Walker v. Huber , 678 N.Y.S.2d 561 ( 1998 )

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint in this personal injury action. Kimberly Walker (plaintiff), a home health aide, alleged that she fell in the bathroom of defendant’s home as the result of defendant’s negligence. Defendant sought summary judgment on the ground that plaintiff was a special employee whose claim is barred by Workers’ Compensation Law § 11 (see, O’Rourke v Long, 41 NY2d 219). Defendant met her initial burden of establishing her entitlement to judgment as a matter of law, having averred that defendant exclusively directed and controlled plaintiffs work duties (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557-558). Plaintiff raised an issue of fact, however, concerning her characterization as a special employee by submitting proof that her duties and responsibilities were governed by the healthcare plan and that defendant could not instruct her to deviate from it (see, Ozzimo v H.E.S., Inc., 249 AD2d 912).

The argument of defendant that she is entitled to summary judgment on the ground that plaintiff was injured as the result of a dangerous condition that plaintiff had undertaken to correct is raised for the first time on appeal and is not properly before us. (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Balio and Boehm, JJ.