Warner v Continuum Health Partners

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Warner v Continuum Health Partners 2012 NY Slip Op 31038(U) April 17, 2012 Sup Ct, NY County Docket Number: 101048/10 Judge: Joan M. Kenney Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] UED ON41191201 SUPREME COURT OF THE STATE OF NEW YORK NEW YQRK COUNTY M. KENNEy JO- PRESENT: PART 9.S.C. - Index .umber. 101048/201o Justice I WARNER, MARGUERITA vs. MOTION DATE CONTINUUM HEALTH PARTNERS SEQUENCE NUMBER : 001 SUMMARY JUDGMENT The follswtfig papen, numbered Ito - 2, on thls motion t were mad Naties of #lotlan/Order to $how Cause Annwertng Affldavlta - Affldavllr - Exhibits - Exhibits Replying Aflldrvlts INa(&),% { -'2 IWO(8). 3-lY, ~ ~ d a j ,!r-1 '7 . ' Upon the foregoing papsm, It h ordered that thls motlon is Datedr * NEW YORK COUNTY CLERK'S OFF\CE n I [* 2] DECISION AND ORllEK Index Number: 101048110 Motion Seq. No.: 001 -againstContinuum Health Partncrs and St. Luke's Roosevell Hospital Defendants, Recitation, as required by CPLR 221 9(a), of the papcrs considered in review of these motions 10 d.ismiss. Papers Notice of Motion, Affirmation, and Exhibits Opposition Afiirniation. and Exhibits Reply Affirmation, Exhibits FILED Num bercd 1-12 APR 19 2012 NEWYO In this persolid injury action, d e f e n d m t s , B m a , . & 13-14 15-17 K & @ r t n e r s , Inc. and The St. Luke's Roosevelt Hospital Center, inox for an Order, pursuant to CPLR 5 3212, dismissing the complaint. On October 14, 2009 plaintiff, Marguerita Warner, was employed as a travel nurse at St. Luke's Roosevelt Hospital Center (sister company of Continuuim Health Care). According to plaintiff at her examination beforc trial (ERT), a travel nurse is a nurse that travels from location to location and works under a coniract knd then has the option to renew that contract, or seek employment elsewhere (Warner EBT at 12-13), It is undisputcd that plaintifrs primary employcr and the entity that gave her the travcl nurse assignment was non-party Med Staff (Warner EBT at 13). Plaintirf had worked at St. Luke's for approximately four years. During her four years at [* 3] St. Luke’s, plaintiff did not work elsewhere. While working at S t . Luke’s, plaintiff was supervised by a St. Luke’s eiiiployec. Plaintiff’testified at her deposition that she would receive her daily assignments from the nursc ut the desk, that her evaluations were given by St. Luke’s employees on a yearly basis, and that St. Lukc’s had the authority to fire her. (Warner EBT nt 27). As per o m of its inaniigiiig nurses, defendant maintains that its supervisors had the authority to control arid direct lhe nianncr of employment of‘the travel D U ~ S C Son a daily basis (November 21, 201 1 affidavit of Maureen Stone-Martin, 1 5 ) . 1 Despite being given daily direction from St. 1,ukes’ staff, plaintiff claims that she was not told “how” to do her job, but to perform her duties “in accordance with generally accepted nursing standards.” (plainlifi’s February 16, 2012 affidavit, 7 5 ) . Plaintiff alleges that St. Luke’s supervisors “had little input as to how she performed her nursing duties,” and that “no one from St. Luke’s controlled, directed, or superviscd the manner or details by which she performed her duties” (plaintiff’s 2/16/12 affidavit). Plaintiff was also paid exclusively by Med Staff, and her work uniform, or, “scrubs,” wcre not provided by St. Luke’s. (Warner EBT at 21). On October 14, 2009, plaintiff slipped and [ell on a puddle of barbeque sauce on the floor of the cafeteria at St. Luke‘s (the accident). Defendants’ cmployee, Ms. Redden, testified that she did inspections of thc area riiultiple times during that day and during one such inspection discovercd plaintiff on the ground. (Redden EB‘T at 46-47). While defendants claim to have no prior knowledge of ullegcd barbeque sauce on the floor, Ms. Redden teslifiied that the area in which plaintiff fell would occasionally have liquid on the floor because the soda fountain was right in this area. (Reddun EBT at 62). In fact, dcfendants admitted that at minimum, twice a day, there would be liquid on the lloor that required clean up in the area where plaintiff fell. 2 [* 4] AJeem emf Defendants aver that plaintiff was a special employee and tlierefore cannot bring this negligence suit since she is barred by N.Y, Workers’ Conip. Law 5 1 1. Defendants also assert that they did not create thc dlcgcd dnngcrous condition, or havc any actual and/or constructive notice of said conditioii, and thcrcforc cannot bc hcld liable. Plaintiff argues that she was not a special employee subjcct to the workers’ compensntion laws of Ncw York. Plaintiff also claims that defendants had constructive notice of the allcged defective condition bccause of the rccuning spills in the area of the accident. Discussion Pursuant to CPLR 321 2(b), “a motion for summary judgment shall be supportcd by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The nffidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that therc is no defknse to tho cause of action or that the cause of action ofdei‘ensc has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any pai-ty. Exccpt as provided in subdivisioii ‘c’ of this rule the motion shall be denicd if any party shall show facts sufficient to require B trial of any issue of fact. IF it shall appear thal any party other than the moving party is entitled to a suinmaiy judgment, the court may yrant such judgment wilhout thc necessity of a crossmotion.” The rule governing summary judgment is well established: “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an)‘ material issues of fact from the case.” 3 [* 5] (Winegrcrd I! NL‘WYork ~Jniivi-sit~~ Medical Center, 64 NY2d 85 1 [ 198511; Tmtercllo I) Cai-!in, 260 Ad2d 201 [ 1’‘ Dept 19991). A special employee is dcscribed as “one who is transferred for a limited time of whatever duration to the scrvice of another.” (sec Gunnor7 17. JWP Forcsl Elec. Corp., 275 A.D.2d 23 1,712 N.Y.S.2d 494,495 [2000]). “Alttiough no single factor is dispositive in determining whether a spccial employment rclationship exists, a number of factors must be wciglied, including: the right to and degree ofconlrol by the purported employer over the manner, details, and ultimate result of the special employee’s work; the method of payment; the right to discharge; the furnishing of equipment; and the nature and purpose of thc work. Of priiiiaiy importance amongst thcse factors is the degree of control the alleged special employer has over the work.” (Gannon 275 A.d.2d 23 1). A special employer rnay avail itself of the Workers’ Compensation Law to bar negligence claims against it for injuries sustaincd by a special employee in the coursc ol‘ special einploymenl 50 (see Bellumy v, C.’olimbia Univ., A.D.3d 160, 161, 851 N.Y.S,2d 406, 408 [ZOOPI]). A bLworker who was assigned to anothcr company’s plant was ‘special empioyee’ of that company and, therefore, under exclusivc remedy provision of Workers’ Compensation Law, was barred Iiorn bringing negligence action against special employcr, even though general employcr was rcsponsible for paychecks and benefits, aiid even though contract between special and general einploycr treated general employer as tlic employer.” (see Thompson v. Grumrnan Aerospace Corp, 78 N.Y.2d 553, 585 N.E.2d 355 119311). In order to establish a prima facie case of negligence in a trip and fall action, a plaintiff must demonstrale that a defendant either created a dangerous condition, or had actual andor 4 [* 6] constructive noticc of the defective condition alleged (see Jzrdirh D. Amold v Netu York City ~Inzr.rinl:/l~r~ho~ily, 296 AD2d 355 [lst Dept 20021). A genuine issue of material fact exists when defendant fails to cstablish that it did not have actual or constructive notice of’a watery or hazardous condition (Aviltr I). 2333 I” Cory., 66 A.D.3d 432, 887 N.Y.S.2d 18 [ 1“ Dept. 20091; Baer-S’l?nrpv. New York C j ( y Tr. Auth., 38 A.D.3d 229, 830 N.Y.S.2d 555 [l” Dept. 20071). In BMZ, the Court stated that dcfendant “fhiled in its initial burden, as movant, to establish, as a matter o r law, that it did not crcate and did not have actual or constructive notice of the watery and hazardous condition.” To constitute constructive notice, a defect niust be visible and apparent and it must exist for a sufyicient length of time prior to the accident to perniit defendant‘s employees to discover and reincdy it (see Strowman v. Grecrt All. 8 PUC. Tea CO., h c . , 252 A.D.2d 384, 675 N.Y.S.2d 82 [199S]>.A personal injury plaintiff may satisfy burden of showing landowner‘s constructive notice of hazardous condition by evidence that an ongoing and recurring dangerous condition existed in the a.rea of accident (see O‘Connor-Miele v. Bcri-hite & Elolzinger, I m , , A.U.2d 106, 650 N.Y.S.2d 717 [1996]). 234 Hcre, an issue of fact exists as to whether plaintiff was a “special employee.” Plaintiff claims that she was not under the control of defendant, and therefore not B special employee. Defendants claim it had total control of plaintiff, and thereby plaintiff was a special employee. If plaintiff is found to be a spccial employee of defendant, plaintiff would be barred from bringing this case. As noted above, inultiple factors are weighed, and the most important of those factors, the issue of who “controls” the employee, is contested by the parties in this case Additionally, because defendants’ own employee testified that the area where the accident occurred was “constantly overflowing” with liquid fi-om the soda machine, an argument could be 5 [* 7] made that defendants Iiad constructive notice of the defective condition that causcd plaintiffs accident. Accordingly, it is ORDERED that defendants’ surnniary judgrneiit motion, is denied, in its entirety; and it is further ORDERED that the parties procecd to mediation, forthwith. ENTER: i/ Joan M. Keimey, J.S.C. FILED APR 19 2012 NEW YORK COUNTY CLERK‘S OFFICE 6