| Pena v Automatic Data Processing, Inc. |
| 2013 NY Slip Op 02552 [105 AD3d 924] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Pedro Pena et al.,Appellants-Respondents, v Automatic Data Processing, Inc.,Respondent-Appellant. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and NicholasM. Cardascia of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Asher, J.), dated October 4, 2011, as granted that branch of the defendant's motionwhich was pursuant to CPLR 4404 (a) to set aside the jury verdict finding that theplaintiff Pedro Pena was not a special employee of the defendant at the time of theaccident at issue, as contrary to the weight of the evidence and for a new trial, and thedefendant cross-appeals, as limited by its brief, from so much of the same order as deniedthose branches of its motion which were pursuant to CPLR 4401 for judgment as amatter of law and CPLR 4404 (a) to set aside the verdict and for judgment as a matter oflaw.
Ordered that the order is reversed insofar as appealed from, on the facts, and thatbranch of the defendant's motion which was pursuant to CPLR 4404 (a) to set aside thejury verdict as contrary to the weight of the evidence and for a new trial is denied; and itis further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
"Workers' Compensation Law §§ 11 and 29 (6) provide that anemployee who is entitled to receive compensation benefits may not sue his or heremployer in an action at law for the injuries sustained" (Pena v Automatic Data Processing,Inc., 73 AD3d 724, 724 [2010]). These exclusivity provisions also have beenapplied to shield from suit persons or entities other than the injured plaintiff's directemployer (see Fung v JapanAirlines Co., Ltd., 9 NY3d 351, 358-359 [2007]; Thompson v GrummanAerospace Corp., 78 NY2d 553, 557 [1991]). For purposes of the Workers'Compensation Law, a person may be deemed to have more than one employer, a generalemployer and a special employer (see Thompson v Grumman Aerospace Corp.,78 NY2d at 557; Kramer v NAB Constr. Corp., 250 AD2d 818 [1998]). Thereceipt of Workers' Compensation benefits from a general employer precludes anemployee from commencing a negligence action against a special employer (see [*2]Hofweber v Soros, 57 AD3d 848, 849 [2008];Croche v Wyckoff Park Assoc., 274 AD2d 542 [2000]).
In determining whether a special employment relationship exists, "who controls anddirects the manner, details and ultimate result of the employee's work" is a "significantand weighty feature," but is not determinative of the issue (Thompson v GrummanAerospace Corp., 78 NY2d at 558; see Hofweber v Soros, 57 AD3d at 849;Alvarez v Cunningham Assoc.,L.P., 21 AD3d 517, 518 [2005]). Indeed, "[m]any factors are to be consideredwhen deciding whether such a special employment relationship exists and not one factoris decisive" (Kramer v NAB Constr. Corp., 250 AD2d at 818). Other principalfactors to be considered include "who is responsible for the payment of wages and thefurnishing of equipment, who has the right to discharge the employee, and whether thework being performed was in furtherance of the special employer's or the generalemployer's business" (Schrammv Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005]; see Hofweber vSoros, 57 AD3d at 849). General employment will be presumed to continue unlessthere is a "clear demonstration of surrender of control by the general employer andassumption of control by the special employer" (Thompson v Grumman AerospaceCorp., 78 NY2d at 557; see Matter of Rosato v Thunderbird Constr. Co., 299AD2d 670, 671 [2002]).
Where, as here, elements of the employment bespeak both general and specialemployment, a person's categorization as a special employee is a question of fact for thejury to determine (Schramm v Cold Spring Harbor Lab., 17 AD3d at 662; seeMatter of Johnson v New York City Health & Hosps. Corp., 214 AD2d 895, 896[1995]). A jury verdict should not be set aside as contrary to the weight of the evidenceunless the jury could not have reached the verdict by any fair interpretation of theevidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 745-746 [1995];Nicastro v Park, 113 AD2d 129, 130 [1985]; Vittiglio v Gaurino, 100 AD3d 987 [2012]). The jury isfree to accept or reject some or all of the parties' testimony and weigh any conflictinginferences (see Johnny'sPlumbing & Heating, Inc. v Garson Bros. Constr., LLC, 63 AD3d 689 [2009]).Furthermore, "[i]t is within the province of the jury to determine issues of credibility, andgreat deference is accorded to the jury given its opportunity to see and hear thewitnesses" (Palermo v OriginalCalifornia Taqueria, Inc., 72 AD3d 917, 918 [2010]; see Adetimirin v Howland HookHous. Co., Inc., 92 AD3d 814, 815 [2012]).
The jury's determination that a special employment relationship did not exist betweenthe defendant and the plaintiff Pedro Pena (hereinafter the injured plaintiff) wassupported by a fair interpretation of the evidence (see Winther v RailroadMaintenance Corp., 169 AD2d 591, 592 [1991]). Accordingly, the Supreme Courterred in granting that branch of the defendant's motion which was pursuant to CPLR4404 (a) to set aside the jury verdict finding that the injured plaintiff was not a specialemployee of the defendant as contrary to the weight of the evidence and for a new trial.
The parties' remaining contentions either are without merit or need not be addressedin light of the foregoing. Rivera, J.P., Dickerson, Leventhal and Hinds-Radix, JJ.,concur.