Opinion
447 CA 17–01439
05-04-2018
April M. ROZMUS, Plaintiff–Appellant, v. WESLEYAN CHURCH OF HAMBURG, Xertion Youth, Inc., and Northgate Christian Community, Defendants–Respondents.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–APPELLANT. BARTH SULLIVAN BEHR, BUFFALO (DANIEL K. CARTWRIGHT OF COUNSEL), FOR DEFENDANT–RESPONDENT WESLEYAN CHURCH OF HAMBURG. MURA & STORM, PLLC, BUFFALO (SCOTT D. STORM OF COUNSEL), FOR DEFENDANT–RESPONDENT XERTION YOUTH, INC. CLAUDIA P. LOVAS, GARDEN CITY (STEVEN PEIPER OF COUNSEL), FOR DEFENDANT–RESPONDENT NORTHGATE CHRISTIAN COMMUNITY.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–APPELLANT.
BARTH SULLIVAN BEHR, BUFFALO (DANIEL K. CARTWRIGHT OF COUNSEL), FOR DEFENDANT–RESPONDENT WESLEYAN CHURCH OF HAMBURG.
MURA & STORM, PLLC, BUFFALO (SCOTT D. STORM OF COUNSEL), FOR DEFENDANT–RESPONDENT XERTION YOUTH, INC.
CLAUDIA P. LOVAS, GARDEN CITY (STEVEN PEIPER OF COUNSEL), FOR DEFENDANT–RESPONDENT NORTHGATE CHRISTIAN COMMUNITY.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motions and cross motion are denied and the second amended complaint and the cross claims are reinstated against defendants.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when a ladder struck her head as she exited the side door of a residence that was being painted as part of a neighborhood rehabilitation project. Plaintiff alleged in the second amended complaint (complaint) that defendants organized, directed, managed and supervised a group of volunteers who participated in the rehabilitation project. Plaintiff further alleged that defendants were negligent, inter alia, in failing to direct and supervise the volunteers properly, particularly with respect to the movement, placement and handling of ladders.
Supreme Court erred in granting defendants' respective motions and cross motion seeking summary judgment dismissing the complaint and cross claims against them. "Under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency" ( Fils–Aime v. Ryder TRS, Inc., 40 A.D.3d 917, 917–918, 837 N.Y.S.2d 199 [2d Dept. 2007] ), and "[a] principal-agent relationship can include a volunteer when the requisite conditions, including control and acting on another's behalf, are shown" ( Paterno v. Strimling, 107 A.D.3d 1233, 1235, 968 N.Y.S.2d 643 [3d Dept. 2013] ; see Restatement [Second] of Agency § 225 ). Here, defendants each failed to establish as a matter of law that the volunteers at the residence where plaintiff was injured may not be considered their servants for purposes of respondeat superior liability (see Robinson v. Downs, 39 A.D.3d 1250, 1252, 834 N.Y.S.2d 770 [4th Dept. 2007] ), or that the duty to ensure that the work was performed safely may not fairly be imposed upon them (see generally Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 572, 26 N.Y.S.3d 231, 46 N.E.3d 614 [2015] ).
In addition, defendants cannot meet their burden on their respective summary judgment motions and cross motion based upon plaintiff's failure to identify the volunteer(s) who caused the ladder to strike her (see Lyons v. Schenectady Intl., 299 A.D.2d 906, 906, 753 N.Y.S.2d 411 [4th Dept. 2002] ). "[I]n seeking summary judgment, ‘[a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof’ " ( Paternostro v. Advance Sanitation, Inc., 126 A.D.3d 1376, 1377, 5 N.Y.S.3d 768 [4th Dept. 2015] ). Defendants' failure to meet their burden requires denial of the motions and cross motion, "regardless of the sufficiency of the opposing papers" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).
Finally, we reject the contentions of defendant Xertion Youth, Inc. (Xertion) that it is entitled to summary judgment dismissing the complaint against it on the ground that it is protected from liability by both the Volunteer Protection Act ( 42 USC § 14501 et seq. ) and Not–for–Profit Corporation Law § 720–a. Neither statute extends such protection from liability to corporate entities (see 42 USC § 14503 [c]; Not–for–Profit Corporation Law § 720–a ). Nor is Xertion entitled to protection from liability on the ground that its principal participated in the rehabilitation project as an individual, without compensation, and the statutes protect him as a volunteer or an uncompensated officer of Xertion. There is conflicting evidence whether the principal received compensation from Xertion, and, in any event, "courts are loathe to disregard the corporate form for the benefit of those who have chosen that form to conduct business" ( Hotaling v. Sprock [appeal No. 2], 107 A.D.3d 1446, 1447, 967 N.Y.S.2d 794 [4th Dept. 2013] [internal quotation marks omitted] ).