SCAW
SHORT FORM ORDER
STATE OF NEW YORK
SUPREME COURT
Present:
HON. UTE WOLFF LALY.
Justice
TRIAL/ IAS, PART 11
NASSAU COUNTY
ESTRELLA CASTANO,
Plaintiff (s) ,
MOTION DATE: 9/10/04
INDEX NO. : 8530/02
SEQ. NO.
-against-
CAL. NO. 2004H2262
WOODMERE REHAILITATION
& HEALTH CARE CENTER,
INC., FIVE TOWNS HEALTH CRE REALITY CORP.,
BERSAN CORP, HERBERT FELDMA, et al.,
Defendant (s)
The following papers read on this motion for summary:
Notice of Motion/ Order to Show Cause. . . . . . . . . .
Answering Affidavits.
Replying Affidavits.
Briefs:
1-4
5-7
8-11
Upon the foregoing papers, 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,
The building was
she fell on a floor that had just been
owned by Five Towns Realty.
waxed.
The Woodmere Center seeks dismissal of the complaint against
it on the grounds that plaintiff was a " special employee.
-2-
Castano v Woodmere
At the time
Index No.
of her accident, the plaintiff was a
8530/02
general
agency. Plaintiff
paycheck. Plaintiff
employee of N&W Agency, a temporary employment
testified at her examination- before- trial that N&W placed her at
The Woodmere
Center
and issued her
acknowledged though that N&W never had anyone on-site at The
Woodmere Center. In fact, she testified that she was trained by a
Woodmere Center who,
nurse who
believed worked for
plaintiff admitted, had approved her employment there. Plaintiff
the
she
testified that she was supervised by Caroline Schuker , a
Registered
Center.
Nurse, who she also thought worked for The Woodmere
The
Woodmere Center provided her with her equipment and made up her
schedule.
Mitchell Teller, The Woodmere Center' 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
automatically went onto N&W'
Affidavit in Opposition
to N&W. All new employees
s payroll. Mr. Teller states in his
to this motion that while the night
supervisor R. N. Carolyn Smickle was,
like plaintiff, on N&W'
payroll, that was the extent of her relationship with N&W , too.
Plaintiff'
s Supervisor was a Registered Nurse who Woodmere alone
its behalf.
Her training, scheduling, job
appointed to act on
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
He concludes that plaintiff'
supervisor " was under the sole direction and control , at the time
of this incident, of Woodmere personnel, including the Director of
work.
Nursing and (himsel f) .
(A) general employee of one employer may also be in the
special employ of another , notwi thstanding the general employer'
responsibility for payment of wages and for maintaining workers'
compensation and other employee benefits"
Thompson v Grumman
Aerospace Corp. 78 NY2d 553,
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,
557).
-3-
Castano v Woodmere
Index No.
8530/02
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
at p.
(Thompsom v Grumman Aerospace Corp., supra
special employer
557). " Although a determination concerning a worker' s status as a
special
fact,
summary
employee' is generally a question of
relevant facts
granted where
judgment may nevertheless
establish that the special employer controlled and directed the
work"
manner details and ultimate result of the employee
271 AD2d 928,
95 NY2d
(Jaynes v County of
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
the
be
Chemung,
(Jaynes v County of
929,
lv den.,
at p. 929).
Chemung, supra
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
Center , let alone doing supervisory work there. N&W was
payroll service.
Woodmere
is
manifestly clear that plaintiff'
general
merely a
It
employee of N&W Agency, too, was
supervisor, though a
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'
supervisor was also
general employee of N&W does not alter her or plaintiff' s status as
special employees of The Woodmere Center
286 AD2d
New York,
Inc.,
302 AD2d 382;
(See, Brunetti v Ci
ty
East Management,
Jaynes v County of Chemung, supra).
253;
see also, Erazo v
136
Al though 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
status as to a "
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,
plaintiff'
560).
special
-4-
Castano v Woodmere
Index No.
8530/02
Five Towns Realty seeks summary judgment dismissing the
complaint against it on the grounds that it is an out -of - possession
landlord. Its motion
established its
is
unopposed. Furthermore,
entitlement as an out-of- possession landlord to
summary judgment dismissing the complaint against
8 AD3d 628;
Knipfing vV&J, Inc.,
Ingargiola v Waheguru Mgt.,
732; Thompson v Port Auth. of New York and New Jersey,
294 AD2d 533) .
581; Eckers v Suede,
Dated:
OCT 1 8 2004
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it has
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5 AD3d
305 AD2d