Borriello v Human Care Home Health Care Serv.Annotate this Case
Decided on November 9, 2023
Supreme Court, Kings County
Michael Borriello, As Administrator of
the Estate of Mary Borriello, deceased, Plaintiff,
Human Care Home Health Care Service a/k/a
Human Care LLC, and Maria "Doe,"
last name being fictitious and unknown, Defendants.
Index No. 508568/2019
Attorney for Plaintiff:
Stephen S. La Rocca, Esq., Harris Keenan & Goldfarb PLLC, 233 Broadway, Suite 900, New York, New York 10279
Attorney for Defendants:
Samantha Cornell Lerner, Esq., Haworth Barber & Gerstman, LLC, 777 Third Avenue, Suite 2104, New York, New York 10017
Consuelo Mallafre Melendez, J.
Recitation, as required by CPLR §2219 [a], of the papers considered in the review:NYSCEF #s: 53 — 54, 55 — 68, 69 — 70, 77 — 78, 79 — 80, 81
Defendant HUMAN CARE HOME HEALTH CARE SERVICE ("Human Care") moves pursuant to CPLR § 3212 for summary judgment in their favor (Sequence # 3).
This action arises out of an alleged fall while the decedent was in the care of a Human Care home health aide. In June of 2107, plaintiff, decedent's son, entered into a contract with Human Care to provide home health care to the decedent. According to the contract, Human Care was to provide a home health aide to decedent 7 days a week for 12 hours each day. On the June 11, 2017, the date of the alleged fall, it has been established that the home health aide providing such services to the decedent was Manouce Rincher ("Rincher"). According to the deposition testimony of the plaintiff, he and his girlfriend, Jami-Ann Iacobucci ("Iacobucci") left the decedent's home to go to the store around 3:00pm. The decedent remained home with Rincher. Plaintiff and Iacobucci returned to the decedent's home approximately 15 minutes later and found the decedent laying on the floor near her bed with her walker nearby. Decedent was unable to move. Plaintiff, Iacobucci, and Rincher lifted the decedent into her bed. Rincher remained at the decedent's apartment until the end of her shift, approximately 8:00pm. The [*2]decedent sought medical treatment the following morning. The plaintiff has testified he did not ask the home health aide how the alleged fall occurred, or how the decedent ended up on the floor. Furthermore, according to Human Care policies, an incident report must be filed following any type of fall. Human Care policies also instruct home health aides to immediately contact the Agency when incidents such as the one alleged occur. Following the decedent's alleged fall, no incident report was filed and Rincher did not contact the Agency. Rincher has testified she does not remember the decedent, plaintiff, or the alleged incident.
The plaintiff commenced this action alleging, inter alia, that the defendant was negligent and otherwise departed from accepted standards of home health care in failing to provide the decedent with proper care and supervision, and these departures and negligence caused injury to the decedent. Plaintiff further alleges that the defendant was negligent in the hiring, training and supervision of home health aide employees.
As a preliminary matter, plaintiff has not opposed defendant's motion for summary judgment as to the cause of action for negligent hiring/training/supervision. Defendant has demonstrated that the plaintiff has failed to provide any evidence supporting a claim for negligent hiring/training/supervision. As such, the motion for summary judgment as to the plaintiff's cause of action for negligent hiring/training/supervision must be granted. "Where a party fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists." 144 Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 178 AD3d 757, 761-62 [2d Dept 2019].
Defendant moves for summary judgment as to all claims against Human Care. As explained below, it is this Court's determination that this action is grounded in ordinary negligence. Therefore, summary judgment as to the medical malpractice cause of action against Human Care must be granted.
"[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" Rabinovich v. Maimonides Med. Ctr., 179 AD3d 88, 92 [2d Dept 2019] quoting Weiner v. Lenox Hill Hosp., 88 NY2d 784, 787  [internal quotations omitted]. The critical factor distinguishing medical malpractice from ordinary negligence is the nature of the duty owed to the plaintiff. Jeter v. New York Presbyt. Hosp., 172 AD3d 1338 [2d Dept 2019]; see also Pacio v. Franklin Hosp., 63 AD3d 1130, 1132 [2d Dept 2009]; Caso v. St. Francis Hosp., 34 AD3d 714, 714 [2d Dept 2006]; Rabinovich 179 AD3d at 93. "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" Jeter 172 AD3d at 1339 quoting Miller v. Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3rd Dept 1983]. "Thus, an action sounds in ordinary negligence when jurors can utilize their common everyday experiences to determine the allegations of a lack of due care" Rabinovich 179 AD3d at 93. "In contrast, an action sounds in medical malpractice where the determination involves a consideration of professional skill and judgment" Id. see also Rey v. Park View Nursing Home, 262 AD2d 624, 626 [2d Dept 1999]; Bleiler v. Bodnar, 65 NY2d 65, 72 .
When the conduct at issue constitutes medical treatment or bears a substantial relationship to medical treatment by a licensed physician, the claim is grounded in medical malpractice. When the gravamen of the complaint is not negligence in rendering medical [*3]treatment, but the failure to fulfill a different duty, the claim constitutes ordinary negligence. Rabinovich 179 AD3d at 93; see also Jeter 172 AD3d at 1340; Davis v. South Nassau Communities Hosp., 26 NY3d 563, 580 ; Spiegel v. Goldfarb, 66 AD3d 873, 874 [2d Dept 2009]. "More specifically, an alleged negligent act constitutes medical malpractice when it can be characterized as a crucial element of diagnosis and treatment and an integral part of the process of rendering medical treatment to [the plaintiff]" Spiegel 66 AD3d at 874 quoting Bleiler v. Bodnar, 65 NY2d 65, 72 .
Based upon the submissions in this matter, the Court finds that the claim at issue is grounded in ordinary negligence. The gravamen of the plaintiff's complaint is that the defendant was negligent in the supervision and care of the decedent. The plaintiff alleges that as a home health aide, Rincher carelessly moved the decedent which resulted in the decedent falling onto the floor. The alleged failure is not one of medical treatment, it is essentially failure to properly move and supervise the decedent. The conduct complained of does not involve a matter of science or art requiring special skills, the conduct is that of an ordinary lay person. Any jury member can utilize their everyday common experience to determine the allegations of carelessness. The home health aide did not render any medical treatment, and the alleged conduct cannot be characterized as a crucial element of medical treatment or diagnosis, therefore there is no specialized knowledge required to determine the merits of the complaint.
The alleged failure to obtain medical treatment cannot be attributed to professional or medical negligence of the defendant as the home health aide is not a medical professional and there is no evidence that the home health aide provided any medical treatment. Further, there is no evidence to support a failure to obtain medical treatment claim as the record provides no evidence as to what happened to the decedent before, after or during the alleged time period of negligence. The plaintiff did not ask the home health aide what happened, and the plaintiff did not make any effort to determine whether or not medical treatment was required after the fall. The home health aide stayed with the decedent for the remainder of her shift but there is no evidence as to whether or not the aide was negligent in failing to obtain medical treatment. A reasonable juror would not require specialized knowledge or expert testimony to determine this and other such allegations of the plaintiff, as such the claim is grounded in ordinary negligence.
Defendant also argues that plaintiff has failed to make prima facie showing of negligence against Human Care, therefore summary judgment must be granted. "To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" Solomon v. City of New York, 66 NY2d 1026, 1027 ; see also Guzman v. Jamaica Hosp. Med. Ctr., 190 AD3d 705, 706 [2d Dept 2021]; Califano v. Maple Lanes, 91 AD3d 896, 897 [2d Dept 2012]. It is a well-established principle that a defendant may be entitled to summary judgment where they have made prima facie showing that the plaintiff cannot identify the cause of an alleged fall without resorting to speculation. See Mauskopf v. 1528 Owners Corp., 102 AD3d 930, 931 [2d Dept 2013]; McFadden v. 762 Liberty Corp., 89 AD3d 1067, 1068 [2d Dept 2011]; Aguilar v. Anthony, 80 AD3d 544, 545 [2d Dept 2011]; Califano 91 AD3d at 897.
In Califano, the decedent had fallen at a bowling alley owned by the defendant. 91 AD3d at 897. The plaintiff testified that when he arrived at the bowling alley, his friend told him that a sticky substance on the floor caused the decedents fall. Id. The friend testified that although he witnessed the fall, he did not investigate the substance or inspect the area to determine what caused the fall. Id. The court found that the defendant had established its prima facie entitlement to summary judgment by demonstrating the plaintiff could not identify the cause of decedent's [*4]fall without resorting to speculation. Id. The plaintiff could not provide evidence that there was any sticky substance on the floor, or that any alleged substance caused the fall, therefore, there was no evidence that would allow a jury to determine the cause of the fall without resorting to speculation. Id.
While the case at bar shares many of the characteristics of the case above, plaintiff in the within action relies in greater speculation than that which Califano was based upon. Here, the plaintiff testified he did not witness the fall and did not inquire or investigate as to the cause of the fall once he returned home and found the decedent. Rincher, the only party in the apartment with the decedent at the time of the alleged fall, testified that she does not remember the fall or the decedent. Neither Rincher nor the plaintiff filed any report of the incident. Thus, no evidence is proffered in support of plaintiff's claims.
Also relevant to this discussion is Elliot v Long Is. Home, Ltd., 12 AD3d 481 [2d Dept 2004] wherein it was claimed that plaintiff's decedent was left unattended in the day room of the defendants' geriatric care facility, and allegedly fell while attempting to get out of her chair to reach for her walker. The Second Department affirmed the trial court's grant of summary judgment finding that defendants established their entitlement to judgment dismissing the negligence cause of action by demonstrating that the plaintiff was unable to establish that their alleged negligence was the proximate cause of the decedent's injury, as there were no witnesses to the decedent's accident and the plaintiff had no personal knowledge regarding the cause of the accident. Id. Similarly, the plaintiff in this matter failed to raise a triable issue of fact as to the proximate cause of the accident.
Given this lack of evidence, it follows that plaintiff in opposition has failed to raise a triable issue of fact. Notwithstanding, based upon his misplaced reliance on Annunziata v. City of New York, 175 AD3d 438, 444 [2d Dept 2019], he argues that an unwitnessed accident presents an issue of fact for the jury. In Annunziata, the Second Department determined that a jury verdict that the city violated the Administrative Code but that such violation did not cause the plaintiff's injury was unsupported by a fair interpretation of the evidence. 175 AD3d at 439-40. The plaintiff in that case tripped over a piece of carpet in the offices of the New York City Fire Department. While nobody witnessed the fall, plaintiff testified he tripped over a torn piece of carpet, photos of the torn carpet were presented as evidence, and the plaintiff's supervisor subsequently submitted a report stating the plaintiff had fallen on a loose piece of carpet. Id. at 443. Furthermore, another one of the plaintiff's supervisors testified he responded to the location of the accident and observed a ripped piece of carpet there. Id. The director of support services for the building where the accident occurred also testified that prior to the fall, he was aware of the presence of tears in the carpeting and that these tears had previously caused people to fall. Id. The Court ordered a new trial stating that "any conclusion that the plaintiff's accident was the result of some other unidentified cause, or that the entire incident was fabricated, could only be based upon mere speculation." Id. at 444.
While the "speculation" in Annunziata was as to the accident being caused by "some other unidentified cause," this action is based on pure speculation as to defendant's liability as no evidence of negligence is presented in the case at bar. No one witnessed the fall. The plaintiff did not inquire into the cause of the decedent's fall, and no report was ever made of the alleged fall. There is no testimony or evidence that establishes what caused the decedent to end up on the floor.
The plaintiff further argues that an unwitnessed accident does not relieve the defendant of its burden to affirmatively prove it did not proximately cause the decedent's injuries. Plaintiff [*5]relies on the well settled proposition "that [m]erely pointing to gaps in an opponent's evidence is insufficient to satisfy the movant's burden when moving for summary judgment" Meskin v. Javier, 2020 NY Misc. LEXIS 9616 [Sup. Ct. Kings County November 20, 2020] quoting Hairston v. Liberty Behavioral Mgt Corp., AD3d 404, 405 [1st Dept 2018] [internal quotations omitted]; see also Montemarano v. Atlantic Express Transp. Group, Inc., 123 AD3d 675, 676 [2d Dept 2014]. In the aforementioned cases, the court held that the defendant failed meet its prima facie burden because the defendants failed to provide affirmative evidence demonstrating that its alleged negligence did not proximately cause the plaintiffs injuries. In the present case, the defendant has affirmatively demonstrated that the plaintiff has provided no evidence that would allow a reasonable juror to determine the causation of the decedent's fall without relying on speculation. In the plaintiff's deposition testimony, he admitted that he assumed Rincher dropped the decedent, causing the alleged fall. The defendant in this case is not merely 'pointing to gaps' in the plaintiff's evidence, the defendant has provided sufficient evidence that proves, prima facie, that the plaintiff cannot identify the cause of the decedent's injuries without resulting to speculation.
It is noted that Plaintiff argues that Rincher had a reason to deny the fall because she was in danger of being fired. Even assuming this claim is true, it does not negate that Plaintiff cannot establish defendant's negligence without speculation.
In his opposition, the plaintiff submits the affirmation of a registered nurse licensed to practice in the State of New York. Defendant first opposes this testimony on the grounds it is not notarized, thus in improper form. Under CPLR § 2106(a), New York law only permits affirmations by attorneys admitted to practice in the courts of the state, or of a dentist, physician or osteopath authorized by law to practice in the state. The affirmation of a Registered Nurse is not admissible under CPLR § 2106(a). During oral arguments the plaintiff submitted an unredacted version of the expert affirmation with the required notarization
Even accepting the nurse's affirmation, it fails to raise a triable issue of fact. The defendant in this case is not a nursing home, and Rincher is not a nurse. Rincher was not expected to provide the care and medical treatment of a registered nurse, her duty was limited to that of a home health aide. Furthermore, it is a well-established principle that a registered nurse lacks the qualifications to render a medical opinion as to the relevant standard of medical care, and to whether the defendants deviated from such standard. See generally Elliot v. Long Is. Home, Ltd., 12 AD3d 481, 482 [2d Dept. 2004]; Mills v. Moriarty, 302 AD2d 436, 436 [2d Dept 2003]. Generally, a licensed nurse further lacks the qualifications to render a medical opinion as to the issue of proximate causation. Boltyansky v. New York Community Hosp., 175 AD3d 1478, 1479 [2d Dept 2019].
The defendant in this case has established their prima facie entitlement to summary judgment by demonstrating that the plaintiff cannot prove the cause of the decedent's fall without resulting to speculation. In opposition, the plaintiff has failed to raise a triable issue of fact. The plaintiff has not provided any evidence establishing causation, and erroneously argues that the defendant has merely pointed to gaps in the plaintiff's evidence. In sum, the plaintiff does not provide any evidence that establishes the cause of decedent's alleged fall or even that the alleged fall occurred. Therefore, the defendant has established their prima facie entitlement to summary judgment by demonstrating that the plaintiff has not provided sufficient evidence that would allow a reasonable juror to determine the cause of the fall without speculation. See also Mauskopf v. 1528 Owners Corp., 102 AD3d 930, 931 [2d Dept 2013]; McFadden v. 762 Liberty Corp., 89 AD3d 1067, 1068 [2d Dept 2011]; Aguilar v. Anthony, 80 AD3d 544, 545 [2d Dept [*6]2011]; Elliot v. Long Is. Home, Ltd., 12 AD3d 481, 482 [2d Dept. 2004].
Accordingly, Human Care's motion seeking summary judgment for all claims against them is GRANTED (Seq. 3), and the action is dismissed in its entirety with prejudice. The Clerk is directed to enter judgment in defendant's favor.
This constitutes the decision and order of the court.Dated: November 9, 2023
Hon. Consuelo Mallafre Melendez