Marksamer v. Engel Burman Senior Hous. at Massapequa, LLC

• Decision Date: 08 May 2012
• Citation: 95 A.D.3d 963,2012 N.Y. Slip Op. 03607,944 N.Y.S.2d 595
• Parties: Lloyd MARKSAMER, etc., respondent, v. ENGEL BURMAN SENIOR HOUSING AT MASSAPEQUA, LLC, etc., appellant.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 963

944 N.Y.S.2d 595

2012 N.Y. Slip Op. 03607

Lloyd MARKSAMER, etc., respondent,

v.ENGEL BURMAN SENIOR HOUSING AT MASSAPEQUA, LLC, etc., appellant.

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

May 8, 2012.

Murphy & Higgins, LLP, New Rochelle, N.Y. (Andrew M. Harrison of counsel), for appellant.

Zwiebel & Fairbanks, LLP, Kingston, N.Y. (Jan Perlin of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Asarch, J.), entered June 23, 2011, as denied that branch of its motion which was for summary judgment dismissing the first cause of action alleging common-law negligence.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the first cause of action alleging common-law negligence is granted.

Jesse N. Marksamer (hereinafter the decedent) was a resident at the defendant's facility known as the Bristal Assisted Living at Westbury, which was licensed as an “enriched housing program” ( seeSocial Services Law § 2 [28]; 18 NYCRR 488.1 et seq.). On October 16, 2008, when the decedent was 91 years old, he joined three or four other residents on a bowling outing to South Levittown Lanes, accompanied by the assistant recreation director of the defendant's staff. While attempting to bowl, the decedent purportedly jogged to the line, lost his balance, fell, and fractured his hip. Deposition testimony established that, during his approximately three years residing at the defendant's facility, the decedent ambulated independently, was physically active, and often participated in dances, group exercise sessions, and outings. Other evidence indicated that the decedent had fallen on five occasions in 2006 and once in 2008 without significant injury, and had experienced increased confusion and forgetfulness in the spring of 2008. The decedent had participated in previous off-site bowling trips without incident, the most recent of which was on September 24, 2008, less than a month prior to the subject bowling trip.

In this action, the plaintiff alleges, inter alia, that the defendant was negligent in allowing the decedent to participate in the bowling outing and in failing properly to ensure his safety while bowling....