Opinion
4877, 303755/09.
11-02-2017
Ivan SUTHERLAND, as the Administrator of the Estate of Lillian Sutherland, Plaintiff–Respondent, v. COMPREHENSIVE CARE MANAGEMENT CORPORATION, Defendant, Joey Galito doing business as D & J Ambulette Service, et al., Defendants–Appellants.
Murphy Higgins & Schiavetta, PLLC, New Rochelle (Jody C. Benard Of counsel), for Joey Galito, appellant. Rivkin Radler LLP, Uniondale (Cheryl Korman of counsel), for Health Acquisition Corp., appellant. Dubow, Smith & Marothy, New York (Steven J. Mines of counsel), for respondent.
Murphy Higgins & Schiavetta, PLLC, New Rochelle (Jody C. Benard Of counsel), for Joey Galito, appellant.
Rivkin Radler LLP, Uniondale (Cheryl Korman of counsel), for Health Acquisition Corp., appellant.
Dubow, Smith & Marothy, New York (Steven J. Mines of counsel), for respondent.
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 d/b/a D & J Ambulette Service (D & J) and Health Acquisition Corp. f/k/a 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 A.D.3d 467, 18 N.Y.S.3d 863 [1st Dept.2015] ; Sanchez v. Finke, 288 A.D.2d 122, 733 N.Y.S.2d 387 [1st Dept.2001] ).
TOM, J.P., RENWICK, MAZZARELLI, OING, SINGH, JJ., concur.