| Giovannucci v Petrone |
| 2008 NY Slip Op 04317 [51 AD3d 632] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Nina Giovannucci, Respondent, v Thomas J. Petrone et al.,Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Richmond County (Maltese, J.), dated June 8, 2007, as deniedthat branch of their motion which was for summary judgment dismissing the complaint on theground that the action is barred by the exclusivity provisions of the Workers' Compensation Law.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Thomas J. Petrone, and substituting therefor a provisiongranting that branch of the motion; as modified, the order is affirmed insofar as appealed from,without costs or disbursements.
The plaintiff allegedly was injured when she tripped and fell on a raised platform at premisesowned by the defendants Thomas J. Petrone (hereinafter Petrone) and Maria Petrone. At the time,the plaintiff was an employee of Comforce Staffing Services (hereinafter Comforce), a temporaryemployment agency, and was working at the premises as a temporary administrative assistant fornonparty Petrone & Associates, LLC (hereinafter P & A). The defendants moved, inter alia, forsummary judgment dismissing the complaint on the ground that the action is barred by theexclusivity provisions of the Workers' Compensation Law (see Workers' CompensationLaw §§ 11, 29 [6]). The defendants argued that the plaintiff was a special employeeof P & A and that they were her co-employees. The Supreme Court denied that branch of themotion. We modify.
The defendants demonstrated, prima facie, that the plaintiff was a special employee of P &[*2]A by proffering competent evidence in admissible form that P& A controlled and directed the manner, details, and ultimate result of the plaintiff's work(see Thompson v Grumman Aerospace Corp., 78 NY2d 553 [1991]; Roberson v Moveway Transfer & Stor.,44 AD3d 839 [2007]; Bailey vMontefiore Med. Ctr., 12 AD3d 545 [2004]; Causewell v Barnes & NobleBookstores, 238 AD2d 536 [1997]; Niranjan v Airweld, Inc., 302 AD2d 572 [2003];Carino v Kenmare Remodeling, 292 AD2d 555 [2002]). In opposition, the plaintiff failedto raise a triable issue of fact. The defendants also demonstrated, prima facie, that Petrone was aco-employee of the plaintiff by proffering competent evidence in admissible form that he was thechief executive officer of P & A (see Macchirole v Giamboi, 97 NY2d 147 [2001];Ogilvie v McDonald's Corp., 294 AD2d 550 [2002]; Crowder v Leichter, 282AD2d 423 [2001]; Castro v Stallone, 281 AD2d 445 [2001]). In opposition, the plaintifffailed to raise a triable issue of fact. Thus, the plaintiff's exclusive remedy as against Petrone isworkers' compensation benefits, even though he is also an owner of the subject premises (seeMacchirole v Giamboi, 97 NY2d 147 [2001]; Heritage v Van Patten, 59 NY2d 1017[1983]; Ogilvie v McDonald's Corp., 294 AD2d 550 [2002]; Crowder v Leichter,282 AD2d 423 [2001]; Castro v Stallone, 281 AD2d 445 [2001]). Consequently,summary judgment dismissing the complaint as against Petrone should have been granted.
However, the defendants failed to proffer competent evidence in admissible form that thedefendant Maria Petrone was a co-employee of the plaintiff. Thus, summary judgment dismissingthe complaint insofar as asserted against Maria Petrone was properly denied. Ritter, J.P., Covello,Angiolillo and McCarthy, JJ., concur.