McMahon v Cohen Bros. Realty Corp.

McMahon v Cohen Bros. Realty Corp. 2017 NY Slip Op 03868 Decided on May 11, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 11, 2017
Friedman, J.P., Moskowitz, Manzanet-Daniels, Kapnick, Webber, JJ.
3985 156865/13

[*1]Michael McMahon, et al., Plaintiffs-Appellants,

v

Cohen Brothers Realty Corp., Defendant-Respondent.

Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for appellants.

Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 30, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie that the injured plaintiff was its special employee and therefore this action is barred by the workers' compensation law's exclusivity provision (see Workers' Compensation Law §§ 11; 29[6]; Thompson v Grumman Aerospace Corp., 78 NY2d 553 [1991]). The comprehensive property management agreement between defendant and plaintiff's general employer (the property owner) provided that the maintenance and repair of the building resided exclusively with defendant. Defendant interviewed and hired plaintiff, whose work as an engineer was in furtherance of defendant's operation and maintenance of the building, and defendant had the authority to terminate plaintiff's employment, which it ultimately exercised. Defendant provided plaintiff with the materials and equipment he needed to perform his work, and directed, supervised and controlled plaintiff's work (see e.g. Vincente v Silverstein Props., Inc., 83 AD3d 586 [1st Dept 2011], lv denied 17 NY3d 710 [2011]).

In opposition, plaintiff failed to raise an issue of fact with his employment checks showing the general employer as the payor and his employment termination notice showing the general employer as his employer (see e.g. Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 AD3d 155, 157 [1st Dept 2007]). Plaintiff offered no evidence to controvert defendant's showing that it hired him and controlled, supervised, and otherwise dictated all facets of his work in the building (see id. at 156).

In view of the foregoing, we do not reach plaintiff's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 11, 2017

CLERK