Opinion
2013-04-17
Jose ABREU, appellant, v. WEL–MADE ENTERPRISES, INC., respondent.
The Edelsteins, Faegenburg & Brown, LLP, Brooklyn, N.Y. (Glenn Faegenburg, Paul J. Edelstein, and Louis A. Badalato of counsel), for appellant. Jeffrey Samel, New York, N.Y. (David M. Samel of counsel), for respondent.
The Edelsteins, Faegenburg & Brown, LLP, Brooklyn, N.Y. (Glenn Faegenburg, Paul J. Edelstein, and Louis A. Badalato of counsel), for appellant. Jeffrey Samel, New York, N.Y. (David M. Samel of counsel), for respondent.
RANDALL T. ENG, P.J., THOMAS A. DICKERSON, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated March 13, 2012, as granted those branches of the defendant's motion which were for summary judgment dismissing the first and second causes of action in the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were for summary judgment dismissing the first and second causes of action are denied.
The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) extends to special employers ( see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 357–358, 850 N.Y.S.2d 359, 880 N.E.2d 845;Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697, 954 N.Y.S.2d 113;D'Alessandro v. Aviation Constructors, Inc., 83 A.D.3d 769, 770, 921 N.Y.S.2d 140). Thus, an injured person who elects to receive Workers' Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer ( see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d at 358–359, 850 N.Y.S.2d 359, 880 N.E.2d 845;Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d at 697, 954 N.Y.S.2d 113;D'Alessandro v. Aviation Constructors, Inc., 83 A.D.3d at 770, 921 N.Y.S.2d 140). “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. 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” ( Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 [citation omitted] ). The determination of special employment status is usually a question of fact and may only be made as a “matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” ( id. at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355). “Although ‘no one [factor] is decisive,’ the question of ‘who controls and directs the manner, details and ultimate result of the employee's work’ is a ‘significant and weighty feature’ of the analysis” ( Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d 594, 595, 906 N.Y.S.2d 67, quoting Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355). The exclusivity provisions of the Workers' Compensation Law also extend to entities which are alter egos of the injured worker's employer ( see Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d at 697–698, 954 N.Y.S.2d 113;Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d at 595, 906 N.Y.S.2d 67).
Here, the defendant failed to make a prima facie showing that the plaintiff was its special employee, as it did not submit sufficient evidence to establish, inter alia, that it controlled and directed the manner, details, and ultimate result of his work ( see Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d at 698, 954 N.Y.S.2d 113;D'Alessandro v. Aviation Constructors, Inc., 83 A.D.3d at 770–771, 921 N.Y.S.2d 140;Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d at 595–596, 906 N.Y.S.2d 67). The evidence submitted by the defendant also was insufficient to establish that the Workers' Compensation Law bars this action because it was an alter ego of the plaintiff's employer ( see Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d at 698, 954 N.Y.S.2d 113;Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d at 595, 906 N.Y.S.2d 67). Accordingly, the Supreme Court properly determined that the defendant was not entitled to the relief requested based on the exclusivity provisions of the Workers' Compensation Law.
Contrary to the defendant's contention, it also failed to make a prima facie showing that it lacked notice of the allegedly defective platform and railings ( see Rodriguez v. BCRE 230 Riverdale, LLC, 91 A.D.3d 933, 935, 938 N.Y.S.2d 146;Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 149, 908 N.Y.S.2d 117;Schultz v. Hi–Tech Constr. & Mgt. Servs., Inc., 69 A.D.3d 701, 702, 893 N.Y.S.2d 225;see also Akins v. Baker, 247 A.D.2d 562, 563, 669 N.Y.S.2d 63). Accordingly, since the defendant failed to establish its entitlement to judgmentas a matter of law, the Supreme Court should not have granted those branches of its motion which were for summary judgment dismissing the first and second causes of action, which alleged common-law negligence and violations of Labor Law § 200, respectively, regardless of the sufficiency of the opposing papers ( 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).