The following papers were considered on the motions: Notice of Motion/Statement/Affirmation/Memorandum/Certification/ Order (Proposed)/Exhibits/Notice of Motion/Statement/Affirmation/ Affidavit/Affirmation/Exhibits/Notice of Motion/Affirmation/ Statement/Exhibits/Affirmation/Statement/Exhibits/Affirmation/ Statement/Exhibits/Court Notices/Statement/Affirmation/Exhibits/ Statement/Affirmation/Exhibits/Affirmation/Affidavit/Affirmation/ Affidavit/Response/Exhibits/Affirmation/Affidavit/Affirmation/ Affidavit/Response/Exhibits/Affirmations (NYSCEF documents numbered 54-210) Decision and Order The plaintiff commenced this action, among other things, to recover damages for wrongful death. The plaintiff makes allegations to the effect that the defendant Karen Livermore, an employee of the other defendants, was the assigned home health aide for Caleb Ashley (decedent) on Monday, November 12, and Tuesday, November 13, 2018. Livermore did not appear to provide services to the decedent on that Monday. Prior to or on that Monday, the decedent suffered a stroke that caused him to be on the floor of his apartment, unable to call for help. On that Tuesday, Livermore, having received no response to her knock on the door of the decedent’s apartment and having contacted the building superintendent, was able to gain entry to the decedent’s apartment. The decedent was found on the floor unconscious with labored breathing, and was then hospitalized. He died in the morning on Wednesday, November 14, due to acute renal failure. Although Livermore claimed that she had been with the decedent on that Monday, eventually she confessed that she did not provide services to him on that day. The plaintiff alleges that if Livermore reported for duty and provided services to the decedent on that Monday, the decedent would have been discovered and would have received medical treatment 24 hours earlier than he received it. In motion sequence number 2, Livermore moves for summary judgment dismissing the complaint insofar as asserted against her. In motion sequence number 3, the plaintiff moves for summary judgment on the issue of liability. In motion sequence number 4, the defendants All Metro Health Care Services of New York, Inc., All Metro Home Care Service, Inc., All Metro Aids Inc., Simplura Healthcare, All Metro Home Care Services of New York, Inc. d/b/a All Metro Health Care (collectively, All Metro defendants) move for summary judgment dismissing the complaint insofar as asserted against them. For reasons explained below, the Court denies Livermore’s motion, denies the plaintiff’s motion, and grants the motion of the All Metro defendants only to the extent of granting that branch of their motion which is for summary judgment dismissing the complaint insofar as asserted against them to the extent it is based on the doctrine of respondeat superior. On a summary judgment motion, the moving party must present prima facie proof demonstrating its entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). If the moving party carries this initial burden, then the nonmoving party must produce evidentiary proof in admissible form to require a trial of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The court must view the evidence in the light most favorable to the nonmoving party (see Pearson v. Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009]). Summary judgment either dismissing the complaint insofar as asserted against Livermore, or on the issue of liability insofar as asserted against her, is not appropriate in light of the triable issues of fact that exist. In particular, there exists a triable issue of fact regarding whether Livermore’s claimed breach of the duty of care to the decedent was a proximate cause of the decedent’s injuries (see Willis v. City of New York, 266 AD2d 207, 208 [2d Dept 1999] ["Where a defendant is responsible for caring for an individual, the defendant's abandonment of that individual can result in liability…Here, there is a question of fact as to whether Healthline, through the conduct of its employee, breached the duty of care to the plaintiff and, if so, whether such breach was the proximate cause of the plaintiff's injuries and whether such injuries were foreseeable"] [internal citation omitted]). The All Metro defendants are entitled to summary judgment dismissing the claims based on the doctrine of respondeat superior. “Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment…Pursuant to the doctrine, the employer may be held liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment…However, 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, 896 [2d Dept 2009] [internal citations and quotation marks omitted]). Here, the All Metro defendants make a prima facie showing of their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them to the extent it is based on the doctrine of respondeat superior by demonstrating that Livermore was not acing in the scope of her employment when, without informing the All Metro defendants, she failed to provide services to the decedent on the Monday in question. No triable issue of fact is raised in opposition. However, summary judgment either in favor of the All Metro defendants, or in favor of the plaintiff, is not appropriate with respect to the claims of negligent, hiring, supervision, and retention. “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 [2d Dept 2016] [internal quotation marks omitted]). On this record, that includes conflicting expert affidavits, the existence of triable issues of fact precludes summary judgment on these claims. The remaining contentions do not require a different result. Accordingly, it is, ORDERED that Livermore’s motion for summary judgment dismissing the complaint insofar as asserted against her is denied; and it is further, ORDERED that the plaintiff’s motion for summary judgment on the issue of liability is denied; and it is further, ORDERED that the All Metro defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them is granted only to the extent that the Court grants that branch of their motion which is for summary judgment dismissing the complaint insofar as asserted against them to the extent it is based on the doctrine of respondeat superior, and their motion is otherwise denied; and it is further, ORDERED that Livermore must, within ten days of the date of entry, serve on the other parties a copy of this decision and order with notice of entry; and it is further, ORDERED that Livermore must, within ten days after service of the notice of entry, file proof of that service. This constitutes the decision and order of the Court. Dated: April 13, 2022
