Oumentseva v Crothall Facilities Mgt., Inc.

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Oumentseva v Crothall Facilities Mgt., Inc. 2012 NY Slip Op 32354(U) September 6, 2012 Supreme Court, New York County Docket Number: 105816/2009 Judge: Saliann Scarpulla 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART . 1 1 iq . Index Number : 1 0 5 8 1 6 ~ 0 9 ~ INDEX NO. OUMENTSEVA, TATIANA vs. CROTHALL FACILITIES SEQUENCE NUMBER : 001 MOTlON DATE SUMMARY JUDGMENT The following papers, numbered Ito Ndtice of MotionlOrdsr to Show Cause Answerlng At'tldavlta __ . . . .. . ~ , were read on thio motlon tolfor -AMdavita - Exhibltn I NQ(@ - Exhibitr 1 NQb). INo(0). Replying Affldavlb Upon the forsgolng papers, It Is ordered that thl FF'L E D SEP 1 2 2012 Dated: R S A M SCARPULLA hON-FINAL DISPOSITION CASE DlSPOgED ..................................................................... 0FRAWED IN PART 0OTHER DENIED 2. CHECK AS APPROPRIATE: ........................... ..MOTION I : 0GRANTED S 0$ U W T ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORPER I CHECK ONE: . DO NOT POST [3 FlDUClAiY APPOINTMENT REFERENCE [* 2] Plaintiff, Index No.: 105816/2009 Subinission Date: 5/7/12 - againstCKOTHALL FACILITIES MANAGEMEN? , INC., PROFESSIONAL SERVICES, INC., and MORRISON MANAGEMENT SPRCIAZ,ISTS, Ne., ;md JOHN DOE (INTENDED TO RE THE MAINTENANCE PERSONNEL PERSON WHO APPLIED THE WAX TO THE FLOOR), For Plaintiff Rosato & I mciola, PC 2 3 3 Bi-oadway, 5 Floor Ncw Y ork, NY 10279 DECISION AND ORD,ER For Defendants: Gordon & Silber, P.C. 355 Lexington Avenu New York, NY 100 1 FhI L D E Papers considered in 1-cviewof this motion for summary judgment: Notice of Motion . . . . . . . . . . . . .1 Aff in Support . . . . . . . . . . . . . .. 2 ATf in Opp . . . . . . . . . . . . . . . . . . 3 Reply A f f . . . . . . . . . . . . . . . . . . .4 SEP 12 2012 NEWYORK IlON. SALIANN SCARFULLA, J.: In this action to recover dainages for pcrsonal injuries, defcndants Crnthall Facilities Management, Tnc. ( Crothall ), Professional Servicc, Inc., d/b/a I ropoco ( Propoco ), and Morrison Management Specialists ( Morrison ) (collectively 1 [* 3] ddendants ) move pursuant to CPLR 32 12 for suinmary judgmcnt dismissing plaintiff Tatiana Ouimentseva s ( plaintiff or Oumentseva ) complaint and all cross claims. Plaintiff works as a nurse at Isabella Crcriatric Center ( lsabella ). She was working 011 May 4, 2008, when she slipped and fell in liquid on the hallway floor. Plaintiff reccived workers compensation benefits for her lost wages. Plaintiff also cominericed this action seeking to recovcr from defendants and alleging that the housekeeping staff either caused or railed to remedy the condition (the liquid in the hallway) which caused her to fall. Plaintiff testified at her dcpositioii that prior to her accidcnt, shc was in the hallway with her medicine cart, which contained patient rncdication, and on which slie carricd a pitcher of water and cups. Prior to entering the room, plajntirf testiiied, she fiIled a cup o ¬ water and carried it into the patient s room along with nicdicine l o dispeiisc, leaving the medicine cart in the hallway. Plaintiff ¬urther testified that as she stepped out of that patient s rooin, she slipped on transparent liquid that cxtended along the floor about two reet from the door. Plaintiff testified that she saw no liquid on the floor prior to entering the patient room, nor was anyone cleaning the hallway. She also testifjed that she saw two men use a machine to polish the floor about tcn ininutes before she entered the room, and she did not see wet floor signs, such as she usually saw when the floors were washed or polished. 2 [* 4] Plaintiff tcstified that at the time of her fall, there was an auto-scrubber machine located in the corridor, operated by Tyrone Williams ( Williams ) and Curtis Wallace ( Wallace ). At his deposition, Williams testificd that he was einployed by Isabella as part of the environmental services group, and referred to his pay stub from Isabella. Williams fui-ther testified that Angel Lugo, a Crothall employee, was his supervisor, and John Cuva, Jsabclla s Director of Environmental Services, was in charge of his department. Williaiiis testified that he usually dealt with Crothall, riot Tsabella, and that while Isabella liircd hiin and tlie other environineiital services workers, Crothall provided the majority of his training. Williams tcstified that at the tiine of plaintiff s accident, he and Wallace were supposcd to be auto scrubbing and burnishing the floor, but he arid Wallace were still bringing their machines and supplies from the fourth floor to the fifth floor. When Williains arrived on the fifth floor with the burnisher arid blower, he saw plaintiffon the floor. Williaiiis testified that plaintiff said she fell because there was water on the floor. He testified that the machinc was still on tlic other end ofthe corridor at the time she fell, but that he did notice medicine cups on tlic floor. Williams also saw liquid on the floor, Counsel for defendants, when questioning Williams at his deposition, referred to a document marked Exhibit A, which Williams stated was his pay stub from Isabella. However, no dcposition exhibits were annexed to the transcripts submitted in support of this motion. I 3 [* 5] but noted it was not from his machine because the machine chemicals would be sudsy, and what he saw was clear, like water. Williams further testified that he and Wallace only clcaiied the fifth floor after plaintiffs accident. Williams also testified that he received training, rcferred to as %-service, once every other week, and sometimes twice a week. In-service training was provided by the supervisors. The enviroimeiital services workers were also trained by their supervisors whenever new equipment was reccived. Delendants submit the deposition testimony of Isabella s Director of Environmental Serviccs, John Cuva ( Cuva ). Cuva testified that the environmental services workers rcported to inanagers and supervisors, all of whoin were Crothall einployces. Cuva stated that no supervisors worked for Isabella, and that there was no manager on duty on the weekend. Cuva also tcstifkd that environmental services provided its own weekly training or huddles, as well as inoiithly training. He also explained that CrothallPropoco supervised environmental services workers by giving them assignments and conducting their reviews. Angel Lugo (L Lugo ), Crothall employee, testified that on the day oi plaintift s a accident he managed the custodial workers at Isabella. Lugo testified at length about the evaluations conducted of Wallacc and Williams, as to both their cleaning and iloor care work. Lug0 testificd that he set the priorities for Williams: [tlhe prioritics are written by ine alonc, what I want the employee to concentrate on for the next period. 4 [* 6] Finally, defcndants submit a copy of the contract between Propoco and Isabclla, pursuant to which Propoco supervised the environmental services staff, conducted instructional programs and provided inanagenient staff . The contract also provided that all Propoco and lsabclla einployces would follow Isabella polices and procedures. Isabella rclained the right to remove and/or replace employees. Defendants now move for summary judgment dismissing the complaint. Defendants argue that the environincntal services staff, while supervised by Propoco/Crothall, remained the exclusive employecs of Isabella, thereby triggering the exclusivity provisions of New York Workers Compensation Law (j$ 1 I and 29(6).3 Defendants also seeks summary judgiiicnt on any negligence claim plaintiff may have bascd on a duty to supervisc or train. Dcfeiidants clailn that they offer conclusive evidence that they provided appropriate and adequate training, and that plaintiff cannot point to any evidence that her accident occurred as n result of improper training, supervision or retention. Defendants also argue that summary judgment should be Crothall is successor in interest to Propoco. Defendants asscrt that Morrison operated the food services at lsabella. It is well established that the exclusive remedy available to an employee injured in the course of his employment by either a fellow worker or by his or her employer is to file a claim for workers compensation benefits. Cronin v. Perry, 244 A.D.2d 448 (2d Dep t 1997). See ulso Murange v. Slivinski, 257 A.D.2d 427, 428 (1st Dcp t I 999)( Workers Compensation Law 5 29 (6) provides that Workers Compensation benefits shall be the cxclusive reincdy wlicn an cmployce is injured or killed by thc negligence or wrong of anothcr in the same cmploy. ). 5 [* 7] granted as to Morrison because Morrison ran Isabella s food sewice operation, and was not involved with floor care at Isabella. In opposition, plaintiff argucs that whether a special employment relationship exists is an issue of t act, and that defendants have failed to refute that Williams and Wallace were thcir special employees. Plaintiff also argues that Cuva testifled that on nights and weekcnds - including the day of plaintiffs accident - Crothall managers were not working and cnvirom~iental services workers were self-directed. Plaintiff argues that when Crothall managers werc not working, there was no one to supervise, check or inspect thc work of tlie environmental services cinployees, and therefore defendants cannol establish that their supcrvi sion was not negligent. Discussion With rcgard to whether Williams and Wallace werc defendants special employees, it is well settled that a general employee of one employer may also be in the special employ of another, notwithstanding the general cmploycr s rcsponsibility for payment of wages and [or maintaining workers compensation and other employee benefits. Thompson v. Grumman Aerospace C o r - . ,78 N.Y.2d 553, 557 (1991). A person s classification as a special employee is usually a question of fact, but can also be decided as a matter of law. Pencr v. Automatic Datu Processing, Inc., 73 A.D.3d 724 (2d Dep t 20 1 0). See also Villunueva v. Southeast Grand St. Guild Hous. Dev. Fund Co., 37 R.D.3d 155, 156 ( I st Dep t 2007). 6 [* 8] Moreover, [i]n determining special employment status, a signiflcant and weighty factor focuses on who controls and directs thc manner, details and ultimate result of the employee s work. Lune v. Fisher Park Lane Co., 276 A.D.2d 136, 140 (1 Dcp t 2000) (quoting Thompson, 78 N.Y.2d at 558)). Here, defcndants fail to make a primaLfacieshowing of entitleinent to judgment as a matter of law. Plaintiff alleges Wallace and Williams were responsible for the water on the floor causing her to fall. And while dcf cndants argue that Walker and Williams werc not their special employees, but were rather solely general employees of Isabella, and as such plaintiff is limited in her recover to the exclusive remedy of Workers Compensation, defendants fail to cstablish that Tsabella control[led], assignCed], supervise[d] OF directred] their work. Hnnchett v. Graphic Techniques, 243 A.D.2d 942, 944 (3d Dep t I 997).4 of thejr motion, defendants rely on Spencer v. Crothall Healthcare, Inc., 38 A.D.3d 527 (2d Dep t 2007). The underlying facts in Sfiencer are similar to those here - plaintiff, a hospital employee, was delivering food tu a patient when she slippcd and fell, injuring herself. While she lay on the floor, plaintiff noticed a puddle of water and a wct floor sign behind a door leaning against the wall. Spencer, 38 A.D.3d at 527-528. As a result, plaintiff collected Workers Conipcnsatioii benefits from the hospital, and then brought suit against, among others, Crothall, which managed the hospital s housckeeping department. Id., at 528. The court in Spencer found that the hospital did not surrender control of the employees as it paid their wages, provided them with workers compensation insurance, and made thc final decision to hire, discipline, or fire them. Since the members ofthe housekeeping staff are general employees of the hospital, the plaintiff is precluded by the exclusivity provision pf the Workers Coinpensation Law froin bringing this action against the defendants. Spencer, 38 A.D.3d at 528. 111 supporl 7 [* 9] Defkndants submitted Williams s testimony that he was employed and paid by Isabella, and perhaps even received Worker s Compcnsation benefits from Isabella. However, dc ¬endants also submitted testimony that Williams and Wallace received their assignments, supervision aiid substantially all their training from Crotliall or Prolessional. Williams, Lug0 and Cuva all tcstified that Cuva and Lugo - Crothall employees providcd all supervision and assignments to environmental services workers. Specifically, Cuva testificd that Propoco managers supervised environmental services workers by setting their schedulcs, delegating their work, making specific assignments, and corrccting any workers they saw using the equipment improperly. Accordingly, 1 cannot find as a matter of law that Wallace and Williams were not special employecs of defcndants, and therefore deny summary -judgment dismissing the coinplaint based upoil thc alleged exclusivity of the Workers Compensation 1,aw. Defendants also move for summary judgment on plaintift s claims for negligent supervision, training and retention. Defendants assert that these claims are barrcd by the Workers Coinpensation Law, as derivative to a coworker s ncgligence. As discussed above, this presents a question for the trier of ¬act. Defendants also argue that regardless of the Worker s Compensation Law, the claim should be dismissed because defendants have established that both Williams aiid At his deposition, Williams testified that in 2000 he was injured on the job and collected Worker s Compensation benefits. When asked who provided that insurance, he stated I guess Isabella. 8 [* 10] Wallace were well trained, good employees who knew thcir business. Defendants assert that the evidence that regular training, including manuals, classes and testing, was provided in addition to the supervision provided by Crothall managers and supervisor establishes prima h c i e entitlement to summary judgment on the negligent supervision claim. In opposition, plaintiff asserts that a gap in supervision at the timc of plaintiffs accident undercuts defendants' arguments, claiming that 011 the weekends, such as the day of plaintiff s accident, environnicntal scrvices workers were self directed, because there was no supervisor on site at that time. Liability for negligent supervision docs not lie absent a showing that it constitutes a proximate cause of the injury sustained. Schlecker v. Connetquot C cnt. School Dist , 1 SO A.D.2d 548,549 (2d Dep t 1989). Defendants assert that the plaintirf has failed to set forth a prima face case that defendants were ncgligent in supervising or training the environmental services workers. TIowever, on defeiidanls motion, it is their burden to set forth a prima face case that Crothall was not negligent in supervising or training the environmental services workers. It is well settlcd that the burden is on the movant - whether plaintiff or dcfendant - on a motion for summary judgment, and that if the moving party fails to inakc a prima facie showing, the court must deny the motion, regardless o the sufficiency o the opposing f f papers. Smalls v. AJIIndus., Inc., 10 N.Y.3d 733, 735 (2008) (quoting AIvarez, 68 N.Y2.d at 324) (emphasis in original). See also Tsekhanovskqa v Stclrrett City, Inc., 90 9 [* 11] A.D.3d 909, 910 (2d Dep t 201 1) ( A movant caiinot satis@ its initial burden merely by pointing to gaps in the plaintiffs case ). Moreover, surninary -judgment is rarely granted in negligence cases siiice the very question of whether a dekndant s conduct amouiits to negligeiice is iiilicrently a question for the trier nffact in all but the most egregious instances. Johannsdottir v. Kohn, 90 A.D.2d 842 (2d Dep t 1982). Herc, defendants have not met that burden, as they have failed to established that Williams and Wallace wcre not ncgligent and that their actions did not proximately cause plaintifrs accidcnt. In support of their motion, defendants submit plaintiff s deposition testimony, in which she statcs that she saw the auto-scrubbcr machine in the vicinity of her fall, therc were no wet floor signs nearby, and the liquid on the floor which caused her to fa11 was froin Williaiiis and Wallace s auto-scrubber. On a motion for summary judgment the tcstiinony of the nonmoving party is acceptcd as true. 0 Sullivanv. Presbyterian Hosp. in Ct qfNew York ai Columbiu Presbyterian Medical Center, 217 iy A.D.2d 98, 101 ( J st Dcp t 1995). As discussed above, defendants also submit Williams testimony that he and Wallace had not yet begun to use thc auto-scrubber at the time of plaintiff s fall, and that cven had they used the machine, it would have left a soapy residue, and not clear liquid. These two opposing accounts crcate a classic question of fact, which is properly decidcd not on a motion for summary judgment but by the jury. 10 [* 12] Lastly, defendants argue in reply that plaintiff fails to oppose the motion as to defendant Morrison, and for that reason suiimary judgment should be granted to Morrison on default. However, defendants offer nothing more than one conclusory allegation - that Morrison operates food services at lsabella, and had nothing to do with floor care - in support of its motion. There is nothing in the record which pertains to Morrison at all, and as such summary judgment as to Morrison is denicd. In accordance with the foregoing, it is hereby ORDERED that thc motion by defendants Crothall Facilities Management, Inc., Professional Service, Inc., d/b/a Propoco, and Morrison Management Specialists for summary judgment dismissing plaintiff Tatiana Oumentseva s coinplaint is dcnied. Dated: New Yorlc, New Yorlc September 6,20 12 ENTER: FILED S ¬P 1 2 2012 NEW YORK COUNW CLERKS OWICE 11

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