Leichter v. Cambridge Dev., LLC

• Decision Date: 20 December 2011
• Citation: 2011 N.Y. Slip Op. 09199,90 A.D.3d 557,935 N.Y.S.2d 291
• Parties: Frances LEICHTER, as executrix of the Estate of Solomon Rapoport, Plaintiff–Appellant, v. CAMBRIDGE DEVELOPMENT, LLC, etc., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09199
90 A.D.3d 557
935 N.Y.S.2d 291

Frances LEICHTER, as executrix of the Estate of Solomon Rapoport, Plaintiff–Appellant,
v.
CAMBRIDGE DEVELOPMENT, LLC, etc., et al., Defendants–Respondents.

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

Dec. 20, 2011.

[935 N.Y.S.2d 292]

Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for appellant.

Ruffo Tabora Mainello & McKay, P.C., Lake Success (Damien Bielli of counsel), for Cambridge Development, LLC, respondent.

Havkins Rosenfeld Ritzert & Varriale LLP, Mineola (Mark J. Volpi of counsel), for The Avondale Group, Inc., respondent.SAXE, J.P., CATTERSON, MOSKOWITZ, ACOSTA, RENWICK, JJ.

[90 A.D.3d 558] Order, Supreme Court, New York County (Jane S. Solomon, J.), entered on or about December 18, 2009, which, in this personal injury action, granted defendants' motions for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

Solomon Rapoport, who was diagnosed as having mild to moderate Alzheimer's disease, was a resident of defendant Atria, an independent senior living facility. Rapoport slipped and fell while running in Atria's lobby. Defendant Avondale is a home care service company that plaintiff retained to provide medication management services for Rapoport. Plaintiff, Rapoport's daughter and executrix of his estate, alleges, among other things, that Atria and Avondale negligently supervised and controlled Rapoport.

Defendants made a prima facie showing of entitlement to judgment as a matter of law because they owed no duty to Rapoport. We note that generally, there is no common-law duty to protect an adult from his own risky behavior ( see e.g. Stanislav v. Papp, 78 A.D.3d 556, 911 N.Y.S.2d 60 [2010]; Egan v. Omniflight Helicopters, 224 A.D.2d 653, 639 N.Y.S.2d 77 [1996] ).

In opposition to defendants' motions for summary judgment, plaintiff failed to raise an issue of fact. Plaintiff, relying on Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [1992], argues that a common-law

[935 N.Y.S.2d 293]

duty arose based upon the nature of the parties' relationship. However, unlike the facts of Sommer, plaintiff failed to adduce any evidence that either defendant agreed, in contract or otherwise, to perform the type of monitoring and supervision of Rapoport that plaintiff alleges. The record reflects that Atria offered only housing, meals, and the...