| Malave v Lakeside Manor Homes for Adults, Inc. |
| 2013 NY Slip Op 02547 [105 AD3d 914] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Vincent Malave, Appellant, v Lakeside ManorHomes for Adults, Inc., Respondent, et al., Defendant. |
—[*1] Kenny & Zonghetti, LLC, New York, N.Y. (Kevin J. O'Donnell of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Richmond County (McMahon, J.), dated December 15,2011, which granted the motion of the defendant Lakeside Manor Homes for Adults,Inc., for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff, a resident of an adult care facility operated by the defendant LakesideManor Homes for Adults, Inc. (hereinafter Lakeside), was stabbed by another resident ofLakeside, Eulalio Fierro, incorrectly sued herein as Eualilio Sierro, during an argumentin Lakeside's lobby. The plaintiff commenced this personal injury action against Fierroand Lakeside, alleging that Lakeside was liable because, among other reasons, it had aduty to protect him from the assaults of other residents. The Supreme Court grantedLakeside's motion for summary judgment dismissing the complaint insofar as assertedagainst it, finding that no duty of care existed.
Lakeside presented evidence that it is an adult care facility (hereinafter ACF)(see Social Services Law § 2 [25]; 18 NYCRR 485.6). An ACF is definedas a "family-type home for adults, a shelter for adults, a residence for adults or an adulthome, which provides temporary or long-term residential care and services to adults who,though not requiring continual medical or nursing care as provided by facilities licensedor operated pursuant to article 28 of the Public Health Law or articles 19, 23, 29 and 31of the Mental Hygiene Law, are, by reason of physical or other limitations associatedwith age, physical or mental disabilities or other factors, unable or substantially unable tolive independently" (18 NYCRR 485.2 [a]).
The question of whether a defendant owes a duty of care to another person is aquestion of law for the courts (see Purdy v Public Adm'r of County ofWestchester, 72 NY2d 1, 8 [1988]; Eiseman v State of New York, 70 NY2d175, 187 [1987]; Citera vCounty of Suffolk, 95 AD3d 1255, 1258 [2012]). "Generally, there is no 'duty tocontrol the conduct of third persons to prevent them from causing injury to others,' evenwhere, as a practical matter, the defendant could have exercised such control" (Citerav County of Suffolk, 95 AD3d at 1258, quoting Purdy v Public Adm'r of Countyof [*2]Westchester, 72 NY2d at 8). However, courtshave imposed a duty of care where "there exist special circumstances in which there issufficient authority and ability to control the conduct of third persons that [courts] haveidentified a duty to do so. Thus, [courts] have imposed a duty to control the conduct ofothers where there is a special relationship: a relationship between defendant and [the]third person whose actions expose plaintiff to harm such as would require [one]defendant to protect the plaintiff from the conduct of others" (Purdy v Public Adm'rof County of Westchester, 72 NY2d at 8; Fox v Marshall, 88 AD3d 131, 136 [2011]).
Here, Lakeside established its prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against it by presenting evidence that, as anACF, its residents were free to come and go as they pleased, and that in order to removea resident from the facility, it would need to commence an eviction proceeding. Becauseit is an ACF, Lakeside's control over Fierro, "and consequent duty to prevent him fromharming others, is more limited than in cases involving persons confined to mentalinstitutions" (Schrempf v State of New York, 66 NY2d 289, 296 [1985]).Lakeside did not require the issuance of day passes, which would have been indicative of"a certain level of authority and control" over its residents (Fox v Marshall, 88AD3d at 137), who did not "relinquish general autonomy" (Purdy v Public Adm'r ofCounty of Westchester, 72 NY2d at 7). In opposition, the plaintiff failed to raise atriable issue of fact.
In light of our determination, we need not reach the parties' remaining contentions.
Thus, the Supreme Court properly granted Lakeside's motion for summary judgmentdismissing the complaint insofar as asserted against it. Mastro, J.P., Chambers, Hall andLott, JJ., concur.