Opinion
July 12, 1996
Appeal from the Supreme Court, Erie County, Michalek, J.
Present — Denman, P.J., Green, Wesley, Balio and Boehm, JJ.
Order unanimously reversed on the law with costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint upon the ground that the action is barred by the exclusive remedy of workers' compensation benefits. It is undisputed that William Eagen (plaintiff) reported to work each day at defendant's distribution center, punched in a time clock, and was supervised in his work by various employees of defendant. The work performed by plaintiff was for the benefit of defendant. His general employer, Carrie Allen Associates, was not present at the work site and did not have the right to supervise or control plaintiff's work. Thus, as a matter of law, plaintiff was a special employee of defendant at the time of his accident ( see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553; Lesanti v Harmac Indus., 175 A.D.2d 664). We reject the contention that defendant's motion is premature because plaintiff has not had the opportunity to conduct discovery with respect to the agreement between defendant and his employment agency, Carrie Allen. Plaintiff failed to show that the agreement was within the exclusive knowledge or control of defendant ( see, CPLR 3212 [f]) and failed to offer an excuse for failing to obtain the document in the seven months following joinder of issue ( see, Milea v. Ames Dept. Store, 219 A.D.2d 798). In any event, plaintiff's speculation and surmise that the agreement might be relevant on the issue of special employment is insufficient to defeat summary judgment ( see, Gardner v. Honda Motor Co., 214 A.D.2d 1024, 1025; Smith v. Fishkill Health-Related Ctr., 169 A.D.2d 309, 316, lv denied 78 N.Y.2d 864).