| Bautista v David Frankel Realty, Inc. |
| 2008 NY Slip Op 06685 [54 AD3d 549] |
| September 2, 2008 |
| Appellate Division, First Department |
| William Bautista, Appellant, v David Frankel Realty, Inc.,Respondent. |
—[*1] Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), forrespondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about April 25,2007, which granted defendant's motion for summary judgment dismissing the complaint,reversed, on the law, without costs, the motion denied and the complaint reinstated.
Plaintiff, who worked as a porter at a building owned by 55 East 66th Street Corporation (theCorporation), fell from a ladder while painting an exterior staircase of the building. Plaintiffcommenced this action against defendant, the managing agent of the building, asserting causes ofaction under Labor Law §§ 200, 240 (1) and § 241 (6). Defendant moved forsummary judgment dismissing the complaint on the ground that plaintiff, who received workers'compensation benefits from his employer, the Corporation, was defendant's special employee andthus this action is barred by the exclusive remedy provisions of the Workers' Compensation Law.Defendant also asserted that it was entitled to summary judgment because plaintiff's own actionswere the sole proximate cause of his injuries. Supreme Court granted the motion on the groundthat plaintiff was defendant's special employee, and this appeal by plaintiff ensued.
"[A] general employee of one employer may also be in the special employ of another,notwithstanding the general employer's responsibility for payment of wages and for maintainingworkers' compensation and other employee benefits. A special employee is described as one whois transferred for a limited time of whatever duration to the service of another. Generalemployment is presumed to continue, but this presumption is overcome upon clear demonstrationof surrender of control by the general employer and assumption of control by the specialemployer" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991] [citationsomitted]). Essential to a special employment relationship "is a working relationship with theinjured plaintiff sufficient in kind and degree so that the [putative special employer] may bedeemed plaintiff's employer" (Fung vJapan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]). Notably, "a 'significant' and 'weightyfeature' in deciding whether a special employment relationship exists is 'who controls and directsthe manner, details and ultimate result of the employee's work'—in other words, whodetermines 'all essential, locational and commonly recognizable components of [*2]the [employee's] work relationship' " (id., quotingThompson, 78 NY2d at 558). The question of whether a special employment relationshipexists is fact-laden and generally presents an issue for the trier of fact (see Thompson, 78NY2d at 557; Bellamy v ColumbiaUniv., 50 AD3d 160 [2008]).
In support of its motion, defendant submitted the management agreement between it and theCorporation, pursuant to which the Corporation retained defendant to perform certain services atthe building. The agreement stated that, while defendant was responsible for "[c]aus[ing] to behired, paid and supervised, all persons necessary . . . to properly maintain andoperate the [building]," the persons so hired would be the employees of the Corporation, notdefendant. The agreement also stated that defendant was responsible for "[c]aus[ing] theBuilding to be maintained in such condition as may be directed by [the Corporation]."
Defendant also submitted the deposition testimony of plaintiff and the superintendent of thebuilding, Albert Abreu. Plaintiff testified that he had been hired by the Corporation and thatentity paid his wages. Plaintiff also testified that the only person he reported to and receivedassignments from was Abreu, who directed plaintiff to paint the staircase on the morning of theaccident.
While Abreu testified that he was hired and employed by defendant, he also testified that hewas paid by the Corporation and that his W-2 forms listed that entity as his employer. Moreover,defendant's counsel tacitly conceded in defendant's reply papers before Supreme Court thatAbreu was employed by the Corporation. Abreu lived in the building and was responsible forsupervising the seven other men who worked in the building, including plaintiff. Specifically,Abreu stated that "[m]y duties were to oversee that each man did [his] job; they had certainroutines to do, and I would follow through and make sure these duties were done. I would givethem specific instructions, and that was mainly it."
Abreu also testified that he would speak to Suz Landi, an employee of defendant who servedas the property manager of the building, approximately three times per week. Every Wednesday,Abreu would report to defendant's office and meet with Landi to "drop off the payroll" andreview purchase orders, tenants' requests and complaints, and proposals from contractors toperform work at the building. Abreu would speak on the telephone with Landi approximately twoother days per week to review the status of projects at the building and tenants' requests andcomplaints. Notably, Abreu answered "yes" to the following question: "Would you deal with, asbest as you could, on your own, in the autonomous position that you had, the complaintsand requests of the . . . tenants?" (emphasis added). Relatedly, the followingcolloquy occurred between counsel for plaintiff and Abreu:
"Q: Were you, with respect to your duties as the [superintendent], pretty much autonomousin your position? Would you like me to explain that? I don't want to use a phrase that you mightnot be comfortable with. You were the boss of everyone else there; is that a fair statement?
"A: Yes, it is.
"Q: You told the other employees what to do?
"A: That is correct.
"Q: What you told them to do is based upon, not only your title, but your experience assomeone who had been in the business a good part of your life?
"[*3]A: Yes. . . .
"Q: So, is it fair to say that, for example, in 2004, you had a pretty set schedule, and prettyfirm understanding of what you wanted the other . . . employees to do?
"A: Yes. . . .
"
Q: You would certainly know what to do, unless it was some extraordinary requestor complaint; is that a fair statement?"A: Yes, it is."
While Abreu testified as to his interaction with Landi and delineated what he and Landiwould discuss when they spoke, Abreu never testified that Landi instructed him as to what tasksto perform, let alone how to perform them.
Defendant also relied on the affidavit of Landi, who averred that she was Abreu's supervisorand "[i]n that capacity, [she] assigned, supervised, instructed, oversaw, monitored and directed[Abreu's] work duties on a daily basis." Landi further averred that "plaintiff reported directly to. . . Abreu[, who] assigned, supervised, instructed, oversaw, monitored and directed. . . plaintiff's work duties on a daily basis." Thus, according to Landi, defendant"directed [Abreu], who in turn directed the maintenance staff and gave them their dailyassignments." Landi concluded that defendant "had comprehensive and exclusive daily controlover the work of all the maintenance staff of the . . . building through the building'ssuperintendent [i.e., Abreu]. Defendant had the authority and exercised the right to control allfacets of the daily operation of the building and its workers."
Defendant's assertion that plaintiff was its special employee rests on its claim that, as themanaging agent of the building, it controlled Abreu's work and Abreu in turn controlledplaintiff's work. The evidence adduced by defendant in support of its motion established thatAbreu controlled plaintiff's work. Thus, the resolution of this appeal turns on whether a triableissue of fact exists regarding whether defendant controlled Abreu's work. We conclude that suchan issue does exist.
Even assuming the affidavit of Landi would otherwise be sufficient to satisfy defendant'sburden on its motion, that affidavit is undermined by Abreu's deposition testimony, whichdemonstrates the existence of a triable issue of fact with respect to whether defendant controlledand directed the manner, details and ultimate result of Abreu's work. Abreu gave no testimony tothe effect that defendant instructed him to paint the staircase, let alone that defendant dictated tohim the manner in which that task was to be performed. In fact, Abreu gave no testimony to theeffect that defendant controlled and directed the manner and details of his work generally. To thecontrary, Abreu testified that he had autonomy in performing his job and supervising the menwho worked at the building; the precise extent of that autonomy is not clear from the record,precluding us from determining as a matter of law whether defendant controlled anddirected the manner, details and ultimate result of Abreu's work.
We disagree with our dissenting colleague's conclusion that, because Abreu referred to Landias his "boss" and the Merriam-Webster's Collegiate Dictionary defines "boss" as "a person whoexercises control or authority; specifically: one who directs or supervises workers,"Abreu's [*4]deposition testimony that he had autonomy inperforming his job and supervising the men who worked at the building does not demonstrate theexistence of a triable issue of fact. The dictionary definition of the word "boss" is notsynonymous with the legal term of art "special employer." That Landi exercised generalsupervisory authority over Abreu from time to time is not sufficient to establish, as a matter oflaw, that defendant was Abreu's special employer; "a significant and weighty feature in decidingwhether a special employment relationship exists is who controls and directs the manner,details and ultimate result of the employee's work" (Fung, 9 NY3d at 359 [internalquotation marks omitted and emphasis added]).
Villanueva v Southeast Grand St.Guild Hous. Dev. Fund Co., Inc. (37 AD3d 155 [2007]), on which the dissent relies, isdistinguishable. In Villanueva the plaintiff, an employee of a building that defendantmanagement company managed pursuant to an agreement with the building's owner, was injuredwhen he fell from a ladder while working at the building. The plaintiff commenced an action torecover damages against, among others, the management company, and the managementcompany moved for summary judgment dismissing the complaint as against it on the ground thatthe plaintiff was its special employee. In determining that the management company made aprima facie showing of entitlement to judgment as a matter of law, we noted that the affidavit ofthe management company's president "established that [the management company] wasexclusively responsible for the maintenance and repair of the premises" (id. at 156). Ourdetermination in Villanueva that the management company made a prima facie showingthat it was the plaintiff's special employer also rested in part on deposition testimony by themanagement company's president that "he supervised maintenance employees and thesuperintendent and manager at the premises" (id.). Moreover, under the managementagreement, the superintendent, who supervised the work plaintiff was performing at the time ofhis accident, was an employee of the management company (id. at 156-157).
Here, however, as noted above, Abreu testified that he had autonomy in performing his joband supervising the men who worked at the building. Additionally, albeit not decisively, contraryto the agreement in Villanueva the management agreement between defendant and theCorporation expressly states that maintenance personnel are the employees of the Corporation,not defendant.[FN1]
Our dissenting colleague believes that, in addition to Ramirez v Miller (41 AD3d 298 [2007], lv dismissed 10NY3d 784 [2008]), Ayala v MutualHous. Assn., Inc. (33 AD3d 343 [2006]), Erazo v 136 E. Mgt. (302 AD2d 282[2003]) and Brunetti v City of New York (286 AD2d 253 [2001]) compel the conclusionthat summary judgment must be granted to defendant. To be sure, each of these decisions holdsthat the defendant was entitled to summary judgment dismissing the complaint as against it onthe ground that it was the plaintiff's special employer. The absence of triable issues of fact on theissue of special employment in these cases, however, certainly does not mean that no triable issueof fact exists in this case; the issue of whether a worker is the special employee of a putativespecial employer is a "highly fact-[*5]sensitive" inquiry(Bellamy, 50 AD3d at 169). In light of Abreu's testimony that he exercised autonomy (theextent of which cannot be discerned on this record) in performing his job and supervising themen who worked at the building—and the absence of any indication in any of thedecisions relied upon by our dissenting colleague of similar evidence in those cases—weconclude that those cases do not control the outcome of this appeal (see Matter of Seelig vKoehler, 76 NY2d 87, 92 [1990] [distinguishing prior decisions and observing that "theidentification and weighing of all the unique and particular facts of each case governs"], certdenied 498 US 847 [1990]; Roosa v Harrington, 171 NY 341, 350 [1902] ["eachcase, as it arises, must be viewed and decided according to its own particular facts andcircumstances, and will become a controlling precedent, only, where the facts are the same"]).Needless to say, we regret that our dissenting colleague believes we evince a "breathtakingdisregard" for precedent and seek to "conjure" a triable issue of fact.
In short, because this Court has determined in other cases that a particular building managerwas the special employer of a particular employee of a building it hardly follows that defendantis, as a matter of law, the special employer of plaintiff. To so hold would be to adopt a rule thataffords all building managers the status of special employers of the employees of the buildingsthe building managers operate. Such a rule would offend the well-settled principle that the title ofthe putative special employer, e.g., a managing agent, is not controlling, but rather the actualworking relationship between the putative special employer and the purported special employee(Fung, 9 NY3d at 360).
With respect to the conclusion of our dissenting colleague that defendant is entitled tosummary judgment, we note that, even assuming that a reasonable inference can be drawn thatdefendant controlled and directed the manner and detail of Abreu's work and thus that defendantcontrolled and directed the manner and detail of plaintiff's work, that inference is not theonly reasonable inference that can be drawn from the record. Rather, a reasonableinference also can be drawn that defendant did not control and direct the manner and detail ofAbreu's work and concomitantly that defendant did not, through Abreu, control and direct themanner and detail of plaintiff's work. Stated differently, a reasonable inference can be drawn thatAbreu, an employee of the Corporation, exercising the autonomy he had in doing his job andsupervising the men, controlled and directed the manner and detail of plaintiff's work.[FN2]In light of the principles that general employment is presumed to continue and the question ofwhether a special employment relationship exists is generally one for the trier of fact, and therequirement that we draw all reasonable inferences in favor of the party opposing summaryjudgment (see Henderson v City of [*6]New York, 178AD2d 129, 130 [1991]; see alsoSodexho Mgt., Inc. v Nassau Health Care Corp., 23 AD3d 370, 371 [2005]), defendantfailed to demonstrate its entitlement to judgment as a matter of law.
Defendant also asserts that "the delegation [pursuant to the management agreement] by the[Corporation] to [defendant] of the exclusive management and control of the building. . . constitutes the requisite degree of control" necessary to create a specialemployment relationship between plaintiff and defendant. First, plaintiff was not a party to themanagement agreement and the agreement "does not purport to define or resolve the issue of[plaintiff's] special employment status" (Thompson, 78 NY2d at 560). The agreement,therefore, regardless of its terms, is not determinative of the issue of whether plaintiff wasdefendant's special employee (id.). Second, assuming defendant did have the exclusiveright to manage and control the building, such a right standing alone would be insufficient tosupport summary judgment in defendant's favor. To rebut the presumption of generalemployment the putative special employer must clearly demonstrate that the general employersurrendered control over the employee and that the putative special employer assumed suchcontrol (Thompson, 78 NY2d at 557; see Sanfilippo, supra). Here, asdiscussed above, defendant failed to demonstrate clearly that it assumed complete and exclusivecontrol over Abreu and thus failed to demonstrate that it assumed complete and exclusive controlover plaintiff.
At bottom, we hold only that, under the particular facts of this case, defendant failed to makea prima facie showing that it was plaintiff's special employer. Of course, defendant mayhave been plaintiff's special employer and our dissenting colleague has marshaled arguments insupport of that conclusion. Our function at this juncture, however, is not to decide an issue of factbut to determine whether one exists (see Sillman v Twentieth Century-Fox Film Corp., 3NY2d 395, 404 [1957] ["issue-finding, rather than issue-determination, is the key to (reviewing amotion for summary judgment)" (internal quotation marks and citation omitted)]). Sincedefendant failed to make a prima facie showing of entitlement to judgment as a matter of law, itsmotion must be denied regardless of the sufficiency of plaintiff's opposition (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Defendant's contention that it is entitled to summary judgment on the ground that plaintiff'sactions were the sole proximate cause of his injuries is without merit. "Where a plaintiff's actionsare the sole proximate cause of his injuries, liability under Labor Law § 240 (1) does notattach. Instead, the owner or contractor must breach the statutory duty under section 240 (1) toprovide a worker with adequate safety devices, and this breach must proximately cause theworker's injuries. These prerequisites do not exist if adequate safety devices are available at thejob site, but the worker either does not use or misuses them" (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [internalquotation marks, citations and ellipsis omitted]). As defendant submitted no evidence thatadequate safety devices were available to plaintiff or that plaintiff was directed to use suchdevices, it failed to make a prima facie showing that plaintiff's actions were the sole proximatecause of his injuries (see Ferluckaj vGoldman Sachs & Co., 50 AD3d 359, 362 [2008]; Balbuena v New York Stock Exch., Inc., 49 AD3d 374, 375-376[2008]; see also De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 950 [2003];cf. Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 39-40 [2004]).
Defendant's argument that it is entitled to summary judgment dismissing plaintiff's cause ofaction under Labor Law § 240 (1) on the ground that plaintiff was not engaged in anactivity protected by that statute was not raised before Supreme Court and we decline to considerit. Concur—Gonzalez, McGuire and Moskowitz, JJ.
Friedman, J.P., dissents in a memorandum as follows: As set forth later in this dissent, thisCourt has considered the issue of special employment in the building management context in atleast eight recent decisions. In those cases, decided by benches that included members of thepresent majority, we found that a special employment relationship between the defendantmanaging agent and the plaintiff employee had been established as a matter of law. Withbreathtaking disregard for our precedents, the majority declines to follow these decisions withoutmaking a serious effort to distinguish them factually, while failing to cite a single decision of thisCourt in which a triable issue as to special employment was held to exist on a comparable record.The foregoing is all the more remarkable because plaintiff has presented no evidence tocontrovert defendant's evidence that a special employment relationship existed between theparties.
Plaintiff, a porter at a residential building owned by nonparty 55 East 66th Street Corporation(55 East), suffered an on-the-job injury, for which he collected workers' compensation benefits. Itis undisputed that 55 East was the general employer of the building staff, including plaintiff andthe building superintendent, plaintiff's "boss." The record also contains uncontroverted evidenceestablishing that the entity 55 East hired to act as the building's managingagent—defendant David Frankel Realty, Inc. (DFR)—was the "boss" of plaintiff'sboss, the building superintendent (as the latter testified), and that DFR, pursuant to its contractwith 55 East, made decisions concerning the hiring and firing of members of the building staffand otherwise "control[led] and direct[ed] the manner, details and ultimate result of the. . . work" of the building staff, including plaintiff (Fung v Japan Airlines Co., Ltd., 9NY3d 351, 359 [2007], quoting Thompson v Grumman Aerospace Corp., 78 NY2d553, 558 [1991]). Although plaintiff has not come forward with an iota of evidence rebuttingDFR's proof that he was DFR's special employee, the majority holds that Supreme Court erred indismissing this action against DFR pursuant to the bar of Workers' Compensation Law§§ 11 and 29 (6). Because I believe that the majority's decision is contrary towell-settled law, I respectfully dissent.
The majority agrees with me that, contrary to plaintiff's contentions, the record establishesthat the building superintendent, Albert Abreu—whom plaintiff described as his "boss"and his "supervisor"—controlled plaintiff's work. The majority and I also agree that, ifDFR, the managing agent, was the special employer of Abreu, plaintiff's supervisor, then DFRalso would have to be deemed plaintiff's special employer, consistent with prior decisions thisCourt has rendered in cases with similar fact patterns (see Ramirez v Miller, 41 AD3d 298, 298-299 [2007], lvdismissed 10 NY3d 784 [2008]; Ayala v Mutual Hous. Assn., Inc., 33 AD3d 343, 344 [2006];Erazo v 136 E. Mgt., 302 AD2d 282 [2003]; Brunetti v City of New York, 286AD2d 253 [2001]). Where the majority and I disagree is on whether the record establishes thatAbreu, although a general employee of 55 East, was himself a special employee of DFR. In myview, the evidence set forth below—which has not been disputed or controverted in anyway by plaintiff—eliminates any triable issue as to the relationship between Abreu andDFR. Plainly, Abreu was a special employee of DFR.
Abreu's testimony about his relationship with DFR was clear enough. Abreu testified that he"had to appear at [DFR's] office on Wednesday" each week, at which time he would[*7]"report to [his] boss" (emphasis added), a DFRvice-president named Suz Landi. Abreu testified that, when he went to his Wednesday meetingswith Landi at DFR, he would "bring purchase orders" and "reports of tenants' questions," "bringover proposals from contractors," "drop off the payroll," and "report to [Landi] the existingoverall problems in the building." In addition, Abreu filed a report about plaintiff's accident withLandi at DFR, which he said was "mandatory."
In her affidavit in support of DFR's motion for summary judgment, Suz Landi averred:
"[DFR] is a managing agent for numerous residential apartment buildings in New York Cityincluding the building located at 55 East 66th Street, New York, New York. That building isowned by [55 East]. I am the property manager for the apartment building owned by [55East]. . . .
"In my capacity as property manager for 55 East 66th Street, I was the direct supervisor ofAlbert Abreu, the superintendent of the apartment building on June 3, 2004 [the date of plaintiff'saccident]. In that capacity, I assigned, supervised, instructed, oversaw, monitored and directed hiswork duties on a daily basis.
"The plaintiff herein was a porter in the building. The plaintiff reported directly to Mr.Abreu. Albert Abreu assigned, supervised, instructed, oversaw, monitored and directed theplaintiff's work duties on a daily basis.
"[DFR], the managing agent, hired, supervised and paid the maintenance staff, andterminated workers if necessary. The managing agent directed the superintendent, who in turndirected the maintenance staff and gave them their daily assignments.
"[DFR] collected maintenance payments from shareholders and paid the workers wages fromthe building account; provided the plaintiff's paycheck, carried workers compensation, liabilityand unemployment insurance, and withheld Social Security.
"[DFR] had comprehensive and exclusive daily control over the work of all the maintenancestaff of the apartment building through the building's superintendent. [DFR] had the authorityand exercised the right to control all facets of the daily operation of the building and its workers.
"The maintenance people were not directly supervised or directed by [55 East]."
The management agreement between DFR and 55 East provided, inter alia, that DFR would"[c]ause to be hired, paid and supervised, all persons necessary or desirable in order to properlymaintain and operate the Premises who, in each instance, shall be [55 East's] and not [DFR's]employees, and cause to be discharged all persons unnecessary or undesirable." The managementagreement also provided that DFR would "[c]ause the Building to be maintained in suchcondition as may be directed by [55 East]."
Special employment is demonstrated by evidence of the "surrender of control by the [*8]general employer and assumption of control by the specialemployer" (Thompson, 78 NY2d at 557). "[A] 'significant' and 'weighty feature' indeciding whether a special employment relationship exists is 'who controls and directs themanner, details and ultimate result of the employee's work'—in other words, whodetermines 'all essential, locational and commonly recognizable components of the [employee's]work relationship' " (Fung, 9 NY3d at 359, quoting Thompson, 78 NY2d at 558).Another principal factor in the analysis is which entity holds the power of "hiring anddischarging" the employee (Fung, 9 NY3d at 359, citing Ugijanin v 2 W. 45th St. Joint Venture,43 AD3d 911, 913 [2007]). The general employer's retention of "responsibility for paymentof wages and for maintaining workers' compensation and other employee benefits" is notinconsistent with the existence of a special employment relationship (Thompson, 78NY2d at 557). Further, "the determination of special employment status may be made as a matterof law where the particular, undisputed critical facts compel that conclusion and present notriable issue of fact" (id. at 557-558).
In this case, DFR made a prima facie showing that it was the special employer of Abreu,plaintiff's supervisor, and therefore the special employer of plaintiff himself, notwithstanding that55 East, which paid both men's wages, was their general employer. Abreu testified that his "boss"was Suz Landi, the DFR vice-president who served as the property manager of the building, andthat he was required to file a report about plaintiff's accident with Landi. That DFR directed andcontrolled the work of the building staff is confirmed by Landi's affidavit, as well by themanagement agreement between 55 East and DFR, which gave DFR the power and responsibilityto hire, fire, and supervise 55 East's employees engaged in the maintenance and operation of thebuilding. Since plaintiff has not come forward with any countervailing evidence, DFR is entitledto summary judgment dismissing the complaint as barred by the Workers' Compensation Law.
The conclusion that the record establishes that DFR was plaintiff's special employer isconsistent with numerous decisions this Court has rendered in the building management context,in which we have held that a managing agent with the undisputed power to hire, fire andsupervise the building staff is the special employer of the staff members as a matter of law (see Gomez v Penmark Realty Corp., 50AD3d 607 [2008]; Ramirez vMiller, 41 AD3d 298 [2007], supra; Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37AD3d 155 [2007]; Ayala v MutualHous. Assn., Inc., 33 AD3d 343 [2006], supra; Gherghinoiu v ATCO Props. & Mgt.,Inc., 32 AD3d 314 [2006], lv denied 7 NY3d 716 [2006]; Hughes v Solovieff Realty Co., L.L.C.,19 AD3d 142 [2005]; Erazo v 136 E. Mgt., 302 AD2d 282 [2003], supra;Evans v Citicorp, 276 AD2d 370 [2000]). The majority fails to identify a single precedentof this Court decided in the building management context that supports the result it reaches here.
Contrary to the majority's claim, I do not propose that we adopt a rule under which "allbuilding managers [are afforded] the status of special employers of the employees of thebuildings the building managers operate." I do, however, believe that we should adhere to thisCourt's own precedents holding that clear and uncontroverted evidence that a building managerdirected and supervised the building staff—such as we have in the record beforeus—establishes the existence of a special employment relationship between the buildingmanager and the building staff as a matter of law. The majority departs from this line ofprecedent without explanation or justification.
While basically ignoring the foregoing case law, the majority asserts that Abreu's depositiontestimony somehow creates an issue of fact as to whether DFR was his special [*9]employer. This position is baffling. Abreu, without any promptingby the lawyer examining him, characterized Landi of DFR as his "boss," a common English worddefined as "a person who exercises control or authority; specifically: one who directs orsupervises workers" (Merriam-Webster's Collegiate Dictionary 133 [10th ed]). Abreu furthertestified that he was required to "report" to Landi once a week to discuss all aspects of thebuilding's operations, and that he was required to file a report about plaintiff's accident withLandi. If more than this uncontroverted evidence were needed, it is certainly supplied by thedescription of DFR's authority over the building's staff in Landi's affidavit, and by DFR'smanagement agreement, which gave DFR the power and responsibility to hire, pay, supervise anddischarge all members of the building staff. Not a word of Abreu's testimony contradicts thepicture of the extent of DFR's authority given by Landi's affidavit and the managementagreement.
While the majority gives short shrift to Landi's affidavit, that affidavit is no less factuallydetailed than the affidavits on which this Court granted special employers summary judgment intwo prior unanimous decisions in which a member of the majority of the instant panelparticipated.
In Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc. (supra),we granted the defendant management company (Residential) summary judgment on the specialemployment issue based on the affidavit of its president (John Cameron). We found thatCameron's affidavit "established that [Residential] was exclusively responsible for themaintenance and repair of the premises" (37 AD3d at 156). The relevant portions of Cameron'saffidavit read as follows (paragraph numbers omitted):
"That at the time of the accident herein, as per the management agreement, Residential. . . was exclusively responsible for the maintenance and repair of the premises. . . . The site superintendent . . . and the site manager . . .were employed by [the owner] but they and all of the other site employees reported directly toand were supervised by myself at the time of the accident herein.
"That the site owner . . . had no direct involvement in the day-to-day operation,control, maintenance and supervision of the premises at the time of the accident herein.
"That Residential . . . and myself had the ultimate authority and responsibilityfor the hiring, disciplining and/or firing of site personnel at the time of the accident herein."
Similarly, in Gherghinoiu v ATCO Props. & Mgt., Inc. (supra), we grantedthe defendant managing agent of a property summary judgment on the special employment issuebased on the affidavit of its treasurer, Leonard Bernacke (32 AD3d at 315). The entire discussionof direction and control over the plaintiff's work in Bernacke's affidavit was as follows: "Thatthough [the owner] was listed as the plaintiff's employer, it was the employees and/or executivesof [the managing agent] that utilized, directed and controlled the manner and methods of [theowner's] maintenance workers, including the plaintiff. Further, it was solely [the managing agent]that had the ability to hire and/or fire the maintenance workers that worked at [the property]"(paragraph number omitted). Notably, the record of the Gherghinoiu decision does notcontain any deposition transcript, [*10]indicating that our holdingon the special employment issue in that case was based entirely on the Bernacke affidavit.
If we were correct in rendering summary judgment on the special employment issue inVillanueva and Gherghinoiu based on the above-quoted affidavits, I do notunderstand why we should not rely on the Landi affidavit (to the extent such reliance may benecessary) in affirming the grant of summary judgment on the special employment issue in thiscase.
I see no merit in the majority's suggestion that Villanueva can be distinguished fromthis case based on the provision in DFR's management agreement that members of the buildingstaff "shall be [55 East's] and not [DFR's] employees." Although the majority concedes that thisprovision is not "decisive[ ]" of the special employment issue, it would be more accurate to saythat the provision is essentially irrelevant. In addressing a similar contractual provision in theseminal decision on this issue, the Court of Appeals stated: "While the ATS-Grumman contractprovides that ATS is to be considered Thompson's employer, that provision alone is insufficientto establish as a matter of law that Thompson was not also a special employee ofGrumman. Moreover, in the context of this record, it fails to raise a question of fact as to hisspecial employment status" (Thompson, 78 NY2d at 559). This Court, followingThompson, held to the same effect in Maldonado v Canac Intl. (258 AD2d 415[1999]): "Even if the contract . . . provided that employees of A&A assigned towork under Canac's direction 'shall at all times be employees of A&A and not of Canac', theapplication of the law as set forth in Thompson v Grumman Aerospace Corp.(supra) would still require that summary judgment be granted to the special employer[Canac]." In addition, the record of our 2007 decision in Ramirez v Miller (supra)shows that the building management agreement in that case contained a provision substantiallyidentical to the one here, requiring the managing agent to "[c]ause to be hired, paid andsupervised, all persons necessary to be employed in order to properly maintain and operate theBuilding, who, in each instance, shall be the Owner's and not the Agent's employees, andcause to be discharged all persons unnecessary or undesirable" (emphasis added). Consistent withThompson and Maldonado, we affirmed summary judgment for the managingagent on the special employment issue in Ramirez notwithstanding the above-quotedcontractual provision.
In the end, the sole basis for the majority's attempt to conjure a triable issue out of the simpleand undisputed facts of this case is Abreu's affirmative answer to a clumsily constructed questionby plaintiff's counsel that included the assertion that Abreu held an "autonomous position." ThatAbreu, as the resident building superintendent, exercised some degree of autonomy in carryingout his day-to-day duties is neither surprising nor in any way inconsistent with his having been aspecial employee of DFR. Far from claiming to be an independent contractor, Abreu referred toLandi as his "boss"; he acknowledged that he filed his income tax returns with a W-2 form;and—most tellingly—he initially testified that it was his understanding that he was"employed by [DFR]."[FN*]Since it is undisputed Abreu was an employee—one who [*11]works subject to the direction and control of another—someentity must have exercised that direction and control. The only entity the record evidenceidentifies as exercising direction and control over Abreu is DFR, through Landi. In other words,if the majority is correct that a reasonable inference could be drawn that Landi was notcontrolling Abreu's work, the question is, who was? Plaintiff has offered nothing to show thatAbreu's work was controlled by someone other than Landi, and certainly has not come forwardwith a sliver of evidence to show that Abreu reported to any officer or employee of 55 East, thegeneral employer. Indeed, neither plaintiff nor the majority identifies any evidence in the recordthat would support an inference that Abreu (and, therefore, plaintiff) was not a specialemployee of DFR.
In view of the majority's focus on Abreu's exercise of some autonomy in carrying out hisday-to-day duties, it should also be noted that a person's having some degree of autonomy inperforming his job is not inconsistent with his being subject to another's control for purposes ofemployment law. For example, a medical resident treating patients at a hospital, an associateattorney conducting a deposition, a police officer on patrol, and a foreman at a factory are allconsidered employees. Thus, in asking who, if not Landi, was controlling Abreu's work, I do notmake the inapt assumption the majority apparently ascribes to me that some supervisor had to beconstantly hovering over Abreu as he performed his job. As a person who held a position ofsome responsibility, Abreu presumably performed his job without an overseer looking over hisshoulder every minute, but this does not mean that no one had "control" over his work within thecontemplation of Thompson and its progeny.
For the foregoing reasons, I believe that plaintiff's action against DFR is barred by theWorkers' Compensation Law, and, on that ground, I would affirm Supreme Court's grant ofsummary judgment dismissing the complaint. I therefore find it unnecessary to reach the parties'remaining arguments.
Footnote 1: Of course, the presence of thisprovision is not dispositive on the issue of whether defendant was plaintiff's special employer(see Thompson, 78 NY2d at 559). Such a provision, however, contrary to the assertion ofour dissenting colleague, is a factor that we must consider in determining whether a triable issueof fact exists on that score.
Footnote 2: To answer our dissentingcolleague's query regarding who, if not Landi, controlled Abreu's work, one need only look to thewell-established rule that, absent a clear showing of the surrender of control by the generalemployer and the assumption of sufficient control by the special employer, generalemployment is presumed to continue. Moreover, our dissenting colleague implicitly assumes thatAbreu's work always was controlled by someone, i.e., Landi. As is indicated by Abreu'stestimony about the autonomy he sometimes exercised, that simply is not so. Furthermore,defendant must establish that it affirmatively exercised sufficient control over Abreu (seeThompson, 78 NY2d at 557; Sanfilippo v City of New York, 239 AD2d 296 [1997]).
Footnote *: It is striking that the majoritycompletely ignores Abreu's testimony that his own understanding was that DFR was hisemployer. While Abreu subsequently acknowledged that 55 East was his employer after it wasbrought to his attention that 55 East signed his paychecks and issued his W-2 form, not a word ofhis testimony casts doubt on DFR's authority over his work.