Sutherland v Comprehensive Care Mgt. Corp.

Sutherland v Comprehensive Care Mgt. Corp. 2017 NY Slip Op 07681 Decided on November 2, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 2, 2017
Tom, J.P., Renwick, Mazzarelli, Oing, Singh, JJ.
4877 303755/09

[*1]Ivan Sutherland, as the Administrator of the Estate of Lillian Sutherland, Plaintiff-Respondent,

v

Comprehensive Care Management Corporation, Defendant, Joey Galito doing business as D & J Ambulette Service, et al., Defendants-Appellants.

Murphy Higgins & Schiavetta, PLLC, New Rochelle (Jody C. Benard Of counsel), for Joey Galito, appellant.

Rivkin Radler LLP, Uniondale (Cheryl Korman of counsel), for Health Acquisition Corp., appellant.

Dubow, Smith & Marothy, New York (Steven J. Mines of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about August 3, 2016, which, to the extent appealed from as limited by the briefs, denied the motions of defendants Joey Galito d/b/a D & J Ambulette Service (D & J) and Health Acquisition Corp. f/k/a Allen Health Care Services, Inc. (HAC) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants' motions for summary judgment were properly denied in this action where plaintiff's decedent, who suffered from Alzheimer's disease, was injured when she fell down the stairs in her home after being left unattended. Plaintiff alleges that defendants were negligent because after attending day care, the decedent was to be transported home by D & J and left in the care of an aide, who was employed by HAC. The record presents triable issues as to how the accident occurred, the resolution of which will require assessing the credibility of witnesses with conflicting testimony (see e.g. Nyala C. v Miniventures Child Care Dev. Ctr., Inc., 133 AD3d 467 [1st Dept 2015]; Sanchez v Finke, 288 AD2d 122 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 2, 2017

CLERK