United States District Court, S.D. New York
Peter D. Baron, Esq., Baron & Pagliughi, Mineola, NY, for Plaintiff.
Thomas Anthony Catalano, Esq., Lester, Schwab, Katz and Dwyer LLP, New York, NY, for Defendants.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Ursula Nelson is a ninety-three-year-old holocaust survivor, who required a home health care aide ("HHA") "to assist her with daily care activities, to make sure she was safe and her basic needs were met." Defendant Selfhelp Community Services, Incorporated ("Selfhelp") is a nonprofit corporation that provides HHAs and other services to the elderly and at-risk populations to enable them to live independently in their own homes. Selfhelp, originally founded in 1936 to assist refugees fleeing from Nazi persecution, maintains its Nazi Victim Services program and offers enhanced case management services, including home care, to holocaust survivors and other persons. Since August 2006, Nelson has been receiving HHA services from Selfhelp. When Nelson initially retained Selfhelp's services it was only on a part-time basis. Beginning in or about January 2011, Nelson required full-time care seven days a week and thereafter Yaihaddy Willan, a former Selfhelp HHA, moved into Nelson's apartment as her primary HHA.
This case involves allegations of physical assault by Willan against Nelson, and the injuries Nelson suffered as a result, while Willan was employed with Selfhelp. On August 8, 2013, Nelson sued both Willan and Selfhelp. Nelson alleges that on March 23, 2011, she was "assaulted and/or battered by H Willan, in the course of her duties and employment with  Selfhelp." Nelson also sued Selfhelp under theories of negligent retention and supervision of Willan. Selfhelp now moves for summary judgment. For the reasons set forth below, the motion is GRANTED.
A. Selfhelp's Hiring of Willan
The following facts are undisputed. On or about April 21, 2009, Willan applied for a position as an HHA with Selfhelp. Willan listed her former employer, Empire Marketing, Incorporated ("Empire"), as a reference. In response to Selfhelp's employment verification inquiry, Leah Mahadeo, the President of Empire, provided a reference letter stating that Willan is a "very hard working and conscientious person." Christine Debush, a Literacy Specialist of the Harlem Center for Reading and Writing, also provided a reference letter to Selfhelp stating that Willan "was a dedicated student and motivated to learn and progress in English reading and writing." Vashi Clarke, a reference librarian of the Bushwick Public Library, wrote in another reference letter that Willan "is easy to get along with and [she had] no hesitation in recommending [Willan]."
Willan enrolled in the New York State approved Selfhelp Training Program. On May 21, 2009, Willan attended pre-orientation. Training classes were held from May 26, 2009 through June 15, 2009. On May 20, 2009, a statewide criminal background check conducted by Selfhelp showed that Willan did not have a criminal history. On June 12, 2009, Willan obtained her Certificate of Completion of the training program and became qualified for employment as an HHA. By letter dated August 26, 2009, New York State Department of Health ("DOH") determined that after conducting a national and state criminal history record check, Selfhelp was "not required to deny [Willan's] individual eligibility for employment" pursuant to Public Health Law or Executive Law. Willan completed Selfhelp in-service training programs and received positive performance reviews. Willan was medically cleared for employment and kept up-to-date vaccinations. She was periodically tested for illicit drugs, all of which returned negative results. On July 1, 2009, Willan began her employment with Selfhelp.
C. Prior Incidents
On August 31, 2009, Willan was working as a live-in HHA for a client. Willan's relief was two and a half hours late and Willan was required to stay with the client until her relief person arrived. While Willan stayed with the client, she failed to remind the client to take her medication and failed to prepare breakfast for the client. Willan's co-worker and relief person reported to Selfhelp that upon her arrival, the client's morning medication was still in the pill box, the client was not cleaned, and the client's personal care was not attended to. Willan was called into the Selfhelp office on September 1, 2009. Selfhelp spoke with Willan regarding the complaint. Willan admitted to not giving the client personal care and reminding the client about the medication. Selfhelp noted that this was a "serious violation" but that it did not require a discharge from employment as Willan was a new employee and had only been with Selfhelp for two months. Willan was reprimanded and issued a written warning stating that Willan "is expected to care for any client that she is assigned to."
On January 24, 2010, a client's daughter called Selfhelp to request that Willan be removed from the client's case. The client's daughter believed that Willan may have taken twenty dollars from an envelope she had given to her mother. She also stated that Willan does not care for her mother properly and did not do any work on the weekend.
On September 18, 2010, at 11:40 a.m., Willan called the Selfhelp answering service. Willan reported that her client had injured her right arm due to a fall while walking to the bathroom. Willan placed a call to 911 and the client was taken to New York Hospital Queens. Willan accompanied the client to the emergency room where the client was treated for a dislocated shoulder. Willan stayed with the client until the client was discharged at 8:47 p.m. that evening. Willan called Selfhelp in order for the attending physician to speak with a family member or the client's nurse. Koku Badasu, the Director of Selfhelp's Licensed Home Care Services Agency and the City Home Care Programs, was notified of the incident and an incident report was completed. On September 21, ...