July 31, 2013
In the Matter of the Claim of Mercedes CRESPO, Claimant,
The STATE of New York, Defendant. No. 120468.
[972 N.Y.S.2d 437] Langsam Law, LLP by Elise Langsam, Esq., for claimant.
Eric T. Schneiderman, New York State Attorney General by Daniel Chu, Assistant Attorney General, for defendant.
DAVID A. WEINSTEIN, J.
This action was commenced by a claim filed on October 14, 2011, in which claimant Mercedes Crespo alleged that at or about 5:30 p.m. on September 6, 2011, she tripped and fell in a hole due to defective pavement in the area behind 94 Amity Street in Brooklyn, New York. The claim alleges that the defect was the result of negligence by the State University of New York (" SUNY")
and Downstate at LICH Holding Company, whom she named as defendants. Since the
only proper defendant in this action is the State of New York (see Court of Claims Act § 9; N.Y. Const., art. VI, § 9), I will refer below to a single " defendant" in this action, or to " the State," and the caption is amended accordingly.
By decision and order dated May 23, 2012, I granted a motion by defendant to amend its answer to add the following affirmative defense: " Claimant allegedly injured during the course of her employment, has her remedy under the Worker's [sic] Compensation Law." Claimant has filed her note of issue, and defendant now moves for summary judgment on the ground that the claim is barred by the exclusive remedy provisions of the Workers' Compensation Law.
Defendant's submission indicates the following: Crespo worked for Long Island College Hospital (" LICH") until 2011 (Mot. Ex. L [" Crespo Dep." ] at 8-9). In May 2011, LICH was acquired by SUNY, as provided for by an Asset Purchase Agreement (" APA") between LICH, SUNY and various other entities (Mot. Ex. G). According to defendant's motion papers, the status of those previously employed by LICH was governed at the time of the accident by the terms of a Professional Employer Agreement (" PEA") entered into by SUNY and Staffco of Brooklyn, LLC (" Staffco" ) (Mot. Ex. H). Defendant supports its motion in chief with various documents, including the APA and PEA, and the deposition testimony of Crespo, security guard and [972 N.Y.S.2d 438] Staffco employee Gregory Frame, and director of facilities management and development (also employed by Staffco) Eamon Quirke.
The PEA recites that Staffco is registered in New York State as a Professional Employer Organization (" PEO"). A PEO is an entity to which the " client" outsources
its payroll and human resource responsibilities, including payment of wages and
employment taxes as well as other employment-related matters (see Tri-State Empl. Servs. v. Mountbatten Sur. Co., 99 N.Y.2d 476, 481, 758 N.Y.S.2d 595, 788 N.E.2d 1023 ). In 2002, New York enacted chapter 565 of the Laws of 2002, the Professional Employer Act, codified in article 31 of the Labor Law (" Article 31"). This statute governs the legal status of PEOs and their employees.
Of particular note here, Article 31 provides as follows in regard to workers' compensation:
" Both the client and the professional employer organization shall be considered the employer for the purpose of coverage under the workers' compensation law and both the professional employer organization and its client shall be entitled to protection of the exclusive remedy provision of the workers' compensation law irrespective of which entity secures and provides such workers' compensation coverage"
(Labor Law § 922).
In a nutshell, defendant argues that under Article 31, as well as the PEA, SUNY and Staffco were claimant's co-employers for purposes of workers' compensation, and claimant's remedy for injuries suffered in the course of her employment is therefore through the workers' compensation system, not in tort.
Defendant cites two provisions of the PEA in particular in support of its argument. First, it cites ¶ 5(c) of the PEA, which provides in relevant part:
" StaffCo agrees to secure and provide required workers' compensation and disability coverage for the StaffCo Employees, naming SUNY as an additional insured, it being understood that both SUNY and StaffCo shall be (i) considered the employer of the StaffCo Employees for the purpose of coverage under the workers' compensation law, and (ii) entitled to protection of the exclusive remedy provision of the workers' compensation law."
(PEA at 4; see also id. ¶ 24[a] [Staffco employees are independent contractors and not employees of SUNY " [e]xcept for purposes of coverage under the workers' compensation law" ]). Defendant submits a certificate of workers' compensation insurance coverage, initially listing the insured as Staffco, and the " entity requesting proof of coverage" as SUNY Downstate Medical Center (Mot. Ex. I). The same document later names the insured as " Staffco of Brooklyn LLC L/C/F State University of New York Acting through it's [sic] Health Sciences Center at Brooklyn" 
Defendant also points to ¶ 6(a) of the PEA, which provides in relevant part:
" (a) Direction and Control Subject to the terms hereof and StaffCo's compliance with law and applicable state policies, StaffCo shall possess the right to hire, evaluate, promote, terminate, discipline, direct and control the StaffCo employees, provided that StaffCo shall ... [972 N.Y.S.2d 439] direct such StaffCo employees to perform the Employee Services consistent with applicable law and the Agreement, which include the obligation duty [sic] to perform services as required to meet the needs of the Facilities to which they are assigned. Notwithstanding the foregoing or any other provisions of this Agreement, SUNY shall maintain such discretion and control over the StaffCo Employees as is necessary for SUNY to conduct its fiduciary duties, and comply with any applicable licensing, registration and certification requirements. This means (a) that SUNY shall retain ultimate decision and oversight of patient care activities and health care delivery services conducted by StaffCo employees; and (b) that SUNY shall retain sufficient direction and control over non-patient care activities conducted by StaffCo Employees so as to comply with any applicable legal or regulatory requirements."
(PEA at 4).
Defendant contends that these provisions demonstrate that Staffco and SUNY are co-employers as regards workers' compensation under Article 31.
Finally, defendant submits a copy of Crespo's application for workers' compensation benefits dated October 28, 2011 for injuries suffered in the accident at issue, as well as a letter from workers' compensation carrier Zurich American Ins. Co., LLC, which lists its lien amounts (apparently the amount paid for Crespo's medical and indemnity benefits) at over $17,000 (Mot. Exs. J-K).
In her opposition, claimant maintains that the above contractual language demonstrates that it is Staffco that directs and controls the performance of its employees (including Crespo), and thus is their true employer. In support of this contention, claimant submits her own affidavit, which avers that she is employed by Staffco, not by SUNY (Crespo Aff. ¶ 2). Specifically, she states that Staffco issues her paycheck, and her " day to day dealings do not involve any contact with anyone associated with SUNY"
(id.). Her job directing staff credentialing does not, she maintains, involve delivery of any health care services, a function exclusively within the purview of SUNY
(id. ¶ 3). She acknowledges that she " periodically report[ed]" to Dr. David Wlody (a SUNY employee), but only " infrequent[ly]," and states that Wlody
did not supervise her " daily activities" or have input into them (id. ¶¶ 4-5). In her deposition, she identified Wlody as the interim chief medical officer and chair of the department of anesthesiology at LICH, and in response to a question as to whether she had a " boss or a supervisor," stated: " [y]es, I report directly to David Wlody" (Crespo Dep. at 12).
Claimant also argues that the State has failed to establish that the transaction by which LICH sold its assets to SUNY via the APA actually occurred, or that the PEO ever went into effect or " has any bearing upon the Claimant's employment" (Langsam Aff. ¶ 2[b]-[c]). In particular, she asserts that defendant merely included copies of these agreements in its motion papers, without submitting any testimony to authenticate them.
In a reply submission, the State presents the affidavit of Maureen Crystal, director of contracts for SUNY Downstate Medical Center. Crystal attests that she reviewed the APA and PEA, and that they are both " true and correct copies of original executed state contracts between LICH and SUNY Downstate." Further, she states that both agreements became effective on May 29, 2011, and that SUNY Downstate makes the payments required thereunder.
[972 N.Y.S.2d 440] Discussion
To prevail on its motion for summary judgment, the
State must make a prima facie showing of its entitlement to that relief by
tendering sufficient evidence to demonstrate the absence of any material issue
of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Sillman v. Twentieth Century-Fox Film Corp.,
3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 ). Once this showing
has been made, the burden then shifts to claimant to produce evidentiary proof
in admissible form sufficient to establish the existence of a material issue of
fact, which requires a trial of the action (see Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Defendant's motion is premised on the exclusive remedy provisions of the workers' compensation law, set forth in sections 11 and 29 thereof. The former provides in relevant part that:
" The liability of an employer [under the workers' compensation law] shall be exclusive and in place of any other liability whatsoever, to such employee, ... at common law or otherwise, on account of such injury or death or liability arising therefrom ...."
Stated otherwise, the right to workers' compensation benefits from an employer is " the exclusive remedy to an employee" (Workers' Compensation Law § 29).
While these provisions bar an employee from suing
his or her employer in tort, they generally do not restrict the employee's
right to recover from a third person who causes him or her injury (see Fung v. Japan Airlines Co., Ltd.,
9 N.Y.3d 351, 357, 850 N.Y.S.2d 359, 880 N.E.2d 845 ). Nonetheless, there
are circumstances in which the exclusive remedy doctrine has been extended to
entities other than an individual's direct employer. In particular, when a
defendant has a supervisory relationship over the injured party " sufficient in
kind and degree" that the third party " may be deemed plaintiff's employer,"
under the so-called " special employer" doctrine the injured party may not seek
damages by lawsuit against that entity (id. at 359, 850 N.Y.S.2d 359, 880 N.E.2d 845).
In this instance, defendant's contention that SUNY may not be held liable for claimant's injuries is premised on the terms of the New York Professional Employer Act. As noted above, that statute provides that when an entity enters into a client relationship with a PEO in accordance with Article 31, both the PEO and client are covered by the exclusive remedy protections of the Workers' Compensation Law. Indeed, Labor Law § 922(4) states unequivocally that both a PEO and its client may not be sued by an employee for injuries occurring in the course of her employment. Thus, the motion boils down entirely to the question of whether Article 31 appropriately governs this case. If that statute applies here, the action is at an end.
Claimant challenges the State's argument on two grounds. First, she asserts that the evidence for the PEO relationship, and in particular the PEA and APA,
are not authenticated by a competent witness, nor is there evidence that [972
N.Y.S.2d 441] they went into effect (see Langsam Aff. ¶ 2[c]). But defendant has provided an affidavit by a SUNY
employee with knowledge of the agreements that confirms that they are both
authentic and in effect. Since the affidavit is relevant to arguments made in
claimant's submission, I may properly consider it although it was introduced
for the first time in defendant's reply filing (see Boone v. City of New York, 92 A.D.3d 709, 710, 938 N.Y.S.2d 474 [2d Dept. 2012]; Ticor Tit. Guar. Co. v. Bajraktari, 261 A.D.2d 156, 157, 689 N.Y.S.2d 95 [1st Dept. 1999]). Further, the contracts presented are signed by all relevant parties, as required for them to be effective. Finally, claimant's own testimony that she became a Staffco employee in May 2011 (Crespo Dep. at 8) cannot be squared with the argument that the agreements between SUNY and Staffco are not operational, since it is those agreements that establish the latter's role vis-a-vis former LICH employees. In light of these submissions, I find that defendant has shown— and claimant has failed to rebut— that the APA has been carried out, and the PEO is in force.
Second, claimant argues that defendant has not proven a PEO relationship between SUNY and Staffco, or if there was such a relationship, the State has not shown that it covers claimant.
A PEO is defined by Labor Law § 916(4) to mean " any person whose business is entering into professional employer agreements with clients." A Professional Employer Agreement, by statute, must be in writing and include the following terms:
" (a) [the PEO] expressly agrees to co-employ all or a majority of the employees providing services for the client;
(b) The contract is intended to be on-going rather than temporary in nature;
(c) Employer responsibilities for worksite employees, including those of hiring, firing and disciplining, are expressly allocated by and between the [PEO] and the client in the agreement; and
(d) The [PEO] expressly assumes the rights and responsibilities as required in section nine hundred twenty-two of this article."
Labor Law § 922, referenced in the above requirements, provides that a PEO must have a written agreement with the client in which the PEO (i) " reserves a right of direction and control over the worksite employees," provided the client maintains " such direction and control over the worksite as necessary to conduct the client's business ..." ; (ii) " assumes responsibility" for payroll taxes and employee benefits; and (iii) " retains authority" to hire, fire and discipline workers. Further, the PEO must give written notice of the " general nature" of the relationship to worksite employees, and must " assume" responsibility for paying wages and unemployment insurance, and collecting taxes.
The terms of the PEA, on their face, comply with the requirements of Article 31. SUNY and Staffco have entered into a written agreement (i.e., the PEA) in which they agreed to " co-employ" all Staffco
employees (see PEA ¶ 1), consisting of " all or substantially all" LICH
non-medical employees prior to the closing (id. at 1). The term of the agreement is five years, with a right of renewal for ten five-year periods thereafter at SUNY's
request, which would seem to constitute an " ongoing" rather than " temporary"
arrangement (cf. Labor Law § 916 [excluding " temporary [972 N.Y.S.2d 442] help firm[s]," from statute's ambit, defined as those addressing " special work situations" including " employee absences, skill shortages, seasonal workloads [and] special assignments" ]). The agreement allocates responsibilities for hiring, firing and discipline, vesting ultimate responsibility in Staffco but with certain requirements to consult and notify SUNY (PEA ¶ 1). It also vests direction and control over employees in Staffco, while allowing SUNY
to retain specified rights in regard thereto, including " ultimate direction
and oversight" over patient care and " sufficient direction and control" over
non-patient care " so as to comply with any applicable legal or regulatory
requirements" (id. ¶ 6 [a]). Finally, the PEA requires that Staffco
notify its employees of the nature of their relationship, as required by
statute (id. ¶ 6[f]).
In light of the foregoing, defendant has demonstrated prima facie that SUNY and Staffco entered into a PEO relationship in accordance with Article 31 
(cf. McDougal v. SUNY Downstate Medical Center, LICH, 2013 U.S. Dist LEXIS 51087 [E.D.N.Y. Apr. 9, 2013] [" The relationship between StaffCo and SUNY is governed by the New York Professional Employer Act" ]). As to whether Crespo falls within the terms of that agreement, as noted the PEA provides that " all, or substantially all" LICH non-medical employees prior to the closing will be employed by StaffCo " in accordance with the PEO Statute and the terms hereof [i.e., the terms of the PEA]" (PEA at 1). There is no dispute that Crespo,
as the director of medical staff services responsible for verifying the
credentials of medical staff, is not a medical employee (see Crespo Tr. at 9-11). Since " StaffCo employees" are explicitly defined in the PEA to encompass all former LICH employees providing non-medical services (PEA at 1), Crespo
clearly falls within the ambit of that definition (see Crespo Dep. at 8-9). Indeed, her argument on this motion is premised entirely on the claim that she is an employee of Staffco and not SUNY
(see Aff. in Opp. ¶¶ 1-2). But given that the PEA provides for the co-employment of all Staffco employees by SUNY (PEA at 2), she cannot argue her affiliation with the one while denying any connection with the other.
As noted above, claimant also contends that SUNY did not have actual direction and control over Crespo's day-to-day work. Even if I were to find her showing sufficient in this regard, it would not rebut defendant's prima facie case. The State's defense is not premised on SUNY's de facto supervision of claimant, but rather on the PEO relationship between SUNY and Staffco, and the statutory provisions of Article 31 that attach as a result thereof. That statute does not require that SUNY (as the " client") maintain full direction and control over those employees subject to the PEA, but only that such responsibilities [972 N.Y.S.2d 443] are " allocated" by agreement. Defendant's submission shows that to be the case here.
Essentially, claimant argues that there is an issue of fact as to whether SUNY is not Crespo's true " employer" for purposes of workers' compensation. But the existence of an employment relationship between SUNY and Crespo does not turn on the nature of the supervision or direction she received; rather, the statute creates a co-employer relationship where a legally valid PEO agreement is in place, under which both the client and the PEO
are granted by law the protection of the exclusive remedy provisions of the
workers' compensation law (see L. 2002 ch. 565, § 1 [" Recognition of the employment relationship between a professional employer organization and worksite employees covered by a professional employer agreement shall be based on the statutory law to the extent provided by this act" ]).
Finally, claimant's attorney (although not claimant) states that " she was never told she was employed by anyone other than StaffCo" (Langsam Aff.
¶ 3). Even if this were competent evidence (see Zuckerman, 49 N.Y.2d at 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [attorney affirmations of no probative value on summary judgment motion]), and could be read to state that the Staffco had failed to provide the requisite notice on the " general nature" of the relationship between Staffco and SUNY, I cannot find in the statute any indication that the mere failure to provide such notice to a particular employee, without more, divests the PEO agreement of any effect as to that employee.
Since defendant has made a prima facie case that a PEO relationship as defined by New York law exists between SUNY and Staffco, and since claimant has failed to rebut that showing, claimant must seek her remedy for the September 6 fall through the workers' compensation system.
In light of the foregoing, defendant's motion for summary judgment is granted, and the claim is dismissed.