United States District Court, E.D. New York
MEMORANDUM & ORDER
E. REYES, JR. United States Magistrate Judge
13, 2014, Thelma Young (“Young”) commenced a
personal injury action in New York State Supreme Court, Kings
County, against Morrison Management Specialists, Inc.
(“Morrison”). (Dkt. No. 1). Following removal to
Federal Court, (Dkt. No. 1), Young amended her complaint,
naming Crothall Heatlhcare, Inc. (“Crothall”) as
an additional defendant, (Dkt. No. 15 (“Amended
Complaint”)). Morrison and Crothall, (collectively the
“Defendants”), filed separate motions for summary
judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 27 and 28).
For the following reasons, the Defendants' motions are
granted in full.
2012, Young was employed as a Certified Nursing Assistant at
Terrance Cardinal Cook Health Care Center (“TCC”)
in New York City. (Dkt. No. 27-3 (Crothall Rule 56.1
Statement (“Cr. R. 56.1”)) at ¶ 1). On
December 1, 2012, Young slipped and fell in the TCC
women's locker room, resulting in physical injury. (Cr.
R. 56.1 ¶ 2). Young commenced a personal injury action
against the Defendants, alleging her slip-and-fall was caused
by the Defendants' negligence. (Amended Complaint ¶
1). The Defendants now move for summary judgment pursuant to
Rule 56. (Dkt. No. 27 and 28). In support of their motions,
the parties have submitted Rule 56.1 Statements of undisputed
facts, party and non-party depositions, and additional
relevant exhibits. (Dkt. No. 27-2, 27-3, 28-2, 28-3, 31-1,
31-2, 32-1, 32-2). Based on the evidence submitted by the
parties, and their Rule 56.1 Statements, the undisputed facts
are as follows:
2007, Crothall entered into a contract with TCC to provide
housekeeping and linen services, (Cr. R. 56.1 ¶ 15),
which was renewed four months prior to Young's accident,
(Id. at ¶ 17). Under the terms of the contract
as it existed in December 2012, (the “Contract”),
Crothall was required to maintain six employees at TCC.
Id. at ¶ 19. While these employees' precise
responsibilities are in dispute, the parties agree that
actual cleaning services were provided by TCC staff under
Crothall's training and supervision. (Dkt. 32-2 (Young
Response to Cr. R. 56.1 Statement (“Pl. Res. Cr. R.
56.1”)) at ¶¶ 20, b3). Responsibility for
hiring, firing, disciplining, and paying TCC housekeeping
employees is similarly disputed. Id. at ¶ 21.
In addition to allocating staffing and supervising
responsibility, the Contract provided schedules for specific
housekeeping services. Id. at ¶ 18. Under
Schedule B, the locker room was to be cleaned seven times per
week, although no specific cleaning times were mandated.
(Dkt. No. 27-2 (Declaration of Charles C. Eblen in Support of
Crothall (“Crothall Decl.”), Ex. B. - the
Contract) at 49; Pl. Res. Cr. R. 56.1 ¶ 24).
Crothall, Morrison provided services at TCC at the time of
the accident pursuant to the terms of a contract. (Dkt. No.
28-3 (Morrison Rule 56.1 Statement (“Mr. R.
56.1”)) at ¶ 15). Under the terms of its contract,
Morrison provided food services at TCC. Id. at
¶ 15. Unlike Crothall, Morrison hired its own staff
rather than utilizing TCC employees. (Dkt. No. 28-2
(Declaration of Charles C. Eblen in Support of Morrison
(“Morrison Decl.”), Ex C. - Agreement between
Morrison and TCC) at 1). Morrison provided its staff free
meals in the TCC cafeteria. (Dkt. No. 31-1 (Declaration of S.
Joonho Hong in Opposition to Morrison (“Decl. in Mr.
Opp.”)) Ex. C - Deposition Testimony of Wanda Manzueta
at 70:9-23). Whether Morrison permitted its employees to eat
lunch in the locker room remains in dispute. (Morrison Decl.
- Ex B. Deposition Testimony of Mitchell Jayson at
December 1, 2012, Young was scheduled to work the 3pm - 11pm
shift at TCC. (Cr. R. 56.1 ¶ 2). Upon arriving at work,
she went to the women's locker room in the basement of
the main building, which is accessible by hospital staff as
well as by Crothall and Morrison employees. Id. at
¶ 3-4. Once there she changed into her work cloths,
consisting of hospital scrubs and Crocs. Id. at
¶¶ 3, 5. After changing, Young walked toward the
bathroom when her left foot slipped out from under her,
causing her to fall backwards and strike her head and back on
the floor. Id. at ¶ 7.
to Young, her slip-and-fall was caused by a greasy or oily
substance on the locker room floor. (Amended Complaint
¶¶ 1, 18). While she never saw the substance that
caused her fall, (Cr. R. 56.1 ¶ 9), she
testified to finding a grease or oil stain on her clothing.
Id. at ¶ 8. She further testified that she
“could feel the grease on [her] hands” while
lying on the floor and found additional grease or oil on her
buttocks, lower pants, and shoes. (Morrison Decl. Ex A -
Deposition Testimony of Thelma Young (“Young”) at
50:3-5; 52:4-7). The source of the offending substance is in
dispute. Young claims the substance was dropped by Morrison
employees, who were eating lunch in the locker room, between
11:00 and 11:30am. Id. at 78:6-79:14. She basis this
contention on a conversation she had with a co-worker,
Michelle Winter (“Winters”), one or two months
after the accident. Id. at 134:21-25.
her deposition, Winter initially testified that she did not
recall the accident. (Morrison Decl. Ex. B. - Deposition
Testimony of Michelle Winter (“Winter”)
11:21-12:3) (“Q: Do you recall observing an accident
involving Ms. Young? A: I don't remember that. Q: Do you
remember observing an accident involving someone slipping in
the women's locker room? A: I don't
remember.”). Winter also denied seeing anyone eating in
the locker room. Id. at 14:8-15:5 (“Q: On or
before December 1, 2012, had you ever observed anyone eating
lunch in the locker room? A: I don't recall that
now….Q: Do you recall telling anyone that you had seen
staff from the kitchen eating greasy food from the locker
room at any time? A: No, I don't remember that.”).
after having her memory refreshed, Winter testified to being
present at the time of Young's accident - but professed
she had not witnessed it - and to seeing someone drinking a
beverage in the locker room - but not to food or to a spill.
Id. at 33:12-34:3; 63:9-11. She acknowledged that
people, including Morrison staff, often ate in the locker
room but did not testify to anyone eating on the day of the
accident. Id. at 43:8-18. She emphatically testified
to having no memory of the condition of the floor just prior
to or after the accident. Id. at 72:8-11. The
closest she came to corroborating Young's version of
events was to state “I think there was a space there,
so everyone was walking around the space[.]”
Id. at 39:23-40:8. She could not recall whether the
floor was cracked, or whether grease or something else
entirely was on the floor. Id. at 39:23-40:8
(“I think there was a crack or something there, you
know. Just to remember if there was a grease or where was the
crack. I think there was a crack there, but I'm not
conclusion of her deposition, Winter wrote “after
reading this I feel like I was pressured. Let me be clear. I
did not see the accident [or] any grease. That's my final
statement…” (Winter Acknowledgement).
support of her claims, Young has also produced an affidavit
by Winter discussing the source of the greasy or oily
substance. (Morrison Decl. Ex. D. - Winter Affidavit
(“Affidavit”)). The Affidavit, written by
Young's attorney, is unsigned and no signed version has
been provided to this Court. Id. During her
deposition, Winter was asked about the Affidavit and