Opinion
October 2, 1998
Appeal from the Supreme Court, Erie County, Mintz, J. — Summary Judgment.
Present — Pine, J. P., Hayes, Wisner, Balio and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint in this personal injury action. Kimberly Walker (plaintiff), a home health aide, alleged that she fell in the bathroom of defendant's home as the result of defendant's negligence. Defendant sought summary judgment on the ground that plaintiff was a special employee whose claim is barred by Workers' Compensation Law § 11 ( see, O'Rourke v. Long, 41 N.Y.2d 219). Defendant met her initial burden of establishing her entitlement to judgment as a matter of law, having averred that defendant exclusively directed and controlled plaintiff's work duties ( see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557-558). Plaintiff raised an issue of fact, however, concerning her characterization as a special employee by submitting proof that her duties and responsibilities were governed by the healthcare plan and that defendant could not instruct her to deviate from it ( see, Ozzimo v. H.E.S., Inc., 249 A.D.2d 912).
The argument of defendant that she is entitled to summary judgment on the ground that plaintiff was injured as the result of a dangerous condition that plaintiff had undertaken to correct is raised for the first time on appeal and is not properly before us.