| Clemens v Brown |
| 2010 NY Slip Op 00443 [69 AD3d 1197] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Scott A. Clemens et al., Respondents-Appellants, v Timothy G.Brown et al., Individually and Doing Business as Pine Meadow Farm, Respondents-Appellants,and David LeClair, Individually and Doing Business as LeClair Construction,Appellant-Respondent, et al., Defendant. |
—[*1] Jeanne M. Colombo, Rochester (Michael Steinberg, Rochester, of counsel), for Scott A.Clemens and another, respondents-appellants. O'Connor, O'Connor, Bresee & First, P.C., Albany (George J. Hoffman Jr. of counsel), forTimothy G. Brown and another, respondents-appellants.
Kavanagh, J. Cross appeals from an order of the Supreme Court (O'Connor, J.), enteredSeptember 29, 2009 in Albany County, which, among other things, denied defendant DavidLeClair's motion for summary judgment dismissing the amended complaint and cross claimagainst him.
Plaintiff Scott A. Clemens (hereinafter plaintiff) owns Complete Building Services, abusiness entity with two employees that maintains and repairs the exteriors of residential homes.In June 2003, defendants Timothy G. Brown and defendant Celeste Othmer Brown (hereinafterthe owners) hired defendant David LeClair (hereinafter defendant) to perform work on a polebarn that was being constructed on their property in the Town of Ballston Spa, Saratoga County.Defendant, who owns and operates LeClair Construction, hired plaintiff and his two employeesto help install the roof on the pole barn. Shortly after he arrived at the work site, plaintiff was onthe top rung of a ladder working on the roof when the ladder suddenly moved, causing him tofall to the ground and be injured. Plaintiff and his wife, derivatively, commenced this actionagainst, among others, the owners of the property, defendant and his cousin, defendant StevenLeClair, alleging violations of Labor Law §§ 200, 240 (1) and § 241 (6).After the owners filed cross claims against them, defendant and Steven LeClair moved forsummary judgment dismissing the complaint as well as all cross claims that had been filedagainst them. Plaintiffs, in turn, cross-moved for summary judgment on the issue of defendant'sliability under Labor Law § 240 (1).[FN1]Supreme Court, while denying defendant's motion for summary judgment, granted plaintiffs'cross motion finding the owners and defendant liable, but did not decide whether plaintiffs'claims against defendant were barred by the provision contained in Workers' Compensation Law§ 11, which prohibits an employee, under certain circumstances, from suing his employer.Plaintiff and defendant cross-appeal.[FN2]
Much of what is in contention in these cross appeals concerns plaintiff's employment statusat the time of the accident. If, at that time, plaintiff was, as defendant claims, his employee, theexclusivity provisions of the Workers' Compensation Law apply and plaintiffs' claims againstdefendant must be dismissed.[FN3]On the other hand, if plaintiff was, as he claims, an independent contractor, then the Workers'Compensation Law has no application to this action and is not relevant to any of the issues raisedin these cross appeals.
" '[T]he critical inquiry in determining whether an employment relationship exists pertains tothe degree of control exercised by the purported employer over the results produced or the meansused to achieve the results' " (Gagen vKipany Prods., Ltd., 27 AD3d 1042, 1043 [2006], quoting Bynog v Cipriani Group, 1 NY3d193, 198 [2003]; see Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897 [1982]; Roberts v El-Hajal, 23 AD3d 733,733 [2005]). In support of his claim that plaintiff was his employee, defendant points to the factthat he supplied all of the tools and materials needed for the work performed by plaintiff,including the ladder he was using at the time of his fall (see generally Matter of Marques v Salgado, 12 AD3d 817, 819[2004]). In addition, it is undisputed that defendant managed the entire work site, directedplaintiff in the performance of his work and paid him $30 per hour, with the amount earned to beapplied to pay down a debt that plaintiff owed to defendant. Also, the two employees fromplaintiff's firm assisted on the project and were paid directly by defendant. Finally, as defendantnoted, he had no contract with plaintiff to perform this work and that, in the past, whenever heretained plaintiff as an independent contractor, a written contract was prepared memorializingtheir agreement and plaintiff was paid by check.
Plaintiff, not surprisingly, takes a very different view of his relationship with defendant andclaims that when he agreed to work on the roof, he had a verbal agreement with defendant thathe would serve as a subcontractor and be paid an hourly rate. In addition, plaintiff argues that henever discussed insurance coverage with defendant, and defendant testified that he did notbelieve that plaintiff was covered by his firm's workers' compensation policy when plaintiffworked on the project. Plaintiff also points to the fact that he was never provided with a W-2form by defendant and there is no indication that taxes were to be withheld from any paymentsplaintiff was to receive for his work on this project. Given the contradictory nature of theevidence presented by the parties as to plaintiff's employment status at the time of the accident,we find that questions of fact exist on this issue and summary judgment was properly denied(see Malamood v Kiamesha Concord, 210 AD2d 26 [1994]).
If it is ultimately determined that plaintiff was defendant's employee at the time of theaccident then, and only then, does the exclusivity provision of Workers' Compensation Law§ 11 have any relevance to this action.[FN4]In that regard, plaintiff argues that defendant's admission that plaintiff was not covered by hisfirm's workers' compensation policy is a sufficient basis upon which to grant summary judgment(see O'Rourke v Long, 41 NY2d 219, 224-225 [1976]; Terry v Maurice Pastries, Inc., 34AD3d 328 [2006]). However, this statement was somewhat ambiguous and the policy thatdefendant had in place at the time of the accident did not, by its terms, limit or otherwise excludecoverage for plaintiff. In addition, no evidence has been presented that the workers'compensation carrier on this policy has, in any form or forum, denied that such coverage exists.As such, whether plaintiff was covered by this policy and is eligible for its benefits cannot, as amatter of law, be determined at this time, and Supreme Court's decision not to grant summaryjudgment on this issue is, in all respects, affirmed.
Mercure, J.P., Peters, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: In their motion, plaintiffsindicated that they would sign a stipulation of discontinuance with respect to Steven LeClair and,as a result, Supreme Court dismissed the claims against him.
Footnote 2: While the owners also filed across appeal from Supreme Court's order, their brief only addresses arguments made bydefendant appealing Supreme Court's denial of his motion for summary judgment.
Footnote 3: Here, we agree with plaintiffthat he was never, as defendant claims, a "special employee." A special employee is one who istemporarily assigned to the service of another employer by his general employer. Plaintiff hadhis own business, an unincorporated entity and was not in the employ of another when he agreedto assist defendant on this project (see Thompson v Grumman Aerospace Corp., 78NY2d 553, 557 [1991]; Ribeiro vDynamic Painting Corp., 23 AD3d 795, 796 [2005], lv denied 6 NY3d 707[2006]).
Footnote 4: The amended complaint allegedthat on the day of the accident, plaintiff "was an independent subcontractor and/or employee forday hire." It did not allege that defendant had failed to procure workers' compensation coveragefor plaintiff, and that the exclusivity provisions of the Workers' Compensation Law did not apply(see O'Rourke v Long, 41 NY2d 219, 224 [1976]). Only after defendant raised theexclusivity provisions of the Workers' Compensation Law as an affirmative defense did coveragebecome an issue in this action.