Castano v Woodmere Rehabilitation & Health Care Ctr., Inc.
Annotate this CaseDecided on October 18, 2004
Supreme Court, Nassau County
ESTRELLA CASTANO, Plaintiff(s),
against
WOODMERE REHABILITATION & HEALTH CARE CENTER, INC., FIVE TOWNS HEALTH CRE REALITY CORP., BERSAN CORP, HERBERT FELDMAN, et al., , Defendant(s)
8530/02
Ute Wolff Lally, J.
it is ordered that this motion by
defendants Woodmere Rehabilitation and Health Care Center, Inc. ("Woodmere Center") and Five Towns Health Care Realty Corp. ("Five Towns Realty") for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is granted.
In this action, plaintiff seeks to recover money damages for personal injuries she allegedly sustained on June 13, 1998, when, while working as Licensed Practical Nurse at the Woodmere Center, she fell on a floor that had just been waxed. The building was owned by Five Towns Realty.
The Woodmere Center seeks dismissal of the complaint against it on the grounds that plaintiff was a "special employee."
At the time of her accident, the plaintiff was a general employee of N&W Agency, a temporary employment agency. Plaintiff testified at her examination-before-trial that N&W placed her at [*2]The Woodmere Center and issued her paycheck. Plaintiff acknowledged though that N&W never had anyone on-site at The Woodmere Center. In fact, she testified that she was trained by a nurse who she believed worked for the Woodmere Center, who, plaintiff admitted, had approved her employment there. Plaintiff testified that she was supervised by Caroline Schuker, a Registered Nurse, who she also thought worked for The Woodmere Center. The Woodmere Center provided her with her equipment and made up her schedule.
Mitchell Teller, The Woodmere Center's Administrator, testified at his examination-before-trial that The Woodmere Center's employees, including plaintiff, were not placed there by N&W. They applied at The Woodmere Center and were evaluated there: Only their paperwork was transferred to N&W. All new employees automatically went onto N&W's payroll. Mr. Teller states in his Affidavit in Opposition to this motion that while the night supervisor R.N. Carolyn Smickle was, like plaintiff, on N&W's payroll, that was the extent of her relationship with N&W, too. Plaintiff's Supervisor was a Registered Nurse who Woodmere alone appointed to act on its behalf. Her training, scheduling, job assignments and duties were, as were plaintiff's, under the sole direction and control of The Woodmere Center. Mr. Teller explains that The Woodmere Center is a health care facility; its operation is regulated by federal, state and local governments. Mr. Teller attests that as a result, The Woodmere Center cannot and does not subcontract out supervisory work. He concludes that plaintiff's supervisor "was under the sole direction and control, at the time of this incident, of Woodmere personnel, including the Director of Nursing and [himself]."
"[A] general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557). One who is transferred for a limited time of whatever duration to the service of another is a "special employee" (Thompson v Gramman Aerospace Corp., supra, at p. 557). While general employment is presumed to continue, "this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" (Thompsom v Grumman Aerospace Corp., supra at p. 557). "Although a determination concerning a worker's status as a 'special employee' is generally a question of fact, summary judgment may nevertheless be granted where the relevant facts establish that the special employer controlled and directed the manner, details and ultimate result of the employee's work" (Jaynes v County of Chemung, 271 AD2d 928, 929, [*3]lv den., 95 NY2d 762). "An employee of one party may be a special employee of a nother party even if the former pays the employee's salary and benefits and has the ability to hire and terminate the employee" (Jaynes v County of Chemung, supra at p. 929).
The Woodmere Center approved plaintiff's hiring; gave her her assignments; provided her training and equipment; and, made up her schedule. No one from N&W's agency was ever at The Woodmere Center, let alone doing supervisory work there. N&W was merely a payroll service. It is manifestly clear that plaintiff's supervisor, though a general employee of N&W Agency, too, was acting on behalf of and at the direction of The Woodmere Center. In fact, plaintiff herself believed that her supervisor was from The Woodmere Center. That plaintiff's supervisor was also a general employee of N&W does not alter her or plaintiff's status as special employees of The Woodmere Center (See, Brunetti v City of New York, 286 AD2d 253; see also, Erazo v 136 East Management, Inc., 302 AD2d 382; Jaynes v County of Chemung, supra).
Although The Woodmere Center's agreement with N&W provided that "the agency shall provide a representative to supervise the employees, consult with client with regard to adjustments in client labor needs," that does not suffice to raise an issue of fact as to plaintiff's status as to a "special employee" of The Woodmere Center. The written agreement is "not determinative of that issue and does not displace judicial assessment of the employee's actual relationship with [The Woodmere Center] to ascertain the special employment status" (Thompson v Grumman Aerospace Corp., supra, at p. 560).
Five Towns Realty seeks summary judgment dismissing the complaint against it on the grounds that it is an out-of-possession landlord. Its motion is unopposed. Furthermore, it has established its entitlement as an out-of-possession landlord to summary judgment dismissing the complaint against it (See, Knipfing vV&J, Inc., 8 AD3d 628; Ingargiola v Waheguru Mgt., 5 AD3d 732; Thompson v Port Auth. of New York and New Jersey, 305 AD2d 581; Eckers v Suede, 294 AD2d 533).
Dated: October 18, 2004_________________
J.S.C.
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