The opinion of the court was delivered by: Levy, United States Magistrate Judge:
Defendant and third--party plaintiff Aramark Healthcare Support Services, LLC ("Aramark" or "defendant") moves for summary judgment under Fed. R. Civ. P. 56. This matter is before me on consent of the parties, pursuant to 28 U.S.C. § 636. I heard oral argument on December 9, 2011. (See Transcript of Oral Argument, dated Dec. 9, 2011 ("Tr.").) For the reasons stated below, Aramark's motion is granted.
Plaintiffs Teresa Cipollone and Frank Cipollone ("plaintiffs") originally brought this action in New York State Supreme Court, Kings County, on December 10, 2009. It was removed to this court on January 27, 2010 based on diversity jurisdiction.
The court assumes familiarity with the facts. Briefly, plaintiff Teresa Cipollone ("Cipollone") was hired as a dietary worker at Staten Island University Hospital ("SIUH") in June 2001. (Defendant Aramark's Statement Pursuant to Local Civil Rule 56.1 ("Def.'s R. 56.1"), ¶ 16.) She was later promoted to the position of dietary aide. (Id. ¶ 17.) On December 20, 2006, Cipollone was working an overtime shift and was assisting with preparation of food for an SIUH function. (Id. ¶ 1.) Cipollone's supervisor at that time was Executive Chef Jerry Rodriguez, an Aramark employee. (Id.) Cipollone had agreed to work the overtime shift at Rodriguez's request. (See Deposition of Teresa Cipollone, dated Mar. 31, 2011 ("Cipollone Dep."), annexed as Ex. L to the Declaration of Joseph P. Wodarski, Esq, dated Aug. 15, 2011 ("Wodarski Decl."), at 33:24--34:11.) Rodriguez directed Cipollone to prepare cold--cut platters for the function. (Def.'s R. 56.1 ¶ 2.) In order to do so, Cipollone needed to retrieve parts for the meat--slicing machine from the dish room. (Id. ¶ 3.) While on her way to retrieve the parts, Cipollone slipped and fell inside the entrance to the dish room.*fn2 (Id. ¶ 4.)
Following the accident, Cipollone was taken to the SIUH emergency room and was admitted into the hospital for three days. (See Cipollone Dep. at 65:22--68:14.) Cipollone claims she sustained injuries to her back (including fracture of the T-10 vertebrae and herniation of the L4-5 vertebrae) and right leg and foot. (See Plaintiffs' Response to Third--Party Defendant Stonhard Inc.'s First Set of Interrogatories, dated Mar. 3, 2011.) She also claims that she was bedridden for six months and that she has been unable to work since the accident. (See Plaintiffs' Response to Defendant Aramark's First Set of Interrogatories, dated July 27, 2010.) Cipollone filed a workers' compensation claim following the accident and has received workers' compensation benefits. (Cipollone Dep. at 106:24--107:19.)
Prior to Cipollone's accident, Aramark and SIUH had entered into a Management Services Agreement (the "Agreement").*fn3 (Def.'s R. 56.1 ¶ 5; see also Management Services Agreement ("Agreement"), annexed as Ex. N to the Wodarski Decl.) The Agreement states that Aramark was to be considered an independent contractor and that neither Aramark nor any of its employees was to "be deemed or construed [as] a common law employee, agent, partner, fiduciary of, or co-venturer with, [SIUH]." (Agreement at 1, "1. Scope of Management Services.") Under the terms of the Agreement, Aramark was responsible for providing a "Food Service Management Program" to SIUH. (See Agreement, Ex. "FOOD.") SIUH was "solely responsible for all services required for the ownership and operation of the Facilities beyond the scope of the Management Services to be provided by ARAMARK." (See Agreement at 1, "1. Scope of Management Services.") SIUH was required to use its best efforts to cooperate with Aramark to the extent that Aramark required the active support of SIUH employees to provide management services. (See id. at 2, "3(b) Cooperation.")
The Agreement distinguished between two types of workers in the food services department: (1) members of the Aramark operations team, and (2) SIUH service employees. (See id. at 5--6, "4. Personnel.") Aramark was responsible for salary, benefits, insurance and other charges (including taxes and workers' compensation premiums) for members of the operations team. (Id. at 5.) Although SIUH and Aramark were to "mutually determine the number of Service Employees necessary for the effective and efficient provision of the Management Services," the service employees were to be provided by SIUH. (Id. at 5--6) SIUH was also responsible for salary, benefits, insurance and other charges (including taxes and workers' compensation premiums) for service employees.*fn4 (Id. at 6.)
Pursuant to those terms, Aramark employees supervised all SIUH employees in the food services department.*fn5 (Def.'s R. 56.1 ¶ 11.) Supervision included instruction on job functions and how to perform work, scheduling shifts, assigning daily tasks to SIUH hourly employees, and evaluating their work product. (Id. ¶¶ 11-13.) The Aramark staff also scheduled overtime shifts for SIUH employees. (Id. ¶ 13.) However, there is some dispute as to whether overtime scheduling required approval from SIUH. (See Plaintiffs' Memorandum of Law in Opposition to Defendant/Third--Party Plaintiff's Motion for Summary Judgment, dated Sept. 21, 2011 ("Pls.' Opp."), at 5.) Additionally, Ted Bochynski, Aramark's general manager at SIUH, participated to some extent in the hiring, discipline, and firing of SIUH hourly employees. (Def.'s 56.1 ¶¶ 6, 7.) However, the parties dispute the degree and propriety of Mr. Bochynski's participation, particularly the extent to which union restrictions may have limited or prohibited Mr. Bochynski from firing SIUH hourly employees.*fn6 (See Pls.' Opp. at 4.)
Aramark argues that it was Cipollone's "special employer" at the time of the accident and, because of the exclusivity provisions in New York's Workers' Compensation Law §§ 11 and 29(6), Cippolone's remedy is limited to the benefits she received through workers' compensation. (See Aramark's Memorandum of Law in Support of its Summary Judgment Motion, dated Aug. 15, 2011 ("Def.'s Mem.").) Cipollone argues that Aramark has failed to establish a complete surrender of control over her by SIUH, and thus that Aramark was not her special employer. (See generally Pls.' Opp.)
A. Summary Judgment Standard "The court shall grant summary judgment if the movant shows 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). "The function of the district court in considering the motion for summary judgment is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried." Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988) (citation omitted). A genuine factual issue exists if, taking into account the burdens of production and proof that would be required at trial, there is sufficient evidence favoring the non-movant such that a reasonable jury could return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citation omitted). This burden "may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). It is well--settled that "[o]n a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine whether there are issues to be tried." United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) (citations omitted).
B. Special Employment Under New York Workers' Compensation Law Under New York law, workers' compensation is the exclusive remedy for an employee injured in the course of employment. See N.Y. Workers' Comp. Law §§ 11, 29(6). However, "[a] person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer." Schramm v. Cold Spring Harbor Lab., 793 N.Y.S.2d 530, 531 (2d Dep't 2005). "[I]t is well settled that, if an employee elects to receive workers' compensation benefits, that employee cannot sue any employer with which he had a 'special employment' relationship." Smith v. Delta Int'l Machinery Corp., No. 05--CV--5462, 2007 WL 1540958, at *4 (E.D.N.Y. May 24, 2007) (citations omitted). Special employment occurs when an employee "is transferred for a limited time of whatever duration to the service of another [employer]." Thompson v. Grumman Aerospace Corp., 585 N.E.2d 355, 357 (N.Y. 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. "To be entitled to summary judgment, therefore, defendant must submit sufficient competent evidence to overcome this presumption." Sherman v. Reynolds Metal Co., 744 N.Y.S.2d 553, 555 (3d Dep't 2002).
Special employment status is generally a question of fact. Thompson, 585 N.E.2d at 357. However, a "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 ...