State Farm Mut. Auto. Ins. Co. v. Klein

• Decision Date: 20 January 2021
• Docket Number: 2019–08428,Index No. 610153/17
• Citation: 140 N.Y.S.3d 541,190 A.D.3d 876
• Parties: STATE FARM MUTUAL AUTOMOBILE INS. CO., etc., plaintiff, v. Traci B. KLEIN, et al., defendants third-party plaintiffs-appellants; Recco Health Corporation, et al., third-party defendants-respondents.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 876

140 N.Y.S.3d 541

STATE FARM MUTUAL AUTOMOBILE INS. CO., etc., plaintiff,

v. Traci B. KLEIN, et al., defendants third-party plaintiffs-appellants;Recco Health Corporation, et al., third-party defendants-respondents.

2019–08428

Index No. 610153/17

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

Argued—June 12, 2020

January 20, 2021

Sette & Apoznanski (James G. Bilello, Hicksville, N.Y. [Alina Vengerov], of counsel), for defendants third-party plaintiffs-appellants.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael T. Reagan of counsel), for third-party defendants-respondents.

WILLIAM F. MASTRO, A.P.J., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In a subrogation action to recover certain damages paid by the plaintiff to its insureds, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Nassau County (Jerome C. Murphy, J.), entered June 13, 2019. The order granted the third-party defendants' motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this subrogation action to recover payments that it had made to its insureds, Susan Brocato and John Brocato, for property damage to their vehicle arising out of an accident involving John Brocato and the defendant third-party plaintiff Marie A. Michel, which had occurred in December 2016. At the time of the accident, Michel was employed as a caregiver for the defendant third-party plaintiff Traci B. Klein under the Medicaid program known as the Consumer Directed Personal Assistance Program (hereinafter CDPAP) (see Social Services Law § 365–f ; 18 NYCRR 505.28 ). After joining issue, Klein and Michel commenced a third-party action against the third-party defendants, Recco Health Corporation, Recco Home Care Service, Inc., and Recco Senior Companions Service, LLC (hereinafter collectively Recco), seeking, inter alia, indemnification based on the allegation that Recco, which serves as a fiscal intermediary under CDPAP, was Michel's employer at the time of the accident and vicariously liable under a theory of respondeat superior. Recco, which participates in CDPAP as a fiscal intermediary, joined issue and subsequently moved for summary judgment dismissing the third-party complaint on the ground that Michel was not its employee. In an order entered June 13, 2019, the Supreme Court granted Recco's motion. Klein and Michel appeal.

CDPAP is a Medicaid program designed to provide eligible customers significant control over their care by delegating to the customer, inter alia, the responsibility for recruiting, hiring, training, supervising, and terminating the caregiver of their choice (see Social Services Law § 365–f[3] ; 18 NYCRR 505.28 [g]). Fiscal intermediaries, such as Recco, contract with the New York State Department of Health to provide fiscal intermediary support services in order to facilitate the financial aspects of the relationship between CDPAP participants and their chosen caregivers, and to ensure compliance with the Medicaid Program and other state and federal employment laws (see Social Services Law § 365–f[4–a][a][i] ; 18 NYCRR 505.28 [b][6]). Fiscal intermediary services are limited by law and include wage and benefit processing for consumer directed personal assistants; processing income tax and other required wage withholdings; complying with workers' compensation, disability, and unemployment requirements; maintaining personnel records for the caregivers, including time records and other documentation needed for wages and benefit processing and a...