AUER v. AFFILIATED HOME CARE OF PUTNAM INC

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Supreme Court, Appellate Division, Second Department, New York.

Kathleen AUER, etc., respondent, v. AFFILIATED HOME CARE OF PUTNAM, INC., appellant.

Decided: June 23, 2009

ROBERT A. SPOLZINO, J.P., MARK C. DILLON, HOWARD MILLER, and THOMAS A. DICKERSON, JJ. Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, N.Y. (Robert D. Cook of counsel), for appellant. O'Neil & Burke, LLP, Poughkeepsie, N.Y. (Richard J. Burke, Jr., of counsel), for respondent.

In an action, inter alia, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 4, 2008, which denied its motion 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 judgment dismissing the complaint, as the defendant failed to establish its prima facie entitlement to judgment as a matter of law.   The plaintiff's decedent, who had multiple sclerosis, choked on a hotdog.   At the time of the incident, the defendant's employees, two home health care aides, were assigned to care for the decedent.   One of the aides unsuccessfully attempted to perform either the Heimlich maneuver or cardiopulmonary resuscitation on the decedent and called for an ambulance.   The decedent was taken to the hospital, where he died.   It is undisputed that the defendant was required to assist the decedent with feeding and that both of the aides were in another room when the decedent choked on the hotdog.  “Where a defendant is responsible for caring for an individual, the defendant's abandonment of that individual can result in liability” (Willis v. City of New York, 266 A.D.2d 207, 208, 697 N.Y.S.2d 656;  Reavey v. State of New York, 125 A.D.2d 656, 510 N.Y.S.2d 14).   There are triable issues of fact as to whether the defendant breached its duty of care to the decedent by leaving him unattended while he was eating (see Esposito v. Personal Touch Home Care, 288 A.D.2d 337, 733 N.Y.S.2d 468;  Reavey v. State of New York, 125 A.D.2d at 657, 510 N.Y.S.2d 14).

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