Opinion
November 20, 1997
Appeal from the Supreme Court, Bronx County (Lucindo Suarez, J.).
Denial of defendant's pretrial motion for summary judgment pursuant to CPLR 3212 did not preclude the trial court from entertaining defendant's motion pursuant to CPLR 4401 made during trial ( Cushman Wakefield v. 214 E. 49th St. Corp., 218 A.D.2d 464, 468, appeal dismissed 88 N.Y.2d 951, lv denied 88 N.Y.2d 816), which was properly granted after plaintiff had completed presenting his evidence ( cf., Page v. City of New York, 79 A.D.2d 573; Goldstein v. C. W. Post Ctr., 122 A.D.2d 196). On the merits, the case is distinguishable from Sandi v. Chaucer Assocs. ( 170 A.D.2d 663), relied on by plaintiff, by the documentary evidence establishing that plaintiff was hired by the prior owner of the building and remained defendant's employee under express terms of defendant's agreement with the management company claimed by plaintiff to be his employer. In addition, defendant issued plaintiff's W-2 statement, plaintiff listed defendant as his employer on a mortgage application, and, perhaps most significantly, plaintiff's evidence failed to show, prima facie, that his daily activities were supervised by an employee of the management company ( see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558). It is of no consequence that the management company was listed as plaintiff's employer in the files of the Workers' Compensation Board, where the issue of the identity of plaintiff's employer was not a subject of dispute before the Board ( see, Rifkin v. Dan's Supreme Supermarket, 198 A.D.2d 487, 488).
Concur — Ellerin, J.P., Nardelli, Rubin and Mazzarelli, JJ.