This complaint sets forth a first cause of an action sounding in negligence arising out of the care and treatment rendered to plaintiff wherein she sustained second degree burns to her feet while bathing in a tub on October 10, 2004 while a resident at Siena Village, owned by the a health system of Long Island, Inc. and located at Smithtown, New York. The defendant, was an employee of the facility and the personal care aide for the plaintiff when the spinal injury occurred. The plaintiff resided at Siena Village where she received custodial care and housing. The second cause of action is premised upon the alleged negligent hiring of defendant employee by the defendant health System of Long Island, Inc.
In the answer submitted by defendant employee, a cross-claim has been asserted against the co-defendant health System of Long Island, Inc. for indemnification and/or contribution. In the answer submitted by the health system, a cross-claim has been asserted for judgment over against “Kenneth Doe” who is not named in the complaint, and a second cross-claim for indemnification from defendant employee.
According to the court, the common-law right to indemnification exists pursuant to a contract implied in law and is rooted in equity; it is a device to prevent unjust enrichment. Implied indemnity is frequently employed in favor of one who is vicariously liable for the tort of another, but the principle is not so limited and has been invoked in other contexts as well. Nonetheless, an indemnity cause of action can be sustained only if the third-party plaintiff and the third-party defendant have breached a duty to plaintiff and also if some duty to indemnify exists between them”.
“Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss because he was the actual wrongdoer. The right to indemnification may be created by express contract, but the contract is often one implied by law to prevent an unjust enrichment or an unfair result. In some instances the law imposes liability on a person who has in fact committed no actual wrong, but who is held responsible for a loss as a matter of social policy because he is in a position to spread the risk of loss to society as a whole.
Where one who has committed no actual wrong is held vicariously liable for the wrongdoing of another, he has a right to indemnification from the actual wrongdoer. Mere use of the term indemnification’ is insufficient to evade the bar of N.Y.Gen. Oblig. Law §15-108. A proper basis for the claim must be stated. If there is actual wrongdoing by the person seeking to assert an indemnification claim, that claim is not viable” (County of Westchester v Welton Becket Associates et al,102 AD2d 34, 478 NYS2d 305 [2nd Dept 1984]).
In the instant action it has not been demonstrated that there was a duty to indemnify as relates to the co-defendants nor has it been demonstrated that CHSLI is vicariously liable for the actions of Joanne Stokes.
Accordingly, that part of motion (002) by defendant employee which seeks dismissal of the second cross-claim which seeks indemnification, asserted by co-defendant health system against her, is granted and the second cross-claim for indemnification asserted by defendant health system is dismissed with prejudice.
Turning to motion (003) wherein the Health System of Long Island seeks summary judgment dismissing the complaint, it is determined that the health system has not demonstrated prima facie entitlement to summary judgment dismissing the complaint.
The moving papers raise further factual issues in that an employee estified that she notified the supervisor of the excessively hot water and fluctuating water temperature, and he denies ever having been notified of the same. Thus there are factual issues raised in the moving papers submitted by defendant health system which preclude summary judgment.
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