Unger v Nae Edison LLC

[*1] Unger v Nae Edison LLC 2017 NY Slip Op 50228(U) Decided on February 21, 2017 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 21, 2017
Supreme Court, Kings County

Bella Unger, Plaintiff,

against

Nae Edison LLC d/b/a EDISON HOME HEALTH CARE and GAMZEL NY, INC. d/b/a REVIVAL HOME HEALTH CARE, Defendants.



9699/12



Attorney for Plaintiff

Alan S. Berkowitz, Esq.

Loscalzo & Loscalzo, P.C.

225 West 34th Street, 9th Floor

New York, New York 10122

(212) 505-9080

Attorney for Defendant

Jeffrey B. Siler, Esq.

Silber & Ingber, LLP

301 Mineola Blvd.

Mineola, NY 11501

(516) 294-2666
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of defendants Nae Edison LLC d/b/a Edison Home Health

Care (hereinafter Edison) and Gamzel NY, Inc. d/b/a Revival Home Health Care (hereinafter Revival) (Edison and Revival hereinafter collectively referred to as the movants) filed on October 31, 2016 for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint. Plaintiff Bella Unger has opposed the motion.

Notice of motion

Affirmation in support

Exhibits A-N

Affirmation in opposition

BACKGROUND

On May 9, 2012, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office.

The movants joined issue by a verified answer dated May 30, 2012. On April 13, 2016, plaintiff filed a note of issue.[FN1]

The complaint alleges in pertinent part the following salient facts. Sometime prior to September 2011, the movants had employed Elizabeth Forsano (hereinafter Forsano) to provide home health care services to plaintiff's mother, Adela Unger, at her residence at 1437 56th Street, Brooklyn, New York. On September 17, 2011, while plaintiff was visiting her mother and Forsano was on duty, Forsano inexplicably beat, pushed and shoved the plaintiff without just cause or provocation (hereinafter the alleged assault). Plaintiff claims that the alleged assault was due to the defendants' negligent operation, management, hiring and training of its employees.

LAW AND APPLICATION

The movants have articulated three contentions in support of their motion for summary judgment dismissing the complaint. First, they contend that Revival did not employ, control or supervise Forsano and, therefore, cannot be held vicariously liable for the alleged assault. Second, they contend that although Edison is Forsano's employer, Edison can not be held vicariously liable because the alleged assault was for personal reasons and not in furtherance of Edison's business. Third, they contend that Edison cannot be held liable for negligent hiring, retention or supervision of Forsano because they had no notice of Forsano's propensity to commit the alleged assault.

In support of the motion, the movants have submitted, among other things, transcripts of the deposition testimony of the plaintiff, Forsano and Rivke Gross (hereinafter Gross). Forsano's deposition testimony establishes that on September 11, 2011, she was working for Edison as a [*2]home attendant for plaintiff's mother at her mother's residence. It also establishes that she, the plaintiff and the plaintiff's mother were at that location at the time of the alleged assault. Forsano, however, has sworn that she never touched the plaintiff. Plaintiff's deposition testimony sets forth the details of the alleged assault perpetrated by Forsano.

Gross testified at her deposition that she has been the coordinator for Edison Home Care for approximately seven years. Also annexed were the affidavits of Gross, Steven Schwartz (hereinafter Schwartz) and Sara Bronson (hereinafter Bronson). Schwartz stated that he was the Director of Business Operations for Revival Home Health Care from 2011 until his appointment as its administrator two years ago. Bronson stated that she was a registered nurse and the Director of Patient Services for Edison.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing, Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).

The movants contend that the fact that Forsano and the plaintiff have sworn to sharply different facts pertaining to the alleged assault does not by itself create a material triable issue of fact. They further contend that even if plaintiff's version of the events were true, dismissal of the complaint would still be warranted based on their undisputed evidence and application of the doctrine of respondeat superior.

"The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment" (Ciccone v City of New York, 138 AD3d 910, 910-911 [2nd Dept 2016] citing, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" (Ciccone v City of New York, 138 AD3d 910, 910-911 [2nd Dept 2016] citing, Beauchamp v City of New York, 3 AD3d [*3]465, 466 [2nd Dept 2004]). "Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" (Id.). "In instances where vicarious liability for an employee's torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained" (Ciccone v City of New York, 138 AD3d 910, 910-911 [2nd Dept 2016] citing, Selmani v City of New York, 116 AD3d 943 at 944 [2nd Dept 2014]).

To establish a cause of action based on negligent hiring and supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (Hoffman v Verizon Wireless, Inc. 125 AD3d 806 [2nd Dept 2015] citing, Jackson v New York Univ. Downtown Hosp., 69 AD3d 801, 801 [2nd Dept 2010]).

The court must evaluate all the evidence in the light most favorable to the plaintiff to determine if there are material issues of fact warranting a trial (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing, Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]). The court has accepted the plaintiff's version of the alleged assault while considering the movants undisputed or unchallenged evidentiary submissions.

Revival's Liability

Through the affidavits of Schwartz, Gross and Bronson, the movants have demonstrated that Edison was Forsano's employer and that Revival did not employ, supervise or control Forsano. Revival's role was to assess the needs of plaintiff's mother for home health care. Edison was the entity that placed Forsano with plaintiff's mother after Revival determined that she was in need of home health care.

Plaintiff's opposition papers contained only legal arguments. Plaintiff failed to raise a triable issue of fact regarding Revival's showing that it neither employed, supervised or controlled Forsano. Accordingly, Revival cannot be held vicariously liable for Forsano's conduct under a theory of respondeat superior or under a theory of negligent hiring, retention or supervision.

Edison's Liability There are two theories of liability asserted against Edison. The first one alleged is liability based on a theory of respondeat superior. Assaults are generally not job related and therefore cannot give rise to vicarious liability (see i.e. Ciccone v City of New York, 138 AD3d 910 2d Dept 2016]; Rodriguez v. Judge, 132 AD3d 966 [2d Dept 2015]; Saint Robert v. BHAP Hous. Dev. Fund Co., 124 AD3d 752 [2d Dept 2015]. Liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business (Fernandez v. Rustic Inn, Inc., 60 AD3d 893 [2d Dept 2009] citing Carnegie v. J.P. Phillips, Inc., 28 AD3d 599, 600; Schuhmann v. McBride, 23 AD3d 542; Oliva v. City of New York, 297 AD2d 789; Vega v. Northland Mktg. Corp., 289 AD2d 565). It is undisputed that Forsano was a home health aide and that Revival is in the business of providing home health care. An assault on the clients or client's family members is not in furtherance of the employer's business. Accordingly, Edison cannot be held liable for any alleged assault by Forsano based on a the theory of respondeat superior.

The second theory of liability asserted against Edison is negligent hiring and supervision. [*4]The movants' evidentiary submissions have established the following facts. Since 2009, Forsano has been a New York State certified home health aide. For three months prior to the alleged assault, Forsano had been providing home health care services to plaintiff's mother as Edison's employee. Neither plaintiff nor her mother made any complaints regarding the care provided by Forsano prior to the alleged assault.

Bronson, in her capacity as Director of Patient Service for Edison, reviewed Forsano's personnel file maintained by Edison in the ordinary course of its business. The file contained the results of Forsano's background check of her license, work history, employment references and criminal history. Bronson concluded that before Forsano was employed by Edison, she was already certified as a home health aide and had no prior arrests or convictions.

Nothing contained in Forsano's personnel file and nothing pertaining to Forsano's conduct prior to the alleged assault gave Edison or Revival notice of Forsano's propensity to act in a violent fashion. Edison and Revival have made a prima facie showing that they neither knew or should have known that Forsano had a propensity to engage in the conduct which caused plaintiff's alleged injury (Hoffman v Verizon Wireless, Inc. 125 AD3d 806 [2nd Dept 2015]). In opposition the plaintiff failed to raise a triable issue of fact.

CONCLUSION

Nae Edison LLC and Gamzel NY, Inc.'s joint motion for an order granting summary judgment in their favor and dismissing the complaint is denied.

The foregoing constitutes the decision and order of this Court.

Footnotes

Footnote 1:By decision and order dated October 14, 21016, the movants' prior motion for summary judgment filed under motion sequence number two was denied without prejudice for failure to annex a complete set of the pleadings. The order gave the movants until January 6, 2017 to correct the defect and file a motion seeking the same relief again. Accordingly, the motion is timely.