD, ECF No. 62-1; GNYHA MTD, ECF No. 59-
1; Northwell Health MTD, ECF No. 61. Plaintiff filed an opposition. Mem. of Law in Opp’n
to Mots. to Dismiss (“Opp’n”), ECF No. 64. Named defendants filed replies. DeRosa Reply,
ECF No. 65; Northwell Reply, ECF No. 66; GNYHA Reply, ECF No. 67; Cuomo Reply, ECF
No. 68.
LEGAL STANDARD
When deciding a motion to dismiss, a district court must “accept[] all factual claims
in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s favor.” Lotes
Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014). “The issue” on a
motion to dismiss “is not whether a plaintiff will ultimately prevail” but instead whether a
plaintiff is “entitled to offer evidence to support the claims.” Sikhs for Just. v. Nath, 893 F.
Supp. 2d 598, 615 (S.D.N.Y. 2012). Accordingly, dismissal is only appropriate if “it appears
beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to
relief.” Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). Notwithstanding the presumed
truth of factual allegations, conclusory allegations and legal conclusions masquerading as
factual conclusions are not sufficient to prevent a motion to dismiss. Smith v. Loc. 819
I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“[T]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”).
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DISCUSSION
Defendants raise a number of arguments to support dismissal of the complaint,
including 	qualified immunity, 	Cuomo 	MTD 	19–24; 	DeRosa MTD 	13–18; GNYHA
MTD 26–27, failure to plausibly plead causation, Cuomo MTD 24–25; Northwell MTD 21–
22; GNYHA MTD 18–20, expiration of the statute of limitations governing Section 1983
claims, Cuomo MTD 26; Northwell MTD 23; GNYHA MTD 20–21, and failure to plead
elements of civil RICO, Cuomo MTD 26–31; DeRosa MTD 18–26; Northwell MTD 15–22;
GNYHA MTD 29–32.
The Court concludes that plaintiff’s complaint must be dismissed. Plaintiff’s Section
1983 claim must be dismissed because the statute of limitations for such claims is three
years, yet plaintiff sued approximately four years after decedent’s death. Plaintiff’s RICO
claims must be dismissed because the RICO statute permits recovery only for harms to
“business or property,” but the complaint does not identify any business or property of
plaintiff or decedent that has been harmed. With the Section 1983 and RICO claims
dismissed, no federal law claims remain in the case, and the Court declines to exercise
supplemental 	jurisdiction 	over 	plaintiff’s 	state 	law 	claims. 	Accordingly, 	plaintiff’s
complaint must be dismissed. The Court discusses each claim below.
I. 	The Section 1983 Claim is Time-Barred.
Plaintiff’s third cause of action arises under 42 U.S.C. § 1983. AC ¶¶ 333–41. Section
1983 actions filed in New York are subject to a three-year statute of limitations. Hogan v.
Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (first citing Pearl v. City of Long Beach, 296 F.3d
76, 79 (2d Cir.2002); and then citing N.Y. C.P.L.R. § 214 (McKinney 2013)). During 2020,
the State of New York tolled the statute of limitations for such actions for 228 days in light
of the COVID-19 pandemic. See McDonald v. City of New York, No. 20-cv-04614, 2022
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WL 1469395, *3–4 (E.D.N.Y. May 10, 2022) (“Executive Order 202.8 [and] [s]ubsequent
[e]xecutive [o]rders . . . tolled the statute of limitations . . . for a total of 228 days.” (quoting
Ventilla v. Pac. Indem. Co., No. 20-cv-08462, 2021 WL 5234404, at *1 n.2 (S.D.N.Y. Nov.
10, 2021)). For Section 1983 claims arising out of an individual’s death, the cause of action
begins accruing at the time of death. See Miehle-Kellogg v. Doe, No. 19-cv-04943, 2023
WL 2632452, at *6 n.9 (E.D.N.Y. Mar. 24, 2023). Decedent’s death occurred on March 29,
2020. AC ¶ 48. Plaintiff filed this lawsuit on March 25, 2024. See Compl. 90. The period
between decedent’s death and plaintiff’s complaint totals three years and 362 days.
Because this period exceeds the three years and 228 days that plaintiff had to file a Section
1983 claim, plaintiff’s claim is barred by the statute of limitations.
Notably, even though the statute of limitations issue was raised by several
defendants, see Cuomo MTD 26; Northwell MTD 23; GNYHA MTD 20–21, plaintiff makes
no mention of this issue in his opposition brief and does not attempt to address or rebut
defendants’ argument, see Opp’n. The Court concludes that plaintiff’s “failure to address
this argument in opposition to the defendant[s’] motion[s] to dismiss amounts to a
concession.” Cui v. Planet Green Holdings, Inc., No. 23-cv-05683, 2025 WL 2042431,
at *5 (E.D.N.Y. July 21, 2025); see also Francisco v. Abengoa, S.A., 559 F. Supp. 3d 286,
318 n.10 (S.D.N.Y. 2021).
Accordingly, plaintiff’s Section 1983 claim is barred by the statute of limitations and
must be dismissed.
II. 	Civil RICO Excludes Personal Injuries.
Plaintiff’s first and second causes of action are claims for civil RICO and civil RICO
conspiracy under 18 U.S.C. §§ 1962(c) and (d). AC ¶¶ 307–32. Civil RICO is not a statute
that creates liability for any and all types of injury—rather, a plaintiff must plausibly allege
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an injury to “business or property” arising from violations of the RICO statute. 18 U.S.C.
§ 1964(c) (“Any person injured in his business or property by reason of a violation of
section 1962 of this chapter may sue . . . .” (emphasis added)); Lerner v. Fleet Bank, N.A.,
459 F.3d 273, 283 (2d Cir. 2006) (“[T]o bring suit under § 1964(c), a plaintiff must plead
. . . an injury to the plaintiff’s business or property.”). Because the statutory text permits
only suits for damages to business or property, “[p]ersonal damages, emotional damages,
and 	physical 	damages”—without 	a 	resulting 	injury 	to 	business 	or 	property—“are
insufficient.” Westchester Cnty. Indep. Party v. Astorino, 137 F. Supp. 3d 586, 612
(S.D.N.Y. 2015). Here, plaintiff’s complaint principally seeks redress for personal injuries,
wrongful death, and loss of consortium. AC ¶ 320 (“The injuries caused by reason of the
violations of 18 U.S.C. Section 1962(c) include but are not limited to personal injuries and
the subsequent wrongful deaths of [p]laintiff’s [d]ecedent as well as . . . the loss of
guidance, affections and consortium sustained by [plaintiff] due to the loss of [his] loved
one[].”). These are not sufficient injuries for civil RICO. The complaint also seeks redress
for 	“the 	deprivation 	of 	[plaintiff’s 	and 	decedent’s] 	constitutional 	rights 	prior 	to
[decedent’s] death[].” AC ¶ 320. However, “the deprivation of constitutional rights is a
personal injury that is not protected by RICO,” absent a resulting injury to property or
business. Indep. Party, 137 F. Supp. 3d at 612-13. Accordingly, the Court finds that none
of these injuries is a permissible basis for a valid civil RICO claim.
Plaintiff’s complaint contains a single, bald reference to injury “in . . . business and
property,” but this assertion is conclusory and unsupported by even a single specific factual
allegation. AC ¶ 320. The complaint states that “[p]laintiff and his decedent were injured
in their business and property by reason of the RICO Defendants’ violations of 18 U.S.C.
Section 1962(c).” AC ¶ 320. Following that sentence, the complaint merely lists the
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personal injuries already discussed, such as wrongful death and loss of consortium. AC
¶ 320. Nowhere in the complaint does plaintiff mention a specific business or a piece of
property of plaintiff’s or decedent’s that has been harmed by defendants’ actions. See AC.
Under Iqbal, the Court does not “accept as true a legal conclusion couched as a factual
allegation.” 556 U.S. at 678. Accordingly, the inclusion of the assertion that “[p]laintiff and
his decedent were injured in their business and property”—without more—is not sufficient
to survive a motion to dismiss.
Nothing in the Supreme Court’s recent opinion in Medical Marijuana, Inc. v. Horn
changes this analysis. 604 U.S. 593 (2025). In Horn, the Supreme Court held that
“a plaintiff can seek damages for business or property loss regardless of whether the loss
resulted from a personal injury,” pursuant to Section 1964(c). Id. at 601. By this statement,
however, the Court was not saying that personal injury can suffice for a RICO claim in lieu
of an injury to business or property. Id. Rather, the Court held that if damage to business
or property occurs via a personal injury, it is actionable as a civil RICO claim. Id. (“For
example, if the owner of a gas station is beaten in a robbery, he cannot recover for his pain
and suffering. But if his injuries force him to shut his doors, he can recover for the loss of
his business.”). Nothing in the Supreme Court’s analysis changed the fundamental
requirement that RICO “explicitly permit[s] recovery for harms to business and property
[and] implicitly excludes recovery for harm to one’s person.” Id.
Finally, as with the Section 1983 statute of limitations issue, see supra, even though
the “business or property” requirement was raised by each motion to dismiss, Cuomo
MTD 27; DeRosa MTD 18–26; Northwell MTD 21–22; GNYHA MTD 32, plaintiff likewise
makes no mention of this issue in his opposition brief, see Opp’n. The Court again
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concludes that plaintiff’s “failure to address this argument . . . amounts to a concession.”
Cui, 2025 WL 2042431, at *5.
Accordingly, plaintiff has failed to state a claim for civil RICO or civil RICO
conspiracy under 18 U.S.C. § 1962(c) or (d), and these claims must be dismissed.
III. 	The Court Has No Basis for Supplemental Jurisdiction.
With the RICO and Section 1983 claims dismissed, all remaining claims in the suit
are based on state law. See AC ¶¶ 342–54. The Court declines to exercise supplemental
jurisdiction over these claims. See 28 U.S.C. § 1367(c); Valencia ex rel. Franco v. Lee,
316 F.3d 299, 305 (2d Cir. 2003) (“[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point
toward declining to exercise jurisdiction over the remaining state-law claims.” (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Further, plaintiff has not
pled diversity of citizenship, and the Court finds no basis for diversity jurisdiction. See 28
U.S.C. § 1332. The Court thus dismisses the state law claims for lack of subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3).
CONCLUSION
For the foregoing reasons, defendants’ motions to dismiss are GRANTED.
Plaintiff’s complaint is DISMISSED. The Clerk of Court is respectfully directed to enter
judgment and close the case.
SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated: 	January 16, 2026
Brooklyn, New York
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