Opinion
February 21, 1986
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Doerr, J.P., Denman, Green, O'Donnell and Schnepp, JJ.
Judgment and order unanimously affirmed, with costs. Memorandum: Plaintiff lost his right arm when he was struck by an overhead crane while painting the inside of a building leased by defendant. Plaintiff sued defendant alleging that at the time of the accident he was not an employee of defendant but was employed by Buffalo Labor Temp. Plaintiff alleged causes of action for defendant's negligent supervision, failure to warn, and failure to provide a safe place to work. Defendant alleged as an affirmative defense that plaintiff was an employee of defendant and that workers' compensation was plaintiff's exclusive remedy. The trial court charged the jury that whether plaintiff was a special employee of defendant was a question for the jury to decide. The jury found that plaintiff was not a special employee, that defendant breached its duty to provide a safe workplace, that the breach was a proximate cause of plaintiff's injuries and that plaintiff was not contributorily negligent.
Plaintiff was employed by Buffalo Labor Temp, which was in the business of supplying labor on a day-to-day basis to companies, such as defendant. The question of whether plaintiff was a special employee of the defendant was a question of fact for the jury (Stone v. Bigley Bros., 309 N.Y. 132; Irwin v. Klein, 271 N.Y. 477). On this record, the evidence was sufficient to support the verdict (Poppenberg v. Reliable Maintenance Corp., 89 A.D.2d 791; Brooks v. Chemical Leaman Tank Lines, 71 A.D.2d 405; Hill v. Erdle Perforating Co., 53 A.D.2d 1008). Defendant's reliance on O'Rourke v. Long ( 41 N.Y.2d 219) is misplaced because there plaintiff conceded that he was employed by the defendant, while here the plaintiff's employment status was a key factual issue at trial. We have considered defendant's remaining claims and find them without merit.