| Auer v Affiliated Home Care of Putnam, Inc. |
| 2009 NY Slip Op 05276 [63 AD3d 972] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Kathleen Auer, Respondent, v Affiliated Home Care ofPutnam, Inc., Appellant. |
—[*1] O'Neil & Burke, LLP, Poughkeepsie, N.Y. (Richard J. Burke, Jr., of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, the defendant appeals from anorder of the Supreme Court, Dutchess County (Sproat, J.), dated March 4, 2008, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the defendant's motion for summary judgmentdismissing the complaint, as the defendant failed to establish its prima facie entitlement tojudgment as a matter of law. The plaintiff's decedent, who had multiple sclerosis, choked on ahotdog. At the time of the incident, the defendant's employees, two home health care aides, wereassigned to care for the decedent. One of the aides unsuccessfully attempted to perform either theHeimlich maneuver or cardiopulmonary resuscitation on the decedent and called for anambulance. The decedent was taken to the hospital, where he died. It is undisputed that thedefendant was required to assist the decedent with feeding and that both of the aides were inanother room when the decedent choked on the hotdog. "Where a defendant is responsible forcaring for an individual, the defendant's abandonment of that individual can result in liability"(Willis v City of New York, 266 AD2d 207, 208 [1999]; Reavey v State of NewYork, 125 AD2d 656 [1986]). There are triable issues of fact as to whether the defendantbreached its duty of care to the decedent by leaving him unattended while he was eating (seeEsposito v Personal Touch Home Care, 288 AD2d 337 [2001]; Reavey v State of NewYork, 125 AD2d at 657). Spolzino, J.P., Dillon, Miller and Dickerson, JJ., concur.