Santorelli et al v. Crothall Services Group Inc. et al
OPINION & ORDER denying in its entirety defendants' 46 Motion for Summary Judgment. The parties are directed to submit a proposed joint pretrial order in accordance with my Individual Practices by 3/24/2017. Ordered by Judge Nina Gershon on 2/23/2017. (Barrett, C)
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IN CLE :K . F€CE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MADELINE & VINCENT
OPINION & ORDER
15-cv-978 (NG) (RLM)
GROUP, INC. et. al,
GERSHON, United States District Judge:
Plaintiff Madeline Santorelli ("Santorelli") brings this suit in diversity against Crothall
Services Group, Inc., Crothall Facilities Management Inc., and Crothall Healthcare Inc.
(collectively "Crothall") based on injuries she suffered as a result of a slip and fall that occurred
while she was working as a nurse at Eger Health Care & Rehabilitation Center ("Eger"). Santorelli
alleges that the fall was caused by the negligence of Eger employee Luis Ortega ("Ortega"), who
was mopping the floors but neglected to place a cautionary wet floor sign in the area that he was
mopping. Santorelli seeks to hold Crothall vicariously liable because it provided contract
personnel to Eger who managed, trained, and supervised housekeeping personnel like Ortega. In
addition to Madeline Santorelli's negligence claim, Vincent Santorelli brings a loss of consortium
Defendants now move for summary judgment on two grounds. First, Santorelli's sole
remedy is through worker's compensation, and her attempt to evade that limitation by arguing
Ortega was Crothall's special employee is meritless. Second, under New York law, they did not
owe a duty to Santorelli to keep the premises safe. As discussed below, I deny defendants' motion.
This case concerns the August 15, 2012 slip and fall of Santorelli, a nurse at Eger, which
is a healthcare facility located at 140 Meisner Avenue in Staten Island.' Shortly before her fall,
Ortega—a building attendant—had mopped the floor and, according to Santorelli, failed to put up
a cautionary sign. Plaintiff alleges that she slipped because of the wet floor and suffered injuries.
These allegations are in dispute. 2 However, the heart of the pending motion does not lie in the
facts surrounding the fall. Rather, it concerns the relationship between Eger and Crothall and how
this relationship affects Ortega's employment status, which, in turn, affects Santorelli' s ability to
Relationship Between Eger and Crothall
Eger employs its own staff members who clean the premises and maintain general upkeep.
Though Eger employs the people who do the actual housekeeping tasks, on December 31, 2001,
Eger entered into an agreement with Crothall whereby Crothall would provide managers to oversee
Eger's cleaning staff. Service Agreement Between Eger and Crothall ("Agreement"). Pursuant to
this Agreement, Crothall was to furnish "all management personnel required to accomplish [the]
Services." Agreement at ¶ 2.a. The Services to be accomplished included "a high standard of
housekeeping, plant operations and maintenance, and laundry management services." Agreement
August 15, 2012—the date of the accident—was the last day Santorelli reported to work at
Eger. Thereafter, she was on leave and received worker's compensation, but Eger ultimately
terminated her employment in August of 2014 because of her inability to return to work. At the
time of her termination she was fifty-two years old.
At the time of his deposition in 2015, Ortega was still working at Eger and had been there
for nine years. He disputes Santorelli's allegation that there was not a cautionary sign in front of
the room where she slipped.
at ¶ 2. On the date of the incident, Crothall employee Eric Tisdale ("Tisdale"), who worked out
of an office at Eger, was Ortega's supervisor. The other Crothall employee assigned to Eger was
Fred Rutledge, Tisdale's supervisor.
The Agreement is of critical, though not sole, importance in determining the relationship
between Eger and Crothall because it outlines the responsibilities and costs both parties would
assume. As to Eger, the following provisions detail its duties and the costs it would incur:
"[Eger] shall hire, discharge, or discipline Supervised Employees upon [Crothall's]
reasonable request if such actions are in accordance with [Eger's] policies and
procedures." Agreement at ¶ 2.b.
- Eger pays "[a]ll wages and salaries including regular hourly pay, vacation pay, sick
pay, bereavement pay and legal holiday pay for Supervised Employees." Agreement
Eger pays "[t]he cost of social security taxes, state and federal unemployment insurance
premiums, general liability and umbrella insurance premiums, worker's compensation
premiums, medical, life and dental insurance premiums, and other fringe benefits and
payroll based Federal, State or local taxes payable on behalf of Supervised Employees."
Agreement at ¶ 4.b.
- Eger provides the "janitorial equipment owned by [Eger] . . . for use by [Crothall] plus
the cost of purchasing on or before the commencement date of this Agreement the
supplementary janitorial equipment." Agreement at ¶ 4.d.
Eger also agrees to pay other ancillary costs necessary to perform the Services, such as
the cost of electric power and utilities, paper towels, toilet paper, plastic liners for the
disposal of medical waste, the cost of all waste removal, the cost of maintenance
supplies (plumbing supplies, electrical supplies, hardware, filters and paint).
Agreement at ¶ 4.e-1.
- Eger has the power to "request a change in the Services for reason of opening of new
units or buildings or permanent closings of units or buildings or a change in
housekeeping tasks or frequencies to be performed." Agreement at ¶ 5.f.ii.2.
As to Crothall, the following provisions describe its duties and the costs it would incur:
This Agreement was in force on the date of the accident.
- "Furnish all management personnel required to accomplish [the] Services." Agreement
- "Train, manage and direct the Supervised Employees in the performance of the
Services, in accordance with [Eger]'s policies and procedures." Agreement at ¶ 2.b.
- "Perform all administrative duties relating to the Supervised Employees." Agreement
- "Provide and maintain training equipment, films, slides, literature, daily work and
project schedules, standard operational procedures and training manuals to be used in
training Supervised Employees." Agreement at ¶ 2.d.
- "Furnish appropriate modules of [Crothall's] proprietary software, TeamCHIMES (the
'Software') for housekeeping, plant operations and maintenance, and laundry
services." Agreement at ¶ 2.g.
- Pay "[a]!l wages and salaries including regular pay, vacation pay, sick pay,
bereavement pay and legal holiday pay for [Crothall's] management staff working at
[Eger]." Agreement at ¶ 3.a.
Pay "[t]he cost of social security taxes, state and federal unemployment insurance
premiums, general liability and umbrella insurance premiums, worker's compensation
premiums, medical, life and dental insurance premiums, other fringe benefits, related
administrative costs and payroll-based federal, state and local taxes payable on behalf
of. . . [Crothall's] management, supervisory and clerical staff working at [Eger]."
Agreement at ¶ 3.b.
- Pay for the "cost of all janitorial supplies and Minor Equipment used in performing the
Services." Agreement at ¶ 3.c.
- Pay the "cost of manuals, forms, training aids, office supplies and long-distance
telephone calls needed in performing the Services." Agreement at ¶ 3.e.
- Pay the "cost of starting [Crothall's] service at [Eger] as set forth [herein]." Agreement
- Pay the "cost of maintaining and repairing all janitorial equipment needed to perform
the Services." Agreement at ¶ 3.h.
- In exchange for its services, Crothall would receive $441,198 annually. Agreement at
In addition to the Agreement itself, which specifies the relationship between the parties in
principle, deposition testimony addressed how Eger and Crothall interacted in reality. Testimony
revealed that Eger maintained the timecards of the housekeepers and that other Eger employees
(such as nurses) would instruct housekeepers to perform certain tasks (such as cleaning rooms or
taking out trash). Tisdale Dep. at 72; Hansen Dep. at 5 1-52. These instructions were usually
relayed from the nurses to Tisdale, but, on occasion, a nurse would directly tell a housekeeper to
do something, and the housekeeper would oblige. Hansen Dep. at 26-28, 5 1-52.
Though Ortega identified Tisdale as his supervisor and acknowledged that Tisdale worked
for a separate enterprise, he did not know Crothall by name. Ortega Dep. at 58. When commenting
on the supervisory relationship between himself and building attendants, including Ortega, Tisdale
stated that: (1) if he observed a building attendant mopping a floor without a cautionary sign, he
had the authority to discipline that attendant and recommend his termination; (2) he held periodic
safety meetings with the building attendants, which he referred to as "Crothall web-based
training;" (3) if he observed water on the floor, he would order a building attendant to put a
cautionary sign on the location and clean it up; (4) he maintained a duty list and schedule that
showed daily assignments for housekeeping staff; and (5) he conducted inspections on a daily basis
by walking around the premises. Tisdale Dep. at 24, 28-30, 34.
Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate if the
movant demonstrates that there is no genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Linda Hansen was the supervising nurse on the date of the accident and signed the accident
"A dispute is not genuine unless the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Shiflett v. Scores Holding Co., Inc., 601 Fed. Appx. 28, 29 (2d Cir.
2015) (internal quotation omitted). A court is required to "construe all evidence in the light most
favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its
favor." Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). The moving party bears the
burden of proof that no genuine issues of fact exist, but, once it satisfies this initial burden, the
burden then shifts to the nonmoving party to present evidence that there is a genuine issue for trial.
Celotex, 477 U.S. at 323. "Summary judgment is appropriate where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party." Rosenfeld v. Hostos Comfy.
Coil., 554 Fed. Appx. 72, 73 (2d Cir. 2014).
Interpretation of New York Law
In the absence of a definitive ruling from the New York Court of Appeals, a federal court,
when deciding issues of New York law, must "predict how the state's highest court would resolve"
the issue presented. Runner v. N.Y Stock Exchange, Inc.,
568 F.3d 383, 386 (2d Cir. 2009)
(internal quotation omitted). In making this prediction, courts look to decisions of the Appellate
Divisions as "helpful indicators of how the Court of Appeals would decide" the issue, but are "not
strictly bound" by those decisions if there is "persuasive data" to suggest the Court of Appeals
would decide the issue otherwise. Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 133 (2d
Is Ortega Crothall's Special Employee?
Ordinarily, when a person is injured by a co-worker, her exclusive remedy is to collect
See Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 357 (2007).
Santorelli, an Eger employee, seeks to avoid the exclusiveness of this remedy by arguing that
Ortega, though technically an Eger employee, is not actually her co-worker because he is Crothall's
special employee. Crothall disagrees and argues Ortega is not its special employee, thus making
him plaintiffs co-worker and limiting plaintiff to worker's compensation. 5
"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 N.Y.2d 553, 557 (1991). "General employment is presumed to continue, but this presumption
is overcome upon clear demonstration of surrender of control by the general employer and
assumption of control by the special employer." Id. "[A] person's categorization as a special
employee is usually a question of fact. . . [however] we have held that the determination of special
employment status may be made as a matter of law where the particular, undisputed critical facts
compel that conclusion and present no triable issue of fact." Id.
In determining whether a special employment relationship exists, courts consider several
factors. They include:
[(1)] the right to and degree of control by the purported employer over the manner,
details, and ultimate result of the special employee's work; [(2)] the method of
payment; [(3)] the right to discharge; [(4)] the furnishing of equipment; and [(5)]
the nature and purpose of the work.
Gannon v. JWP Forest Elec. Corp., 275 A.D.2d 231, 232 (1St Dept. 2000). Of these factors,
though not determinative, "who controls and directs the manner, details and ultimate result of the
employee's work" is "significant and weighty." Thompson, 78 N.Y.2d at 558.
Plaintiff concedes that "there is insufficient evidence of negligent supervision." P1. Opp.
at 1. Thus, there is no independent claim of negligence against Crothall—only a claim of vicarious
liability based on Ortega's actions.
It is worth noting, at the outset, that the fact pattern in the instant case is not the classic one
that often underlies the evaluation of whether a special employment relationship exists. More
typically, Company 1 sends an employee to Company 2, and the issue is whether the employee is
a special employee of Company 2. See, e.g., Shoemaker v. Manpower, Inc., 223 A.D.2d 787 (3rd
Dept. 1996). Here, Crothall sent an employee, Tisdale, to Eger to manage Eger's cleaning staff
If this were the typical situation, the question would be whether there were factual issues regarding
a special employment relationship between Tisdale and Eger. 6 However, that is not the issue.
Rather, the question is whether there is a factual issue regarding the employment relationship
between Ortega, a housekeeper working at Eger under Tisdale's supervision, and Crothall.
The parties both rely on recent cases from the Second Department to argue for their
respective positions. Defendants cite to Spencer v. Crothall Healthcare, Inc., 38 A.D.3d 527 (2nd
Dept. 2007), a case with facts similar to the instant case, including that Crothall was the defendant.
In that case, plaintiff was a hospital employee who slipped on a wet floor while delivering food to
a patient. As a result of the fall, plaintiff collected worker's compensation benefits from the
hospital and then commenced a personal injury action against Crothall, which "managed" the
hospital's housekeeping department. Crothall moved for summary judgment on the ground that
plaintiff's exclusive remedy was worker's compensation. Plaintiff opposed and argued that the
Defendants argue that "it is almost certain that. . . Eric Tisdale and Fred Rutledge would
be deemed special employees of Eger. . . When viewed in this light, the suggestion that Ortega
was somehow a general employee of Eger and, at the same time, a special employee of a special
employee of Eger is absurd." Def. Reply at 4 n. 1. This argument is based on an incorrect
assumption. It is not "almost certain" that Tisdale would be deemed Eger's special employee. On
the contrary, "independent contractors and their employees are routinely instructed as to what they
should do by those purchasing their services, but do not therefore become the purchasers'
employees." Bellamy v. Columbia Univ., 50 A.D.3d 160,164 (1st Dept. 2008).
housekeepers were Crothall's special employees, thus allowing her to sue Crothall. In granting
summary judgment to Crothall, the Second Department concluded:
Here, the hospital did not surrender control of the employees as it paid their
wages, provided them with workers' compensation insurance, and made the
final decision to hire, discipline, or fire them. Since the members of the
housekeeping staff are general employees of the hospital, the plaintiff is
precluded by the exclusivity provision of the Workers' Compensation Law
from bringing this action against [Crothall].
Crothall argues that Spencer is dispositive given its indistinguishable facts. Plaintiff
counters by arguing that the only "feature of control cited by the Court in Spencer appears to have
been that Crothall Healthcare Services, Inc. 'managed' the housekeeping staff at the hospital,
[while] the evidence in the case at bar demonstrates a far greater level of control than mere
management . . . the terms of the contract . . . require Crothall to 'Train, manage and direct the
Supervised Employees in the performance of the Services." P1. Opp. at 8. Though the opinion in
Spencer refers only to Crothall managing the housekeepers, the brief plaintiff submitted to the
Appellate Division reveals that the contract in Spencer also required Crothall to "train, manage
and direct all Supervised Employees." Brief of Plaintiff, Spencer v. Crothall, 38 A.D.3d 527 (2nd
Dept. 2007). That is the exact language used in the contract between Crothall and Eger in this
case. See Agreement at ¶ 2.b. Accordingly, plaintiffs attempt to distinguish Spencer on this
ground is unavailing.
But, while Spencer is indeed analogous to this case, so too is the case on which plaintiff
relies, Lotz v. Aramark Servs., Inc., 98 A.D.3d 602 (2nd Dept. 2012). In Lotz, plaintiff was a
hospital employee who slipped and fell on a wet floor. She then sued Aramark, which contracted
with the hospital to provide cleaning services. Plaintiff alleged that the wet floor was created by
I note that there was no overlap among the judges who comprised the Second Department
panels that heard the Spencer and Lotz cases.
members of the housekeeping staff who were the defendant's special employees. The court denied
defendant's summary judgment motion because "plaintiff raised a triable issue of fact . . . as to
whether these members of the housekeeping staff were the defendant's special employees." Id. at
603. An examination of the briefs presented to the Second Department reveals the following facts:
Like Crothall, Aramark did not hire the housekeeping staff that caused the alleged dangerous
condition. Moreover, Aramark did not even have any management personnel on duty when the
accident occurred. Similar to Crothall in the instant case, Aramark relied on its contract with the
hospital, which required it to develop and implement a housekeeping program that would comply
with the hospital's standards, thus evidencing Aramark's lack of ultimate control over the
housekeeping staff's work. The Second Department rejected Aramark's arguments and
determined that there was an issue of act as to whether the housekeepers were its special
Given that these two Second Department decisions have facts analogous to the current case,
but point in opposite directions, neither is particularly instructive as to how the New York Court
of Appeals would decide this issue. Therefore, I will return to the seminal New York Court of
Appeals case in the special employment context for guidance, Thompson v. Grumman Aerospace
Corp., 78 N.Y.2d 553, 557 (1991). Both parties rely on Thompson and it was cited approvingly
in both Lotz and Spencer. 8
I note that the issue of determining whether an employee of one company has become a
special employee of another predates not only Thompson, but also the New York worker's
compensation law, which was enacted in 1913. See 1913 N.Y. Laws, Chap. 816, as amended by
1914 N.Y. Laws, Chap. 41. In Standard Oil Co. v. Anderson, 212 U.S. 215 (1909), plaintiff was
a longshoreman who was injured while loading a ship. At the time of the accident, plaintiff's
employer—a master stevedore—was under contract with defendant to load a ship with oil. The
Supreme Court had to decide who plaintiff's employer was when he was injured—the stevedore
or the person with whom the stevedore had contracted. In analyzing the facts, the court noted that
In Thompson, plaintiff was a general employee of Applied Transportation Service ("ATS"),
which provided plaintiff's paycheck and carried his worker's compensation insurance. ATS's role
was to recruit and provide trained, experienced candidates for employment at Grumman that met
job descriptions and specifications Grumman furnished in advance. ATS submitted resumes to
Grumman, and Grumman interviewed and selected the candidates. Once employed, only
Grumman could terminate plaintiff's employment. After Grumman hired him, plaintiff worked
exclusively for Grumman at its facility, and he reported daily to a Grumman supervisor who
assigned, supervised, and monitored his daily work activities.
On these facts, at the summary judgment stage, the Court of Appeals concluded that
plaintiff was Grumman's special employee. It emphasized that, other than paying plaintiff's
paycheck and employee benefits, all other essential aspects of an employment relationship were
between plaintiff and Grumman. All work was done at Grumman's premises, pursuant to
Grumman's direction, and in furtherance of Grumman's business, not ATS's business.
Accordingly, plaintiff was a special employee of Grumman and could not sue Grumman for a
work-related injury, but rather was limited to the worker's compensation remedy.
There are certain particularly instructive portions of the Thompson opinion. First, the court
noted that the issue of special employment is usually one of fact. Second, despite ATS paying
plaintiff's salary and providing employment benefits (including workers' compensation), the court
did not find it to be plaintiff's employer. Most importantly, the essence of Thompson 's analysis
was its focus on who was responsible for the employee at issue. In finding Grumman to be
plaintiff's employer, the court emphasized that plaintiff reported to a Grumman supervisor and
determining the true employer "is usually answered by ascertaining who has the power to control
and direct the servants in the performance of their work." Id. at 222.
worked at Grumman's facility pursuant to Grumman directives in furtherance of Grumman's
Turning to the special employment factors in this case, only one points unequivocally in
Crothall's favor. Nobody disputes that Eger pays Ortega and is responsible for his employee
benefits. As to the others, none of them points squarely in Crothall's favor. To be sure, some are
more favorable to Crothall than others. For example, regarding the furnishing of equipment, it is
true that Eger was primarily tasked with that duty. The Agreement requires Eger to provide the
janitorial equipment it owned to Crothall and to purchase additional equipment (in the amount of
$58,870) prior to Crothall providing its services. Crothall was responsible only for purchasing
janitorial supplies and minor equipment.
As to the ability to hire and fire Eger employees, it is undisputed that Crothall did not have
the power to unilaterally fire Eger employees. However, Tisdale's deposition testimony revealed
that he could recommend discipline or termination, and the Agreement required Eger to comply
with that request if reasonable. See Tisdale Dep. at 86. How this hiring/firing authority actually
worked in practice is not entirely clear from the current state of the record and is the type of factual
issue properly decided by a jury. Similarly, the nature and purpose of the work is more mixed in
this case than the typical one. For example, where a temporary employment agency assigns its
employee to a factory, the employee is quite clearly working in furtherance of the factory's
business interests. In this case, in contrast, Ortega is keeping the hospital clean and safe, which is
certainly in the hospital's interest and furthers its goals. At the same time, however, the very nature
of Crothall's business is to manage these hospital workers—that is its livelihood. Ortega's efforts
further that livelihood because, without housekeepers like Ortega, there would be no reason for
Eger to hire Crothall in the first instance.
As to the most critical factor under Thompson—who controls and directs the manner,
details, and ultimate result of the employee's work—it is the most disputed. Plaintiff relies on the
following facts to support her argument that Crothall directed Ortega's work: (1) no Eger employee
managed Ortega; rather he was responsible only to Crothall employees; (2) the Agreement bound
Crothall to "[t]rain, manage and direct the Supervised Employees in the performance of the
Services;" (3) Crothall could recommend that staff be fired and could discipline them; (4) Crothall
maintained the duty list; and (5) Crothall held safety meetings for the housekeeping staff.
In response, Crothall does not dispute that it managed the cleaning staff, nor could it given
that was the Agreement's express purpose. However, it argues that it did not control the "ultimate
result" of Ortega's work because Eger was the entity that set the standards for cleanliness at its
facility. Pursuant to the Agreement, Crothall was to "train, manage and direct the Supervised
Employees in the performance of the Services, in accordance with [Eger's] policies and
procedures." Agreement at ¶ 2.b (emphasis added). This argument has some support. For
example, attached to the Agreement are schedules, the first of which, Schedule I, is entitled,
"Housekeeping Service Specifications." This is a 17 page document in which Eger outlines the
frequency with which Crothall is to perform certain cleaning tasks, such as dusting, sweeping,
mopping, and vacuuming.
It may be the case that Eger so greatly restricted Crothall's discretion in managing Ortega
that Crothall was simply serving as a conduit for Eger and that it is actually Eger who directed
Ortega and was ultimately responsible for his work. On the other hand, on a day-to-day basis it
was Crothall who was managing the housekeeping staff, training them, giving them their
assignments, and inspecting their work. That is why Eger hired Crothall. These factual disputes
make it impossible to say, as a matter of law, that Crothall was not tasked with controlling and
directing Ortega. 9
In sum, the only factor that unequivocally supports Crothall's argument is that it did not
pay Ortega's salary or provide his employment benefits. As to the other four, there are facts and
inferences that can be drawn that can support either party. That is why special employment is
"usually a question of fact" reserved for a jury. Accordingly, I deny defendants' motion for
summary judgment because factual issues remain regarding whether Ortega was Crothall's special
Did Crothall Owe a Duty to Santorelli?
Before a defendant can be held liable in a negligence action, there is the threshold issue of
whether defendant owed plaintiff a duty of care. Crothall independently argues that it is entitled
to summary judgment because it owed no such duty to Santorelli.
When and whether a person owes a duty of care to another is an issue that has continually
evolved in New York's common law. In assessing whether a duty exists in this case, the parties
Crothall makes the further argument that finding Ortega to be its special employee would
subject it to liability for things outside of its control. For example, if it does not have the ultimate
power to discharge a hypothetical member of the housekeeping staff who is completely inept and
creating dangerous conditions, then neither "public policy nor logic" supports holding Crothall
liable. Def. Reply at 4. Similarly, if ithas to abide by Eger's policies and procedures, it is possible
that those policies could force Crothall to act in a certain way that exposes it to greater liability
than if it was free to act on its own. However, assuming Crothall is not already contractually
protected from these outcomes, surely Crothall could have protected itself from these outcomes
through contract. Its failure to do so does not change the law and how that law applies to the facts
of this case.
I also reject Crothall' s argument in its reply brief that Santorelli cannot sue Crothall even
if Ortega is its special employee because she is nonetheless Ortega's co-worker and therefore is
limited to worker's compensation. This argument is meritless. Santorelli is limited to worker's
compensation from Eger, but if Crothall is found to be Ortega's special employer under the
principles of Thompson, then she can sue Crothall.
focus on the doctrine articulated in Espinal v. Melville Snow Contrs,, 98 N.Y.2d 136 (2002). In
that case, the court integrated threads of New York common law to elucidate when a failure to
perform a contractual obligation can give rise to a negligence action by a third party with whom
the defendant was not in privity. Espinal undoubtedly is highly relevant to this case and informs
whether Crothall owed Santorelli a duty of care. I do note, though, that there is another issue that
the parties fail to address. Namely, "a person is not necessarily insulated from liability in tort
merely because he or she is engaged in performing a contractual obligation." Landon v. Kroll Lab.
Specialist, Inc., 91 A.D.3d 79, 83 (2nd Dept. 2011). Instead, "[t]he very nature of a contractual
obligation, and the public interest in seeing it performed with reasonable care, may give rise to a
duty of reasonable care in performance of the contract obligations, and the breach of that
independent duty will give rise to a tort claim." Id. However, given the parties' focus on Espinal
and the fact that my conclusion does not require me to reach the issue of whether a more general
duty exists, I will confine my analysis to the applicability of the Espinal exceptions.
In Espinal, the court had to determine whether a "duty ran from [defendant] to plaintiff,
given that [defendant's] snow removal contract was with the property owner." Espinal, 98 N.Y.2d
at 138. The court noted that "[u]nder our decisional law a contractual obligation, standing alone,
will generally not give rise to tort liability in favor of a third party." Id. However, it also noted
that, as the common law evolved, courts had recognized certain exceptions to this general
principle. Focusing on three specific cases from New York's common law history, it articulated
the three circumstances under which there is a duty to a third party that arises from a contracting
party's failure to properly perform a contractual duty. These three circumstances are: "(1) where
the contracting party, in failing to exercise reasonable care in the performance of his duties,
launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued
performance of the contracting party's duties; and (3) where the contracting party has entirely
displaced the other party's duty to maintain the premises safely." Id. at 140 (internal quotations
and citations omitted).
Defendants argue that none of these three exceptions apply, and therefore they did not owe
a duty to plaintiff. Plaintiff argues that there are issues of fact as to whether Crothall owed a duty
to Santorelli pursuant to the first and third exceptions (launching an instrument of harm and total
displacement to maintain a premises safely)."
Launching an Instrument of Harm
Defendants' argument that they owe no duty to plaintiff under this exception is
unpersuasive because it exclusively relies on their position that "Ortega remained Eger's employee
and was acting for Eger's benefit, cleaning Eger's floors. Moreover, Crothall cannot be
derivatively liable for Ortega's actions because the law does not allow that sort of end-run around
workers' compensation exclusivity."
This conflates the duty issue with the special
employment issue, but the two are distinct. If Ortega is found to be Crothall's special employee,
then there is the further issue of whether Crothall owed a duty only to Eger or to a non-contracting
third party like Santorelli. Crothall fails to offer any argument as to this latter issue. Plaintiff
alleges that she slipped and fell on a wet floor that Ortega had recently mopped, but that had not
been designated as wet with a cautionary sign. Under plaintiff's evidence, Ortega launched an
instrument of harm by creating the wet floor and not putting up a cautionary sign; and Crothall
would be vicariously liable for this action if Ortega is found to be its special employee.
In her opposition, plaintiff explicitly disavows reliance on the second exception. See P1.
Opp. at 9.
Accordingly, there is an issue of fact as to whether Crothall owed a duty of care to Santorelli
pursuant to this exception.
Total Displacement of Eger's Duty to Safely Maintain the Premises
For many of the same reasons discussed above regarding the special employment issue,
there is also an issue of fact regarding whether Crothall entirely displaced Eger' s duty to maintain
the premises safely. 12 In answering whether one entity has entirely displaced another in the
responsibility to safely maintain a premise, courts have looked to the services agreement to
determine whether it is sufficiently comprehensive to warrant such a conclusion.
For example, in Karac v. City of Elmira, 14 A.D.3d 842 (3rd Dept. 2005), the defendant
contracted with the City of Elmira to maintain and operate a parking garage that the city owned.
The contract required the defendant to provide insurance on the garage and to hire all of the
employees that worked in the garage, including a supervisor who was responsible for the day-today operation and training of employees.
Id. at 844. These day-to-day operations included
coordinating and supervising staff, accounting for revenues, and being responsible for the physical,
mechanical and electrical maintenance of the premises.
Id. Overturning a grant of summary
judgment to the contractor, the Appellate Division concluded that the "contract [was] so
This Espinal exception derives from Palka v. Servicemaster Mgmt. Servs. Corp., 83
N.Y.2d 579 (1994). In that case, defendant had contracted with a hospital "to provide
management services, which included, in part, the duty to 'train, manage and direct' all support
service employees of the hospital, expressly including the hospital's maintenance department."
Id. at 582. Plaintiff, a nurse at the hospital, was injured when an oscillating, wall-mounted fan
fell and hit her. The trial court denied defendant's motion for a directed verdict and the jury
found in plaintiffs favor. The Appellate Division reversed and granted defendant's motion. The
New York Court of Appeals reversed the Appellate Division and reinstated the jury verdict
because it concluded that "when a party contracts to inspect and repair and possesses the
exclusive management and control of real or personal property which results in negligent
infliction of injury, its assumed duty extends to noncontracting individuals reasonably within the
zone and contemplation of the intended safety services." Id. at 590.
comprehensive and exclusive that it completely displace[d] the other contracting party's duty
toward the third party." Id.
Similarly in Tushaj v. Elm Mgmt. Assoc., 293 A.D.2d 44 (1st Dept. 2002), the Appellate
Division reinstated a jury verdict for plaintiff where defendant was hired by a building owner to
manage the day-to-day operations of the building, including making periodic inspections and
ensuring that the building was in good repair. Though defendant had to receive permission from
the building owner before making repairs if the cost exceeded $500, it had full authority to
effectuate repairs costing less than $500. The court concluded that the jury properly found that
defendant owed plaintiff a duty because plaintiff was harmed by a faulty condition in the building,
the repair of which would have cost only twelve dollars. The court stated, "plaintiff. . . was among
those limited individuals whose safety came within the scope of defendant's contractual
obligations, and the risk of his being injured as a result of defendant's failure to fulfill those
obligations was assuredly foreseeable." Id. at 48.
Again, in Suarez v. JPMorgan Chase Bank, 128 A.D.3d 500 (1st Dept. 2015), the Appellate
Division concluded there was an issue of fact regarding the duty owed. In that case, defendant
contracted with the landowner to remove snow from the parking lot. The court noted that the snow
removal contract used broad language that suggested defendant had entirely absorbed the
landowner's duty, but it stated, "there is evidence . . . . that [the landowner] retained control over
the snow removal services by directing [defendant] to stop using sand on the icy parking lot and
to remove piles of snow from the premises." Id. at 500.
As in Suarez, there is evidence that the services Crothall provided were, to an extent,
subject to Eger's control. For example, similar to the landowner in Suarez directing defendant as
to the methods it used to remove the snow, Eger dictated how and when certain cleaning tasks
were to be done. But, as in Karac, Crothall was responsible for the day-to-day operation of the
housekeepers who cleaned Eger's facilities. And, when considering Tushaj 's language, Santorelli
"was among those limited individuals whose safety came within the scope of defendant's
contractual obligations," and injury to her from Crothall's "failure to fulfill those obligations was
assuredly foreseeable." Tushaj, 293 A.D.2d at 48.
Accordingly, I deny defendants' motion for summary judgment on the ground that it did
not owe plaintiff a duty because there is an issue of fact as to whether it entirely displaced Eger's
duty, as defined by New York law, to maintain the premises safely.
Factual issues remain as to the two grounds on which defendants seek summary
judgment—(1) whether Ortega was Crothall's special employee; and (2) whether Crothall owed
Santorelli a duty of care. Therefore, defendants' motion for summary judgment is denied in its
entirety) 3 The parties are directed to submit a proposed joint pretrial order in accordance with
my Individual Practices by March 24, 2017.
United States District Judge
Dated: February 23, 2017
Brooklyn, New York
Defendants do not argue that Vincent Santorelli's loss of consortium claim should be
dismissed for any reason other than that it is derivative of his wife's claim.
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