Although plaintiff was employed by and received his pay from AA Staffing Temporary Personnel, and was assigned by AA to perform work for defendant Canac on a tie-replacement project, plaintiff's status as special employee is established by virtue of Canac's comprehensive and exclusive daily control over and direction of plaintiff, and the corresponding absence of any supervision or control over the plaintiff's duties by AA ( see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557-558). This is true despite plaintiff's being in AA's general employ, and AA's right to hire or fire him and payment of his Workers' Compensation insurance ( see, Brooks v. Chemical Leaman Tank Lines, 71 A.D.2d 405, 407). Plaintiff failed to present evidence successfully refuting defendant's showing that plaintiff's status was that of a special employee of defendant Canac at the time he sustained his injuries ( see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, supra; Brooks v. Chemical Leaman Tank Lines, 71 A.D.2d 405, supra).

The court's reliance, in part, on defendant's failure to produce the actual contract between AA and Canac was error. Even if the contract had been produced, and it provided that employees of AA assigned to work under Canac's direction "shall at all times be employees of AA and not of Canac", the application of the law as set forth in Thompson v. Grumman Aerospace Corp. (supra) would still require that summary judgment be granted to the special employer.

Concur — Nardelli, J. P., Lerner, Mazzarelli and Saxe, JJ.