| Persad v Abreu |
| 2011 NY Slip Op 04222 [84 AD3d 1046] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Lisa Persad, Plaintiff, v Julio Abreu,Defendant/Third-Party Plaintiff-Respondent. Jose Golan et al., Third-PartyDefendants-Appellants. |
—[*1] Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), fordefendant/third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendants appeal froman order of the Supreme Court, Queens County (Weiss, J.), entered January 19, 2010, whichdenied their motion for summary judgment dismissing the third-party complaint on the groundthat the plaintiff was a special employee of the third-party defendant Amboy Bus Co., Inc.
Ordered that the order is affirmed, with costs.
The plaintiff, a school bus matron, allegedly was injured in the course of her employmentwith Atlantic Escorts, Inc., when the bus on which she was working was involved in a motorvehicle accident with a vehicle owned and operated by the defendant. The plaintiff thereaftercommenced this action against the defendant, and the defendant commenced the instantthird-party action against the bus driver, Jose Golan, and the owner of the bus, Amboy Bus Co.,Inc. (hereinafter Amboy). The third-party defendants moved for summary judgment dismissingthe third-party complaint, contending that the action against them was barred by the Workers'Compensation Law because the plaintiff was Amboy's special employee and she did not sustain agrave injury as defined by Workers' Compensation Law § 11. The Supreme Court deniedthe motion, concluding that the third-party defendants failed to make a prima facie showing thatthe plaintiff was a special employee of Amboy. We affirm.
Although many factors are weighed in determining whether a special employmentarrangement exists, "a significant and weighty feature has emerged that focuses on who controlsand directs the manner, details and ultimate result of the employee's work" (Thompson vGrumman Aerospace Corp., 78 NY2d 553, 558 [1991]; see Dulak v Heier, 77 AD3d 787 [2010]; Altinma v East 72nd Garage Corp., 54AD3d 978, 981 [2008]; Graziano v110 Sand Co., 50 AD3d 635, 636 [2008]). Other relevant factors include who isresponsible for the payment of wages, who furnishes the worker's equipment, who had the rightto hire and discharge the worker, and whether the work being performed was in furtherance ofthe special employer's or the general employer's business (see Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003, 1004[2006]; Alvarez v Cunningham Assoc.,L.P., 21 AD3d 517, 518 [2005]).[*2]
Here, upon consideration of the relevant factors, theSupreme Court properly determined that the third-party defendants failed to make a prima facieshowing of entitlement to judgment as a matter of law (see Dulak v Heier, 77 AD3d 787 [2010]; Soto v Akam Assoc., Inc., 61 AD3d665, 666 [2009]; Marrero v AkamAssoc. LLC, 39 AD3d 716, 717 [2007]) and, therefore, properly denied the third-partydefendants' motion for summary judgment dismissing the third-party complaint (see Dulak v Heier, 77 AD3d 787[2010]; Soto v Akam Assoc., Inc., 61 AD3d at 666). Thus, we need not reach the issue ofwhether the plaintiff sustained a grave injury as defined by Workers' Compensation Law §11. Covello, J.P., Eng, Chambers and Miller, JJ., concur.