| Charles v Broad St. Dev., LLC |
| 2011 NY Slip Op 08318 [89 AD3d 885] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Rupert Charles, Appellant, v Broad Street Development, LLC,et al., Respondents. |
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Furman Kornfeld & Brennan, LLP, New York, N.Y. (Michael Furman and Andrew S. Kowlowitzof counsel), for respondents Broad Street Development, LLC, and 61 Broadway Owner, LLC. Sabatini & Associates (Steve S. Efron, New York, N.Y., of counsel), for respondent SchindlerElevator Corp.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Kings County (Knipel, J.), dated March 5, 2010, which denied his motion pursuant toCPLR 4404 (a) to set aside a jury verdict in favor of the defendants and against him on the issue ofliability and for a new trial.
Ordered that the order is reversed, on the law and the facts, with one bill of costs, the plaintiff'smotion to set aside the verdict pursuant to CPLR 4404 (a) is granted, and the matter is remitted to theSupreme Court, Kings County, for a new trial consistent herewith.
The plaintiff, who is employed by Guardian Services (hereinafter Guardian), was assigned as asecurity guard at a building owned and managed by the defendants Broad Street Development, LLC,and 61 Broadway Owner, LLC, respectively (hereinafter together the building defendants). Thedefendant Schindler Elevator Corp. was in charge of repairing and maintaining the elevators at thebuilding. On September 8, 2005, the plaintiff's supervisor at Guardian asked the plaintiff to cover thelobby desk while he took a break. During the break, a cleaner told the plaintiff that he could not openthe door to elevator number two. Without consulting the log books that indicated that elevator numbertwo was out of service for repair, the plaintiff used an instrument to unlock the elevator hoistway doorsand, having failed to notice that the elevator cab was not there, stepped into the shaft and fell 25 feet tothe basement landing.
At trial, the Supreme Court charged the jury with respect to the special employee doctrine, and thejury found that the plaintiff qualified as the building defendants' special employee. The plaintiff thenmoved pursuant to CPLR 4404 (a) to set aside the verdict, contending, among other things, that theSupreme Court should have found that he was not the building defendants' special employee as amatter of law. We agree.[*2]
"Workers' Compensation Law §§ 11 and 29 (6)provide that the receipt of workers' compensation benefits is the exclusive remedy that a worker mayobtain against an employer for losses suffered as a result of an injury sustained in the course ofemployment" (Slikas v Cyclone Realty,LLC, 78 AD3d 144, 150 [2010]; see Reich v Manhattan Boiler & Equip. Corp., 91NY2d 772, 779 [1998]). "A person may be deemed to have more than one employer for purposes ofthe Workers' Compensation Law, a general employer and a special employer" (Schramm v Cold Spring Harbor Lab., 17AD3d 661, 662 [2005]; see Thompson v Grumman Aerospace Corp., 78 NY2d 553,557 [1991]). "A special employee is described as one who is transferred for a limited time of whateverduration to the service of another" (Thompson v Grumman Aerospace Corp., 78 NY2d at557). While a person's categorization as a special employee is usually a question of fact, "thedetermination of special employment status may be made as a matter of law where the particular,undisputed critical facts compel that conclusion and present no triable issue of fact" (id. at557-558). Although no one factor is decisive in determining whether a special employment relationshipexists, a key consideration is the employer's right to direct the work and the degree of control exercisedover the employee (id. at 558; see Slikas v Cyclone Realty, LLC, 78 AD3d at 150).
The evidence presented at trial established, as a matter of law, that the plaintiff was not a specialemployee of the building defendants. The plaintiff was hired by Guardian, received his paychecks fromGuardian, and reported to his supervisor at Guardian rather than the director of operations for thesubject building. The director of operations for the subject building testified that the building defendantshad no right to tell the plaintiff what to do on a daily basis; instead, Guardian controlled the plaintiff'sdaily assignments. Furthermore, the director of operations had no control over the hours the plaintiffworked. While the director of operations could recommend that Guardian employees be fired, he couldnot fire them himself. Moreover, after the plaintiff's accident occurred, it was Guardian's off-sitesupervisor who prepared the accident report.
In light of this evidence, we find that no special employment relationship existed between theplaintiff and the building defendants, as a matter of law (see Slikas v Cyclone Realty, LLC, 78AD3d at 150; cf. Thompson v Grumman Aerospace Corp., 78 NY2d at 557-558). As aresult, it was error for the Supreme Court to submit this question to the jury. Accordingly, the SupremeCourt erred in denying the plaintiff's motion pursuant to CPLR 4404 (a) to set aside the jury verdict,and the matter is remitted to the Supreme Court, Kings County, for a new trial consistent herewith.
In light of our determination, we need not reach the plaintiff's remaining contentions. Skelos, J.P.,Hall, Lott and Roman, JJ., concur.
[Recalled and vacated, see 95 AD3d 814.]