Elizabeth WESTON-PINILLOS, Plaintiff, v. SEAVIEW MANOR, LLC and MDE Realty, LLC, Defendants.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4
AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6
Defendant moves This Honorable Court by Notice of Motion for Summary Judgment pursuant to CPLR 3212 to Dismiss Action in its entirety and for such other and further relief deemed just and proper. For the reasons set forth below, it is hereby DENIED.
PROCEDURAL AND FACTUAL HISTORY
Plaintiff commenced this personal injury action against Defendants alleging breach of duty of care and negligent hiring and training of its agents, servants and/or employees by filing summons and complaint under Index Number 500837/2017 in New York State Supreme Court, Kings County on January 13, 2017. Pursuant to CPLR 325 (d) this action was transferred to Civil Court, Kings County under this instant index number, December 4, 2019. Defendants filed on August 25, 2020, Motions for Extension of time to File Summary Judgment, for Extension of Time to file Partial Summary Judgment on Liability pursuant to CPLR 3212, and to Dismiss as against Defendant MDE Realty, LLC as an out-of-possession landlord pursuant to CPLR 3211 (a) (1). By Decision and Order of This Court dated November 13, 2020, motion in part was granted to MDE Realty, LLC to be dismissed as an out of possession landlord, however denied in part as against Defendant Seaview Manor, LLC for extension of time to file motion for summary judgment. Sole remaining Defendant Seaview Manor LLC appealed successfully upon its filing on December 14, 2020. Upon remand from the Appellate Term of the Supreme Court, Second Department, dated April 1, 2022, matter remitted back to This Court for a determination on the merits. Therefore, the sole remaining Defendant is Seaview Manor, LLC in this remanded Motion for Summary Judgment on the merits.
Defendant Seaview identifies itself as a New York State licensed Adult Care Facility (hereinafter ACF), without specificity as to what type of ACF 1 . On February 25, 2016, the date of the undisputed assault, Plaintiff was a full-time home health aide employee of MZL LLC. MZL, LLC which maintained a third-party vendor contract agreement with Seaview to provide home health aide services for its patients/residents 2 and maintained its office of operations in Seaview's facilities. Plaintiff's duties rendered to Seaview's patients at its facility included cleaning, bathing, dressing, feeding, general assistance with daily activities, and accompanying patients to their medical appointments (see Weston Pinillos EBT April 3, 2019 tr at 15-16). Seaview's partner/manager Herman Yunger has given direct orders to Plaintiff, such as ordering Plaintiff to clear the smoking room 3 , even though not a Seaview employee (see id. at 59-61). Plaintiff's direct supervisor at the time of the assault was Desiree (see id. at 61-62). Plaintiff claims that while speaking with Desiree and a male patient outside of Room 112 and the smoking room, Seaview's Patient Lillia, who had just returned after running away, leaving without notice and being missing from Seaview for a third of a year from October 29, 2015, to February 14, 2016, suddenly out of nowhere hit Plaintiff from behind in the back of her left shoulder allegedly causing her to fall and sustain severe and serious personal injuries (see id. at 67-69). Patient Lillia assaulted Plaintiff on February 25, 2016, 11 days after her sudden and surprising return (see id.). Although Patient Lillia was admitted by Seaview in 2005, was known to be on psychiatric medication, ran away and went missing previously for much less time, there had been no previously reported violent episodes by her at Seaview (see Herman Yunger affirmation, exhibit B). Patient Lillia is an SSI/Medicaid/Medicare recipient which indicated that her income was below poverty level, therefore evidencing a high likelihood that she was living on the streets as Seaview asked her upon her return, where she slept while being missing (see id.). She likely was also without access to food as well as to her psychiatric medications. When at Seaview there was a designated medication employee to provide her psychiatric medications consistently (see Herman Yunger EBT tr at 55-60). Nevertheless, it is indisputable that just as she ran away and went missing without notice she likewise re-appeared without notice. When a resident leaves the facility without authorization and returns, someone from the facility whether it was the medication person, Gregory, the partner/manager, Herman Yunger, or a case manager would call the doctor to ask about medication (see Herman Yunger EBT tr at 55-63). Although Alisa Yunger was Seaview's sole case manager employee, there were four case managers at the time under a third-party vendor agreement with Postgraduate Center for Mental Health (hereinafter PCMH). At the time of the assault, Kathy from PCMH was Patient Lillia's case manager and allegedly stated to Plaintiff that Patient Lillia should not have been at Seaview, implying that she should not have been allowed re-entry after being missing (see Weston Pinillos EBT April 3, 2019 tr at 74, 79-80, 91). After an evaluation from the doctor, the case manager, Alisa Yunger, talks to the resident, and asks where the patient was, where the patient slept, and where the patient ate, how they were feeling and whether they heard any voices (see Herman Yunger EBT tr at 68). Notably, Seaview partner/manager Herman Yunger testified that he did not know the duties of case managers except that Alisa Yunger wrote reports, yet their duties were fully delineated in the PCMH Agreement (see id. at 25-27; see also Hastie affirmation, exhibit U). However, not stated was when Alisa Yunger called the doctor, the nature of the conversation, the extent of the alleged evaluation by the doctor, what was the treatment plan, and whether medications had to be reevaluated. Moreover, not even was it stated, although it was testified to that there was one contracted psychologist that would visit all 124 patients twice a week, whether a medical doctor or psychiatrist was called in addition to a contracted psychologist 4 . A few days after Patient Lillia assaulted Plaintiff the police removed her from Seaview (see Herman Yunger EBT tr at 85). Plaintiff claims that as a result of her injuries, she terminated her employment with MZL.
It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact (Sillman v Twentieth Centurv-Fox Film Corp., 3 NY2d 395 ; Alvarez v Prospect Hosp., 68 NY2d 320 ). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; see also Giuffrida v Citibank, 100 NY2d 72 ). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers (Di Menna & Sons v City of New York, 301 NY 118 ). Where the court finds an existence of such an issue or where the issue may be so deemed “arguable” requires denial of summary judgment (Braun v Carey, 280 App Div 1019 [3d Dept 1952]; Barrett v Jacobs, 255 NY 520, 522 ). “Issue-finding, rather than issue-determination, is the key to the procedure” for the court (Esteve v Avad, 271 App Div 725, 727 [1st Dept 1947]; Gravenhorst v Zimmerman, 236 NY 22, 38-39 ). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 ). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404-05 ). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied (Moskowitz v Garlock, 23 AD2d 943 [3d Dept 1965]).
When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party and inferences that may be drawn therefrom must be accepted as true (Dykeman v Heht, 52 AD3d 767, 769, 861 NYS 2d 732 [2d Dept 2008]; see Pearson v Dix McBride, 63 AD3d 895, 883 [2nd Dept 2009]; Robinson v Strong Mem. Hosp., 98 AD2d 976 [4th Dept 1983]). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court's directing judgement in movant's favor as a matter of law notwithstanding sufficiency of opposition or lack thereof (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ). Once movant's burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible evidence, the existence of a material factual issue in dispute requiring a factfinder's determination at trial (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ; see also Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v Citv of New York, 49 NY2d 557 ). Opposition must “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse” for failure to so do (id. at 560; Pride Acquisitions LLC v Benson, 2012 NY Misc LEXIS 5839, 2012 NY Slip Op 33065 [U] [Sup Ct 2012]). Conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgement as a matter of law cannot be relied upon. Nor may opposition papers to rebut rely upon general overbroad allegations or mere immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial (Fileccia v Massapequa Gen. Hosp., 63 NY2d 639 ; Bustamonte v Koval, 98 AD2d 739 [2d Dept 1983]; Pan v Coburn, 95 AD2d 670 [1st Dept 1983]; Himber v Pfizer Labs., 82 AD2d 776 [1st Dept 1981]; Baldwin v Gretz, 65 AD2d 876 [3d Dept 1978]; Century Ctr. Ltd. v Davis, 100 AD2d 564 [2d Dept 1984]). Thus, where non-movant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation, or credibility then this issue of fact must be determined by the factfinder either by judge or jury precluding summary judgement (Moskowitz v Garlock, 23 AD2d 943, 259 NYS 2d 1003 [3d Dept 1965]).
DUTY OF CARE
In this instant matter, Seaview argues the absence of the lynchpin cornerstone threshold element to establish a cause of action in negligence, to wit, a legally cognizable duty of care to Plaintiff. More so precisely, whether by a preponderance of the evidence, under the fact circumstances presented by movant Seaview in the light most favorable to the non-movant Plaintiff, is established a duty of care to Plaintiff by conduct of Defendant's Patient Lillia. It is well-established law, the general rule of third person duty of care does not impose a duty to control the conduct of a third person assaulter or bad actor, even if defendant could have exercised a certain level of control over that third person assaulter (Stephen v State of New York, 133 AD3d 740, 741-742, 19 NYS 3d 585, 586-587, 2015 NY App Div LEXIS 8505, *2-3, 2015 NY Slip Op 08403, 1-2 [2d Dept 2015], citing Citera v County of Suffolk, 95 AD3d 1255, 1258, 945 NYS2d 375 , quoting Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8, 526 NE2d 4, 530 NYS2d 513 ; see Davis v South Nassau Communities Hosp., 119 AD3d 512, 514, 989 NYS2d 500 , lv granted 24 NY3d 905, 995 NYS2d 714, 20 NE3d 660 ). This rule is rooted in the court's reluctance to so expand liability to limitless levels for bad acts by third persons. “ ‘[J]udicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another’ ” (Malone v County of Suffolk, 128 AD3d 651, 652-653, 8 NYS 3d 408, 410, 2015 NY App Div LEXIS 3777, *3-4, 2015 NY Slip Op 03811, 2 [2d Dept 2015], citing Zane v Corbett, 82 AD3d 1603, 1611, 919 NYS2d 625 , quoting Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 233, 750 NE2d 1055, 727 NYS2d 7 ).
Despite its public policy reluctance, courts have nevertheless imposed a duty of care for liability by third person bad actors:
“ ‘where there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons’ that courts have identified a duty to exercise such control. Thus, courts have imposed a duty to control the conduct of others ‘where there is a special relationship: a relationship between [the] defendant and [the] third person whose actions expose [the] plaintiff to harm such as would require [the] defendant to protect the plaintiff from the conduct of others’ ”
(id. quoting Malave v Lakeside Manor Homes for Adults, Inc., 105 AD3d 914 at 915-916 [2d Dept 2013]). However, the courts in so doing have relied on fact intensive analysis as well as the impact of its decisions on the expansion of liability for actions of third-person bad actors 5 . There is “no bright line rule” (Doe v Langer, 206 AD3d 1325, 1329, 171 NYS 3d 594, 598, 2022 NY App Div LEXIS 3864, *7-8, 2022 NY Slip Op 03957, 3-4, 2022 WL 2162749 [3d Dept 2022], citing Rivera v New York City Health & Hosps. Corp., 191 F Supp 2d 412, 419 [SDNY 2002]). The courts have rather analyzed the facts as presented on a case-by-case basis to determine whether defendant has the necessary sufficient authority or ability to exercise the requisite control over third-person bad actor's conduct, such that would establish a special relationship with third-person bad actor thereby establishing such a duty (see id.).
Here, Seaview's motion for summary judgment premised upon the lack of duty of care to personally injured Plaintiff by the assault by its Patient Lillia is indeed a fact intensive inquiry, differing slightly from the general summary judgment standard. In depth analysis is required of the relevant and pertinent facts establishing the nature and extent of Seaview's control, power and authority over assaulting Patient Lillia as set forth by affiants and deponents with personal knowledge: Plaintiff; Seaview's LLC partner/manager Herman Yunger; Herman Yunger's wife as its sole employed case manager Alisa; and Desiree, the former MZL, LLC employed supervisor who allegedly witnessed the assault, aided Plaintiff after the assault, completed MZL's incident report, allegedly drove Plaintiff home and who was thereafter hired away from MZL by Seaview. Defendants in Doe were third-person assaulter's sole mental health care provider and had knowledge of his mental health diagnosis showing no previous record of assault or violent behavior by him (id.). In the light most favorable to Plaintiff, the facts presented appear to establish that although being an ACF, Seaview was Patient Lillia's sole mental health care provider, overseer and monitor of her mental health care and status. It was Seaview's independently contracted psychologist who visited all its patients including Patient Lillia at Seaview twice a week. Similarly, to Doe, Seaview had full knowledge of Patient Lillia's mental health diagnosis and her treatment with psychiatric medications, which were provided to her by their designated medication distribution employee. Although allegedly not Patient Lillia's assigned PCHM case manager Kathy, who impliedly was not consulted upon her return, Seaview's authority and control over Patient Lillia's mental health status was further corroborated by Alisa Yunger's asking probing questions of Patient Lillia to assess her mental health status upon her return after being missing for a third of a year: did she hear voices and also calling Seaview's psychologist with very nebulous vague question as to what should be done upon Patient Lillia's return. Although Seaview partner/manager Herman Yunger testified as to an unfettered unconstrained fully autonomous mere quasi landlord/tenant (resident) relationship with Patient Lillia, such characterization is belied within the four corners of its contract of adhesion dated August 2, 2005 “Adult Care Facility Admission Agreement” (Herman Yunger affirmation, exhibit B). Rather, the mere use of the term “Admission” in and of itself conveys a connotation as some sort of allowed permission by Seaview not merely premised upon payment of money but by required health care status standards, therefore not as a mere paid residential housing agreement. The Admission Agreement provides: clause 1 - “supervision services”; clause 2 - “twenty-four hour supervision”; clause 3 — “case management services”; clause 4 — requires Patient Lillia to provide medical evaluation, updated annually and “more frequently if a change in condition warrants”; clause 5 — requires Patient Lillia to inform of “change in health status, physician or medications; clause 6 — Seaview reserves its authority to:
“1 ․ the operator may seek appropriate evaluation and assistance and may arrange for the transfer of a resident to an appropriate and safe location when a resident develops a communicable disease, medical or mental condition When the basis for transfer no longer exists, and the resident is deemed appropriate for placement in an adult home, he shall be readmitted․ 2․ in the event that a resident's behavior poses an imminent risk of death or serious physical injury to himself of others.”;
Clause 7 — Patient Lillia's social needs are to be reevaluated quarterly; clause 8 - Seaview reserves its authority to:
“Discharge and Transfers: When a resident exhibits symptoms of mental illness to a degree that constitutes a danger to himself or other residents, immediate arrangements shall be made for professional evaluations and, if necessary, transfer.”
(see id.). Clearly, Seaview exercised sufficient control, power, and authority over third-person Patient Lillia's conduct to establish the special circumstances exception to impose a duty of care upon Seaview for her assault against Plaintiff. Particularly, where Seaview in violation of its own protocols and procedures failed to truly vet and reevaluate her most likely altered mental health status as per clause 6, as well as quarterly evaluations as per clause 7, where she had run away and went missing without notice for a third of a year. It is foreseeable that an allegedly previously stabilized SSI mentally ill disabled Patient Lillia who runs away and goes missing without notice for a third of a year triggering police investigations as a missing person and returning just as she had left without any notice, that her mental health status may have so decompensated from lack of housing, food, doctor visits and psychiatric medications. It was incumbent on Seaview to exercise its due diligence to truly reevaluate her current state of mental illness prior to re-admitting Patient Lillia after being missing for a third of a year. It is also quite foreseeable, such decompensation could have caused her to hear voices as well as could have caused Patient Lillia to have failed to maintain a previously unblemished propensity to violence. The mere asking by Seaview case manager Alisa Yunger those probing questions in and of itself and her calling the psychologist to ask what to do further established such special circumstances in which Seaview exercised sufficient power and authority over Patient Lillia's assaultive conduct. Worth emphasizing, a Seaview employee was charged with dispensing medication to Patient Lillia which further bolsters a special relationship. Seaview's re-acceptance of Patient Lillia under the totality of the fact circumstances presented herein after being missing for a significant third of a year without full in-depth vetting of her current mental health status prior to re-admitting her was made at its peril and at Seaview's assumption of the risk as to any liability flowing therefrom. Notwithstanding Seaview's alleged lax policy and procedures for re-admitting runaway and missing patients without meaningful vetting, Patient Lillia as a runaway and being missing without notice for a significant third of a year time period should have triggered a fully vetted health status re-entry evaluation process by Seaview because of foreseeable likelihood of change in health status pursuant to clause 5 of its Admission Agreement. None of which was done here. Seaview scrupulously within its admissions, policies and procedures attempts to shield itself of liability which is absolutely within its corporate rights to so do, where some of the health care services are provided by third-party vendors such as home health care aides and nurses by MZL LLC, Plaintiff's employer, case managers by PCMH group as well as an independent psychologist by agreement. However, Seaview is overseeing, evaluating, and re-evaluating health care services provided by these quasi-health care vendors at its facility. Likewise, the Admission Agreement charges Seaview with the duty to provide 24-hour supervision of Patient Lillia, which includes her conduct within its facility. Seaview had a duty of care running directly to Plaintiff as a home health care aide that renders services to its patients at its facility, to maintain a safe environment for her to render those services free from assault. It was foreseeable that Seaview's failure to have fully vetted the mental health status of Patient Lillia before re-entry may have allowed a decompensated ticking time bomb to be unleashed causing her to unprovokedly from out of nowhere assault Plaintiff from behind but a mere 11 days after her return.
For the foregoing reasons, This Court finds as a matter of law that Defendant Seaview failed to satisfy its prima facie burden by a preponderance of the evidence, that it did not owe a duty of care for the assault by its third-person Patient Lillia against the Plaintiff allegedly causing personal injuries. Defendant Seaview had a duty to protect Plaintiff from third-person assault by its Patient Lillia. Whether that duty of care was breached presents triable issues of fact to be determined at trial. Consequently, Defendant Seaview's motion to dismiss pursuant to CPLR 3212 is hereby DENIED.
This constitutes the opinion, decision, and order of This Honorable Court.
1. ACFs provide long-term, non-medical residential services to adults who are substantially unable to live independently due to physical, mental, or other limitations associated with age or other factors. Residents must not require the continual medical or nursing services provided in acute care hospitals, in-patient psychiatric facilities, skilled nursing homes, or other health related facilities, as Adult Care Facilities are not licensed to provide for such nursing or medical care. However, there are three types of ACFs with varying levels of responsibilities and control premised upon additional certifications pursuant to Title 18 NYS Social Services Law (see 18 NYCRR 487-488, 490, 494).
2. The persons cared for in this ACF have been referred to interchangeably as residents and/or patients at various times (see EBT of Weston-Pinillos tr at 68-72).
3. Plaintiff testified that Defendant's partner/manager Yunger would directly instruct and order her to clear the smoking room at times, evidencing a certain level of authority over Plaintiff, notwithstanding her employment with Defendant's third-party vendor, MZL (see id. at 59-61).
4. Psychiatrists are licensed to prescribe medications. Whereas “any individual whose license or authority to practice derives from the provisions of this article shall be prohibited from: 1. prescribing or administering drugs as defined in this chapter as a treatment, therapy, or professional service in the practice of his or her profession; or 2. using invasive procedures as a treatment, therapy, or professional service in the practice of his or her profession. For purposes of this subdivision, ‘invasive procedure’ means any procedure in which human tissue is cut, altered, or otherwise infiltrated by mechanical or other means. Invasive procedure includes surgery, lasers, ionizing radiation, therapeutic ultrasound, or electroconvulsive therapy (Education Law § 7606).
5. “The Duty Equation. The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff? Courts traditionally ‘fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability’ (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232, 750 NE2d 1055, 1060, 727 NYS 2d 7, 12 , quoting Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 586 ; see also, Strauss v Belle Realty Co., 65 NY2d 399, 402-403 ). Thus, in determining whether a duty exists, ‘courts must be mindful of the precedential, and consequential, future effects of their rulings, and ‘limit the legal consequences of wrongs to a controllable degree’ ” (id., quoting Lauer v City of New York, 95 NY2d 95, 100 , quoting Tobin v Grossman, 24 NY2d 609, 619 ).
Sandra E. Roper, J.
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