| Gaynor v Cassone Leasing, Inc. |
| 2010 NY Slip Op 09470 [79 AD3d 967] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Donald Gaynor, Appellant, v Cassone Leasing, Inc.,Respondent. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Farneti, J.), entered December 22, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
Workers' Compensation Law §§ 11 and 29 (6) provide that an employee who electsto receive compensation benefits may not sue his or her employer in an action at law for the injuriessustained. The exclusive remedy provided by the Workers' Compensation Law has also been appliedto shield persons or entities other than the injured plaintiff's direct employer from suit, including specialemployers (see Fung v Japan Airlines Co.,Ltd., 9 NY3d 351, 357-358 [2007]; Thompson v Grumman Aerospace Corp., 78NY2d 553, 557 [1991]; Balamos v ElmhurstRealty Co. I, LLC, 56 AD3d 705 [2008]; Altinma v East 72nd Garage Corp., 54 AD3d 978, 981 [2008]; Graziano v 110 Sand Co., 50 AD3d635, 636 [2008]; Ugijanin v 2 W. 45thSt. Joint Venture, 43 AD3d 911, 912-913 [2007]; Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003, 1004 [2006];Kramer v NAB Constr. Corp., 282 AD2d 714, 715 [2001]; Abuso v Mack Trucks,174 AD2d 590, 590-591 [1991]). Thus, an injured person who elects to receive Workers'Compensation benefits from his or her general employer is barred from maintaining a personal injuryaction against his or her special employer (see Fung v Japan Airlines Co., Ltd., 9 NY3d at358-359; Thompson v Grumman Aerospace Corp., 78 NY2d at 560; Balamos v ElmhurstRealty Co. I, LLC, 56 AD3d at 705).
Here, in support of its motion for summary judgment, the defendant submitted evidence sufficient toestablish, prima facie, that the plaintiff was its special employee (see Balamos v Elmhurst Realty Co.I, LLC, 56 AD3d at 706; Altinma v East 72nd Garage Corp., 54 AD3d at 981;Graziano v 110 Sand Co., 50 AD3d at 636; Ugijanin v 2 W. 45th St. Joint Venture,43 AD3d at 913). The affidavits and deposition testimony submitted in support of the defendant'smotion showed that the relationship between the plaintiff and the defendant contained all of the essentialcomponents of an employment relationship, including the right to hire and fire, the right to reprimandand discipline, [*2]the right to set hours and approve vacation time, andthe right to set salary and determine raises. Furthermore, the defendant trained the plaintiff, supervisedhim, and directed and controlled his daily assignments. Moreover, the work being performed by theplaintiff was in furtherance of the defendant's business, as the general employer was a trucking companywhose sole purpose was to deliver to and pick up from the defendant's customers the defendant'sequipment. Therefore, under the circumstances, the plaintiff's general employer surrendered control ofthe plaintiff to the defendant, and the defendant assumed that control and direction as special employerof the manner, details, and ultimate result of the plaintiff's work (see Thompson v GrummanAerospace Corp., 78 NY2d at 557; Alvarez v Cunningham Assoc., L.P., 21 AD3d 517, 518 [2005];Matter of Tunison v Richards & Son, 257 AD2d 856, 857 [1999]). In opposition, the plaintifffailed to raise a triable issue of fact (see Graziano v 110 Sand Co., 50 AD3d at 636;Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d at 913; Rotoli v Domtar, Inc., 229AD2d 934, 935 [1996]). Thus, the defendant established, as a matter of law, that the plaintiff was itsspecial employee and that it was shielded from suit by the exclusive remedy provided by the Workers'Compensation Law. Rivera, J.P., Dickerson, Lott and Sgroi, JJ., concur.