Perez v Avi-Spl Holdings, Inc.
Annotate this CaseDecided on December 31, 2013
Supreme Court, Queens County
Ramiro Perez, Plaintiff,
against
Avi-Spl Holdings, Inc., Defendant.
23813/11
Bernice D. Siegal, J.
The following papers numbered 1 to 12 read on this motion for an order pursuant to CPLR §3212 dismissing the complaint and granting summary judgment to the defendant (1) on the grounds that the plaintiff failed to identify any defect or dangerous condition regarding the audio speakers; (2) that the plaintiff's claim of res ipsa loquitor is inapplicable; and (3) that the plaintiff was employed by the defendant Avi-Spl Holding, Inc., as a "special employee" on the date of the incident and as such his exclusive remedy was Worker's Compensation.
PAPERS
NUMBERED
Notice of Motion - Affidavits-Exhibits..................................1 - 4
Affirmation in Opposition......................................................5 -9
Reply Affirmation...................................................................10 - 12
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Defendant moves for an Order pursuant to CPLR §3212 granting summary judgment to the defendant and dismissing the complaint. The court notes that the within motion was set down for oral argument on November 20, 2013. As more fully set forth below, Defendant's motion for summary judgment is denied because, as to Plaintiff's status, Avi-Spl Holdings, Inc. failed to establish prima facie that plaintiff was a special employee, and as to liability, issues of fact exist as to whether defendant created or had notice of the allegedly defective condition.
[*2]Facts
Plaintiff Ramiro Perez ("Plaintiff" or "Perez") commenced the within action for personal injuries allegedly sustained on November 9, 2010, while working at New York University at Mercer Street. Perez testified, at his deposition, that on November 9, 2010, he was working for AVTek Staffing, a temporary employment agency, and that AVTek Staffing was contacted by AVI-SPL Holdings ("AVI-SPL") to provide temporary employees. Perez also testified that he was told by Roy Peterson, on behalf of AVTek, that he would be taking down the equipment (speakers from speaker stands, projector screens, mixing console, cabling and lighting gear) in the event space; that no one from AVTek was present at 82 Mercer Street but that Nick Muigai ("Muigai"), from AVI-SPL and the project manager for this Mercer Street project, had instructed Plaintiff to take down the equipment with Gerald Bly. While dismantling the speakers and cabling, one of the speakers fell and struck Perez.
Ruth Harris ("Harris"), an audio engineer for this project, testified on behalf of AVI-SPL that the equipment was not modified in anyway and that she was the only person responsible for setting up the tripod stands for the speakers. Harris stated that the speaker was affixed to the "plate" by bolts that are part of the standard rigging and could not fall off the "plate" because the bolts were fastened with clips, that prior to the accident she did not remove the clips and the speaker fell while annexed to the stand. Harris also testified that she did not witness anyone touch the speaker prior to the fall.
Muigai, a Project Manager for AVI-SPL, states in his affidavit that he was the manager for the event and that temporary employees of Avtek arrived at job sites without representatives from Avtek. Muigai further states that Perez' work was directly supervised by Muigai and that Perez took all orders and directives from Muigai. Muigai also states that he instructed Perez how to perform his work.
Discussion
Summary Judgment
To meet its burden for summary judgment movant must foreclose any genuine issue of material fact showing it is entitled to a judgment as a matter of law. (Bush v. St. Clare's Hosp., 82 N.Y 2d 738 [1993] (reasoning that if a question of fact exists the court is precluded from granting a summary judgment motion); Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985]; Zuckerman v. New York, 49 NY2d 557 [1980].) To do so "the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate all material issues of fact from the case." (Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985].) If the proponent succeeds, then the burden shifts to the opposing party, who must then demonstrate through admissible evidence that there are material issues of fact sufficient to defeat the motion for summary judgment. (See Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Further, a court will not deny a summary judgment motion pursuant to CPLR §3212(f) on the "mere hope" discovery will bring forth favorable evidence. (See Zarzona v. City of New York, 208 AD2d 920 [2nd Dept. 1994]; Sarver v. Martyn, 161 AD2d 623 [2nd Dept. 1990]). To defeat a summary judgment motion the non-movant must identify the specific evidence that it believes will create an issue of material fact.(See Zuckerman v. City of New York, 49 NY2d 557 [1980]).
[*3]Special Employee
Defendant contends that plaintiff suffered an "on-the-job" accident and Plaintiff's exclusive remedy is limited to workers' compensation benefits. Defendant contends that Plaintiff was under the exclusive supervision and control of AVI-SPL and therefore AVI-SPL and Perez were in a special employment relationship.
"The receipt of workers' compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment." (Alfonso v. Pacific Classon Realty, LLC, 101 AD3d 768, 769 [2nd Dept] quoting Slikas v. Cyclone Realty, LLC, 78 AD3d 144, 150 [2nd Dept 2010]; see Workers' Compensation Law §§ 10, 11, 29[6].) "A person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer."(Alfonso v. Pacific Classon Realty, LLC, at 769 quoting Slikas v. Cyclone Realty, LLC, at 150.) "A special employee is described as one who is transferred for a limited time of whatever duration to the service of another." (Charles v. Broad Street Development, LLC, 95 AD3d 814, 816 [2nd Dept 2012] quoting Thompson v. Grumman Aerospace Corp., 78 NY2d 553 1991].) "While a person's categorization as a special employee is usually a question of fact, the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact." (Id. at 816) "Although no one factor is decisive in determining whether a special employment relationship exists, a key consideration is the employer's right to direct the work and the degree of control exercised over the employee." (Id. at 816 citing Thompson v. Grumman Aerospace Corp., supra; see Charles v. Broad Street Development, LLC, 95 AD3d 814 [2nd Dept 2012][holding that the critical factors in determining if a person is a special employee are where he got his paychecks from, who he reported to, who controlled his daily assignments and hours of work and who prepared the accident report].)
AVI-SPL contends that the control and direction which Muigai exercised over the plaintiff, established that Perez was a special employee as a matter of law, and thus, the instant action is barred by the plaintiff's recovery of workers' compensation benefits. (Hofweber v. Soros, 57 AD3d 848 [2nd Dept 2008].) However, defendant failed to submit paychecks that would evidence a special employee relationship. ( Charles v. Broad Street Development, LLC, 95 AD3d 814 [2nd Dept 2012][holding that the submission of a paycheck is a critical factor in determining whether a "special employee" relationship exists].) In addition, the accident report was prepared by AVTek and not AVI-SPL.
Furthermore, AVI-SPL failed to submit a copy of any agreement between AVI-SPL and AVTek s which would inform the court as to the parameters of the parties obligations and who had actual control over Perez.
For the reasons set forth above, AVI-SPL failed to establish, prima facie, that the plaintiff was its "special employee" and that, as a consequence, the plaintiff's claims against it are barred by the exclusivity provisions of the Workers' Compensation Law.
Defective or Dangerous Condition
In moving for summary judgment dismissing the complaint, the Defendant has the initial burden of establishing "that they neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident." (Indelicato v. Parkway North Associates, L.P., 98 AD3d 946, 946 [2nd Dept 2012]; Kielty v. AJS Const. of L.I., Inc., 83 AD3d 1004 [2nd Dept 2011].) [*4]Defendant failed to meet its initial burden of establishing that it neither created nor had actual or constructive notice of the allegedly defective condition. Harris testified that she did not see anyone touch the speakers before they fell and that she failed to inspect the speakers before the incident. Based on the deposition testimony of Harris alone, it is unclear what caused the speaker to fall on the Plaintiff. In addition, Perez testified that he had started dismantling the cabling of a different speaker when the speaker "behind [him]" fell on his head. Perez also testified that he never touched the speaker prior to the fall and that he was not given instructions on how to dismantle the speakers. Accordingly, issues of fact for trial exist, including but not limited to what caused the speaker to fall and whether defendant failed to properly supervise the dismantling of the speakers.
Conclusion
For the reasons set forth above, Defendant's motion for summary judgment is denied.
Dated: December 31, 2013___________________________
Bernice D. Siegal, J. S. C.
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