| Navallo v R.P. Brennan Gen. Contrs. |
| 2011 NY Slip Op 06341 [87 AD3d 683] |
| August 23, 2011 |
| Appellate Division, Second Department |
| Robert Navallo et al., Respondents, v R.P. BrennanGeneral Contractors, Appellant. |
—[*1] Coiro, Wardi, Chinitz & Silverstein, New York, N.Y. (Michael A. Chinitz of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limitedby its brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.),dated September 23, 2010, as denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is granted.
The plaintiff Robert Navallo (hereinafter the plaintiff), an operating engineer, allegedly wasinjured during the renovation of the Plaza Hotel in Manhattan. The defendant, the generalcontractor and construction manager for the project, required the use of temporary heaters duringthe renovation, but did not have an agreement with the union representing the operatingengineers who oversaw the use of the heaters. Accordingly, the defendant contacted the nonpartyForest Builders Supply (hereinafter Forest), one of its suppliers, to hire operating engineers,including the plaintiff, to oversee the heaters on a temporary basis. According to the depositiontestimony of the defendant's representative, the defendant would reimburse Forest"dollar-for-dollar" with respect to the wages paid to the operating engineers hired by Forest.
The Supreme Court should have granted the defendant's motion for summary judgmentdismissing the complaint on the ground that the action was barred by the Workers' CompensationLaw, because the plaintiff was its special employee (see Workers' Compensation Law§§ 11, 29 [6]; Thompson v Grumman Aerospace Corp., 78 NY2d 553,557-558 [1991]). The defendant established its prima facie entitlement to judgment as a matter oflaw. The deposition testimony submitted by the defendant established, prima facie, that, to theextent that any entity controlled and directed the manner, details, and ultimate result of theplaintiff's work, it was the defendant. The defendant also was responsible for the furnishing ofequipment, had the authority to direct Forest to fire the plaintiff, and the work being performedwas in furtherance of the defendant's business (see Gaynor v Cassone Leasing, Inc., 79 AD3d 967, 968-969[2010]; Balamos v Elmhurst Realty Co.I, LLC, 56 AD3d 705, 706 [2008]; Graziano v 110 Sand Co., 50 AD3d 635, 636 [2008]; Roberson v Moveway Transfer[*2]& Stor., 44 AD3d 839, 840 [2007]; Navarrete v A & V Pasta Prods., Inc.,32 AD3d 1003, 1005 [2006]). In opposition, the plaintiffs failed to raise a triable issue offact. Rivera, J.P., Balkin, Lott and Austin, JJ., concur.