Opinion
24038.
Decided February 2, 2004.
Goldberg Segalla LLP, Attorneys for Defendant Cheektowaga Central School District, By Susan E. Van Gelder, Esq.
Phillips Lytle LLP, Attorneys for Plaintiff By Preston L. Zarlock, Esq., and Craig A. Leslie, Esq.
Damon Morey, Attorneys for Defendant Town of Cheektowaga, By Joseph J. Manna, Esq.
This action arises out of an accident that occurred on March 9, 1999 in which plaintiff Joyce Bochman claims to have been injured when she slipped and fell on property owned by defendant Cheektowaga Central School District (CCSD). Plaintiff contends that the cause of the accident was accumulated ice and snow resulting from negligence on the part of CCSD in maintaining its property. At the time of the accident, plaintiff was an employee of Erie I Board of Cooperative Educational Services (BOCES) assigned to teach a special education class conducted in the school building owned and operated by CCSD.
CCSD moves for summary judgment dismissing the complaint. CCSD bases its motion on two grounds, arguing that plaintiff's cause of action against it is barred by the Workers' Compensation Law. It first contends that BOCES and CCSD were engaged in a joint venture and that plaintiff, as an employee of BOCES, may not pursue her claim against CCSD. Alternatively, CCSD asserts that plaintiff was its special employee. Plaintiff cross-moves for partial summary judgment dismissing CCSD's twelfth affirmative defense that her claim is barred by the Workers' Compensation Law.
Boards of cooperative educational services are formed under the authority of article 40 of the Education Law. They are established to carry out programs of shared educational services in the schools of the component districts and provide instruction in such special subjects as the commissioner of education approves (Education Law § 1950). Boards of cooperative educational services may, at the request of their component school districts, and with the approval of the commissioner, operate special classes for students with disabilities and enter into contracts for that purpose (id. §§ 1950[4][d][1], [4]); 1950[4] [p]. For the school year in which the accident happened (1998-1999), there was an agreement for the rental by BOCES of four classrooms in CCSD's building for the purpose of providing programs for pupils in special courses.
It is undisputed that BOCES offers its special education program through teachers it recruits and hires and who are assigned to perform special education services in buildings operated by component school districts within the BOCES district. Their employment is governed by a BOCES collective bargaining agreement. The teachers are paid by BOCES, which is responsible for monitoring their instructional techniques, evaluating their job performance and enforcing established procedures. BOCES is also responsible for assignment of special education students and providing funds for special education classroom operations, guidance and implementation of individual education plans and staff development opportunities to its special education teachers. BOCES established policies, procedures and regulations that governed plaintiff's employment. She was assigned to CCSD's building by BOCES. Her immediate supervisor was a BOCES employee. The responsibility of CCSD as the host component school district was limited to providing information and training to BOCES teachers about building operations and procedures, monitoring compliance with those procedures within the school building and assigning suitably equipped classrooms within school buildings to BOCES. CCSD also provided student scheduling for special area subjects and integration of special education students within the main student body, as well as immediate enforcement of student discipline as required (Pope Aff.).
Although a joint venture is akin to a partnership, it is established for a limited rather than a general purpose ( see Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 565). Where a joint venture exists, an employee working for one employer in the venture is considered an employee of the other employers in the venture ( see Felder v. Old Falls Sanitation Co., 39 N.Y.2d 855) Thus, an employee of one member of a venture injured while engaged in the work of the venture is barred from suing other members of the venture by the exclusive remedy provisons of the Workers' Compensation Law ( see Mitchell v. A.F. Roosevelt Ave. Corp., 207 A.D.2d 388; Poppenberg v. Reliance Maintenance Corp., 89 A.D.2d 791). The burden of proof is, of course, upon the party asserting the existence of the joint venture ( see Mertz v. Seibel Realty, Inc., 265 A.D.2d 925; Herman Beinin v. Greenhaus, 258 A.D.2d 260).
Not every association of two or more entities that share a common interest or objective gives rise to a joint venture ( see Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 317-318, appeal dismissed 358 U.S. 39; Mills v. Niagara Mohawk Power Corp., 262 A.D.2d 901). "The ultimate inquiry in determining whether a joint venture exists is whether the parties have so joined their property, interests, skills and risks that for the purpose of the particular adventure their respective contributions have become as one and the co-mingled property and interests of the parties have thereby been made subject to each of the associates on the trust and inducement that each would act for their joint benefit" ( Village of Wellsville v. Village of Andover, 231 A.D.2d 870 citing Matter of Steinbeck at 317). "When determining whether a joint venture exists, the factors to be considered are the intent of the parties (express or implied), whether there was joint control and management of the company, whether there was a sharing of the profits as well as a sharing of the losses and whether there was a combination of property, skill or knowledge" ( Mendelson v. Feinman, 143 A.D.2d 76, 77).
Here an express agreement between BOCES and CCSD establishing a joint venture is lacking, as are any acts by them manifesting an intent to be associated as joint venturers ( see Village of Wellsville; Mendelson; cf. Richbell Info. Servs., Inc. v. Jupiter Partners, L.P., 309 A.D.2d 288). A simple agreement permitting BOCES to use four classrooms for its special education program does not imply a joint venture. That CCSD remained in total control of the school building and its property that plaintiff claims was negligently maintained negates the argument that a joint venture existed ( see Village of Wellsville). Other than being required to comply with CCSD's building rules, plaintiff remained at all times an employee of BOCES and subject to its control. Furthermore, the special education program she conducted was formulated and delivered by BOCES and under its exclusive control. Thus, the essential characteristics of a joint venture are missing ( id.; see also Matter of Steinbeck at 317), as is a profit motive.
I assume without deciding that a joint enterprise might exist for non-profit purposes as well. In such circumstances, an employee of one member of such an enterprise could be barred by the exclusivity provisions of the Workers' Compensation Law from asserting a claim against other members.
There is a more compelling reason why CCSD's joint venture argument must be rejected. School districts, like other municipal corporate bodies, are "purely creatures or agents of the State," which has delegated the authority over education they exercise ( City of New York v. State of New York, 86 N.Y.2d 286, 289-290). The well-recognized right of children in New York to obtain a free, public school education includes the right to free specialized educational training as may be required (NY Const art XI, § 1; art VII, § 8; see generally Matter of Wiltwyck School for Boys v. Hill, 11 N.Y.2d 182; accord Matter of Levy (City of New York), 38 N.Y.2d 653, 657-659, appeal dismissed 429 U.S. 805, rehearing denied 429 U.S. 996). To accomplish this objective, the Legislature has provided a comprehensive plan for the education of handicapped and disabled children ( see generally Education Law art 89). Nothing found in article 40 of the Education Law suggests that boards of cooperative educational services are authorized or intended to engage in joint ventures with their component districts to provide special education programs. Sharing the control of those programs and management of school buildings owned by component districts in which the boards of cooperative educational services occupy only limited space is inconsistent with the legislative scheme found in the Education Law. Finally, a joint venture for the delivery of special education services may not be implied. Boards of cooperative educational services are authorized to provide special education services to component school districts only with approval of the commissioner of education (Education Law § 1950[d][1]). Formal contracts for those services must be filed with the commissioner (id.; § 1950[4][d][4]). It follows that a joint venture between a board of cooperative educational services and its component districts for special education purposes by implication is contrary to law and may not be raised as an affirmative defense in this action.
The alternative argument that plaintiff, who received workers' compensation benefits as an employee of BOCES, was CCSD's special employee and, therefore, is barred by the Workers' Compensation Law from prosecuting her claim against it also fails as a matter of law. "A special employee is described as one who is transferred for a limited time of whatever duration to the service of another" ( Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557 citing Brooks v. Chemical Leaman Tank Lines, 71 A.D.2d 405, 407). The presumption that the general employment continues is overcome "upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" ( Thompson at 557 citing Stone v. Bigley Bros., 309 N.Y. 132, 140-143 [and cases cited there]; Sweet v. Board of Educ., 290 N.Y. 73). While a person's status as a special employee is generally a question of fact ( see Short v. Durez Div.-Hooker Chems. Plastic Corp., 280 A.D.2d 972; Ozzimo v. H.E.S., Inc., 249 A.D.2d 912), here it has been conclusively established that BOCES at all times directed and monitored plaintiff's job performance ( see Thompson at 558). Although plaintiff was subject to the building rules, she had not been loaned to CCSD, which did not pay her and could not control her job performance or discharge her from her employment ( see Sweet at 76-77; Vanderwerff v. Victoria Home, 299 A.D.2d 345). When plaintiff was on CCSD's premises, she was there solely in her capacity as an employee of BOCES ( see Rothenberg v. Erie Metal Stamping Co., 204 A.D.2d 249 lv dismissed 84 N.Y.2d 1026). As CCSD lacked authority to control and direct plaintiff's job performance, she was not its special employee ( see Martin v. Baldwin Union Free School Dist., 271 A.D.2d 579; cf. Urena v. Pace Univ., 1 A.D.3d 208).
The motion by defendant CCSD for summary judgment dismissing the complaint is denied. Plaintiff's cross motion for partial summary judgment dismissing CCSD's twelfth affirmative defense is granted.
SO ORDERED.