| Soto v Akam Assoc., Inc. |
| 2009 NY Slip Op 02770 [61 AD3d 665] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Christian Soto, Respondent, v Akam Associates, Inc.,Appellant. |
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In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated March 5, 2008, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, without costs or disbursements.
Workers' Compensation Law §§ 11 and 29 (6) provide that an employee who isentitled 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, 358-359 [2007]; Thompson v Grumman Aerospace Corp., 78NY2d 553, 557 [1991]). Thus, an injured person who is entitled to receive workers'compensation benefits from his or her general employer is barred from maintaining a personalinjury action against his or her special employer (see Fung v Japan Airlines Co., Ltd., 9NY3d at 358-359; Thompson v Grumman Aerospace Corp., 78 NY2d at 560).
Although many factors are weighed in determining whether a special employmentarrangement exists, "[t]he key to the determination is 'who controls and directs the manner,details and ultimate result of the employee's work' " (Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d 911, 913 [2007],quoting Thompson v Grumman Aerospace Corp., 78 NY2d at 558; see Graziano v 110 Sand Co., 50AD3d 635, 636 [2008]). Other relevant factors include who is responsible for the paymentof wages, who furnishes the worker's equipment, who had the right to hire and discharge theworker, and whether the work being performed was in furtherance of the special employer's orthe general [*2]employer's business (see Navarrete v A & V Pasta Prods., Inc.,32 AD3d 1003, 1004 [2006]).
Here, upon consideration of the aforementioned relevant factors, the defendant failed tomake a prima facie showing of its entitlement to judgment as a matter of law (see Marrero v Akam Assoc. LLC, 39AD3d 716, 717 [2007]; Schramm vCold Spring Harbor Lab., 17 AD3d 661, 662 [2005]; Smith v Kingsbrook JewishMed. Ctr., 5 AD3d 586 [2004]). In support of its motion, the defendant's submissionsestablished that the plaintiff's employer was 300 E. 74th Owners Corp. (hereinafter OwnersCorp.). The plaintiff was directly supervised by the superintendent of the subject building, whoalso was an employee of Owners Corp. Further, Owners Corp. paid the plaintiff's wages andfurnished his equipment and uniform. The defendant failed to adequately show how it directedthe manner, details, and ultimate result of the plaintiff's work. Accordingly, the Supreme Courtproperly denied the defendant's motion for summary judgment dismissing the complaint (see Bautista v David Frankel Realty, Inc.,54 AD3d 549 [2008]). Spolzino, J.P., Florio, Covello and Eng, JJ., concur.