| Ugijanin v 2 W. 45th St. Joint Venture |
| 2007 NY Slip Op 06668 [43 AD3d 911] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Erol Ugijanin, Respondent, v 2 West 45th Street JointVenture, Defendant, and Joseph P. Day Realty Corp., Appellant. |
—[*1] Newman Anzalone & Associates, Forest Hills, N.Y. (Lucille A. Anzalone of counsel), forrespondent.
In a consolidated action to recover damages for personal injuries, the defendant Joseph P.Day Realty Corp. appeals (1), as limited by its brief, from so much of an order of the SupremeCourt, Queens County (Hart, J.), entered July 20, 2006, as, upon a decision of the same courtmade after a hearing, inter alia, denied that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against it, and (2) from so muchof an order of the same court entered May 24, 2006, as granted the plaintiff's motion pursuant toCPLR 4401, made at the close of evidence, for judgment as a matter of law in his favor and, ineffect, denied its cross motion pursuant to CPLR 4401, made at the close of evidence, forjudgment dismissing the complaint insofar as asserted against it for the plaintiff's failure toestablish a prima facie case.
Ordered that the order entered July 20, 2006 is reversed insofar as appealed from, on the law,that branch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Joseph P. Day Realty Corp. is granted, and the orderentered May 24, 2006 is vacated; and it is further,
Ordered that the appeal from the order entered May 24, 2006 is dismissed as academic inlight of our determination of the appeal from the order entered July 20, 2006; and it is further,[*2]
Ordered that one bill of costs is awarded to the appellant.
The plaintiff was injured while working as a porter in a building (hereinafter the building)owned by the defendant 2 West 45th Street Joint Venture (hereinafter 2 West). The plaintiff wasemployed by 2 West, and received workers' compensation benefits from 2 West.
In his complaint, the plaintiff alleged that the defendant Joseph P. Day Realty Corp.(hereinafter JPD) was the managing agent of the building, that JPD "controlled," "possessed,""managed," and "maintained" the building, and that his injuries were caused by JPD's negligentmaintenance, management, and control. The defendants together moved for summary judgmentdismissing the complaint arguing, inter alia, that the plaintiff was a special employee of JPD andthat, therefore, the Workers' Compensation Law shielded JPD from liability for negligence. TheSupreme Court denied that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against JPD. We reverse.
When an employee elects to receive workers' compensation benefits from his generalemployer, a special employer is shielded from an action at law commenced by the employee(see Workers' Compensation Law § 29 [6]; Thompson v Grumman AerospaceCorp., 78 NY2d 553, 559-560 [1991]; Alvarez v Cunningham Assoc., L.P., 21 AD3d 517 [2005]). Aspecial employee is described as "one who is transferred for a limited time of whatever durationto the service of another" (Thompson v Grumman Aerospace Corp., supra at 557; see Schramm v Cold Spring HarborLab., 17 AD3d 661, 662 [2005]). Principal factors in determining the existence of aspecial employment relationship include who has the right to control the employee's work, who isresponsible for the payment of wages and the furnishing of equipment, who has the right todischarge the employee, and whether the work being performed was in furtherance of the specialemployer's or the general employer's business (see Alvarez v Cunningham Assoc., L.P.,supra at 518; Schramm v Cold Spring Harbor Lab., supra at 662). The key to thedetermination is "who controls and directs the manner, details and ultimate result of theemployee's work" (Thompson v Grumman Aerospace Corp., supra at 558).
Here, the defendants made a prima facie showing that the plaintiff was a special employee ofJPD. They supported their motion with deposition testimony establishing that the plaintiffreceived his daily work assignments from the building's superintendent, and that thesuperintendent was both a JPD employee and the plaintiff's only supervisor. Moreover, thesuperintendent testified at his deposition that his own "boss" or "manager" was also a JPDemployee. Finally, the defendants submitted an affidavit of the president of JPD, in which heaverred that JPD was required to hire, supervise, and fire all building employees pursuant to thewritten management agreement between 2 West and JPD . The evidence that JPD had theexclusive authority to supervise and control all aspects of the plaintiff's work and to fire himestablished JPD's prima facie entitlement to judgment as a matter of law on the ground that it washis special employer (see Martinez v Fifty Two W. Seventy Seventh St.Corp., 39 AD3d 503 [2007]; Erazo v 136 E. Mgt., 302 AD2d 282 [2003];Gubitosi v National Realty Co., 247 AD2d 512 [1998]; Richiusa v Kahn Lbr. &Millwork Co., 148 AD2d 690, 692 [1989]; Cameli v Pace Univ., 131 AD2d 419,420-421 [1987]). In opposition to the defendants' showing in this regard, the plaintiff failed toraise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Accordingly, the Supreme Court should have granted that branch of the defendants'motion which was for summary judgment dismissing the complaint insofar as asserted againstJPD.
In light of our determination, we need not reach the appellant's remaining [*3]contentions. Spolzino, J.P., Santucci, Florio and Angiolillo, JJ.,concur.