Roberson v Moveway Transfer
Annotate this CaseDecided on April 25, 2006
Supreme Court, Kings County
Lloyd Roberson, Plaintiff,
against
Moveway Transfer et al., Defendants.
34957/02
Mark I. Partnow, J.
Upon the foregoing papers, defendant Moveway Transfer and Storage (Moveway) moves for an order pursuant to CPLR 3212, granting it summary judgment dismissing plaintiff Lloyd Roberson's claims and all cross-claims and counterclaims as asserted against Moveway.
Background
On the morning of November 8, 2000, plaintiff went to Geneva Staffing Services, a temporary placement agency. He was directed to go to 85 Tenth Avenue in Manhattan to perform work for Moveway. The work to be performed on that day involved transporting voting machines for the New York City Board of Elections from a loading dock to an upper floor in the building. At some point during the day while plaintiff was standing on the loading dock, an 800 pound voting machine fell on him causing him to sustain various injuries.
Moveway's Motion
Moveway moves for an order dismissing plaintiff's claims and all cross-claims and counterclaims as asserted against Moveway on the ground that plaintiff's claims are barred by Workers Compensation §§11 and 29 (6) because plaintiff was Moveway's special employee at the time of the accident. A special employee is described as one who is transferred for a limited time of whatever duration to the service of another (Brooks v Chemical Leaman Tank Lines, Inc., 71 AD2d 405, 407 [1979]). The Court of Appeals in Thompson v Grumman Aerospace Corporation (78 NY2d 553 [1991]) has held that, as a general proposition, "a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages... " (Thompson, 78 NY2d at 557). General employment is presumed to continue, but this presumption is overcome upon a clear demonstration of surrender of control by the general employer and assumption of control by the special employer (id., citing Stone v Bigley Bros., 309 NY 132 [1955]; Sweet v Board of Educ., 290 NY 73 [1943]; Irwin v Klein, 271 NY 477 [*2][1936]; Ramsey v New York Cent. R.R. Co., 269 NY 219 [1935] see also Poppenberg v Reliable Maintenance Corp. 89 AD2d 791, 792 [1982] ["A key factor in determining the existence of either a joint or a special employment is control over the employee"]). Thus as a general principle, "a person's categorization as a special employee is usually a question of fact" (Thompson, 78 NY2d at 557; see Armstrong v Foxcroft Nurseries, Inc., 283 AD2d 814 [2001] ["(s)ummary judgment is not appropriate, however, when the alleged special employer's exclusive control and direction of the manner, details and ultimate results of the employee's work have not been incontrovertibly established"]; see also Ribiero v Dynamic Painting Corp., 23 AD3d 795 [2005]; Tushaj v 322 Elm Mgmt. Assocs. Inc., 293 AD2d 44 [2002]).
Although a determination concerning a worker's status as a 'special employee' is generally a question of fact, summary judgment may nevertheless be granted where the relevant facts establish that the special employer controlled and directed the manner, details and ultimate result of the employee's work" (Jaynes v County of Chemung, 271 AD2d 928, 929-930 [2000], lv denied 95 NY2d 762 [2000]; see also Montalbano v Kurt Weiss Florist, 1 AD3d 414[2003] [although a person's status as a special employee is generally a question of fact, it may be determined as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact]). In determining whether a special employee relationship exists, "[p]rincipal factors include who has the right to control the employee's work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business" (Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005]; see Martin v Baldwin Union Free School Dist.,271 AD2d 579, 580; Matter of Shoemaker v Manpower, 223 AD2d 787, 788 [1996]; Leone v Columbia Sussex Corp., 203 AD2d 430, 431-432 [1994]; Cameli v Pace Univ., 131 AD2d 419, 420 [1987]). The most significant factor is who controls and directs the manner, details, and ultimate result of the employee's work (see Thompson 78 NY2d at 558; Martin, 271 AD2d at 580; Leone, 203 AD2d at 431-432). Moreover, "[a]n employee of one party may be a special employee of another party even if the former pays the employee's salary and benefits and has the ability to hire and terminate the employee" (Jaynes, 271 AD2d at 929)
In support of its motion, Moveway points to the deposition testimony of its President, Richard Carmel. Mr. Carmel testified that on the date of plaintiff's accident, Moveway's foreman, Jose Rivera, was the foreman at the site and that Mr. Rivera specifically assigned plaintiff to perform the work he was performing and was the person responsible for directing plaintiff's activities at the site. In addition, Mr. Carmel submitted an affidavit in which he affirms that on occasion, at a large job site, Geneva would provide a foreman when a team of temporary workers was required. However, on the date of plaintiff's accident, Mr. Carmel states that there was no supervisor from Geneva on the premises and Moveway had exclusive control and supervision of the work performed by the plaintiff. Additionally, Moveway points to plaintiff's testimony that he was sent by Geneva to perform work unloading voting machines at Moveway and that the only person that gave him instructions or directions at the site was an individual at Moveway. He further testified that from the time he left Geneva until the time of his accident he did not speak with anyone from Geneva.
In opposition, plaintiff argues that he was given a card from Geneva which directed him to Moveway at 85 Tenth Avenue and indicated that he was to report to a person named Frank and that Mr. Carmel has failed to establish that Moveway had an individual named Frank working at that location on that date. Additionally, plaintiff contends that Mr. Carmel's affidavit contradicts some of his testimony and is merely tailored to enable Moveway to prevail on its summary judgment motion. Plaintiff points to Mr. Carmel's testimony that he did not know if anyone on behalf of the building's owner or manager or the Board of Elections gave any instructions to plaintiff while he was moving the voting machines. Moreover, he testified that he did not know what specific activity plaintiff was performing at the time of his accident.
In response, Moveway asserts that there is no contradiction between Mr. Carmel's deposition testimony and his affidavit, pointing to pages 50-51 of the EBT transcript in which Carmel testified that he spoke with his foreman Jose Rivera on the date of the accident and was told by Rivera that [*3]Rivera had assigned plaintiff "to move the machines with a helper from one point to another on a loading dock."
As discussed above, significant factors in determining whether a special employment relationship exists include who has the exclusive control and direction of the manner, details and ultimate results of the employee's work (see Thompson, 78 NY2d at 558; Armstrong v Foxcroft Nurseries, Inc., 283 AD2d 814 [2001]) and whether the work being performed was in furtherance of the special employer's or the general employer's business (Schramm, 17 AD3d at 662 ). Here, the court finds that the record shows that Moveway determined whether plaintiff worked for it and controlled and directed the manner, details and ultimate result of plaintiff's work which was in furtherance of Moveway's business and not Geneva's. Based upon the proof, I find that the incontrovertible facts overcome the presumption of general employment and establish, as a matter of law, that Geneva surrendered control over plaintiff and such control was assumed by Moveway, thus making plaintiff its special employee (see Thompson, 78 NY2d at 557; Williams v GE, 8 AD3d 866, 868 [2004]; Szymanski v Aramark Facility Servs., 297 AD2d 829, 830 [2002], lv denied 99 NY2d 503; see generally Matter of Shoemaker v Manpower, Inc., 223 AD2d 787 [1996], lv dismissed 88 NY2d 874 [1996]). Here, the record reveals that plaintiff has recieved Workers Compensation through Geneva. "When an employee receives Workers' Compensation benefits from his or her general employer, a special employer is shielded from an action at law commenced by the employee" (Kramer v NAB Const., 282 AD2d 714 [2001] lv denied 97 NY2d 606 [2001], citing Workers' Compensation Law § 29 [6]; Thompson v Grumman Aerospace, 78 NY2d 553; accord Croche v Wyckoff Park Assocs., 274 AD2d 542 [2000]; Gubitosi v National Realty Co., 247 AD2d 512 [1998] appeal dismissed 92 NY2d 843 [1998]).
As such, Moveway is entitled to summary judgment on its affirmative defense that plaintiff's claims are barred by Workers Compensation §§11 and 29 (6) because plaintiff was Moveway's special employee at the time of the accident. Likewise, that branch of Moveway's motion that seeks summary judgment dismissing any counterclaims and/or cross claims is granted without opposition. Mr. Carmel testified that Moveway did not have ant contractual agreements with either of the two co-defendants and neither party has come forward with any evidence to refute this testimony.
The foregoing constitutes the decision and order of the court.
E N T E R,
J. S. C.
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