Daby v Town of N. Elba

[*1] Daby v Town of N. Elba 2008 NY Slip Op 52235(U) [21 Misc 3d 1126(A)] [21 Misc 3d 1126(A)] Decided on November 5, 2008 Supreme Court, Essex County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 5, 2008
Supreme Court, Essex County

Tyler S. Daby, Plaintiff,

against

Town of North Elba and Town of North Elba Public Parks and Playground District, Defendants.



536-07



Brian P. Barrett, Lake Placid, for Plaintiff.

Roemer Wallens & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for Defendants.

James P. Dawson, J.

The Court is asked to resolve the Defendants' motion for summary judgment in this negligence action. In the summer of 2006, the Plaintiff was employed by the Lake Placid Horse Show Association (hereinafter Horse Show). The show which that group organizes is held on land owned by one or both of the Defendants. The Plaintiff admits that his supervisor was his uncle, Tracy Daby, a Town of North Elba Public Parks and Playground District employee. On July 13, 2006, the Plaintiff was removing strings of lights from tents on the show grounds. To do that, he was placed in a large metal box, which was then raised by a forklift operated by Tracy Daby. When the Plaintiff reached the appropriate height, he would unplug the wire, run the wire through a hole in the tent, pull the taped wire down and ravel the wire on a spool. The metal box was not secured to the forklift and both the Plaintiff and the box fell off of the lifted forklift, with the Plaintiff suffering injuries. The Plaintiff did receive workers' compensation benefits as a result of his injuries. This action was commenced in July 2007 and asserts claims for premises liability, as well as for violations of Labor Law §§ 200, 240 and 241.

The Defendants now move to dismiss, arguing that the Plaintiff was their special employee and that workers' compensation is his sole remedy. The Defendants also argue that the nature of the work done by the Plaintiff does not support a claim under Labor Law §§ 240 and 241. The Plaintiff opposes the motion and the Defendants submit papers in reply.

The Defendants' motion is granted. An employee's exclusive remedy against his employer [*2]for injuries is ordinarily workers' compensation benefits (see Workers' Compensation Law §§ 11, 29 [6]).[FN1] It is well settled that "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" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). A presumption exists that the general employment continues, but that can be "overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" (id.). "Usually, whether a worker is a special employee of another presents a question of fact and that question should not be resolved on a motion for summary judgment unless the special employer's comprehensive and exclusive control and direction of the manner, details and ultimate results of the employee's work have been incontrovertibly established" (Perkins v Dryden Ambulance, 31 AD3d 859, 859-860 [2006]). "The other factors to be considered include who is responsible for the payment of wages, who furnishes the worker's equipment, who has the right to discharge the worker, and whether the work being performed was in furtherance of the special employer's or the general employer's business'" (id. at 860, quoting Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005]).

In this case, such a demonstration has been made. It is true that the Horse Show issued a paycheck to the Plaintiff and presumably retained ultimate authority over whether to discharge him. The Horse Show had no other connection to the Plaintiff's activities. The executive director of the Horse Show, Lori Martin, states that she provided no supervision for the Plaintiff and that the Plaintiff was assigned to work under Tracy Daby, who was the Plaintiff's supervisor. Tracy Daby is employed by the park district as a grounds foreman and is responsible for maintenance and upkeep on town property. Martin also states that town employees performed all maintenance work for the show and that the Plaintiff worked directly under their supervision. Martin lastly points out that all of the equipment used on the show grounds is owned by the town or others and that all of the equipment is stored in a town maintenance shed. The Plaintiff states that he asked Tracy Daby to get him a job with the Horse Show. Tracy Daby agrees and states that he got the Plaintiff a job with the Horse Show by speaking to his supervisor, who works for the town and not the Horse Show. Tracy Daby admitted that he told "certain people what to do" in July 2006 on the show grounds, including Horse Show employees and the Plaintiff (Tracy Daby deposition, pg. 21). Indeed, the Plaintiff freely admits that Tracy Daby was his supervisor and that no one other than Tracy Daby and another town employee ever told him what to do on the show grounds. Tracy Daby was responsible for taking down the lights at the show grounds and had, in fact, done the work himself for 18 years prior to 2006.

This showing easily meets the Defendants' burden of demonstrating that they had exclusive control over the manner, details and results of the Plaintiff's work and shifts the burden to the Plaintiff to raise a material question of fact. The Plaintiff makes very little effort to call any of the above facts into dispute. Instead, he argues that the Defendants have not established which of them [*3]is the special employer or, for that matter, which of them actually owns the show grounds. The Court rejects both arguments. The Town of North Elba Town Board was authorized to create the Town of North Elba Public Parks and Playground District by statute (see L 1928, ch 477). The purpose of the district was "to provide parks and play grounds, including air ports, golf links, toboggan slides, ski jumps and all other sports facilities, to generally benefit the public health, welfare, safety and convenience of the residence of said district" (L 1928, ch 477, § 1). Authority is given to the town board to, among other things, acquire and sell property for the district, assess taxes and borrow money for it, to accept gifts for it and maintain its property (L 1928, ch 477, § 2). The town board has final control over the district's budget (L 1928, ch 477, § 5). Indeed, the statute makes clear that "[s]uch parks and play grounds shall be under the care and control of the town board," with joint control afforded to a park commission appointed by the town board (L 1928, ch 477, § 2 [f]).[FN2] No park commission currently exists. The case law is clear that an entity such as the park district is not a separate governmental unit, but is an administrative unit of the town, and there is no obvious reason to draw a distinction between the two for liability purposes (see Kenwell v Lee, 261 NY 113, 117 [1933]). To the extent they can be viewed as distinct entities, their finances are integrated, town employees assist the park district with its functions and the town controls the park district, so the relationship between the town and park district is analogous to that between a corporation and its wholly owned and controlled subsidiary (see Smith v Roman Catholic Diocese of Syracuse, 252 AD2d 805, 806-807 [1998]). As such, the Court does not view any question as to which of the two defendants owned the land or acted as special employer to be material. Nor has the Plaintiff raised a material question of fact as to whether he was in fact a special employee. Given the absence of a material question of fact, the complaint is dismissed.

Under the circumstances, the Court need not reach the Defendants' alternative arguments for partial summary judgment. The Court will note that it agrees with the Defendants' argument regarding Labor Law § 240 (1). That statute does not apply to the type of work done by the Plaintiff, which amounted to unplugging an electrical cord, pulling that cord free of a tent frame and then yanking it away from where it was taped to the frame (see Lioce v Theatre Row Studios, 7 AD3d 493, 493 [2004]). The Court would conclude that a question of fact existed as to the Labor Law § [*4]241 (6) claim (see McCoy v Metropolitan Transp. Auth., 38 AD3d 308, 309-310 [2007]).

Ordered that the Defendants' motion for summary judgment is granted. Any relief requested which is not specifically granted herein is denied, and no motion costs are awarded to any party.

The original of this Decision and Order, together with the papers supplied, are returned to the Defendants' attorneys for filing and service with notice of entry. Those papers consist of the following: notice of motion dated August 8, 2008; affidavit of Matthew J. Kelly, sworn to August 8, 2008, with exhibits; affidavit of Lori A. Martin, sworn to August 1, 2008; affidavit of Brian P. Barrett, sworn to September 25, 2008, with exhibits; affidavit of Matthew J. Kelly, sworn to September 30, 2008; affidavit of Eugene Martin, sworn to September 30, 2008, with exhibits.

Decided:November 5, 2008

_____________________________________________

James P. Dawson, JSC

Enter: Footnotes

Footnote 1: As the Defendants correctly point out, this exclusivity applies even to premises liability claims against an employer (see Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 159-160 [1980]).

Footnote 2: According to the Defendants, the park commission does not currently exist. If it ever existed, it may well have been abolished by Town Law § 61, which cedes the powers of separate boards of commissions to the town board. The park district is undoubtedly included under that statute. "[T]he abolition of every separate board of commissioners as set forth in section 61 of the Town Law related to such boards as were created pursuant to the old Town Law and which had not been retained pursuant to the provisions of subdivision 10 of section 341 of the Town Law" (Crouch v Funk, 263 App Div 719 [1941]). Town Law § 341 (10) includes park districts, and "[e]xcept for fire district commissioners and commissioners of certain joint water-supply districts, and except for commissioners in a district where the voters have adopted a proposition sustaining improvement district commissioners, separate boards of commissioners have been abolished by the Town Law" (NY Jur 2d, Counties, Towns & Municipal Corporations § 683).