Santoro v. Poughkeepsie Crossings, LLC, 2018–00002

• Decision Date: 11 December 2019
• Docket Number: Index No. 52070/16,2018–00002
• Citation: 180 A.D.3d 12,115 N.Y.S.3d 368
• Parties: Sandra SANTORO, etc., Plaintiff, v. POUGHKEEPSIE CROSSINGS, LLC, Defendant Third-Party Plaintiff-Respondent; Sandra Santoro, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 12
115 N.Y.S.3d 368

Sandra SANTORO, etc., Plaintiff,
v.
POUGHKEEPSIE CROSSINGS, LLC, Defendant Third-Party Plaintiff-Respondent;

Sandra Santoro, Third-Party Defendant-Appellant.

2018–00002
Index No. 52070/16

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

Argued—May 24, 2019
December 11, 2019

Goldstein & Goldstein, LLP, Poughkeepsie, N.Y. (Paul J. Goldstein of counsel), for third-party defendant-appellant.

Simon Lesser P.C., New York, N.Y. (Leonard F. Lesser of counsel), for defendant third-party plaintiff-respondent.

WILLIAM F. MASTRO, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

HINDS–RADIX, J.

180 A.D.3d 14

At issue in this case is whether the defendant third-party plaintiff, Poughkeepsie Crossings, LLC (hereinafter the defendant), which owned and operated a residential health care facility, stated a cause of action against the third-party defendant, Sandra Santoro, for indemnification or contribution for injuries sustained by her mother, Inez J. Salvatore (hereinafter the decedent). We conclude that the defendant failed to state a cause of action against Santoro.

Santoro commenced the main action as executor of the decedent's estate, alleging that the defendant failed to provide adequate treatment to the decedent while she was a patient at its facility between March 17, 2015, and May 9, 2015, after her hospitalization for a heart attack. On March 30, 2015, while the decedent was a patient at the facility, she fell, fracturing several ribs and puncturing her lung. She was transferred back to the hospital and remained there for treatment until April 3, 2015, when she was returned to the defendant's facility. On May 9, 2015, the decedent was discharged to her home, where she had lived with Santoro since 1999. On May 12, 2015, the decedent fell at home while walking to a portable commode near her bed and fractured her hip. She was taken back to the hospital, where she underwent surgery. The decedent died on May 22, 2015, from septic shock, allegedly as the result of injuries she sustained in her fall at the defendant's facility on March 30, 2015.

In response to the main action commenced by Santoro, as executor of the decedent's estate, the defendant commenced a third-party action against Santoro, individually, seeking common-law indemnification and contribution based upon Santoro's alleged negligent supervision of the decedent in failing to follow its discharge instructions. The defendant alleged that Santoro failed to install a monitoring system in her house and to arrange for 24–hour care, seven days a week, contrary to the defendant's "clear and explicit instructions as to how to best care for the Decedent." The defendant further alleged that the cause of the decedent's death was septic shock resulting from C. difficile colitis, and that her death was in no way related to the fall on March 30, 2015, in its facility.

180 A.D.3d 15

The defendant moved to disqualify Santoro's counsel on the ground that counsel's continued representation of Santoro as the fiduciary of the decedent's estate and as a third-party defendant based upon her alleged failure "to properly supervise and control her frail mother in disregard of [the defendant's] discharge instructions which led to [the decedent's] most recent

115 N.Y.S.3d 372

fall and hospitalization (and eventual passing), represents an unwaivable concurrent conflict of interest."

Santoro cross-moved pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint for failure to state a cause of action, arguing that there is no cognizable claim for an adult child's failure to provide adequate supervision to a parent or other adult family member. She further contended that "the probability of later death, from causes for which the defendant was not responsible, is an element in fixing damages," and, therefore, the defendant could argue that the decedent's "death was either caused by or contributed [to] by the subsequent fall, without the need" to sue Santoro in a third-party action. In reply, the defendant asserted that Santoro breached a duty to the decedent which was not based upon a family relationship, but was, rather, a duty "that would have ordinarily been owed to any other person."

In an order dated December 5, 2017, the Supreme Court denied Santoro's cross motion to dismiss the third-party complaint, determining that there were issues of fact as to whether Santoro assumed a duty of care for the decedent upon the decedent's discharge from the defendant's facility in accordance with the discharge instructions and, if so, whether Santoro was negligent in her post-discharge care, and whether any such negligence caused or contributed to the death of the decedent. The question of whether Santoro's counsel should be disqualified was deferred for further consideration at a conference. Santoro appeals from so much of the order as denied her cross motion. The issue of her counsel's disqualification is not before this Court on the instant appeal.

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, " ‘the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Blum v. Citibank, NA, 162 A.D.3d 631, 632, 81 N.Y.S.3d 51, quoting

180 A.D.3d 16

Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70 ; see Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026, 93 N.Y.S.3d 353 ; Kliger–Weiss Infosystems, Inc. v. Ruskin Moscou Faltischek, P.C., 159 A.D.3d 683, 684, 73 N.Y.S.3d 205 ; SV Vernon 43, LLC v. Malik, 138 A.D.3d 730, 731, 30 N.Y.S.3d 136 ). "[H]owever, ‘allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration’ " ( Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d at 1028, 93 N.Y.S.3d 353, quoting Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 ; see Myers v. Schneiderman, 30 N.Y.3d 1, 11, 85 N.E.3d 57 ; Phillips v. Trommel Constr., 101 A.D.3d 1097, 1098, 957 N.Y.S.2d 359 ).

"[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is ‘a separate duty owed the indemnitee by the indemnitor’ " ( Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237, 681 N.E.2d 404, quoting Mas v. Two Bridges Assoc., 75 N.Y.2d 680, 690, 555 N.Y.S.2d 669, 554 N.E.2d 1257 ) to reimburse the indemnitee for damages the indemnitee was compelled to pay for the wrongdoing of the indemnitor (see Oceanic Steam Nav. Co. [Ltd.] v. Compania Transatlantica Espanola, 134 N.Y. 461, 468, 31 N.E. 987 ; see Board of Mgrs. of Olive Park Condominium v. Maspeth Props., LLC, 170 A.D.3d 645, 647, 95 N.Y.S.3d 344 ). " ‘[T]he predicate of common-law indemnity is vicarious liability

115 N.Y.S.3d 373

without actual fault on the part of the proposed indemnitee’ " ( Henderson v. Waldbaums, 149 A.D.2d 461, 462, 539 N.Y.S.2d 795, quoting Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc., 109 A.D.2d 449, 453, 492 N.Y.S.2d 371 ; see Dreyfus v. MPCC Corp., 124 A.D.3d 830, 3 N.Y.S.3d 365 ; Konsky v. Escada Hair Salon, Inc., 113 A.D.3d 656, 658, 978 N.Y.S.2d 342 ), that is, the "defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious" ( Balladares v. Southgate Owners Corp., 40 A.D.3d 667, 671, 835 N.Y.S.2d 693 ; see Board of Mgrs. of Olive Park Condominium v. Maspeth Props., LLC, 170 A.D.3d 645, 95 N.Y.S.3d 344 ). "In the ‘classic indemnification case,’ the one seeking indemnity ‘had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party’ " ( Glaser v. Fortunoff of Westbury Corp., 71 N.Y.2d 643, 646, 529 N.Y.S.2d 59, 524 N.E.2d 413, quoting D'Ambrosio v. City of New York, 55 N.Y.2d 454, 461, 450 N.Y.S.2d 149, 435 N.E.2d 366 ). Thus, if a party is liable "solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent" ( D'Ambrosio v. City of New York, 55 N.Y.2d at 462, 450 N.Y.S.2d 149, 435 N.E.2d 366 ). "Conversely,

180 A.D.3d 17

where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy" ( Glaser v. Fortunoff of Westbury Corp., 71 N.Y.2d at 646, 529 N.Y.S.2d 59, 524 N.E.2d 413 ).

Here, the defendant has not alleged any scenario under which it could be held vicariously or statutorily liable for any negligence of Santoro. Any liability for damages imposed upon the defendant for the decedent's injuries would be imposed upon it by virtue of its own conduct. Therefore, that branch of Santoro's cross motion which was to dismiss the third-party cause of action...