x. T. GROUP and. Defendants.

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU x. JOSEPH 1. CA V ANAUGH, by his Parents and Natural Guardians, LISA A. CAVANAUGH and DONALD P. CA V ANAUGH, and LISA A. CA V ANAUGH and DONALD P. CAVANAUGH, individually, Plaintiffs MICHELE M. WOODARD -against- DAVID JACOB MANFREE, NEW AGE THERAPY, INC. NORTH SHORE CENTRAL SCHOOL DISTRICT JAY SILVERSTEIN, NORTH SHORE T. GROUP and ANNE GOLDMAN a/k/a ANN GOLDBERG TRIAL/IAS Part 18 Index No. : 18123/03 Motion Seq. No. : 01 DECISION & ORDER Defendants x Papers Read in this Motion: Defendants New Age Therapy, Inc., North Shore Central School District and Jay Silverstein s Notice of Motion for Summary Judgment Plaintiffs ' Supplemental Affirmation in Opposition Plaintiffs' Affirmation in Opposition to Defendants New Age Therapy, Inc., North Shore Central School District and Jay Silverstein s Motion for Summary Judgment and in Support of the Cross-Motion for Outstanding Discovery Defendants New Age Therapy, Inc., North Shore Central School District and Jay Silverstein s Reply Affirmation Defendants New Age Therapy, Inc., North Shore Central School District and Jay Silverstein s Supplemental Reply Affirmation in Response in to the Court' s Order Defendants New Age Therapy, Inc., North Shore Central School District and Jay Silverstein s Second Supplemental Reply Affirmation in Response to the Court' s Order Defendants NEW AGE THERAPY, INC., hereinafter referred to as " NEW AGE", NORTH SHORE CENTRAL SCHOOL DISTRICT, hereinafter referred to as the "SCHOOL DISTRICT" Page 1 of 13

2 and JAY SILVERSTEIN, hereinafter referred to as "MR. SILVERSTEIN", move for Summary Judgment pursuant to CPLR granting Summary Judgment dismissal of plaintiffs ' JOSEPH J. CAVANAUGH, hereinafter referred to as "JOSEPH" or "INFANT", and his parents, LISA A. CA V ANAUGH and DONALD P. CAVANAUGH, hereinafter referred to as MR. CA V ANAUGH" and "MRS. CAVANAUGH", respectively, Complaint. This Court notes at the outset that the discovery portion of the original motions have been resolved by previous Court Order and agreement of the parties (see also Supp. AjJ In Opp. 12). This action arises as a result of an accident that occurred at the plaintiffs ' residence on Februar Plaintiffs' allege that defendant, DAVID JACOB MANFREE, hereinafter referred to as "MR. MANFREE", an occupational therapist, while providing then five year-old JOSEPH, with home instruction, negligently and recklessly spun the INFANT causing him to become dizzy, lose his balance, fall, strike his head and sustain severe injuries, including a seizure disorder. JOSEPH is a handicapped child with sensory integration disorder. As such, he required preschool special education services from the SCHOOL DISTRICT. In response to the INFANT's special needs, the SCHOOL DISTRICT determined that JOSEPH qualified for home bound services. MR. SILVERSTEIN, an employee of the SCHOOL DISTRICT, was the Special Education Director for the SCHOOL DISTRICT from July 2001 until his resignation on April 25, 2003 (see Motion Ex. E). MR. SILVERSTEIN was the Director of the Committee on Special Education, or CSE, which encompassed the Committee on Preschool Special Education, or CPSE. He was also the supervisor of the INFANT's Individual Education Program, or IEP, at the Page 2 of 13

3 time of this incident and prior thereto. The SCHOOL DISTRICT contracted with NEW AGE, a staffing agency, to inter alia provide clinical supervision to... all therapists providing therapy services to School (DistrictJ students (Motion Ex. F (Agreement for Therapy Services J ~3. 1 (c)); "orient(j and train Therapists in the applicable policies and procedures of the School" (~3.1 (e)); and "ensure that each therapist provides therapy services to students in accordance with the accepted standards of his/her profession, the code of ethics of his/her professional association, the relevant statutes for the State of New York, the federal statutes and regulations applicable to the school, the applicable policies and standards for school and the child' s IEP", (~3. 1 (fj). On or about December 12, 2002, approximately three months after MR. MANFREE began treating the INFANT, NEW AGE entered into a one year independent contractor agreement with MR. MANFREE to provide physical and occupational therapy services to patients of NEW AGE (Motion Ex. I (NEW AGE - MR. MANFREE Agreement)). The terms of the contractual agreement between NEW AGE and MR. MANFREE provided inter alia that MR. MANFREE was required to provide his personal services as an occupational therapist to NEW AGE' s patients including the students of the SCHOOL DISTRICT; that MR. MANFREE carr his own professional liability insurance; that neither party intended their relationship to be an employer-employee relationship; and that MR. MANFREE would not receive a W- 2 Form and would not be listed as an additional insured on NEW AGE' s comprehensive liability policies (ld). NEW AGE' s contract with MR. MANFREE also provided, in pertinent part, that: "(tjhe occupational therapy services furnished by the contractor wil be based on accepted modalities of treatment and professional standards, and include, but not be limited to...documenting progress and Page 3 of 13

4 patient status no less than every 30 days, and handed in to supervising therapist" (ld., 2). From September 30, 2002 until February 27, 2003, JOSEPH was cared and treated for twice a week in his home by MR. MANFREE. It is undisputed that at no time during which MR. MANFREE provided occupational therapy to JOSEPH did MR. and MRS. CA V ANAUGH or anyone else make any complaints or give any notice to any of the defendants as to the quality, competency, safety or dangerous propensity of the therapy provided by MR. MANFREE. An incident report submitted and signed by MR. MANFREE stated: On the afternoon of February 27th, JOSEPH was working in his bedroom with the OT. JOSEPH was performing a multi-sensory activity involving item retrieval (pushpins) while "crab walking JOSEPH was being rewarded for following directions and performing "good listening, (a phrase regularly used when working with children to praise them for good listening performance). JOSEPH' s reward was receiving rotational sensory stimulus. OT normally provides sensory input to JOSEPH in a number of ways during OT sessions (see Motion Ex. P). Pursuant to the incident report, upon completion of each rotational reward MR. MANFREE insured JOSEPH regained his balance by checking for "post rotary nystagmus (eye-bounce). Upon completion of the third reward, after ensuring JOSEPH regained his balance MR. MANFREE took two steps away from JOSEPH to set up the next therapy item. Per the incident report, JOSEPH spontaneously began to spin by himself and fell hitting his head on the side of his bed. On the date of the accident, MRS. CAVANAUGH was also at home for the INF ANT's therapy session, albeit in another room at the time of the accident. MR. and MRS. MANFREE commenced this action on December As against the moving defendants the SCHOOL DISTRICT, NEW AGE and MR. SILVERSTEIN, plaintiffs Page 4 of 13

5 allege that their negligence included: spinning the INFANT in an area that was not protected; causing the INFANT to become dizzy, lose his balance, fall and strike his head, neck and mastoid; failing to exercise reasonable care and professional judgment to prevent the injuries to the INF ANT plaintiff; failing to provide adequate and proper supervision; failing to ensure that the treating therapist had proper credentials to provide home therapy services; providing inappropriate and improper therapies in the home setting; not following the individual plan set forth for the INF ANT; failing to provide adequate supervision of the program that was being undertaken by the occupational therapist; negligence in employing the services of MR. MANFREE who did not have enough experience to be working in the home of the INFANT; and negligently hiring, employing, supervising, monitoring, training and placement of the defendant, MR. MANFREE (see Motion Ex. C, ~2, (Verified Bil of Particulars)). Upon the instant application, defendants NEW AGE, the SCHOOL DISTRICT and MR. SILVERSTEIN, move for Summary Judgment dismissal of plaintiffs' Complaint predicated on the contentions that inter alia (1) plaintiffs have failed to establish the necessary elements for negligent hiring - that is, that the employers knew of employees' propensity to cause har and that the employer s failure to use reasonable care in the hiring and retaining the employee; (2) NEW AGE, a staffng agency, was under no obligation to monitor the methods or manner of professional services delivered by independent contractors, unless it had notice of any propensity for harm; and (3) an independent contractor relationship existed between NEW AGE and MR. MANFREE and employers are not responsible for the negligent acts of the independent contractors. Upon the instant motion, defendants the SCHOOL DISTRICT, NEW AGE and MR. SILVERSTEIN, seek Summary Judgment dismissal of plaintiffs' Complaint. Summar Page 5 of 13

6 Judgment is the procedural equivalent of a Trial see Capelin Assoc. Inc. Globe Mfg. Corp., 34 NY2d 338 (1974 J. It is a drastic remedy that wil only be granted when the proponent establishes that there are no triable issues of fact see Alvarez Prospect Hosp. 68 NY2d 320 (1st Dept 1986)). Once the party seeking Summary Judgment has made aprimafacie showing of entitlement to Judgment as a matter of law, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact, or demonstrate an acceptable excuse for its failure to do so see Alvarez v. Prospect Hosp., supra; Zuckerman City of New York 49 NY2d (1st Dept 1980). Mere conclusions, expressions of hope or unsubstantiated allegations are insuffcient see Zuckerman v. City of New York, supra. Here, defendants the SCHOOL DISTRICT, NEW AGE and MR. SILVERSTEIN, have established their prima facie entitlement to Judgment as a matter oflaw dismissing the plaintiffs Complaint, including their Causes of Action alleging negligent hiring and negligent supervision. In instances where an employer canot be held vicariously liable for an employee s torts, the employer can stil be held liable under theories of negligent hiring and negligent supervision see Kenneth R. v. Roman Catholic Diocese of Brooklyn 229 AD2d 159 (2d Dept 1997), cert. denied 522 US 967, (1997). A Cause of Action for negligent hiring is centered on the adequacy of the employer pre-employment investigation of the employee s background see Sandra M v. St. Luke s Roosevelt Hosp. Center 33 AD3d 875 (2d Dept 2006); T W v. City of New York 286 AD2d 243 (1st Dept 2001). To establish a prima facie case in an action based on negligent hiring or supervision of an employee for damages caused by an employee s tortious action, plaintiff must show that the employer knew or should have known that the employee had a particular unfitness for the position Page 6 of 13

7 so as to create a danger of harm to third persons; that the particular unfitness was known or should have been known at the time of the employee s hiring; and, that this particular unfitness proximately caused plaintiff's injury, see Sandra M v. St. Luke s Roosevelt Hosp. Center, supra. Thus, clearly, not only is it necessary that the employer know or should have known of the employee s propensity for the conduct which caused the injury, see Well v. Rambam 300 AD2d 580 (2d Dept 2002); State Farm Ins. Co. v. Central Parking Sys., Inc. 18 AD3d 859, 860 (2d Dept 2005); Kenneth R. v. Roman Catholic Diocese of Brooklyn, supra but it is equally important that there exists an employer-employee relationship in the first place see e. g. In re New York City Asbestos Litigation 5 NY3d 486 (1st Dept 2005) citing Hamilton v. Beretta US.A. Corp., 96 NY2d 222, 232 (2001). In support of their motion herein, the moving defendants have submitted suffcient evidence that the tortfeasor, MR. MANFREE, was not an employee of the defendants, rather he was an independent contractor. Under the terms of the contractual agreement between NEW AGE and MR. MANFREE, MR. MANFREE was clearly not an employee of NEW AGE, the SCHOOL DISTRICT or MR. SILVERSTEIN (see Motion, Ex. I (NEW AGE- MANFREE Agreement) In fact, plaintiffs concede that the contractual agreement between NEW AGE and MR. MANFREE was set up as an independent contractor agreement and that MR. MANFREE was, in fact, an independent contractor (see Supp. Aff. In Opp. ~20). Where the tortfeasor s status as an employee is at issue, as in this case, it is necessary that the plaintiff prove an employer-employee relationship between the defendant and the tortfeasor see In re New York City Asbestos Litigation, supra. The question of whether an employer-employee relationship exists is one of fact and depends on whether there is evidence of Page 7 of 13

8 either control over the results achieved or over the means used to achieve those results see Matter of Rivera (State Line Delivery Servo -Roberts), 69 NY2d 679, 682 (3d Dept 1986). Based on the oral testimony of MR. MANFREE, it is abundantly clear that the SCHOOL DISTRICT, NEW AGE and MR. SILVERSTEIN never had any control of the methods and means by which work was performed by the professionally licensed occupational therapists (see Motion Ex. 0 (MR. MANFREE' s EBT), pp. 63-, 87). The methods and means of work performed by MR. MANFREE fell exclusively under the professional judgment of the licensed independent contractor, MR. MANFREE. MR. MANFREE testified that he never told anyone at NEW AGE that he was utilizing rotational sensory stimulus or circular movement when he was doing occupational therapy work at the plaintiffs' home (see MR. MANFREE' S EBT, p. 87). In addition, defendants the SCHOOL DISTRICT, NEW AGE and MR. SILVERSTEIN have also submitted sufficient evidence on their motion that they exercised reasonable care in the selection ofmr. MANFREE as an independent contractor assigned to the CA V ANAUGHS. Generally, an employer of an independent contractor is not liable for any injury or harm caused to a third part by an act or omission of the independent contractor or one of its employees; however an employer is not relieved of its obligation and duty to exercise reasonable care in the selection of an independent contractor that is not incompetent or unqualified, in the first place see Kleeman Rheingold 81 NY2d 270 (1993); Zelen V. City of Saratoga Springs 187 AD2d 818 (3d Dept 1992); Acevedo V. Audubon Management, Inc. 280 AD2d 91 (1st Dept 2001). There are two necessary elements to establish a negligent hiring and negligent supervision claim: (1) a showing that the employer knew of the employee s propensity to cause harm; and (2) the employer s failure to use reasonable care in hiring the employee. In this case, defendants have Page 8 of 13

9 proffered suffcient evidence that neither the SCHOOL DISTRICT nor NEW AGE knew, or otherwise had reason to know, of any propensity that the independent contractor, MR. MANFREE might cause harm that would support plaintiffs' claims herein for negligent hiring or negligent supervision. In addition, defendants have also demonstrated that they used reasonable care in engaging MR. MANFREE as an independent contractor. First, it is undisputed that from September until February MR. MANFREE provided occupational therapy services to the INFANT at the plaintiffs' residence twice a week. Moreover, during that time, plaintiffs made no complaints to the SCHOOL DISTRICT or to NEW AGE as to the quality, safety or competency of the occupational therapy provided by MANFREE. Plaintiffs made no complaints as to the propensity of MR. MANFREE to cause harm. Second, NEW AGE, in accordance with its routine procedures, performed license verifications and FBI backgrounds checks for all potential therapists. At her examination before trial, Kim Olenick, an employee of NEW AGE, hereinafter referred to as "Ms. Olenick", testified that NEW AGE' s routine license and FBI fingerprint and background check was performed during the MR. MANFREE' s hiring process (see Motion, Ex. J (Olenick EBT) pp ). She also confirmed that no irregularities or negative information was revealed during NEW AGE' s review ofmr. MANFREE' s background credentials and that a file was created for MR. MANFREE which was subsequently used to assign him to the CA V ANAUGHs (Id. pp. 17, et. seq). In light of defendants, SCHOOL DISTRICT, NEW AGE and MR. SILVERSTEIN' showing of entitlement to Judgment as a matter of law, the burden shifts to the plaintiffs, as the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish Page 9 of 13

10 the existence of material issues of fact requiring a trial see Alvarez v. Prospect Hosp. 68 NY2d 320 (1 st Dept 1986). In opposition, plaintiffs simply fail to raise a triable issue of fact see Zuckerman v. City of New York, supra. Plaintiffs fail to offer any competent evidence to indicate that the defendants SCHOOL DISTRICT, NEW AGE or MR. SILVERSTEIN, knew of MR. MANFREE' s propensity to cause harm; that they failed to use reasonable care in hiring or supervising MR. MANFREE; that, as a result of the fact that they had no notice of any propensity of MR. MANFREE to harm they were under no obligation to monitor the methods or maner of professional services delivered by an independent contractor; or that the acts of the independent contractor, MR. MANFREE, were at the direction of or within their custody or control see Johnson v. Lord Taylor 2006 WL (lst Dept 2006). In opposing defendants' motion, plaintiff rely very heavily upon an Affidavit of defendant herein, ANNE GOLDBERG, hereinafter referred to as "MS. GOLDBERG", who proclaims to be an expert in the field of occupational therapy. In her expert opinion, MS. GOLDBERG, states (b)ased upon a reasonable degree of Occupational Therapy certainty... the defendants were negligent and deviated from proper and accepted standards of Occupational Therapy in the Community of Nassau County by allowing the defendant MR. MANFREE to practice Occupational Therapy in a home setting without at least one year of post graduate experience and that this negligence led to the improper spinning performed by the defendant MR. MANFREE" (Afjin Opp. Ex. R, ~4). In accordance with earlier motion practice which was before this Court, MS. GOLDBERG ten months after she executed her Affdavit, presented for an Oral Examination before trial in Page 10 of 13

11 October, At her deposition, MS. GOLDBERG stated that she made a mistake in regard to the timing of the employment of MR. MANFREE so that at the time that the incident occurred MR. MANFREE had completed one year of supervised clinical work in the offce and/or the school setting prior to the date of plaintiffs' accident, February (see Goldberg EBT 38). In relying on MS. GOLDBERG' s Affidavit, plaintiffs maintain that the therapy that was being used by MR. MANFREE was not an occupational therapy modality, but, at best, play. Plaintiffs argue that the therapy of spinning is only to be used in a clinical setting in a protected area and that the agencies providing occupational therapy services are to provide supervision and in service training for their employees or independent contractors. Plaintiffs further argue that while it is true that the contractual agreement between NEW AGE and MR. MANFREE identifies MR. MANFREE as an independent contractor, that does not, in and of itself, confirm his position as such. Plaintiffs maintain that in this case, the SCHOOL DISTRICT had a duty and an obligation to provide the occupational therapy services to the INFANT plaintiff and that such duty to provide such services was non-delegable. Plaintiffs maintain that since they had nothing to do with the selection process of MR. MANFREE and were merely only aware that the services were to be provided by the SCHOOL DISTRICT, they properly presumed that MR. MANFREE was acting on behalf of the SCHOOL DISTRICT. First, this Court cannot overlook the fact that while the plaintiffs rely primarily upon MS. GOLDBERG' s Affidavit, at her EBT, she clarified that her "expert" Affdavit was prepared by plaintiff's Counsel and she signed it after " glancing" over it (see Goldberg EBT, p. 34). Moreover, she testified that the community standards referred to within her Affdavit are not Page 11 of 13

12 pp. written anywhere and are merely her perceptions of conversations with other occupational therapists (ld. pp ). Second, MS. GOLDBERG testified that she operated two occupational therapy organizations on Long Island and that MR. MANFREE was one of the occupational therapists she hired. She stated at her EBT that while in her employ, MR. MANFREE had obtained experience with children with sensory integration dysfunction (see Goldberg EBT, p. 17); specifically, MR. MANFREE performed handwriting, perceptual skills, fine motor skils and activities of daily living therapy while under the supervision and employ of MS. GOLDBERG (ld. p. 25). She also testified that she did not personally supervise MR. MANFREE and that she personally did not know the state s parameters for supervision (ld ). She further stated that, to the best of her knowledge, there are no license restrictions on occupational therapists regarding home care (ld. p. 49). Third, even if this Court was to afford some credence to MS. GOLDBERG' s Affidavit, the facts of this case are such that MR. MANFREE, who began working for NEW AGE in September of 2002, had over one year of post-graduate experience and, accordingly, was qualified by MS. GOLDBER' s own expert standards. Based on the foregoing, it is abundantly clear that MS. GOLDBERG' s Affidavit submitted in opposition clearly contradicts her subsequent deposition testimony and appears to have been tailored to avoid Summary Judgment by alleging issues of fact. Clearly, it is insufficient to raise a triable issue of fact see Marcelle v. New York City Transit Authority, 289 AD2d 459 (2d Dept 2001); see also Nieves v. Iss Cleaning Servs. Group, 284 AD2d 441 (2d Dept 2001); Buziashvil Ryan 264 AD2d 797 (2d Dept 1999). Page 12 of 13

13 ~~~~ In the absence of plaintiffs ' ability to otherwise raise an issue of fact showing that the moving defendants had any prior knowledge of the forseeable harm to be caused by MR. MANFREE, or notice for the propensity of a dangerous conduct which caused injur to the INF ANT this Court herewith GRANTS defendants SCHOOL DISTRICT, NEW AGE and MR. SILVERSTEIN' s motion for Summary Judgment dismissal of plaintiffs ' Complaint against them. This constitutes the DECISION and ORDER of the Court. DATED: May 10, 2007 Mineola, N. ENTE.A; HON. MICHELE M. WOODARD -'(t.1i OI'I'- Page 13 of 13