| Hofweber v Soros |
| 2008 NY Slip Op 10129 [57 AD3d 848] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Thomas Hofweber et al., Appellants, v Robert Soros et al.,Defendants, and Melissa Schiff Soros, Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Joseph F. Mahoney ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Dutchess County (Sproat, J.), dated August 28, 2007, which granted the motion of thedefendant Melissa Schiff Soros for summary judgment dismissing the complaint insofar as assertedagainst her, and denied their motion to strike the defense of workers' compensation and to compeldiscovery.
Ordered that the order is affirmed, with costs.
The defendants Robert Soros and Melissa Schiff Soros maintain a residence on Enterprise Road inRhinebeck, Dutchess County, where they employed the plaintiff Thomas Hofweber (hereinafter theplaintiff) to care for their horses. Since they employed a number of people at the residence, the Sorosescreated the company Household Services II, LLC, as an administrative service to handle payroll,medical benefits, and workers' compensation insurance. The plaintiff signed a statement identifying theSoroses as his employers, even though his paycheck came from Household Services II, LLC. Theplaintiff identified Melissa Schiff Soros as his "boss." Melissa Schiff Soros submitted an affidavit inwhich she averred that only she and Robert Soros had the power to fire their employees.
The plaintiff was injured in an accident on the premises on January 22, 2004 for which he receivedworkers' compensation benefits. He also commenced this action to recover damages for [*2]his injuries. In an order dated August 28, 2007 the Supreme Courtgranted the motion of the defendant Melissa Schiff Soros for summary judgment dismissing thecomplaint insofar as asserted against her. We affirm.
In general, workers' compensation benefits are the exclusive remedy of an employee against anemployer for any damages sustained from injury or death arising out of and in the course of employment(see Workers' Compensation Law § 11; Cronin v Perry, 244 AD2d 448[1997]). The receipt of workers' compensation benefits from a general employer precludes anemployee from commencing a negligence action against a special employer (see Croche v WyckoffPark Assoc., 274 AD2d 542 [2000]). A person's classification as a special employee is usually aquestion of fact, but can also be decided as a matter of law (see Thompson v Grumman AerospaceCorp., 78 NY2d 553, 557 [1991]; Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005];Adams v Virco Mfg. Corp., 251 AD2d 608 [1998]). In determining whether a specialemployment relationship exists, a "significant and weighty feature" is "who controls and directs themanner, details and ultimate result of the employee's work" (Thompson v Grumman AerospaceCorp., 78 NY2d at 558; see Alvarez vCunningham Assoc., L.P., 21 AD3d 517, 518 [2005]). Other principal factors include "whois responsible for the payment of wages and the furnishing of equipment, who has the right to dischargethe employee, and whether the work being performed was in furtherance of the special employer's orthe general employer's business" (Schramm v Cold Spring Harbor Lab., 17 AD3d at 662).
Here, in light of the control and direction which Melissa Schiff Soros exercised over the plaintiff,the Supreme Court properly concluded that the plaintiff was her special employee as a matter of law,and thus, that the instant action is barred by the plaintiff's recovery of workers' compensation benefits(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The plaintiffs' remaining contentions are without merit. Skelos, J.P., Santucci, Dillon and Covello,JJ., concur.