| Digirolomo v Goldstein |
| 2012 NY Slip Op 05134 [96 AD3d 992] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Dawn Digirolomo, Respondent, v June Goldstein,Appellant. |
—[*1] Petrocelli & Christy, New York, N.Y. (Michael D. Zentner of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Lane, J.), enteredNovember 18, 2011, as denied her motion for summary judgment dismissing the complaint andgranted those branches of the plaintiff's cross motion which were for summary judgment on theissue of liability and dismissing the fifth affirmative defense.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a home health aide, was assigned by her employer, Better Home Health Care,Inc. (hereinafter Better Home), to assist the defendant's decedent, Irving Brown, at his home.While returning home from a doctor's appointment, Brown was involved in a traffic accident inwhich the plaintiff, a passenger in his vehicle, was injured. The plaintiff commenced this actionto recover damages for personal injuries. The defendant moved for summary judgmentdismissing the complaint on the ground that Brown was the plaintiff's special employer and, thus,the plaintiff was barred by the exclusivity provisions of the Workers' Compensation Law fromsuing him at law, since she had elected to receive Workers' Compensation benefits through BetterHome. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability anddismissing the defendant's fifth affirmative defense based on the exclusivity provisions of theWorkers' Compensation Law. The Supreme Court denied the defendant's motion for summaryjudgment dismissing the complaint and granted those branches of the plaintiff's cross motionwhich were for summary judgment on the issue of liability and dismissing the fifth affirmativedefense. On appeal, the defendant contends that the plaintiff was a special employee of Brownand therefore was barred from recovery in this action based on the exclusivity provisions of theWorkers' Compensation Law.
When an employee elects to receive Workers' Compensation benefits from his or her generalemployer, a special employer is shielded from any action at law commenced by the employee(see Workers' Compensation Law § 29 [6]; Vanderwerff v Victoria Home,299 AD2d 345 [2002]; Martin v Baldwin Union Free School Dist., 271 AD2d 579, 580[2000]). A special employee is one who is [*2]transferred for alimited time of whatever duration to the service of another (see Thompson v GrummanAerospace Corp., 78 NY2d 553, 557 [1991]). "General employment is presumed to continue,but this presumption is overcome upon clear demonstration of surrender of control by the generalemployer and assumption of control by the special employer" (id.). "Principal factors indetermining whether a special relationship exists include the right to control, the method ofpayment, the furnishing of equipment, the right to discharge, and the relative nature of the work"(Martin v Baldwin Union Free School Dist., 271 AD2d at 580; see Dulak v Heier, 77 AD3d 787,787-788 [2010]). A significant and weighty factor is who controls the manner, details, andultimate result of the employee's work (see Thompson v Grumman Aerospace Corp., 78NY2d at 558; Martin v Baldwin Union Free School Dist., 271 AD2d at 580).
The plaintiff established, prima facie, her entitlement to summary judgment dismissing thefifth affirmative defense by demonstrating that she was not Brown's special employee. In heraffidavit, the plaintiff averred, inter alia, that Better Home had assigned her to care for Brown.She assisted Brown in his daily activities at Better Home's direction, as part of her duties andresponsibilities to Better Home, as a result of training she received from Better Home. BetterHome paid the plaintiff and set her work schedule. The plaintiff checked in each day with BetterHome, both before and after work. If Brown had a complaint about her work, he had to contactBetter Home. In opposition to this prima facie showing, the defendant did not raise a triable issueof fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), nordid the defendant meet her prima facie burden in support of her own motion for summaryjudgment. Although the defendant contends that the plaintiff attended to Brown's needs atBrown's direction, "being told what job to do does not suffice to demonstrate the existence of aspecial employment relation" (Bellamyv Columbia Univ., 50 AD3d 160, 164 [2008]). Indeed, the evidence demonstrated thatBrown was a client of Better Home, and that the plaintiff was a service provider, continuing inthe general employment of Better Home (see Thompson v Grumman Aerospace Corp.,78 NY2d at 557).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint and also properly granted those branches of the plaintiff'scross motion which were for summary judgment on the issue of liability and dismissing the fifthaffirmative defense. Angiolillo, J.P., Florio, Belen and Chambers, JJ., concur.