MEMORANDUM AND ORDER On May 4, 2020, Plaintiffs Bryan Schoengood, Annetta King Simpson, and Willie Rolland (collectively “plaintiffs”), on behalf of themselves and those similarly situated, commenced this action against Defendants Hofgur, LLC d/b/a Queens Adult Care Center (“QACC”) and Gefen Senior Care Group (“Gefen”) (collectively “defendants”), seeking declaratory and injunctive relief pursuant to Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12101 et seq. and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. §§701 et seq. Plaintiffs allege that defendants have permitted “substandard conditions in an assisted living facility that primarily houses disabled individuals with physical or mental impairment[s]” during the COVID-19 pandemic. (ECF No. 1, Complaint (“ Compl.”) at 7.) Presently before the court are the defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for failure to state a claim, (ECF No. 36, Motion to Dismiss), plaintiffs’ memorandum of law in opposition to defendants’ motion to dismiss, (ECF No. 37, Memorandum in Opposition (“Pl. Opp.”)), and defendants’ reply in support of the motion to dismiss. (ECF No. 38, Reply.) Defendants’ motion to dismiss is granted as set forth below. BACKGROUND I. Facts In considering the defendants’ Rule 12(b)(6) motion, the Court accepts as true the following facts alleged in plaintiff’s complaint. (See generally Compl.) Defendant Gefen owns Defendant QACC, an assisted living facility in Elmhurst, New York. (Compl. at
33-35.) QACC is marketed as a “home for old, sick, or mentally ill New York residents,” and has a 350-bed capacity. (Id. 3.) Of the 350 beds, 200 are reserved for “assisted living program beds.” (Id.) Plaintiffs qualify as “assisted living” residents because they are disabled, but do not “require nursing home care around the clock.” (Id. 5.) Plaintiffs are limited in their abilities, such as, “taking medication, housekeeping, laundry, dressing, bathing, toileting, hygiene, food preparation, and transportation.” (Id. 4.) Plaintiffs generally allege that QACC failed to provide “the most basic level of care to safeguard their health and safety in the context of a global health pandemic.” (Id. 7.) Specifically, plaintiffs allege that defendants have violated the ADA and RA by failing to comply with regulations and guidelines provided by the Centers for Disease Control and Prevention (“CDC”) and the Department of Health and Human Services Centers for Medicare and Medicaid Services (“CMS”), which has led to a rapid increase in COVID-19 cases at the facility. (Id. 58.) This lack of adherence to the guidelines has posed a “grave health risk” to most of the population at QACC who suffer from an underlying disability. (Id. 65.) The residents are kept in close proximity to one another and cannot “achieve ‘social distancing.’” (Id. 66.) Rather than impose strict regulations on the residents, QACC has only provided “instructions framed as voluntary requests that are often ignored,” especially by those residents with disabilities. (Id. 68.) Additionally, the facility has not implemented a protocol to test and screen for COVID-19 symptoms, nor has QACC provided or enforced the use masks and other protective gear. (Id.
