MCGREGOR v. MANHATTAN NURSING HOME REALTY INC (2025)

Order, Supreme Court, New York County (David B. Cohen, J.), entered February 19, 2025, which granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff was injured while working as a security guard at defendants’ nursing home, where she slipped and fell on a puddle of hand sanitizer in the building lobby.  Defendants established, prima facie, that plaintiff was their “special employee” at the time of the accident, and thus her claims were barred pursuant to the exclusivity provisions of the Worker's Compensation Law (see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 560, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991];  Workers’ Compensation Law §§ 11, 29[6]).  Although plaintiff was formally employed and paid by a nonparty security service contracting agency, she had worked exclusively at defendants’ facility for five years on a full-time basis before the accident, received on-site training from defendants, reported to defendants’ supervisor on site, and used communication equipment provided by defendants (see Thompson, 78 N.Y.2d at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355;  Mohammed v. St. Barnabas Hosp., 177 A.D.3d 509, 510, 113 N.Y.S.3d 48 [1st Dept. 2019]).  It is not dispositive that defendants did not have the right to discipline or fire plaintiff (see Villanueva v. Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 A.D.3d 155, 156, 829 N.Y.S.2d 459 [1st Dept. 2007]).

In opposition, plaintiff failed to raise a triable issue of fact.  Plaintiff's affidavit, in which she stated that she reported directly to her general employer rather than to defendants, clearly contradicted her deposition testimony, in which she testified that her direct supervisor was defendants’ head of security.  Accordingly, plaintiff's affidavit is insufficient to defeat summary judgment and can only be considered to have been tailored to avoid the consequences of her earlier testimony (see Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320, 701 N.Y.S.2d 403 [1st Dept. 2000]).

Plaintiff's contention that defendants deemed her statement of facts admitted by failing to submit their own statement of facts or respond to hers is unavailing.  Former Uniform Rules for Trial Courts (22 NYCRR) § 202.8–g (repealed by Admin Order of Chief Admin Judge of Cts AO/103/2025) did not impose mandatory requirements, and the court here did not direct the parties to submit such statements (see Churchill Owners Corp. v. Kent, 223 A.D.3d 558, 559, 202 N.Y.S.3d 110 [1st Dept. 2024]).

In view of the foregoing, plaintiff's cross-motion for summary judgment was properly denied.

We have considered plaintiff's remaining contentions and find them unavailing.