Scholtz v Catholic Health Sys. of Long Is., Inc.

[*1] Scholtz v Catholic Health Sys. of Long Is., Inc. 2008 NY Slip Op 52236(U) [21 Misc 3d 1126(A)] [21 Misc 3d 1126(A)] Decided on October 20, 2008 Supreme Court, Suffolk County Kerins, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2008
Supreme Court, Suffolk County

Lisa Scholtz, Plaintiff,

against

Catholic Health System of Long Island, Inc. and Joanne Stokes, Defendants.



05-14639



MARTIN J. COLEMAN, P.C.

Attorney for Plaintiff

100 Crossways Park Drive West, Suite 412

Woodbury, New York 11797-201

MULHOLLAND, MINION & ROE

Attorneys for Deft Catholic Health

Systems of L.I.

374 Hillside Avenue

Williston Park, New York 11596

Kaufman Borgeest & Ryan, LLP Attorneys for Defendant Joanne Stokes

1205 Franklin Avenue, Suite 200

Garden City, New York 11530

Martin J. Kerins, J.

ORDERED that this motion (002) by the defendant Joanne Stokes pursuant to GOL §15-108 and CPLR 3212 dismissing the cross-claim for contribution asserted by co-defendant Catholic Health System of Long Island, Inc. is granted; pursuant to CPLR 3211(a)(5)(7) and 3212 dismissing the cross-claim for indemnification asserted by co-defendant Catholic Health System of Long Island, Inc. is granted; and pursuant to CPLR 3217 permitting the defendant Joanne Stokes to file a Stipulation of Discontinuance with prejudice is denied; and it is further

ORDERED that motion (003) by the defendant Catholic Health Systems of Long Island, Inc. pursuant to CPLR 3212 for summary judgment dismissing the complaint is denied, and that part of the motion to dismiss the cross-claims asserted against it by defendant Stokes is granted.

This complaint sets forth a first cause of an action sounding in negligence arising out of the care and treatment rendered to plaintiff, Lisa Scholtz, wherein she sustained second degree burns to her feet

while bathing in a tub on October 10, 2004 while a resident at Siena Village, owned by the Catholic Health System of Long Island, Inc. and located at 2000 Bishop Road, Smithtown, New York. The defendant, Joanne Stokes, was an employee of the facility and the personal care aide for the plaintiff when the injury occurred. The plaintiff resided at Siena Village where she received custodial care and housing. The second cause of action is premised upon the alleged negligent hiring of Joanne Stokes by the defendant Catholic Health System of Long Island, Inc.

In the answer submitted by Joanne Stokes, a cross-claim has been asserted against the co-defendant Catholic Health System of Long Island, Inc. (hereinafter CHSLI) for indemnification and/or contribution. In the answer submitted by CHSLI, a cross-claim has been asserted for judgment over against "Kenneth Doe" who is not named in the complaint, and a second cross-claim for indemnification from Joanne Stokes.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form [*2](Joseph P. Day Realty Corp. v Aeroxon Prods., 148 AD2d 499, 538 NYS2d 843 [2nd Dept 1979]) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [1981]). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [2nd Dept 1979]).

In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In order to establish the third element, proximate cause, plaintiff must show that defendant's negligence was a substantial factor in bringing about the injury. If, defendant's negligence were a substantial factor, it is considered to be a "proximate cause" even though other substantial factors may also have contributed to plaintiff's injury (Spiegel v Fine Paint Co. 2006 NY Misc. LEXIS 2549, 236 NYLJ 51 [Sup. Ct. Nassau County 2006]). Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (see, Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 746 NYS2d 120 [2002]; Darby v Compagnie Natl. Air France, 96 NY2d 343, 347, 728 NYS2d 731[2001].

In support of motion (002), Joanne Stokes has submitted, inter alia, an attorney's affirmation; copies of the pleadings, the defendants' answers, verified bill of particulars; copy of the transcripts of the examinations before trial of Lisa Scholtz, Charles J. Junior, Jr. of CHSLI, and Joanne Stokes; and a copy of a stipulation of discontinuance.

In support of motion (003), CHSLI has submitted an attorney's affirmation; a copy of the summons and complaint and its' answer; bill of particulars; copy of the transcript of the examination before trial of Lisa Scholtz and Joanne Stokes; and the affidavit of Charles Junior.

In opposing both motions, the plaintiff has submitted an attorney's affirmation; affidavit of Lisa Scholtz; Professional engineer's report of Heimer Engineering, PC; a copy fo the transcript of the examination before trial of Charles Junior; a copy of the lease agreement dated May 25, 2004; and a copy of a consumer product safety alert.

Lisa Scholtz testified she has resided at Siena Village for the past thirteen years. Admission was premised upon her having a full disability and the need for income assistance. She had been previously diagnosed with spina bifida with paraplegia of the legs since birth. She previously worked for United Cerebral Palsy for four and one half years, and was working on a master's degree, but left that employment to have spinal cord surgery at Stony Brook University Hospital for tethered cord syndrome which was causing paralysis and loss of balance. Prior to the surgery she states she was fully functional as if she was able-bodied, wore a body brace and ambulated with crutches. After the surgery, she states, she was no longer functional in a brace [*3]and was unable to use her arms. She had two additional surgeries, one on her spinal cord and one for a tracheostomy. She stated she has full sensation in her legs but is unable to use her arms or legs in any manner since that surgery.

Ms. Scholtz testified that on October 10, 2004 Joanne Stokes had been her personal care aide for about five months and had been trained by her and by Alpine Home Medical with regard to any safety precautions concerning the ventilator. Ms. Scholtz testified she personally trained Ms. Stokes concerning transfer techniques in and out of bed, into the wheelchair and onto the shower seat, as well as safety precautions for bathing, such as checking the water temperature, checking the function of the chair to make sure it lifted and lowered, and anything she required for bathing, including specific soap, hygiene products, and ventilator safety.

Ms. Scholtz testified that on October 10, 2004, at about three or four o'clock in the afternoon, Joanne Stokes was preparing her for her bath. They were in the bathroom, she was in the bathtub lift chair, she personally instructed Ms. Stokes to test the temperature of the water by starting the water, adjusting the control, and placing her hand under the water to verify that the temperature was acceptable. Before she was put into the tub, she stated that Ms. Stokes said the water was acceptable by putting her hand under the running water. Ms. Stokes then put her hand under the water, stated it was too hot and adjusted the controls, and felt the water again twice. After plaintiff was transferred onto the bath seat prior to being lowered into the water, she instructed Ms. Stokes to put her hand into the tub to feel the temperature in the tub twice, which she did and said it was acceptable. About thirty to sixty seconds later, plaintiff was placed in the tub which was about a quarter filled while the water was still running from the faucet. As she was being lowered into the tub, her feet were slightly submerged in the water and were under the running water from the faucet. She testified she screamed, "The water is too hot. It's hurting my feet." Within five seconds, she stated, Ms. Stokes reached down and pulled her feet out of the water in the tub and from under the running water. She observed that the top of her feet near her toes were reddened and stated Ms. Stokes told her the back of both feet near the toes were also reddened. Thereafter, the water was checked and readjusted and she was given a shortened version of her normal bath. It was Ms. Scholtz's opinion that it was the temperature of the running water which caused her feet to be burned as she was being placed into the tub.

She was not taken to the doctor or hospital that day, but experienced pain in feet and witnessed red marks and open skin along the toes of both feet, front and back. Her physician was not available when she called and on October 11, 2003 she was taken to and treated at St. Catherine of Siena Hospital emergency room for the burns, pain, swelling and discomfort. Thereafter, she received medical care from her private attending and from a plastic surgeon.

Ms. Scholtz further testified that she always followed the procedure for checking the water because prior to October 10, 2004, when she was able to shower or bath with the water running, there was a recurring problem with sudden fluctuation in the water pressure and temperature on dozens of occasions. She stated that she first reported this in 1998 to the two superintendents, one being Charles Junior, and again to him in 1999 while he was conducting a [*4]safety check within the apartment. She stated Mr. Junior put his hand under the water and confirmed that the water temperature was hot and made a comment that you could steep a cup of tea with the hot water. She also called Siena Village to report the condition of the change in water pressure and temperature in 1998 to the superintendent, but nothing was done. Thereafter, in 2000, she stated, there was maintenance of the bathroom by the superintendent's staff wherein PVC piping was put around the pipes because the landlord ascertained that the pipes were too hot and they wanted to avoid injury by contact. She also testified that when the HUD inspection was done the HUD inspector felt the water was exceedingly hot and said they would speak to the landlord. She stated she spoke to the landlord, Kim Parbst, before signing the new lease and was advised there would be a full renovation of the bathrooms in the near future, but no renovations have been subsequently done. Ms. Scholtz testified that her bother Arthur had Energy Star inspect the electrical outlets and running water in the kitchen and bathroom and observe the temperature of the water and fluctuation in pressure in 2000.

In her opposing affidavit, Lisa Scholtz has set forth that she lives in building eight, unit 801, a ground floor unit closest unit to the hot water boiler located in the service room adjacent to her unit, approximately ten feet from her kitchen sink and fifteen feet from her bathroom faucets. She states that since 1995 she has complained to Siena Village's superintendent Charles Junior and three consecutive landlords about a recurrent problem with excessively hot water coming out of her kitchen and bathroom faucets. In 2001, she states, Charles Junior was with the HUD inspector for the annual inspection, at which time she complained that the water temperatures fluctuated randomly, and after placing their hands under the water, acknowledged that the water was too hot and could cause burns. She sets forth that her bathroom faucet is a single handle mixer and does not have separate hot and cold water handles. Prior to 1999, before she became a quadriplegic, she states she was able to pull her hands away quickly from the exceedingly hot water or move away in the shower and suffered no burns when the water was too hot. However, on October 10, 2004, when Joanne Stokes was lowering her into the bathtub, she states her feet were under the running water, she screamed that her feet were burning, and the only burns received on her feet were directly underneath the water running from the faucet. She further states that the problem with the hot water still occurs to this day.

Joanne Stokes testified that she has been employed as an editor of video productions for Real to Reel for the past four years. She stated she first met Lisa Scholtz through friends in the 1980's. When she first met Lisa Scholtz, she stated that Ms. Scholtz, who had spina bifida, was extremely disabled and on crutches, and was working at United Cerebral Palsy. She stated that they (her friends) just all took care of her, "you do what your friend needs, you know." She started working as a health aide through Recco from whom she was paid for about eight to twenty hours a week working for Ms. Scholtz, commencing in April 2004, to do house chores, basic brushing hair, nails, and hygiene since Ms. Scholtz was bedridden. She stated she had no training for the job, but Ms. Scholtz gave her verbal training. Most of the time she was there, Kenny Young was also there as Ms. Scholtz was on a ventilator and she did not want to be alone with her. She stated that Kenny Young did the bathing and she would sometimes assist, at Kenny's direction, because it takes more than one person to work with the apparatus. She did not [*5]remember being trained by Ms. Scholtz to give her a bath. Prior to the incident of October, 2004, she stated she never gave Lisa a bath by herself, never experienced problems with the water temperature or water pressure, never burned herself on the water, and never knew of any problems experienced by Kenny Young with the water, and was not told by Ms. Scholtz about a problem with the water pressure or water temperature.

On October 10, 2004, she did not notice anything out of the ordinary about Ms. Scholtz or her feet, just that everything on her is "fragile." She stated that she and Kenny Young got Ms. Scholtz out of the bed and into the wheelchair and undressed her, put her onto the chairlift from the wheelchair and Kenny took care of the ventilator. She then started the bath; the water had been running for about a minute before she lowered her into the tub. She did not remember feeling for the water temperature when she first put the shower on by turning on the two controls. She testified that she didn't know if she actually felt the water for its temperature, but stated that she thought her left foot was probably in it for a second, the water was warm in the tub, and there was water was running out of the faucet but she did not see any steam. Kenny Young was outside the bathroom at the time as Ms. Scholtz's father had just come over. As the chairlift was being lowered into the tub, she thought there was about three of four inches of water in the tub, and did not recall if she put oil in the tub. She stated Ms. Scholtz's feet went into the water first pretty much in the middle of the tub and the faucet was about a foot away. She stated that as she was lowering Ms. Scholtz into the water that her own feet were not in the tub, but Ms. Scholtz's feet may have been under the faucet. She stated that Ms. Scholtz did not scream, but she noticed Ms. Scholtz's feet were very red within five to ten seconds, so she just scooped Ms. Scholtz's feet out of the water. She did not remember feeling the water with her hands when she pulled Ms. Scholtz's feet out of the tub, and no one else was present in the room. She stated Ms. Scholtz did not say anything to her when she pulled her feet out of the water, and did not complain. She stated there was no conversation at that point between her and Kenny Young or Ms. Scholtz and her father, that they just wanted to get her back into her bed as quickly as possible, and she quickly finished Ms. Scholtz's bathing by showering her. She stated she did not tell Kenny Young that the water was too hot, or ask him to look at her feet or tell him what happened. She said Ms. Scholtz's feet were red when she left about two hours later but she did not notice any blistering on Ms. Scholtz's feet before she left. Several days later she learned from Kenny Young that Ms. Scholtz's feet had blistered that same night after the incident. She continued to work for Ms. Scholtz until April 2005, and only gave her bed baths during that time as she was still wearing dressings on her feet until about March or April 2005.

Charles J. Junior, Jr. testified on behalf of Catholic Health System of Long Island, Inc. that since 1983 he has been employed by Siena Village, Inc. which is own by CHSLI. He stated he was first employed as a maintenance mechanic with no training as an apprentice, then moved up to a maintenance mechanic two for ten years in 1986, then to maintenance mechanic one, and in 1998 became a superintendent of maintenance with five workers. During his employment he had no training in mechanical, heating or engineering except for his own home-owner experience and hands on experience, but testified that he received a certification in Maintenance in 1998-1999 through the National Center of Housing Management and Manager of Housing in a [*6]four day course in 2000-2001 by taking courses and an examination.

He further testified that he and his five workers were qualified to perform maintenance and repairs on an as needed basis pursuant to visual inspection on the hot water system and its parts as far as oiling of motors, and described the system as having a transformer, relays, motor, ignition modular, electrodes, flame sensor, pipes and a tank in which the water is heated by natural gas. The tank has one outflow and there is one hot water heating unit for each of the buildings. Building 8, in which the plaintiff resided in unit 801, had sixteen apartments. He stated that there is a juncture where hot water outflows from the tank via a one and a half inch pipe and splits off and goes by three quarter or one inch copper pipes into each individual unit in the building, in the ceiling of the downstairs apartments and the flooring of the upstairs apartments, with the closest units being supplied with hot water first. He testified there is a valve to regulate pressure coming from the public water system that flows into each building.

Mr. Junior testified he never experienced any pressure problems with any part of the cold water piping that comes into either the hot water heater or feeds into the apartments directly, and there were no repairs in the two years prior to October 2004 to either the cold or hot water systems. He did not look for any work orders prior to this deposition to ascertain if there were any repairs or maintenance of the hot and cold water systems in building 8 prior to October 2004, but did look at the boiler sheet maintained in the boiler room since 1998 upon which a deficiency found in the boiler room at a given time and the action taken is maintained. Repairs for the units themselves would be made pursuant to a work order.

Mr. Junior testified that all the apartments are HUD subsidized and require an annual inspection of the individual apartments and premises. He stated he performs the annual unit inspection himself or that Joe Coppola may also perform them and that such inspections were performed annually from 1998 through 2004 for unit 801 with a checklist. He stated a certified inspector from HUD also performs an annual inspection, which is the same as their annual inspection. Mr. Junior testified that there is also a yearly backflow check required by the Board of Health to test the pressure in the domestic water in each building, and Siena Village (by him) arranged with an outside contractor (Backflow Corp. of New York) to do the backflow checks, but the results are not included in any annual inspection report or checklist as Backflow Corp. of New York does the repairs if needed. Mr. Junior testified that he never heard of any of the renters from Siena Village commenting about changes in water pressure in their sinks or bathtubs and never observed it. He stated he checks the hot and cold water coming out of the sinks and bathtub when he performs his annual inspection. He did not recall from 1998 to 2004 if there were any problems for unit 801 regarding the kitchen, bathroom or bathtub water supply.

Mr. Junior testified he has known Lisa Scholtz since she moved in, but could not recall whether she ever told him she had problems with excessive hot water in the kitchen, bathroom or bathtub water supply, but stated he would note it during his inspection as it would be considered a hazard. He further testified that the hot water temperature that fed into the various units is regulated by an Aquastat located on the hot water heating unit midway into the tank, and the [*7]thermometer located on the top of the tank tells the temperature from a sensor located inside the hot water tank. The Aquastat is set at 120 degrees which means that the water temperature is not supposed to go more than a few degrees of 120 degrees. He did not know of anyone at Siena Village being burned from hot water except for Lisa Scholtz when he was notified by St. Catherine of Siena Hospital by a telephone call from Jim Drevas, the director of plant operations at St. Catherine's. As a result, he stated, he went into the boiler room and checked the temperature setting for the water and found it was "normal" and he went to a couple of apartments and the water seemed fine, but he did not remember checking Ms. Scholtz's apartment and does not remember any complaints from anyone about excessive hot water in her apartment, or a communication from Energy Star regarding unit 801. He was not aware of anyone else receiving any complaints about the water temperature in the unit. He did state, however, that there was insulation applied around the hot water pipes in the units as they were instructed by administration to do that as an update. He stated one of the reason was to avoid burns to the resident.

In his supporting affidavit, Charles Junior sets forth that the entire hot water heating system is checked a couple times a year to determine if it is working properly and there were no problems or repairs on the hot water system for a two year period prior to October 10, 2004. He states he does not remember Ms. Scholtz complaining about the water temperature or pressure at the yearly inspections, and that if such a complaint was made, it would be noted on the inspection reports, and his records do not indicate any complaints.

On February 5, 2007, a Release was signed by Lisa Scholtz in consideration of payment in the amount of $2,000.00 (TWO THOUSAND DOLLARS) from Recco Home Care Services, Inc. on behalf of Joanne Stokes. A Stipulation of Discontinuance with prejudice was signed on June 25, 2007 by counsel for the plaintiff and counsel for the defendant Joanne Stokes. However, the stipulation was not signed by the defendant CHSLI. A Hold Harmless Agreement was signed by the plaintiff, stipulating, agreeing and warranting that the plaintiff will defend, indemnify and hold harmless, Recco Home Care Services, Inc., Joanne Stokes, ACE USA and ACE American Insurance Company and the law firm of Kaufman Borgeest & Ryan, LLP for any lien, claim action, including any action for contribution, indemnification, vicarious liability or subrogation arising from the settlement.

In motion (002), in part, Joanne Stokes seeks dismissal pursuant to GOL §15-108 of co-defendant CHSLIs' cross-claim for contribution asserted against her, and further seeks permission pursuant to CPLR 3217 permitting her to file a Stipulation of Discontinuance with prejudice.

CPLR 3217 (a)(2) provides in pertinent part that "[a]ny party asserting a claim may discontinue it without an order...by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties..." CPLR 3217(b) "By order of court" provides [e]xcept as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and [*8]upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action. Subsection(d) provides that [a]ll notices, stipulations, or certificates pursuant to this rule shall be filed with the county clerk by the defendant.

In the instant action the Stipulation of Discontinuance, which was never filed with the Clerk by the moving defendant (see generally, Matter of Michael T., 188AD2d 1090, 593 NYS2d 471 [4th Dept 1992]; Noble v O'Leary, 165 Misc 2d 231, 628 NYS2d 930 [Sup. Ct. New York County 1995]), is not signed by all parties as required by CPLR 3217(b) (see, C.W. Brown et al v HCE, Inc. et al, 8 AD3d 520, 779 NYS2d 514 [2nd Dept 2004]) in that CHSLI has refused to sign it. This matter has been submitted to the court on a motion for summary judgment and all parties are not consenting to the discontinuance of the action against defendant, therefore, defendant Stokes application to file the Stipulation of Discontinuance with prejudice must fail. "In the face of the prohibition imposed on the court against discontinuance of an action after final submission (citations omitted) the court is without power to grant the relief requested..." (Farkas v Farkas, 47 Misc 2d 827, 263 NYS2d 214 [Sup. Ct. New York, New York County 1965]).

Accordingly, that part of motion (002) which seeks an order pursuant to CPLR 3217 permitting the Stipulation of Discontinuance to be filed by defendant Stokes is denied.

Motion (002), in part, also seeks, pursuant to CPLR 3212 and 3211(a)(5),(7), dismissal of the cross claim for indemnification asserted by CHSLI against Joanne Stokes on the basis that there is no privity between Joanne Stokes and CHSLI.

"The common-law right to indemnification exists pursuant to a contract implied in law and is rooted in equity; it is a device to prevent unjust enrichment. Implied indemnity is frequently employed in favor of one who is vicariously liable for the tort of another, but the principle is not so limited and has been invoked in other contexts as well. Nonetheless, an indemnity cause of action can be sustained only if the third-party plaintiff and the third-party defendant have breached a duty to plaintiff and also if some duty to indemnify exists between them" (Gillmore v Duke/Fluor Daniel et al, 221 AD2d 938, 634 NYS2d 588 [4th Dept 1995]).

"Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss because he was the actual wrongdoer. The right to indemnification may be created by express contract, but the contract is often one implied by law to prevent an unjust enrichment or an unfair result. In some instances the law imposes liability on a person who has in fact committed no actual wrong, but who is held responsible for a loss as a matter of social policy because he is in a position to spread the risk of loss to society as a whole. Where one who has committed no actual wrong is held vicariously liable for the wrongdoing of another, he has a right to indemnification from the actual wrongdoer. Mere use of the term [*9] indemnification' is insufficient to evade the bar of N.Y.Gen. Oblig. Law §15-108. A proper basis for the claim must be stated. If there is actual wrongdoing by the person seeking to assert an indemnification claim, that claim is not viable" (County of Westchester v Welton Becket Associates et al, 102 AD2d 34, 478 NYS2d 305 [2nd Dept 1984]).

In the instant action it has not been demonstrated that there was a duty to indemnify as relates to the co-defendants nor has it been demonstrated that CHSLI is vicariously liable for the actions of Joanne Stokes.

Accordingly, that part of motion (002) by Joanne Stokes which seeks dismissal of the second cross-claim which seeks indemnification, asserted by co-defendant CHSLI against her, is granted and the second cross-claim for indemnification asserted by CHSLI is dismissed with prejudice.

In motion (002), Joanne Stokes, pursuant to GOL 15-108 and CPLR 3212 and 3211(a)(5)(7), also seeks dismissal of the cross-claim for contribution asserted against her by CHSLI.

"Contribution involves an apportionment of responsibility where wrongdoers are in pari delicto. Each of the wrongdoers owes a duty to the injured party, and it is a fact question for the jury as to the degree of responsibility each wrongdoer must bear for causing the injury. A contribution situation exists even if distinct duties and different theories are used to recover against joint wrongdoers" (County of Westchester v Welton Becket Associates et al, 102 AD2d 34, 478 NYS2d 305 [2nd Dept 1084])

GOL §15-108 provides, as here relevant, as follows:

(a) When a release or covenant not to sue...is given to one of two or more persons liable or claimed to be liable in tort for the same injury,...it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under [New York's comparative negligence law].

(b) A release given in good faith by the injured person to one tortfeasor as provided in subdivision (a) relieves him from liability to any other person for contribution as provided in [New York's comparative negligence law].

In the instant action, plaintiff, in consideration of a settlement in the amount of $2,000.00 received from Recco Home Care Services, Inc. on behalf of Joanne Stokes released Joanne Stokes from this action. This discontinuance with prejudice acted as a release within the meaning of GLO §15-108 (see, Dembitzer v Broadwall Management Corp, 2005 NY Slip Op 50303U, 6 Misc 3d 1035A, 800 NYS2d 345, 2005NY Misc LEXIS 420; citing Hanna v Ford Motor Co., 252 AD2d 478, 479, 675 NYS2d 125 [2nd Dept [1998]). As the Court stated in Dembitzer, supra , "[T]he release would be of cold comfort...if defendants could still sue it. The statute says they cannot. On the other hand, they, defendants have reaped the enormous benefits [*10]of trying a case against an empty chair' and of reducing their own liability by the percentage of the empty chair's fault. Thus, everyone has obtained either a distinct legal benefit (defendants...) or the benefit of its bargain (i.e., plaintiff)."

As further set forth in Dembitzer, supra , "[I]t is hornbook law that common law indemnity can only be had by a party without fault that is being held vicariously liable for the fault of another. Where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy" (Glaser v M. Fortunoff of Westbury Corp, 71 NY2d 643, 646, 524 NE2d 413, 529 NYS2d 59[1988]; accord, Kagan v Jacobs, 260 AD2d 442, 442-43, 687 NYS2d 732 )... In any event, if, at trial, defendants are found to be blameless, they will need neither contribution nor indemnity. If on the other hand, they are found to be partially or wholly to blame, they will only be liable for their comparative share of the damages, rather than be jointly and severally liable for the entire amount of the damages, and they will not be entitled to indemnity (because of their fault) or contribution (because the damage award against them will be limited by operation of law)."

Based upon the foregoing it is determined that Joann Stokes has demonstrated entitlement to an order dismissing the cross-claim for contribution asserted against her by CHSLI.

Accordingly, that part of motion (002) by defendant Stokes which seeks dismissal of the cross-claim for contribution asserted against her by CHSLI is granted and the cross claim asserted by defendant CHSLI is dismissed with prejudice.

Turning to motion (003) wherein the Catholic Health System of Long Island seeks summary judgment dismissing the complaint, it is determined that CHSLI has not demonstrated prima facie entitlement to summary judgment dismissing the complaint.

Joanne Stokes testified that she did not remember feeling the water temperature when she first turned on the two shower controls. She testified that she did not know if she actually felt the water temperature before she place Ms. Scholtz's feet into the tub. She did not know if her own foot was in the tub, and there was no testimony whether her own foot was bare if she did step into the water. Although she stated that there was water was running out of the faucet and she did not see any steam, there was no testimony that she actually ascertained the temperature of either the water in the tub or the temperature of the running water before permitting and causing the plaintiff's feet to come into contact with either. Accordingly, these factual issues preclude summary judgment wherein CHSLI argues that co-defendant Joanne Stokes was solely responsible for the injuries sustained by the plaintiff.

Charles Junior testified on behalf of CHSLI that he had no recollection of any problems with the hot water system or complaints about the excessive hot water and fluctuating water pressure, however, the moving defendant did not produce copies of the repair records or inspection records at the examination before trial or with the moving papers in support of his conclusory assertions of the same. Mr. Junior testified he did not remember checking Ms. [*11]Scholtz's unit to determine the water temperature in her apartment either before or after he learned she had sustained the burns to her feet. He did testify that water pipes under the sinks were wrapped with insulation to prevent burns to the residents. Mr. Junior did not testify as to the actual temperature of the water in building eight in Ms. Scholtz's apartment and no proof of the same has been offered. He has not indicated either at his examination before trial or in his affidavit that he actually otherwise measured the water temperature and determined the thermostatic readings were correct. The moving papers raise further factual issues in that Ms. Scholtz testified that she notified Mr. Junior of the excessively hot water and fluctuating water temperature, and he denies ever having been notified of the same. Thus there are factual issues raised in the moving papers submitted by CHSLI which preclude summary judgment.

Accordingly, cross-motion (003) which seeks summary judgment dismissing the complaint is denied.

CHSI also seeks dismissal of the cross-claim asserted against it by co-defendant Joanne Stokes wherein she seeks judgment over for contribution or indemnification against CHSLI. This matter has been settled by the plaintiff as against defendant Joanne Stokes.

Accordingly, the cross-claim asserted by defendant Joanne Stokes, is dismissed with prejudice.

Dated:______________________ ___________________________________

RIVERHEAD, NYJ.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION