Opinion
05-11-2017
Michael McMAHON, et al., Plaintiffs–Appellants, v. COHEN BROTHERS REALTY CORP., Defendant–Respondent.
Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for appellants. Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for respondent.
Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for appellants.
Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for respondent.
Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 30, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established prima facie that the injured plaintiff was its special employee and therefore this action is barred by the workers' compensation law's exclusivity provision (see Workers' Compensation Law §§ 11 ; 29[6]; Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991] ). The comprehensive property management agreement between defendant and plaintiff's general employer (the property owner) provided that the maintenance and repair of the building resided exclusively with defendant. Defendant interviewed and hired plaintiff, whose work as an engineer was in furtherance of defendant's operation and maintenance of the building, and defendant had the authority to terminate plaintiff's employment, which it ultimately exercised. Defendant provided plaintiff with the materials and equipment he needed to perform his work, and directed, supervised and controlled plaintiff's work (see e.g. Vincente v. Silverstein Props., Inc., 83 A.D.3d 586, 922 N.Y.S.2d 45 [1st Dept.2011], lv. denied 17 N.Y.3d 710, 2011 WL 4089924 [2011] ).
In opposition, plaintiff failed to raise an issue of fact with his employment checks showing the general employer as the payor and his employment termination notice showing the general employer as his employer (see e.g. Villanueva v. Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 A.D.3d 155, 157, 829 N.Y.S.2d 459 [1st Dept.2007] ). Plaintiff offered no evidence to controvert defendant's showing that it hired him and controlled, supervised, and otherwise dictated all facets of his work in the building (see id. at 156, 829 N.Y.S.2d 459 ). In view of the foregoing, we do not reach plaintiff's remaining arguments.
FRIEDMAN, J.P., MOSKOWITZ, MANZANET–DANIELS, KAPNICK, WEBBER, JJ., concur.