19‐840‐cv
Reyes v. Crothall Healthcare, Inc.


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.



      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 21st day of February, two thousand twenty.

         PRESENT: AMALYA L. KEARSE,
                    RICHARD J. SULLIVAN,
                    JOSEPH F. BIANCO,
                          Circuit Judges.
         __________________________________________

         Daisy Reyes,

                                     Plaintiff‐Appellant,

                  v.                                        19‐840‐cv

         Crothall Healthcare, Inc.,

                                     Defendant‐Appellee.
      __________________________________________

      FOR APPELLANT:                       MICHAEL L. CHARTAN, Great Neck,
                                           NY.

      FOR APPELLEE:                        CHARLES C. EBLEN, Robb A. Denney,
                                           Shook, Hardy & Bacon, L.L.P., Kansas
                                           City, MO, William E. Vita,
                                           Westerman Ball Ederer Miller Zucker
                                           & Sharfstein, LLP, Uniondale, NY.

      Appeal from a judgment of the United States District Court for the Eastern

District of New York (Kiyo A. Matsumoto, Judge).

      UPON     DUE     CONSIDERATION,          IT   IS   HEREBY     ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

      Plaintiff Daisy Reyes appeals from an order of the United States District

Court for the Eastern District of New York (Matsumoto, J.) granting summary

judgment in favor of Defendant Crothall Healthcare, Inc. (“Crothall”) on Reyes’s

state‐law negligence claim.   In August 2015, Reyes worked at the Elmhurst

Hospital Center as an employee of the New York City Health and Hospitals

Corporation (“HHC”), a governmental entity that owned and operated the

hospital. One day while at work, Reyes slipped and fell on a wet hospital hallway

maintained by hospital “housekeepers” – HHC employees who were trained and


                                       2
sometimes supervised by Crothall employees pursuant to a management services

contract between HHC and Crothall.              Reyes sought and obtained workers’

compensation as a result of the injuries she sustained from the fall. Nevertheless,

she subsequently filed the instant negligence action against Crothall seeking $10

million in damages.1

       Crothall filed a motion for summary judgment, which the district court

granted. In particular, the court held, inter alia, that workers’ compensation was

Reyes’s exclusive remedy under New York law. Reyes timely appealed. We

assume the parties’ familiarity with the underlying facts and the record of prior

proceedings, to which we refer only as necessary to explain our decision to affirm.

       We review the district court’s grant of summary judgment de novo, see Fox

v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019), and will affirm “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). Under

New York law, “[t]he right to [workers’] compensation or benefits . . . shall be the




1Reyes initiated this action in New York state court, but Crothall properly removed it to
federal court on the basis of diversity jurisdiction, since Reyes is a New York citizen and
Crothall is a Delaware corporation with its principal place of business in Pennsylvania.
See 28 U.S.C. § 1332(a), (c). We have jurisdiction pursuant to 28 U.S.C. § 1291.
                                            3
exclusive remedy to an employee . . . when such employee is injured . . . by the

negligence or wrong of another in the same employ.” N.Y. Workers’ Comp. Law

§ 29(6) (emphases added) (the “exclusivity bar”). A negligent tortfeasor acting

within the scope of his or her employment is deemed to be “in the same employ”

as the injured party if they both have the same employer.          Lane v. Flack, 425

N.Y.S.2d 648, 649–50 (App. Div. 3d Dep’t 1980), aff’d, 52 N.Y.2d 856 (1981); see also

Maines v. Cronomer Valley Fire Depʹt, Inc., 50 N.Y.2d 535, 543 (1980).

      In addition, New York law recognizes that two employers may share the

same employee. See Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557

(1991). As the New York Court of Appeals has explained, “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.”                 Id.   A special

employment relationship may exist where an employee “is transferred for a

limited time of whatever duration to the service of another.” Id. Nevertheless,

the “[g]eneral employment is presumed to continue,” and such a presumption

may be overcome only “upon clear demonstration of surrender of control by the

general employer and assumption of control by the special employer.” Id.

                                          4
       Here, Reyes principally argues that there are triable issues of fact concerning

whether HHC transferred control of its housekeepers to Crothall such that the

housekeepers – including the allegedly negligent housekeeper responsible for the

wet floor on the day of the accident – were no longer general employees of HHC,

and thus no longer “in the same employ” as Reyes for purposes of the exclusivity

bar.   We are not persuaded.         Even assuming that Crothall’s provision of

equipment, training, and management services was sufficient to create a special

employment relationship between itself and the housekeepers, there can be no

genuine dispute that HHC retained ultimate control over these employees.

Notably, HHC continued to pay housekeepers their salaries and benefits,

possessed the exclusive right to make final decisions on discipline and

termination, and required Crothall housekeeping supervisors to comply with

HHC policies at all times. See, e.g., Spencer v. Crothall Healthcare, Inc., 834 N.Y.S.2d

194, 196 (App. Div. 2d Dep’t 2007) (holding, on summary judgment, that “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”).       Because the housekeepers thus

remained general employees of HHC, they were “in the same employ” as Reyes,

                                           5
who concedes that she was an HHC employee at the time of the accident. N.Y.

Workers’ Comp. Law § 29(6).    Her exclusive remedy was therefore workers’

compensation.

     We have considered all of Reyes’s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk of Court




                                      6
