Opinion
No. 197 SSM 42.
Decided February 20, 2007.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered May 30, 2006. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Bronx County (Anne E. Targum, J), which had granted plaintiffs' motion for partial summary judgment on the issue of liability against defendant nursing home. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
Decedent nursing home patient allegedly sustained injuries while being transferred by the third-party defendant, an independent contractor/nurse's assistant, from the bed to a wheelchair or from the wheelchair to a shower.
Giandana v Providence Rest Nursing Home, 32 AD3d 126, reversed.
Fiedelman McGaw, Jericho ( James K. O'Sullivan of counsel), for third-party defendant-appellant.
Marshall E. Bloomfield, Bronx ( Michael P. Bloomfield of counsel), for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT concur in memorandum; Judge JONES taking no part.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, plaintiffs motion for partial summary judgment against Providence Rest Nursing Home denied, and the certified question answered in the negative.
Under plaintiffs theory of liability, third-party defendant Akosah was the only witness to the alleged negligent acts involving decedent. Nonetheless, Akosah has yet to be deposed or to otherwise participate in discovery. CPLR 1008 grants a third-party defendant all "the rights of a party adverse to the other parties in the action, including the right to counter-claim, cross-claim and appeal." In this appeal by third-party defendant Akosah, questions of fact relating to how decedent was injured, whether Akosah was involved, and whether the nursing home was otherwise negligent precluded a grant of partial summary judgment.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.