Ramirez v Miller

Ramirez v Miller 2007 NY Slip Op 05441 [41 AD3d 298] June 21, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Jose Ramirez et al., Appellants,
v
Mark T. Miller et al., Defendants, and Eichner Rudd Management Associates, Ltd., Respondent.

—[*1] Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for appellants.

Carfora Klar Gallo Vitucci Pinter & Cogan, New York (Kimberly A. Ricciardi of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered February 16, 2006, which, in an action for personal injuries by the doorman of a residential cooperative owned by defendant Chelsea and managed by defendant Eichner, insofar as appealed from, granted Eichner's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Eichner shows that although plaintiff was employed and paid by Chelsea and supervised by and reported to the building's superintendent, also an employee of Chelsea, the superintendent took his instructions from Eichner's employee, the building's property manager. Eichner further shows that its property manager was responsible for interviewing, disciplining and terminating staff members, arranging their work schedules and monitoring their job performance, computing their paychecks and paying and withholding their payroll taxes, purchasing their uniforms and supplies, and procuring their medical and workers' compensation insurance, and that he handled plaintiff's successful workers' compensation claim for the subject accident based on plaintiff's general employment by Chelsea. These facts suffice to show, prima facie, that Eichner controlled the daily operation of the building and the manner and details of plaintiff's work, and was therefore plaintiff's special employer (see Ayala v Mutual Hous. Assn., Inc., 33 AD3d 343 [2006]). This prima facie showing is not rebutted by the fact that Eichner did not maintain an office in the building, or the fact that individual members of the building's board were authorized to give instructions to the staff where it does not appear that such instructions had ever been given. Nor does it avail plaintiff that Chelsea retained the ultimate power to hire and fire staff (see Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557-558 [1991]; Gannon v JWP Forest Elec. Corp., 275 AD2d 231 [2000]; Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 AD3d 155 [2007]). Concur—Marlow, J.P., Nardelli, Gonzalez, Sweeny and Malone, JJ.