Kiss v. Clinton Green N., LLC
| Decision Date | 22 July 2020 |
| Docket Number | 17 Civ. 10029 (LGS) |
| Parties | TIBOR KISS, Plaintiff, v. CLINTON GREEN NORTH, LLC, et al., Defendant. CLINTON GREEN NORTH, LLC, Third Party Plaintiff, v. JUDY PAINTING CORP, et al., Third Party Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Tibor Kiss alleges that Clinton Green North, LLC, Dermot Clinton Green, LLC, AvalonBay Communities, Inc. (collectively, the "Owner Defendants") and Judy Painting Corp. have violated New York Labor Law §§ 240(1), 241(6) and 200 and have committed common law negligence. Plaintiff and Judy Painting have filed cross-motions for summary judgment. For the reasons below, Plaintiff's motion for summary judgment is denied, and Judy Painting's motion for summary judgment is granted in part and denied in part.1
The Owner Defendants owned the apartment complex at 515 West 52nd Street, New York, New York, in September 2017 (the "Property"). They entered into an agreement with Judy Painting in 2015 to perform all of the wall repair and painting work at the Property, among other tasks. Judy Painting subcontracted this work to Z&Z Services, Inc., a third-party defendant in this action and an affiliate of Judy Painting. (The same two people who owned Judy Painting also owned Z&Z Services.) A worker named Richard Gyurus performed work for both Judy Painting and Z&Z Services. Mr. Gyurus coordinated the scheduling of painters at the Property, but he did not instruct or supervise them.
In 2017, Z&Z Services hired and paid painters on a three-month trial basis. Judy Painting then hired the painters who had passed the three-month trial. In September 2017, Plaintiff had worked for two months as a painter and was paid by Z&Z Services. Each week, he emailed a Judy Painting address about the work he had completed in order to receive payment from Z&Z Services.
On September 11, 2017, Z&Z Services told Gyurus that the Owner Defendants had requested that Property unit 10A be painted. Gyurus then directed Plaintiff to paint the unit. Plaintiff received this direction and arrived to paint the unit the next day. He obtained a ladder and paint from the property basement, but otherwise brought his own tools, which was the standard practice. The ladder was approximately four feet tall and had an A-frame. Plaintiff inspected the ladder before beginning work and confirmed that it was in good condition.
At one point, Plaintiff was standing on the ladder in the unit 10A bathroom. He stated at his deposition that before ascending, he confirmed that the hinges were locked to secure the ladder in place. The ladder was not held in place by any person, as Plaintiff was alone. Plaintiff testified that the legs of the ladder were stable on the bathroom tile floor. Plaintiff fell off the ladder and suffered serious injuries due to the fall. The ladder did not collapse when Plaintiff fell. Following the incident, the Workers' Compensation Board determined that Plaintiff was a Z&Z Services employee. Z&Z Services paid Plaintiff workers' compensation benefits.
When parties cross-move for summary judgment, the Court analyzes the motions separately, "in each case construing the evidence in the light most favorable to the non-moving party." Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018). Summary judgment is appropriate where the record establishes that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When the movant properly supports its motion with evidentiary materials, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Fed. Trade Comm'n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (quotation marks omitted). "Only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013); accord Starr Indem. & Liab. Co. v. BrightstarCorp., 388 F. Supp. 3d 304, 323 (S.D.N.Y. 2019).
Judy Painting argues that Plaintiff's claims must be dismissed because Plaintiff was its employee. Judy Painting also argues that the NYLL claims should be dismissed because it is not a proper labor law defendant. Finally, Judy Painting argues that the claims should be dismissed based on the undisputed facts. Plaintiff cross-moves for summary judgment against Judy Painting on the §§ 240(1) and 200 claims, and against the Owner Defendants on his § 240(1) claim. As explained below, Plaintiff' motion for summary judgment is denied. Judy Painting's motion is granted in part; the § 241(6) claim is dismissed, but the motion otherwise denied.
"Workers' Compensation Laws §§ 11 and 29(6) restrict an employee from suing his or her employer . . . for an accidental injury sustained in the course of employment." Fung v. Japan Airlines Co., 880 N.E.2d 845, 849 (N.Y. 2007); accord Dube v. Cty. of Rockland, 75 N.Y.S.3d 239, 241 (2d Dep't 2018). The rule applies to general and special employees. See Thompson v. Grumman Aerospace Corp., 585 N.E.2d 355 (N.Y. 1991); accord Dube, 75 N.Y.S.3d at 241. Plaintiff is entitled to, and has received, workers compensation benefits from Z&Z Services as his general employer. ECF 175 ¶ 25; 173-9. Judy Painting argues that Plaintiff is its special employee, and therefore Plaintiff cannot sue Judy Painting for damages due to the work injury. Judy Painting is incorrect and is not entitled to summary judgment because a reasonable jury could find that Plaintiff was not Judy Painting's special employee.
A special employee is a worker "who is transferred for a limited time of whatever duration to the service of another." Thompson, 585 N.E.2d 355 at 357; accord Dube, 75 N.Y.S.3d at 241. "General employment is presumed to continue, but this presumption isovercome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer." Thompson, 585 N.E.2d at 357; accord Reyes v. Crothall Healthcare, Inc., 794 F. App'x 132, 134 (2d Cir. 2020) (summary order). To determine whether a party is a special employee, courts consider (1) the right to control the employee's work; (2) the method of payment; (3) the furnishing of equipment; (4) the right to discharge; and (5) the relative nature of the work. See Dube, 75 N.Y.S.3d at 241; accord Collado v. Crothall Healthcare, Inc., 17 Civ. 3078, 2017 WL 6502230, at *3 (S.D.N.Y. Dec. 15, 2017) (applying New York law). A "significant and weighty" factor is "who controls and directs the manner, details, and ultimate result of the employee's work." Thompson, 585 N.E.2d at 358; accord Flanagan v. Kajima USA, Inc., 79 N.Y.S.3d 672, 673 (2d Dep't 2018).
The undisputed facts do not establish that Plaintiff is Judy Painting's special employee. Indeed, they suggest that he is not: it is undisputed that Judy Painting did not pay Plaintiff and did not furnish equipment to Plaintiff; and it is undisputed that Plaintiff worked alone and was not under supervision or direction while working. It remains disputed whether Gyurus gave Plaintiff assignments on behalf of Z&Z Services or Judy Painting. And the record does not make clear whether Judy Painting could discharge Plaintiff. On this basis a reasonable jury could find that Plaintiff was not Judy Painting's special employee. That Plaintiff emailed a Judy Painting address to receive payment from Z&Z Services does not establish that Judy Painting assumed control nor that Z&Z Services surrendered it, in the absence of any other undisputed evidence of Judy Painting's control. Judy Painting is not entitled to summary judgment on the ground that Plaintiff was Judy Painting's special employee.
New York appellate courts have refused to find a special employment relationship as a matter of New York law based on similar and less compelling facts. See Dube, 75 N.Y.S.3d at241-42 ( to find a special employment relationship as a matter of law where the general employer paid the plaintiff's wages and benefits and retained authority to discharge and discipline him, even though the plaintiff was under the control of the third party on the day of the injury); Zupan v. Irwin Contracting, Inc., 43 N.Y.S.3d 113, 115-17 (2d Dep't 2016) (). The same can be said about courts in this District applying New York law. See Medrano v. Aramark Healthcare Techs., LLC, No. 14 Civ. 6777, 2015 WL 4750703, at *5 (S.D.N.Y. Aug. 11, 2015) (); In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 7 Civ. 1588, 2015 WL 13680357, at *3 (S.D.N.Y. Apr. 17, 2015) ().
Judy Painting argues that Thompson compels a contrary decision. This argument is incorrect as that case is factually very different from this one. In Thompson, the Court of Appeals held that the plaintiff was a special employee of Grumman Aerospace Corp. as...
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