| Franco v Kaled Mgt. Corp. |
| 2010 NY Slip Op 05512 [74 AD3d 1142] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Jose Franco, Respondent, v Kaled Management Corp.,Doing Business as Wisteria Tower Condominium, Appellant, et al.,Defendant. |
—[*1] Flynn, Gibbons & Dowd, New York, N.Y. (Ann Teresa McIntyre of counsel), forappellant.
In an action to recover damages for personal injuries, the defendant Kaled ManagementCorp., doing business as Wisteria Tower Condominium, appeals from an order of the SupremeCourt, Nassau County (Lally, J.), entered July 20, 2009, which denied its motion for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
"In general, workers' compensation benefits are the exclusive remedy of an employee againstan employer for any damages sustained from injury or death arising out of and in the course ofemployment" (Hofweber v Soros,57 AD3d 848, 849 [2008]; see Workers' Compensation Law §§ 11, 29[6]; Fung v Japan Airlines Co.,Ltd., 9 NY3d 351, 357 [2007]). Moreover, where an injured worker elects to receiveWorkers' Compensation benefits from his or her general employer, a special employer isshielded from an action at law commenced by the special employee (see Workers'Compensation Law § 29 [6]; Pena v Automatic Data Processing, Inc., 73 AD3d 724 [2010]; Degale-Selier v Preferred Mgt. & LeasingCorp., 57 AD3d 825 [2008]; Graziano v 110 Sand Co., 50 AD3d 635, 637 [2008]; Navarrete v A & V Pasta Prods., Inc.,32 AD3d 1003, 1005 [2006]).
"A special employee is described as one who is transferred for a limited time of whateverduration to the service of another. General employment is presumed to continue, but thispresumption is overcome upon clear demonstration of surrender of control by the generalemployer and assumption of control by the special employer" (Thompson v GrummanAerospace Corp., 78 NY2d 553, 557 [1991] [citations omitted]). Although not a per se rule,generally, whether a special employment relationship existed is a question of fact (seeThompson v Grumman Aerospace Corp., 78 NY2d at 557; Schramm v Cold Spring Harbor Lab.,17 AD3d 661, 662 [2005]; Smith v Kingsbrook Jewish Med. Ctr., 5 AD3d 586[2004]). While no single factor is determinative, "a significant and weighty feature has emergedthat focuses on who controls and directs the manner, details and ultimate result of the employee'swork" (Thompson v Grumman Aerospace Corp., 78 NY2d at 558). Other 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 general employer's [*2]business"(Schramm v Cold Spring Harbor Lab., 17 AD3d at 662; see Balamos v Elmhurst Realty Co. I,LLC, 56 AD3d 705 [2008]; Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d 911, 913 [2007]).
Here, the defendant Kaled Management Corp., doing business as Wisteria TowerCondominium (hereinafter Kaled), failed to establish, prima facie, that the plaintiff was itsspecial employee and that, as a consequence, the plaintiff's claims against it are barred by theexclusivity provisions of the Workers' Compensation Law (see Workers' CompensationLaw §§ 11, 29 [6]; Pena vAutomatic Data Processing, Inc., 73 AD3d 724 [2010]; Benn v Losquadro Ice Co., Inc., 65AD3d 655, 657 [2009]; Soto vAkam Assoc., Inc., 61 AD3d 665, 666 [2009]; Marrero v Akam Assoc. LLC, 39 AD3d 716, 717-718 [2007];Smith v Kingsbrook Jewish Med. Ctr., 5 AD3d at 586; cf. Thompson v GrummanAerospace Corp., 78 NY2d at 558-559; Balamos v Elmhurst Realty Co. I., LLC, 56AD3d at 706; Altinma v East 72ndGarage Corp., 54 AD3d 978, 981 [2008]; Ugijanin v 2 W. 45th St. JointVenture, 43 AD3d at 913). In support of its motion, Kaled submitted the affidavit of itsbuilding superintendent, who like the plaintiff was a general employee of Wisteria TowerCondominium (hereinafter Wisteria), and who averred that he was the plaintiff's directsupervisor.
Moreover, Kaled's submissions did not eliminate all material issues of fact as to whetherWisteria relinquished control over hiring to Kaled (see Marrero v Akam Assoc. LLC, 39AD3d at 717-718; cf. Balamos v Elmhurst Realty Co. I., LLC, 56 AD3d at 706).
Since Kaled failed to meet its prima facie burden, denial of its motion was required withoutregard to the sufficiency of the plaintiff's papers submitted in opposition (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Mastro, J.P., Florio, Belen andRoman, JJ., concur.