        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

483
CA 13-01986
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


VICTORIA SCHNORR, ADMINISTRATOR OF THE ESTATE
OF WALTER VAGA, DECEASED, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

EMERITUS CORPORATION, DOING BUSINESS AS BELLEVUE
MANOR, DEFENDANT-RESPONDENT,
ET AL., DEFENDANT.


ADORANTE, TURNER & ASSOC., CAMILLUS (ANTHONY P. ADORANTE OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

BONNER KIERNAN TREBACH & CROCIATA, LLP, NEW YORK CITY (KENNETH A.
SCHOEN OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered March 25, 2013. The order granted the
motion of defendant Emeritus Corporation, doing business as Bellevue
Manor, for summary judgment and dismissed the complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
and the complaint against defendant Emeritus Corporation, doing
business as Bellevue Manor, is reinstated.

     Memorandum: Plaintiff, as administrator of the estate of her
father (decedent), commenced this action seeking damages for personal
injuries allegedly inflicted upon decedent by a fellow resident at an
assisted living facility owned and operated by Emeritus Corporation,
doing business as Bellevue Manor (defendant). We agree with plaintiff
that Supreme Court erred in granting defendant’s motion for summary
judgment dismissing the complaint against it.

     Defendant, as the operator of an assisted living facility, had “a
duty to safeguard patients and residents, even from injuries inflicted
by third parties, ‘measured by the capacity of the patient [or
resident] to provide for his or her own safety’ ” (Dawn VV. v State of
New York, 47 AD3d 1048, 1050, quoting N.X. v Cabrini Med. Ctr., 97
NY2d 247, 252; see Williams v Bayley Seton Hosp., 112 AD3d 917, 918).
“This sliding scale of duty . . . does not render a [facility] an
insurer of patient safety or require it to keep each patient under
constant surveillance” (N.X., 97 NY2d at 253). Rather, “[a]s with any
liability in tort, the scope of a [facility]’s duty is circumscribed
by those risks which are reasonably foreseeable” (id.; see Piazza v
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                                                         CA 13-01986

Regeis Care Ctr., L.L.C., 47 AD3d 551, 553; see generally Mays v City
of Middletown, 70 AD3d 900, 902). Here, defendant owed a heightened
duty of care to decedent and other residents of the memory care unit
given the nature of their ailments, i.e., Alzheimer’s, dementia, and
memory loss (see Dawn VV., 47 AD3d at 1050).

     We conclude that the court erred in granting defendant’s motion
because defendant “failed to come forward with any proof to rebut
plaintiff[’s] allegations and merely focused on the claimed deficiency
in plaintiff[’s] proof” (Landahl v Chrysler Corp., 144 AD2d 926, 927;
see Borowski v Ptak, 107 AD3d 1498, 1499, appeal dismissed 21 NY3d
1036). In support of its motion, defendant repeatedly argued that
plaintiff “failed to satisfy [her] burden” of establishing a prima
facie case of negligence because of the “absence of proof[]” with
respect to duty, breach of duty, foreseeability, and proximate cause.
Those arguments are misplaced, however, because “defendant, not
plaintiff, moved for summary judgment and defendant cannot meet its
burden by relying on ‘claimed deficienc[ies] in plaintiff[’s] proof’ ”
(Borowski, 107 AD3d at 1499). Although plaintiff will bear the burden
of establishing defendant’s negligence at trial, “on this motion for
summary judgment, defendant has the burden of establishing its
entitlement to judgment as a matter of law” (Kimpland v Camillus Mall
Assoc., L.P., 37 AD3d 1128, 1128), and we conclude that defendant
failed to meet that burden (see generally id. at 1128-1129; Landahl,
144 AD2d at 927).

     Defendant concedes that there was an altercation between decedent
and another resident, and that such altercation resulted in decedent’s
injuries. With respect to the foreseeability of the resident’s
alleged conduct, “defendant[], as the part[y] seeking summary
judgment, bore the burden of establishing that the assault on
[decedent] was not foreseeable” (Brown v City of New York, 95 AD3d
1051, 1052). Defendant, however, “failed to submit any evidence to
show that [it] lacked knowledge of any danger presented by the
[resident],” and thus failed to establish its entitlement to judgment
as a matter of law (id.; see Navarra v Four Winds Hospital-
Westchester, 95 AD3d 850, 851, lv dismissed 19 NY3d 953). Although
defendant submitted an affidavit from the assistant director of the
facility, who averred that she was unaware of any prior altercation
between decedent and the resident at issue, notably absent from the
affidavit is an assertion that the assistant director was unaware of
any prior altercations or incidents between the resident at issue and
other residents, or that she lacked notice of the resident’s alleged
violent or aggressive tendencies (see Hranek v United Methodist Homes
of Wyo. Conference, 27 AD3d 879, 881; cf. Royston v Long Is. Med.
Ctr., Inc., 81 AD3d 806, 807; Liang v Rosedale Group Home, 19 AD3d
654, 655-656).

     Even assuming, arguendo, that defendant met its initial burden of
proof, we conclude that plaintiff raised an issue of fact with respect
to whether defendant had “notice of any prior similar incidents or
similar aggressive behavior by the [resident] such that it should have
anticipated the alleged incident and protected [decedent] from it”
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                                                         CA 13-01986

(Royston, 81 AD3d at 807; see Dawn VV., 47 AD3d at 1050-1051; cf.
McCreary v St. Luke’s-Roosevelt Hosp. Ctr., 80 AD3d 499, 500; Liang,
19 AD3d at 656). In opposition to the motion, plaintiff submitted,
inter alia, excerpts from defendant’s records relating to the resident
at issue, which arguably show a history of escalating, aggressive
conduct on his part. Plaintiff also submitted the affidavit of an
expert who opined, based upon his review of defendant’s records, that
defendant should have removed the resident from the facility well
before the alleged assault on decedent because “the series of physical
encounters with residents and staff prior to the time that he injured
[decedent] should have disqualified him as an appropriate resident of
a facility such as Bellevue Manor.”




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
