| Balamos v Elmhurst Realty Co. I, LLC |
| 2008 NY Slip Op 09340 [56 AD3d 705] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Mario Balamos, Appellant, v Elmhurst Realty Co. I, LLC,et al., Defendants, and Savino Maintenance, LLC, et al.,Respondents. |
—[*1] Gallo, Vitucci, Klar, Pinter & Cogan, LLP, New York, N.Y. (Yolanda L. Ayala, Richard J.Gallo, and Kimberly Ricciardi of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Agate, J.), enteredJanuary 14, 2008, as granted that branch of the defendants' motion which was for summaryjudgment dismissing the complaint insofar as asserted against the defendants SavinoMaintenance, LLC, and Michael J. Savino Management.
Ordered that the order is affirmed insofar as appealed from, with costs.
Workers' Compensation Law §§ 11 and 29 (6) provide that an employee whoelects to receive compensation benefits may not sue his or her employer in an action at law forthe injuries sustained. These exclusivity provisions also have been applied to shield persons orentities other than the injured plaintiff's direct employer from suit, including special employers(see Fung v Japan Airlines Co., Ltd., 9 NY3d 351 [2007]; Thompson v GrummanAerospace Corp., 78 NY2d 553 [1991]). Thus, an injured person who elects to receiveWorkers' Compensation benefits from his or her general employer is barred from maintaining apersonal injury action against his or her special employer (see Fung v Japan Airlines Co.,Ltd., 9 NY3d 351, 358-359 [2007]; Thompson v Grumman Aerospace Corp., 78NY2d 553, 560 [1991]). Although many factors are considered in determining whether a specialemployment arrangement exists, significant weight is placed upon "who controls and directs themanner, details and ultimate result of the employee's work" (Thompson v GrummanAerospace Corp., 78 NY2d at [*2]558; see Altinma v East72nd Garage Corp., 54 AD3d 978 [2008]; Graziano v 110 Sand Co., 50 AD3d 635[2008]). Other relevant factors include who is responsible for the payment of wages, whofurnishes the worker's equipment, who had the right to hire and discharge the worker, andwhether the work being performed was in furtherance of the special employer's or the generalemployer's business (see Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003 [2006];Perkins v Dryden Ambulance, Inc., 31 AD3d 859 [2006]; Alvarez v CunninghamAssoc., L.P., 21 AD3d 517, 518 [2005]; Matthews v Town of Morristown, 286AD2d 535 [2001]).
The defendants Savino Maintenance, LLC, and Michael J. Savino Management (hereinaftertogether the Savino defendants), made a prima facie showing that they were entitled to summaryjudgment on the ground that the plaintiff was their special employee. In support of the motion,the Savino defendants submitted the deposition testimony of one of their principals, whichestablished that they hired the plaintiff to perform brick-pointing work on an apartment buildingwhich they managed and maintained, that the plaintiff was supervised by one of their directemployees, that they had the exclusive authority to discharge the plaintiff, that they provided theplaintiff with the equipment necessary to perform his work, and that the work performed was infurtherance of their responsibility to provide management and maintenance services for theapartment building (see Roberson v Moveway Transfer & Stor., 44 AD3d 839 [2007];Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d 911 [2007]; Navarrete v A & VPasta Prods., Inc., 32 AD3d 1003 [2006]; Gherghinoiu v ATCO Props. & Mgt., Inc.,32 AD3d 314 [2006]; Martinez v Fifty Two W. Seventy Seventh St. Corp., 39 AD3d503 [2007]). In opposition to the motion, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court properly concluded that the plaintiff's receipt of Workers'Compensation benefits from his general employer precludes his action against the Savinodefendants. Rivera, J.P., Lifson, Eng and Chambers, JJ., concur.