| Pena v Automatic Data Processing, Inc. |
| 2010 NY Slip Op 03890 [73 AD3d 724] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Pedro Pena et al., Respondents, v Automatic DataProcessing, Inc., Appellant, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Fields & Levy, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Michael H. Zhu], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Automatic DataProcessing, Inc., appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.),dated February 4, 2009, which denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
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 from suitpersons or entities other than the injured plaintiff's direct employer (see Fung v Japan Airlines Co., Ltd., 9NY3d 351, 358-359 [2007]; Thompson v Grumman Aerospace Corp., 78 NY2d553, 557 [1991]). In this regard, a general employee of one employer may also be a specialemployee of another employer (see Thompson v Grumman Aerospace Corp., 78 NY2dat 557; Spencer v Crothall Healthcare,Inc., 38 AD3d 527, 528 [2007]). The receipt of Workers' Compensation benefits from ageneral employer precludes an employee from commencing a negligence action against a specialemployer (see Hofweber v Soros,57 AD3d 848, 849 [2008]; Croche v Wyckoff Park Assoc., 274 AD2d 542 [2000]).A person's classification as a special employee is usually a question of fact, but can also bedecided as a matter of law (see Thompson v Grumman Aerospace Corp., 78 NY2d at557; Hofweber v Soros, 57 AD3d at 849; Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005];Adams v Virco Mfg. Corp., 251 AD2d 608 [1998]).
In determining whether a special employment relationship exists, a "significant and weightyfeature" is "who controls and directs the manner, details and ultimate result of the employee'swork" (Thompson v Grumman Aerospace Corp., 78 NY2d at 558; see Hofweber vSoros, 57 AD3d at 849; Alvarez vCunningham Assoc., L.P., 21 AD3d 517, 518 [2005]). Other principal factors include"who is responsible for the payment of wages and the furnishing of equipment, who has the rightto discharge the employee, and whether the work being performed was in furtherance of thespecial employer's or the [*2]general employer's business"(Schramm v Cold Spring Harbor Lab., 17 AD3d at 662; see Hofweber v Soros,57 AD3d at 849).
Here, the defendant Automatic Data Processing, Inc. (hereinafter ADP), failed to make aprima facie showing that the plaintiff Pedro Pena (hereinafter Pena) was its special employee andthat, as a consequence, Pena's claims against it are barred by the exclusivity provisions of theWorkers' Compensation Law (see Bennv Losquadro Ice Co., Inc., 65 AD3d 655, 657 [2009]; Soto v Akam Assoc., Inc., 61 AD3d665, 666 [2009]; Degale-Selier vPreferred Mgt. & Leasing Corp., 57 AD3d 825, 826 [2008]; Marrero v Akam Assoc. LLC, 39AD3d 716, 717-718 [2007]; Smith v Kingsbrook Jewish Med. Ctr., 5 AD3d 586[2004]). In support of its motion, ADP submitted evidence supporting its contention that itssupervisory employees controlled and directed the manner, details, and ultimate result of Pena'swork. However, ADP also submitted the transcript of Pena's deposition, at which he testified thathis two immediate supervisors, who instructed him on the work he was to perform, wereemployed by his general employer, the third-party defendant Randstad US, LP (hereinafterRandstad). While ADP characterizes these statements as "conclusory allegations," thistestimony, based on Pena's firsthand knowledge, raised a triable issue of fact as to whether thepersons who directed his work were employed by ADP or Randstad. Moreover, ADP did notestablish, prima facie, that the two supervisors were themselves special employees of ADP, evenif they were general employees of Randstad. Furthermore, ADP's submissions failed to establishthe identity of the employer of the person charged with supervising the two individuals whomPena claimed to be his immediate supervisors (cf. Bautista v David Frankel Realty, Inc., 54 AD3d 549 [2008];Jaynes v County of Chemung, 271 AD2d 928 [2000]). Since ADP failed to make a primafacie showing that Pena was its special employee, the Supreme Court properly denied its motionfor summary judgment dismissing the complaint insofar as asserted against it. Covello, J.P.,Santucci, Angiolillo and Dickerson, JJ., concur.