| Langner v Primary Home Care Servs., Inc. |
| 2011 NY Slip Op 03553 [83 AD3d 1007] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Marsha Langner, Appellant, v Primary Home CareServices, Inc., Respondent, and Personal Touch Home Care, Inc.,Respondent-Appellant. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K.Raicus of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hernotice of appeal and brief, from so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated January 26, 2010, as granted that branch of the motion of the defendantPersonal Touch Home Care, Inc., which was for summary judgment dismissing the complaintinsofar as asserted against it, and the defendant Personal Touch Home Care, Inc., separatelyappeals from so much of the same order as denied, as academic, that branch of its motion whichwas for summary judgment on so much of its cross claim against the defendant Primary HomeCare Services, Inc., as sought contractual indemnification.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the plaintiff payable by the defendant Personal Touch Home Care, Inc., and one bill of costs tothe defendant Personal Touch Home Care, Inc., payable by the defendant Primary Home CareServices, Inc., that branch of the motion of the defendant Personal Touch Home Care, Inc., whichwas for summary judgment dismissing the complaint insofar as asserted against it is denied, andthat branch of the motion of the defendant Personal Touch Home Care, Inc., which was forsummary judgment on so much of its cross claim against the defendant Primary Home CareServices, Inc., as sought contractual indemnification is denied as premature.
The plaintiff's decedent, Chana Jurkowski (hereinafter the decedent), who was 88 years old atthe time of the accident, allegedly sustained injuries when she fell on the front porch of herhome. At the time of the incident, a home health aide was assigned to care for the decedent. Thedefendant Personal Touch Home Care, Inc. (hereinafter Personal Touch), had retained thedefendant Primary Home Care, Inc. (hereinafter Primary Home Care), to provide home healthcare services to the decedent.
After commencing this action against Personal Touch and Primary Home Care, the decedentdied before she could be deposed. Personal Touch asserted a cross claim for, inter alia,contractual indemnification against Primary Home Care, and subsequently moved for summaryjudgment on so much of its cross claim as sought contractual indemnification. It also moved forsummary judgment dismissing the complaint insofar as asserted against it. The Supreme Court,among other things, granted [*2]that branch of Personal Touch'smotion which was for summary judgment dismissing the complaint insofar as asserted against it,and denied, as academic, that branch of its motion which was for summary judgment on so muchof its cross claim as sought contractual indemnification. The plaintiff appeals, and PersonalTouch separately appeals. We reverse the order insofar as appealed from.
As a general rule, " 'a party who retains an independent contractor, as distinguished from amere employee or servant, is not liable for the independent contractor's negligent acts' " (Brothers v New York State Elec. & GasCorp., 11 NY3d 251, 257 [2008], quoting Kleeman v Rheingold, 81 NY2d 270,273 [1993]; see Schiffer v SunriseRemoval, Inc., 62 AD3d 776, 778 [2009]). Whether an actor is an independentcontractor or an employee for the purposes of tort liability is usually a factual issue for the jury.However, where "there is no conflict in the evidence, the question may properly be determined asa matter of law" (Schiffer v Sunrise Removal, Inc., 62 AD3d at 779; see Concord Vil. Owners, Inc. v TrinityCommunications Corp., 61 AD3d 410, 411 [2009]).
Personal Touch failed to establish, prima facie, that Primary Home Care acted as anindependent contractor at the time of the incident (cf. Schiffer v Sunrise Removal, Inc.,62 AD3d at 779). The deposition testimony of Personal Touch's patient service manager andPrimary Home Care's coordinator, submitted by Personal Touch in support of its motion,demonstrated that nurses employed by Personal Touch prepared a plan of care for the decedent,were responsible for any "special instructions" concerning her care, and visited the decedent'shome at least once a week to supervise the home health aide and to ensure that she followed theplan of care. Under these circumstances, a triable issue of fact exists as to whether PersonalTouch exercised control over the method and means by which Primary Home Care did its work(see Willis v City of New York, 266 AD2d 208, 208-209 [1999]; cf. Metling v Punia& Marx, 303 AD2d 386, 388 [2003]; Melbourne v New York Life Ins. Co., 271AD2d 296, 298 [2000]).
Moreover, Personal Touch's submissions failed to eliminate all triable issues of fact as towhether the home health aide breached her duty of care to the decedent by leaving her unattendedon the porch at the time of the incident (see Auer v Affiliated Home Care of Putnam, Inc., 63 AD3d 972,972-973 [2009]; Esposito v Personal Touch Home Care, 288 AD2d 337, 338 [2001];see also Reavey v State of New York, 125 AD2d 656, 657 [1986]). " 'Where a defendantis responsible for caring for an individual, the defendant's abandonment of that individual canresult in liability' " (Auer v Affiliated Home Care of Putnam, Inc., 63 AD3d at 972,quoting Willis v City of New York, 266 AD2d 207, 208 [1999]; see Esposito vPersonal Touch Home Care, 288 AD2d at 338). The decedent's statement that the aide lefther standing unattended on the porch, which she allegedly made to the plaintiff shortly after theaccident and which was contained in the plaintiff's deposition testimony submitted by PersonalTouch, was admissible as an excited utterance because it was made under the stress ofexcitement caused by the decedent's fall (see Heer v North Moore St. Devs., L.L.C., 61 AD3d 617, 618[2009]; cf. People v Johnson, 1NY3d 302, 306-307 [2003]; Zimbler v Resnick 72nd St Assoc., 79 AD3d 620 [2010]; Lee v City of New York, 40 AD3d1048, 1049 [2007]).
In light of Personal Touch's failure to meet its prima facie burden, we need not consider thesufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d320 [1986]). Accordingly, the Supreme Court erred in granting that branch of Personal Touch'smotion which was for summary judgment dismissing the complaint insofar as asserted against it.
Further, that branch of Personal Touch's motion which was for summary judgment on somuch of its cross claim against Primary Home Care as sought contractual indemnification shouldbe denied as premature. "The right to contractual indemnification depends upon the specificlanguage of the contract" (Sherry vWal-Mart Stores E., L.P., 67 AD3d 992, 994 [2009] [internal quotation marks omitted];see D'Angelo v Builders Group, 45AD3d 522, 524 [2007]). The indemnification provision at issue obligates Primary HomeCare to defend and hold Personal Touch harmless for any claims, actions, litigation, or damagesarising out of Primary Home Care's acts or omissions. Since it has not been determined whetherthe decedent's alleged injuries arose out of an act or omission of Primary Home Care, an award ofsummary judgment would be premature (see D'Angelo v Builders Group, 45 AD3d at525; Quiroz v Beitia, 68 AD3d957, 961 [2009]; Bryde v CVSPharmacy, 61 AD3d 907, 908-909 [2009]).[*3]
The parties' remaining contentions either are withoutmerit or need not be reached in light of our determination. Rivera, J.P., Chambers, Hall and Lott,JJ., concur.