| Graziano v 110 Sand Co. |
| 2008 NY Slip Op 02963 [50 AD3d 635] |
| April 1, 2008 |
| Appellate Division, Second Department |
| John J. Graziano et al., Appellants, v 110 Sand Company,Respondent, et al., Defendants. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (A.G. Chancellor III of counsel), forrespondent 110 Sand Company. White, Quinlan & Staley, LLP, Garden City, N.Y. (William R. White of counsel), fordefendant Clifford Broman & Son, Inc. Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (John P. Grisafi of counsel), fordefendant Custom Clay, Inc. John P. Humphreys, Melville, N.Y. (David R. Holland of counsel), for defendant RasonAsphalt, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), datedDecember 12, 2006, as granted that branch of the motion of the defendant 110 Sand Companywhich was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs payable to therespondent.
This action arises out of an accident that occurred on January 21, 2005. Beginningapproximately three years prior to that date, the injured plaintiff was employed as a truck driverby Horan Sand & Gravel (hereinafter Horan), which was in the business of "leasing" its trucksand [*2]drivers to construction contractors. For approximately1½ years immediately preceding the accident, the injured plaintiff was assigned by Horanto work at the Melville, New York, work site of the defendant 110 Sand Company (hereinafter110 Sand). He reported each day directly to that work site, where he was provided with vehiclesto drive and given tasks to perform by the 110 Sand foreman or his assistant. On the day of theaccident, working at the Melville work site, the injured plaintiff was driving the off-road dumptruck provided to him by 110 Sand when he backed the vehicle over an embankment and wasinjured. Unable to work because of his injuries, he elected to accept workers' compensationbenefits through Horan.
Thereafter, the injured plaintiff, and his wife suing derivatively, commenced this actionagainst, among others, 110 Sand. 110 Sand moved for summary judgment, inter alia, dismissingthe complaint insofar as asserted against it on the ground that the plaintiff was its "specialemployee" and that his acceptance of workers' compensation benefits from Horan was a bar tothe personal injury action against 110 Sand. In opposition to the motion, the injured plaintiffsubmitted, inter alia, an affidavit purporting to correct testimony from his examination beforetrial. Specifically, he averred, contrary to his deposition testimony, that, throughout the time heworked at the 110 Sand work site, he maintained daily telephone contact with Horan, and metregularly with its president to discuss the quality of his work as well as the work of the three orfour other Horan employees assigned to 110 Sand. The Supreme Court granted the motion. Weaffirm the order insofar as appealed from.
A person may be deemed to have more than one employer and may, while employed by oneentity, also be a special employee of another (see Thompson v Grumman AerospaceCorp., 78 NY2d 553, 557 [1991]). A special employee is defined as "one who is transferredfor a limited time of whatever duration to the service of another" (id. at 557; see Ugijanin v 2 W. 45th St. JointVenture, 43 AD3d 911, 913 [2007]). Although many factors are weighed in decidingwhether a special employment relationship exists, courts have focused on the "significant andweighty" factor of "who controls and directs the manner, details and ultimate result of theemployee's work" (Thompson v Grumman Aerospace Corp., 78 NY2d at 558; see Navarrete v A & V Pasta Prods.,Inc., 32 AD3d 1003, 1004 [2006]; Alvarez v Cunningham Assoc., L.P., 21 AD3d 517, 518 [2005]).Another factor is whether the work being performed was in furtherance of the special employer'sor the general employer's business (see Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3dat 913; Schramm v Cold Spring HarborLab., 17 AD3d 661, 662 [2005]).
Here, in support of its motion for summary judgment, 110 Sand submitted evidencesufficient to establish, prima facie, that the plaintiff was its special employee (see Roberson v Moveway Transfer &Stor., 44 AD3d 839, 840 [2007]). In opposition, the plaintiff failed to raise a triableissue of fact (id.; see Spencer vCrothall Healthcare, Inc., 38 AD3d 527, 528 [2007]). The plaintiff's affidavit submittedin opposition to the motion contradicted his deposition testimony, and therefore the SupremeCourt properly disregarded it (seeStancil v Supermarkets Gen., 16 AD3d 402, 402-403 [2005]; Marcelle v New YorkCity Tr. Auth., 289 AD2d 459 [2001]). Thus, 110 Sand established as a matter of law thatthe injured plaintiff was its special employee.
The Workers' Compensation Law provides that an employee who elects to receive workers'compensation benefits may not sue his or her employer in an action at law for the injuriessustained (see Workers' Compensation Law §§ 11, 29 [6]). Moreover, thisprovision has been applied to shield special employers as well, so that an injured worker whoelects to receive workers' compensation benefits from his or her general employer is barred frommaintaining a personal injury action against [*3]his or her specialemployer (see Fung v Japan AirlinesCo., Ltd., 9 NY3d 351, 358-359 [2007]; Thompson v Grumman AerospaceCorp., 78 NY2d at 555, 560; Navarrete v A & V Pasta Prods., Inc, 32 AD3d at1005).
Accordingly, the Supreme Court properly granted that branch of 110 Sand's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Fisher, J.P.,Angiolillo, Balkin and Leventhal, JJ., concur.