(dissenting and voting to reverse the judgment appealed from, on the law, and to deny the motion, and modify the order accordingly, with the following memorandum). At issue here is whether the defendant St. Luke’s Roosevelt Hospital Center (hereinafter the Hospital) was entitled to summary judgment on the ground that it delegated its duty to exercise due care in selecting personnel providing health care services (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [1999]; Bleiler v Bodnar, 65 NY2d 65, 73 [1985]) to an independent contractor—the codefendant United Staffing Systems, Inc. (hereinafter United).
As noted by the majority, the Hospital obtained the services of *882a nursing assistant for the specific function of caring for the plaintiff Sandra M., one-on-one, while she was on suicide watch as a patient. His duties included remaining “with[in] arms length and with direct eyesight of the patient at all times including when the patient is in the bathroom” and “[t]o provide patient care under the direction of the responsible Registered Nurse.”
The nursing assistant’s personnel file with United stated that he was discharged from a prior assignment for showing “ ‘suggestive’ material” to children; he was previously convicted of a crime involving charges that he violated an order of protection with respect to his ex-wife; and was taking prescription medication which the plaintiffs claim is used in the treatment of manic episodes associated with bipolar disorder—a mental illness with typical symptoms of “grandiosity, poor judgment, aggressiveness and possible hostility.”
Pursuant to its contract with United, the Hospital had the right to refuse any referral in its “sole discretion.” The Hospital did, in fact, demand verification of qualifications. However, the Hospital did not ask for or receive the results of any background check nor did it inquire as to the existence of any negative information contained in the nursing assistant’s personnel file.
The nursing assistant admitted that he engaged in sexual contact with Sandra M. while she was under his care, resulting in the instant action to recover damages, inter alia, for personal injuries sustained by Sandra M. In this action, the plaintiffs— Sandra M. and her husband—do not claim that the Hospital is vicariously liable for the nursing assistant’s conduct on the theory of respondeat superior, since it is clear that the nursing assistant’s conduct was not performed within the scope of his employment. Nor do the plaintiffs claim that the Hospital violated its duty as a landowner to protect persons lawfully on the premises from the reasonably foreseeable criminal or tortious acts of intruders (see Miller v State of New York, 62 NY2d 506, 513-514 [1984]; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518-519 [1980]). The nursing assistant was not an intruder: he was engaged by the Hospital to perform services related to health care.
The question here is whether the Hospital’s procedures with respect to obtaining staff to provide health care services were sufficient to ensure the safety of vulnerable patients.
After issue was joined, the Hospital moved for summary judgment based upon an affidavit of a registered nurse stating that to “a reasonable degree of medical certainty” in accordance with standards of care in the community, the Hospital’s *883procedures with respect to observation of suicidal patients were proper and appropriately implemented, and the Hospital was not negligent since it had the right to rely upon a warranty of United contained in the contract between United and the Hospital “that the personnel supplied pursuant to the contract would be appropriately qualified.”
In opposition, the plaintiffs submitted an affirmation of a licensed physician stating that the Hospital did not meet the accepted standard of medical practice, inter alia, by failing to set standards for the evaluation of staff provided by an independent contractor, and by providing no mechanism to insure that adverse information that would raise suspicions about the suitability of such staff was provided to the Hospital.
The Supreme Court, in the order appealed from, found that the evidence in the nursing assistant’s personnel file was “sufficient to raise a question of fact as to whether United knew or should have known of [its employee’s] alleged propensity to cause the injuries alleged, and/or, notwithstanding its knowledge of facts that would lead a reasonably prudent agency to investigate, failed to conduct an adequate investigation of [its employee’s] background.” Nevertheless, the Supreme Court found that the Hospital was entitled to summary judgment on the grounds that it was not vicariously liable for any negligence of its independent contractor United, and there was no showing that the Hospital should have known of the nursing assistant’s background.
However, to me, it is clear, that on its motion for summary judgment, the Hospital failed to establish its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The nurse’s affidavit expressing opinions to “a reasonable degree of medical certainty” was incompetent to express such opinions since a nurse is not competent to render a medical opinion about the sufficiency of medical or psychiatric care (see Elliot v Long Is. Home, Ltd., 12 AD3d 481, 482 [2004]; LaMarque v North Shore Univ. Hosp., 227 AD2d 594 [1996]). The plaintiffs’ cause of action against the Hospital is founded on the Hospital’s alleged breach of its duty to exercise due care in selecting personnel providing health care services (see Bleiler v Bodnar, supra at 73; Judith M. v Sisters of Charity Hosp., supra) and to exercise due care in instructing and supervising its independent contractor, United (see Adams v Hilton Hotels, Inc., 13 AD3d 175 [2004]; see Diaz v New York Downtown Hosp., 287 AD2d 357 [2001], affd 99 NY2d 542 [2002]; Maristany v Patient Support Servs., 264 AD2d 302 [1999]). The Hospital failed to establish as a matter of law that it satisfied those duties.
*884The “negative information” contained in the personnel file was sufficient to raise an issue of fact as to liability (see Travis v United Health Servs. Hosps., Inc., 23 AD3d 884, 885 [2005]) since it gave rise to an issue of fact as to whether the nursing assistant’s tortious conduct was foreseeable (see T.W. v City of New York, 286 AD2d 243 [2001]; Blair v Defender Servs., Inc., 386 F3d 623 [2004]). Prior employment history clearly may have a bearing on future conduct and may be considered in conjunction with prior relevant criminal history in determining foreseeability (see Great Northern Ins. Co. v Paino Assoc., 364 F Supp 2d 7, 24-25 [2005]).
The test is whether the Hospital should have known of the nursing assistant’s background “upon reasonable inquiry” (Sanchez v United Rental Equip. Co., 246 AD2d 524, 525 [1998]; Dube v Kaufman, 145 AD2d 595, 596 [1988]). The Hospital failed to establish as a matter of law that it conducted a reasonable inquiry (see Melbourne v New York Life Ins. Co., 271 AD2d 296 [2000]). As previously noted, although the Hospital demanded verifications of the nursing assistant’s qualifications from United, the Hospital did not ask for the results of any background check, nor did it inquire as to the existence of any negative information contained in the nursing assistant’s personnel file.
The majority notes that there are cases which hold that where an inquiry has been conducted by obtaining references and/or obtaining the results of a background check, a more thorough inquiry is not triggered unless the employer “knows of facts that would lead a reasonably prudent person to investigate that prospective employee” (T.W. v City of New York, 286 AD2d 243, 245 [2001]; see Doe v Whitney, 8 AD3d 610, 612 [2004]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 163 [1997], cert denied 522 US 967 [1997]; Kirkman v Astoria Gen. Hosp., 204 AD2d 401, 403 [1994]). Contrary to the conclusion of the majority, these cases do not stand for the proposition that, absent any prior knowledge, there is no obligation to “make an inquiry, even on a cursory or routine basis” as to the staff member’s honesty or trustworthiness (Weiss v Furniture-In-The-Raw, 62 Misc 2d 283, 284 [1969]; see Maristany v Patient Support Servs., supra at 303). Indeed, hiring without any inquiry may present a clear-cut case of negligent hiring (see id.).
The required depth of a background inquiry “may vary in reasonable proportion to the responsibilities of the proposed employment” (Ford v Gildin, 200 AD2d 224, 226 [1994]; see Day v Hellenic Serv. Sta., 2 AD3d 482, 483 [2003]). “A hospital has a duty to safeguard the welfare of its patients, even from *885harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety” (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252 [2002]; see Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388 [2004]). The needs of a vulnerable population such as children, the disabled, or the infirm require greater care and supervision (see Bell v Board of Educ. of City of N.Y., 90 NY2d 944, 947 [1997]). The plaintiff Sandra M. was in a particularly vulnerable position since she was sedated and under suicide watch. Under the circumstances, there is an issue of fact as to whether the Hospital’s investigation of the background of this nursing assistant was deficient in light of the critical nature of the work performed (see Lingar v Live-In Companions, Inc., 300 NJ Super 22, 692 A2d 61 [1997]).
Kirkman v Astoria Gen. Hosp. (supra, at 403), relied upon by the majority is distinguishable from the instant case, since in that case the independent contractor conducted “a routine, but thorough, pre-employment check into the employee’s background, and obtained confirmation . . . that the employee had no prior criminal history.” Moreover, the security guard—unlike the nursing assistant here—provided no health care services. Contrary to the conclusion of the majority, it is clear from this record that the nursing assistant had greater access to his vulnerable patient than would a hospital security guard,, since his duties included remaining “with [in] arms length and with direct eyesight of the patient at all times including when the patient is in the bathroom.”
The Hospital cannot absolve itself of liability on the ground that it delegated the responsibility to ascertain the nursing assistant’s background and maintain a personnel file with respect to employment history to the independent contractor United. At issue here is whether the Hospital was negligent in failing to inquire as to what work was in fact done by United to screen staff based upon personal background and employment history and/or failing to direct United to follow an adequate hiring procedure with respect to staff referred to the Hospital to perform health care services (see Travis v United Health Servs. Hosps., Inc., supra at 884-885; Honohan v Martin’s Food of S. Burlington, 255 AD2d 627 [1998]; Ray v County of Delaware, 239 AD2d 755, 757 [1997]).
Sandra M. sought treatment from the Hospital which held itself out as an institution furnishing doctors, staff, and facilities and should not be bound “by secret limitations . . . contained in a private contract between the hospital” and United (Mduba v Benedictine Hosp., 52 AD2d 450, 453 [1976]). As noted in Mduba v Benedictine Hosp. (supra), the Court of *886Appeals in Miles v R & M Appliance Sales (26 NY2d 451 [1970]) adopted the rule set forth in the Restatement (Second) of Torts § 429: “One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by [its] servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them [itself] or by [its] servants.”
The majority states that these principles are not applicable here on the ground that United’s provision of staff to perform health care services was “collateral” to the Hospital’s main function of providing health care services. Contrary to the majority’s conclusion, the acquisition of suitable staff to perform health care services is necessary to the provision of health care services and cannot be considered “collateral” thereto (see Bleiler v Bodnar, supra at 73; Howe v Medical Arts Ctr. Hosp., 261 App Div 1088 [1941], affd 287 NY 698 [1942]). Further, patients using the Hospital’s services would reasonably believe that the Hospital had input in the selection of staff performing health care services. The staff person in issue here was not a secretary or a security guard.
With respect to foreseeability, the majority notes that there is no evidence that United previously referred an employee to the Hospital who committed an assault, sexual offense, or other impropriety. However, there is no evidence in the record that United never previously referred an employee to the Hospital who committed an assault, sexual offense, or other impropriety. Such information would be exclusively within the knowledge and control of the defendants which in and of itself is ground to deny them summary judgment (see Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2006]; Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793 [1988]). As previously noted, the Hospital, as movant for summary judgment, bore the burden of establishing its entitlement to judgment as a matter of law.
There is no authority for the proposition that the Hospital may insulate itself from liability by insuring that it receives no information as to the employee’s personal background or employment history. Such would be contrary to case law establishing that there is a duty to make a reasonable inquiry (see Melbourne v New York Life Ins. Co., supra). Further, according to the plaintiffs’ expert, providing no mechanism to insure that adverse information would be provided to the Hospital about the suitability of staff provided by an independent contractor for the performance of health care services was a departure from accepted standards of medical practice.
*887In view of the foregoing, the Hospital was not entitled to summary judgment.