| D'Alessandro v Aviation Constructors, Inc. |
| 2011 NY Slip Op 03021 [83 AD3d 769] |
| April 12, 2011 |
| Appellate Division, Second Department |
| James D'Alessandro, Appellant, v Aviation Constructors,Inc., Defendant/Third-Party Plaintiff-Respondent. Dovin Construction Company, Inc.,Third-Party Defendant-Respondent. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (David R. Holland and Jennifer M. Belk of counsel), fordefendant/third-party plaintiff-respondent. The Law Offices of Jeffrey S. Shein & Associates, P.C., Syosset, N.Y. (Frank A. Polacco ofcounsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), datedOctober 6, 2009, as granted those branches of the defendant's motion and the third-partydefendant's cross motion which were for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the defendant's motion and the third-party defendant's cross motion whichwere for summary judgment dismissing the complaint are denied.
The plaintiff was injured while moving debris at a construction site managed by thedefendant, Aviation Constructors, Inc. (hereinafter Aviation). Following the accident, theplaintiff applied for and received workers' compensation benefits from his employer, thethird-party defendant Dovin Construction Company, Inc. (hereinafter Dovin), a subcontractor onthe construction project. After depositions had been conducted, Aviation moved and Dovincross-moved, inter alia, for summary judgment dismissing the complaint, contending that theaction was barred by the Workers' Compensation Law because the plaintiff was a specialemployee of Aviation. The Supreme Court granted those branches of the respective motion andcross motion which were for summary judgment dismissing the complaint. We reverse, and denythose branches of the motion and cross motion which were for summary judgment dismissing thecomplaint.
Workers' Compensation Law §§ 11 and 29 (6) provide that an employee whoelects to receive compensation benefits may not sue his or her employer in an action at law forthe injuries [*2]sustained. These exclusivity provisions have alsobeen applied to shield, from suit, persons or entities other than the injured plaintiff's directemployer, including special employers (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 357-358 [2007];Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). Thus, an injuredperson who elects to receive workers' compensation benefits from his or her general employer isbarred from maintaining a personal injury action against his or her special employer (seeFung v Japan Airlines Co., Ltd., 9 NY3d at 358-359; Thompson v Grumman AerospaceCorp., 78 NY2d at 557; Pena vAutomatic Data Processing, Inc., 73 AD3d 724 [2010]). "A special employee isdescribed as one who is transferred for a limited time of whatever duration to the service ofanother. General employment is presumed to continue, but this presumption is overcome uponclear demonstration of surrender of control by the general employer and assumption of control bythe special employer" (Thompson v Grumman Aerospace Corp., 78 NY2d at 557[citation omitted]; see Franco v KaledMgt. Corp., 74 AD3d 1142 [2010]). The determination of special employment status isgenerally a question of fact, and may only "be made as a matter of law where the particular,undisputed critical facts compel that conclusion and present no triable issue of fact"(Thompson v Grumman Aerospace Corp., 78 NY2d at 558; see Fung v Japan AirlinesCo., Ltd., 9 NY3d at 359; Slikas vCyclone Realty, LLC, 78 AD3d 144, 150 [2010]). Although no one factor isdeterminative in deciding whether a special employment relationship exists, a key considerationis the employer's right to direct the work and the degree of control exercised over the employee(see Thompson v Grumman Aerospace Corp., 78 NY2d at 558; Slikas v CycloneRealty, LLC, 78 AD3d at 150).
Here, Aviation and Dovin failed to make a prima facie showing that the plaintiff wasAviation's special employee, and, accordingly, that the plaintiff's claims are barred by theWorkers' Compensation Law (see Franco v Kaled Mgt. Corp., 74 AD3d at 1143; Penav Automatic Data Processing, Inc., 73 AD3d at 725; Smith v Delta Intl. Mach. Corp., 69 AD3d 840, 841-842 [2010]; Soto v Akam Assoc., Inc., 61 AD3d665, 666 [2009]; Small v Winter Bros., 302 AD2d 445, 446 [2003]). In support oftheir respective motion and cross motion, Aviation and Dovin relied upon the plaintiff'sdeposition testimony, in which the plaintiff stated that he believed he was working for Aviation,and that he reported to an individual from Aviation. However, Aviation and Dovin alsosubmitted the deposition testimony of the Aviation representative in charge of operations at theconstruction site, who testified that laborers borrowed from Dovin for the project weresupervised by both a field supervisor employed by Aviation, and a foreman employed by Dovin.Thus, the evidence submitted in support of the respective motion and cross motion failed toeliminate all material issues of fact as to whether Dovin surrendered complete control of theplaintiff's employment activities to Aviation.
Since Aviation and Dovin failed to sustain their prima facie burdens, denial of their motionand cross motion was required without regard to the sufficiency of the plaintiff's oppositionpapers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Franco v Kaled Mgt. Corp., 74 AD3d at 1143.
The plaintiff's remaining contentions are without merit or need not be addressed in light ofour determination. Rivera, J.P., Angiolillo, Eng and Sgroi, JJ., concur.