Opinion
29932 2007.
Decided December 2, 2009.
Sanders, Sanders, Block, Woycik, Viener Grossman, P.C., by Douglas H. Sanders and Barbara E. Manes, Esq., Mineola, New York, for the Plaintiff.
Luboja Thau, LLP, by Richard M. Hunter, Esq., New York, NY, for the Defendants.
It is ordered that the motion and cross motion are determined as follows:
This is an action to recover for personal injuries plaintiff allegedly sustained when he was involved in a motor vehicle accident on March 2, 2007. Plaintiff was a passenger and was seated in the cab of a truck operated by defendant Christopher Davis (Davis), an employee of defendant Snapple Distributors, Inc. (Snapple), and was allegedly injured when the vehicle struck a building.
In opposition to plaintiff's motion for summary judgment on the issue of liability, defendants have cross-moved for summary judgment dismissing the complaint against Snapple and Davis on the ground that plaintiff's claims are barred by Workers' Compensation Law § 11 and § 29 (6) because plaintiff was a special employee of Snapple at the time of the accident, and dismissing the complaint against defendant Ari Fleet Lt. (Ari Fleet) pursuant to the Graves Amendment.
Workers' Compensation is the exclusive remedy for an injured employee (Workers' Compensation Law § 11 and § 29; Hofweber v Soros , 57 AD3d 848 , 849, lv denied 13 NY3d 703). A special employee is described as one who is transferred for a limited time of whatever duration to the service of another ( Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557; see Schramm v Cold Spring Harbor Lab. , 17 AD3d 661 , 662). Although whether an individual is a special employee is usually a question of fact, such a determination may be made as a matter of law where the relevant facts are undisputed and present no triable issues of fact ( see Thompson, 78 NY2d at 557-558).
Many factors are considered in determining whether a special employee relationship exists, including "who has the right to control the employee's work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business" ( Schramm, 17 AD3d at 662). Although no single factor is decisive, a significant factor is "who controls and directs the manner, details and ultimate result of the employee's work" ( Thompson, 78 NY2d at 558; Soto v Akam Assoc., Inc. , 61 AD3d 665 , 665-666; Schramm, 17 AD3d at 662).
In the instant case, defendants relied upon plaintiff's deposition testimony, wherein, he testified that he was employed as a temporary worker by non-party United Staffing Systems, Inc. (United Staffing) and was directed by an employee of United Staffing to go to Snapple for work. Plaintiff further testified that on the first day he arrived at Snapple, he met Kevin Duane (Duane), the Director of Full Service Vending at Snapple's Brooklyn location, who instructed him to ride in the truck with Davis and assist Davis in delivering Snapple products. He also testified that no one at United Staffing instructed him on how to help with deliveries for Snapple.
Defendants also submitted an affidavit from Duane and his deposition testimony. Duane stated that he determined which of the workers sent by United Staffing would be hired for work with Snapple or fired after working with Snapple. He further stated that he instructed plaintiff as to what plaintiff's tasks were on the first day plaintiff arrived at Snapple, that plaintiff reported to him each morning for daily assignments, and that he or another Snapple employee controlled and supervised plaintiff on the day of the accident. Duane also testified that United Staffing paid plaintiff based upon time sheets that were sent over from Snapple. Teresa Petruccelli, the Executive Director of United Staffing, and Mark Grossman, the Chief Financial Officer of United Staffing, both testified that United Staffing did not supervise or control any of the work that United Staffing workers perform on site at Snapple. Petruccelli further testified that United Staffing maintained workers' compensation benefits for plaintiff, and Grossman testified that these benefits have been paid since the date of the accident.
A general employee of one employer may also be a special employee of another employer, regardless of the general employer's responsibility to pay the employee's wages and maintain workers' compensation and other benefits ( see Thompson, 78 NY2d at 557; Jaynes v County of Chemung, 271 AD2d 928, 930, lv denied 95 NY2d 762). In this case, the record reflects that, although plaintiff was a general employee of United Staffing since it paid his wages and provided his benefits, he was a special employee of Snapple by virtue of the control Snapple exercised over the work he performed (see Thompson, 78 NY2d at 558; Soto, 61 AD3d 665, 665-666; Schramm, 17 AD3d at 662).
Furthermore, the work plaintiff was performing on the day of the accident was in furtherance of Snapple's business ( see Schramm, 17 AD3d at 662). Therefore, defendants have demonstrated, prima facie, that plaintiff was a special employee of Snapple at the time of the accident by proffering evidence which established that Snapple supervised plaintiff and controlled and directed the manner, details and ultimate result of plaintiff's work ( see Thompson, 78 NY2d at 558; Schramm, 17 AD3d at 662).
In opposition, plaintiff argues, among other things, that he was not a special employee of Snapple inasmuch as United Staffing had significant control over him at the time of the accident because of the agreement in existence between United Staffing and Snapple. He also argues, in the alternative, that he was an independent contractor at the time of the accident. Despite the agreement which designated plaintiff as an employee of United Staffing, since plaintiff was not a party to said agreement and the agreement did not specifically address his special employment status, it is not determinative of the issue of special employment ( see Thompson, 78 NY2d at 559-560).
An independent contractor is an individual who is entrusted with a task but who is left free to do the work and to choose the method for accomplishing it (Black's Law Dictionary 785 [8th ed 2004]). Based upon Duane's and plaintiff's testimony, plaintiff did not operate as an independent contractor at the time of the accident because Snapple retained significant control over plaintiff's work. None of plaintiff's other submissions have raised a triable issue of fact as to whether Snapple supervised, controlled and directed his tasks and the manner of the work he performed on the date of the accident ( see Roberson v Moveway Transfer Stor. , 44 AD3d 839 , 840).
Therefore, Snapple is entitled to summary relief because, as plaintiff's special employer, it is shielded from an action at law since his workers' compensation benefits were provided by his general employer, United Staffing ( see Thompson, 78 NY2d at 559-560; Kramer v NAB Constr. Corp., 282 AD2d 714, lv denied 97 NY2d 606). Furthermore, inasmuch as the record has demonstrated that Davis was also an employee of Snapple at the time of the accident, the complaint is dismissed against Davis as plaintiff's co-employee because Workers' Compensation is the plaintiff's exclusive remedy against Davis (Workers' Compensation Law § 29; see Macchirole v Giamboi, 97 NY2d 147, 150; Giovannucci v Petrone , 51 AD3d 632 , 633).
Additionally, the branch of defendants' cross motion for summary judgment dismissing the complaint against Ari Fleet on the ground that plaintiff's action is barred by 49 USC section 30106, the Graves Amendment, is granted without opposition.
Accordingly, defendants' motion for summary judgment dismissing the complaint is granted. The branch of plaintiff's motion for summary judgment is denied, and the branch of his motion for leave to amend the caption is denied as moot.