Sutherland v. Comprehensive Care Management Corp.

2017 NY Slip Op 7681, 155 A.D.3d 415, 62 N.Y.S.3d 800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2017
• Docket: 4877 303755/09
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about August 3, 2016, which, to the extent appealed from as limited by the briefs, denied the motions of defendants Joey Galito doing business as D&J Ambulette Service (D&J) and Health Acquisition Corp. formerly known as Allen Health Care Services, Inc. (HAC) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants’ motions for summary judgment were properly denied in this action where plaintiff’s decedent, who suffered from Alzheimer’s disease, was injured when she fell down the stairs in her home after being left unattended. Plaintiff alleges that defendants were negligent because after attending day care, the decedent was to be transported home by D&J and left in the care of an aide, who was employed by HAC. The record presents triable issues as to how the accident occurred, the resolution of which will require assessing the credibility of witnesses with conflicting testimony (see e.g. Nyala C. v Miniventures Child Care Dev. Ctr., Inc., 133 AD3d 467 [1st Dept 2015]; Sanchez v Finke, 288 AD2d 122 [1st Dept 2001]).

Concur— Tom, J.P., Renwick, Mazzarelli, Oing and Singh, JJ.