Thompson v Avery
Annotate this CaseDecided on November 3, 2006
Supreme Court, Kings County
Diana Thompson and Debbie Furr, Plaintiffs,
against
Xavier Avery, Penny Trans Inc., Olawale Shonubi, 42 Transport, and Coney Island Transportation, Defendants.
16975/05
David Schmidt, J.
Upon the foregoing papers, defendants Xavier Avery and Penny Transportation, Inc. i/s/h/a Penny Trans Inc. move for an order, pursuant to CPLR 3212, granting summary judgment and dismissing the complaint of plaintiffs Diana Thompson and Debbie Furr as asserted against them. In addition, defendants seek an order, pursuant to CPLR 8303-a and NYCRR § 130-1.1, for an imposition of sanctions against plaintiffs' counsel, as well as an award of costs and attorney's fees.
Background
On November 13, 2003 plaintiffs were passengers on a bus owned by Penny Transportation and operated by Xavier Avery, when it collided with a motor vehicle owned by defendants Coney Island Transportation and 42 Transport and operated by defendant Olawale Shonubi. Plaintiffs commenced the instant action to recover damages for injuries allegedly sustained as a result of the subject accident. Defendants now move for summary judgment dismissing the complaint.
Discussion
In support of their motion, defendants argue that plaintiffs' action against them is barred by the Workers' Compensation Law § 11. Defendants maintain that at the time of the subject accident, plaintiffs were employed as bus matrons by Penny Transportation and, as such, their injuries occurred during the course of their employment. Defendants proffer the affidavit of Louis Girardi, the General Manager of Penny Transportation, who attests that Xavier Avery and plaintiffs were employees of Penny Transportation at the time of the subject accident. In support of these assertions, defendants submit the 2003 [*2]W2-statements of plaintiffs Diana Thompson and Debbie Furr, as well as their payroll sheets for the time period from October 2003 until the end of the 2003 calendar year. Upon examination of these submissions, the court notes that the 2003 W2-statements lists plaintiffs' employer as TSE-PEO, Inc. (TSE-PEO) while the payroll sheets identifies both TSE-PEO and Penny Transportation as "employer."
In opposition to the motion, plaintiffs reject defendants' assertion that they are employed by Penny Transportation and that they were so employed on the date of the subject accident. Instead, plaintiffs aver in their affidavits that they were employed by TSE-PEO, as evidenced by the 2003 W2-statements submitted by defendants.
In reply, defendants contend that TSE-PEO is merely a company that administers payroll and maintains the workers' compensation and insurance benefits of plaintiffs whereas Penny Transportation is the company that pays plaintiffs and oversees their day-to-day activities. In this regard, defendants assert that a general employee/employer relationship exists between plaintiffs and TSE-PEO and that a special employee/employer relationship exists between plaintiffs and Penny Transportation. Defendants also proffer the affidavit of Phillip Bok (Vice President of Risk Management and Insurance Operations of TSE-PEO, Inc). In his affidavit, Mr. Bok attests that "TSE-PEO is a payroll and administrative corporation who leases matrons and other employees to various transportation companies, as co-employers, including Penny Transportation." Mr. Bok attests that "to the best of [his] knowledge" plaintiff Diana Thompson was employed by TSE-PEO from 2002 to 2005 and plaintiff Debbie Furr commenced working for TSE-PEO since 1996 and is still employed by the company. According to Mr. Bok, neither plaintiff has ever performed any tasks or services for TSE-PEO since their employment with the company. Mr. Bok avers that Penny Transportation was responsible for plaintiffs' day-to-day activities. In further support of these contentions, defendants proffer another affidavit by Mr. Girardi. In his affidavit, Mr. Girardi confirms Mr. Bok's assertions that TSE-PEO is merely a payroll company which administers Penny Transportation's payroll and insurance matters and that Penny Transportation is a company that employed plaintiffs as bus matrons. Mr. Girardi attests that Penny Transportation and TSE-PEO maintained Workers' Compensation policies for both plaintiffs but that neither plaintiff missed any time from work as a result of the subject accident or filed for Workers Compensation benefits under these policies.
In a sur-reply affirmation, plaintiffs assert that issues of fact exist with respect to whether they are general employees or special employees of TSE-PEO and Penny Transportation, respectively. Plaintiff Diana Thompson submits an affidavit in which she attests that she is employed as a bus matron by a "company known as SMART PICK, INC." which first trained her approximately 12 years ago and now provides her with annual training. According to plaintiff Diana Thompson, the owner of Penny Transportation is Phillip Binowitz, who is also the father of Seth Binowitz, the "owner, and/or an officer of SMART PICK, INC." In her affidavit, plaintiff Diana Thompson avers that Seth Binowitz provides schedules and oversees training on a day to day basis [*3]and she insists that on the date of the accident she was assigned to work on a Penny Transportation bus. The court notes that while plaintiff Diana Thompson submits payroll stubs for Smart Pick these pay-stubs relate to the years 2005 and 2006 and not to the year of the subject accident in 2003 and are thus of no probative value.
However, plaintiff Debbie Furr submits an affidavit in which acknowledges that her pay-stubs for September and October of 2003 list both TSE-PEO and Penny Transportation as her employer. She further admits that her day to day "work activities were supervised by Penny Transportation and its employees" but contends that TSE-PEO's presence on her pay-stub and maintenance of her workers' compensation and insurance benefits raises questions as to whether TSE-PEO had relinquished control of her as an employee or whether she was an employee of Penny Transportation.
Finally, in a letter submitted in response to plaintiffs' sur-reply affirmation, defendants reassert their arguments that plaintiffs were at all times employees of Penny Transportation which controlled plaintiffs' work, was responsible for their wages, furnished all necessary equipment and had the right to discharge plaintiffs. In addition, defendants contend that the work performed by plaintiffs was in furtherance of Penny Transportation's business and Penny Transportation at all times controlled the manner, details and ultimate result of plaintiffs' work.
It is well settled that a special employee is described as one who is transferred for a limited time of whatever duration to the service of another (see Brooks v Chemical Leaman Tank Lines, Inc., 71 AD2d 405, 407 [1979]). Courts have consistently held that "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 and for maintaining workers' compensation and other employee benefits" (see Thompson v Grumman, 78 NY2d 553, 557 [1991]; Stone v Bigley Bros., 309 NY 132, 140 [1955]; Irwin v Klein, 271 NY 477, 483 [1936]). 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 (see Thompson, 78 NY2d at 557).
The court notes that "the issue of whether an individual is a special employee is generally a question of fact" but that 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" (see Jaynes v County of Chemung, 271 AD2d 928, 929-930 [2000], lv denied 95 NY2d 762 [2000]; see Montalbano v Kurt Weiss Florist, 1 AD3d 414, 415 [2003]).
Several different factors are considered when determining whether a special employment relationship exists and no one factor has been found to be controlling (see Thompson, 78 NY21d at 558; Rothenberg v Erie Metal Stamping Co. Inc., 204 AD2d 249, 250 [1994]; Cameli v Pace Univ., 131 AD2d 419, 420 [1987]; Abramson v Long Beach Mem. Hosp., 103 AD2d 866, 867 [1984]). Some of the crucial factors considered "include who has the right to control the employee's work, who is responsible for the [*4]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" (see Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005]; see Martin v Baldwin Union Free School Dist., 271 AD2d 579, 580 [2000]; Matter of Shoemaker v Manpower, 223 AD2d 787, 788 [1996]; see Leone v Columbia Sussex Corp., 203 AD2d 430, 431-432 [1994]; Cameli, 131 AD2d at 420). Moreover, courts have also focused on determining "whether the plaintiff was aware of and consented to a special employment relationship" (see Thompson, 78 NY2d at 558). The most significant factor focused on is "who controls and directs the manner, details and ultimate result of the employee's work" (see Thompson, 78 NY2d at 558; see Stone, 309 NY 132, 140; Ozzimo v H.E.S., Inc., 249 AD2d 912, 913 [1998]).
In the instant case, the court finds that defendants have satisfied their burden of establishing as a matter of law that plaintiffs are special employees of Penny Transportation thus requiring dismissal of the complaint as asserted against them. In their affidavits, both Mr. Girardi of Penny Transportation and Mr. Bok of TSE-PEO, agree that TSE-PEO was responsible for paying employees and maintaining workers' compensation and insurance benefits while Penny Transportation was in charge of the day-to-day operations and training of employees. Plaintiffs' payroll sheets, submitted by defendants, for the relevant time period list both TSE-PEO and Penny Transportation. In fact, plaintiff Debbie Furr acknowledges that she reported on a daily basis to Mr. Girardi of Penny Transportation despite her claims that there are issues of fact with respect to TSE-PEO's relinquishment of control over her. Further, plaintiff Diana Thompson has submitted Smart-Pick pay-stubs for the years 2005 and 2006, completely unrelated to the date of the accident. In addition, the court notes that in the bill of particulars plaintiff Diana Thompson claims that she is currently unemployed while plaintiff Debbie Furr claims that she is employed by Penny Transportation. Then in their opposition papers, plaintiffs assert that they are employees of TSE-PEO and not of Penny Transportation. Lastly, plaintiff Diana Thompson claims that she worked for Smart Pick and not for either TSE-PEO or Penny Transportation. In this regard, neither plaintiff has created a question of fact as to whose control they were under on the date of the subject accident. Accordingly, it is hereby
ORDERED that the motion for summary judgment is granted and complaint is hereby severed and dismissed as against defendants Xavier Avery and Penny Transportation and the Clerk is directed to enter judgment in favor of said defendants, and the remainder of the action shall continue, and it is further
ORDERED that the motion for costs and attorney's fees is denied.
The foregoing constitutes the decision, order and judgment of the court.
ENTER,
J.S.C.
[*5]
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