Opinion
No. 2021-09246 Index No. 937/18
12-13-2023
Dorothy James, respondent, v. Highland Rehabilitation and Nursing Center, appellant, et al., defendant.
Sheeley LLP, New York, NY (David Henry Sculnick of counsel), for appellant. Sobo & Sobo, LLP, Middletown, NY (John A. Del Duco III of counsel), for respondent.
Sheeley LLP, New York, NY (David Henry Sculnick of counsel), for appellant.
Sobo & Sobo, LLP, Middletown, NY (John A. Del Duco III of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Highland Rehabilitation and Nursing Center appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez-Doles, J.), dated December 8, 2021. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
In December 2016, the plaintiff, while walking to her vehicle in the parking lot of the defendant Highland Rehabilitation and Nursing Center (hereinafter Highland), in Middletown, allegedly slipped and fell due to icy conditions. At the time of the accident, the plaintiff worked at Highland as a licensed practical nurse through her employer, Aequor Healthcare Services.
The plaintiff thereafter commenced this action against Highland and another defendant to recover damages for personal injuries, alleging that Highland was negligent in, among other things, failing to maintain the parking lot in a reasonably safe condition. Prior to any motions for summary judgment, the plaintiff entered into a stipulation of discontinuance against the other defendant, leaving Highland as the remaining defendant in this action.
Subsequently, Highland moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiff was a special employee of Highland at the time of the accident and that the complaint insofar as asserted against it was barred by the storm in progress rule. By order dated December 8, 2021, the Supreme Court denied Highland's motion. Highland appeals.
"The receipt of workers' compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer" (Hofweber v Soros, 57 A.D.3d 848, 849; see Everett v CMI Servs. Corp., 206 A.D.3d 620, 623; Berry v Viad Corp., 199 A.D.3d 632, 633). Indeed, "the receipt of workers' compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment" (Slikas v Cyclone Realty, LLC, 78 A.D.3d 144, 150; see Workers' Compensation Law §§ 10, 11, 29[6]). "A person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer" (Schramm v Cold Spring Harbor Lab., 17 A.D.3d 661, 662; see Ortega v 669 Meeker Ave., LLC, 191 A.D.3d 686, 688).
A "special employee" is "one who is transferred for a limited time of whatever duration to the service of another" (Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553, 557; see Fung v Japan Airlines Co., Ltd., 9 N.Y.3d 351, 359; Everett v CMI Servs. Corp., 206 A.D.3d at 623). "In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee's work, the method of payment, the furnishing of equipment, and the right to discharge" (Wilson v A.H. Harris & Sons, Inc., 131 A.D.3d 1050, 1051; see Everett v CMI Servs. Corp., 206 A.D.3d at 623; Chiloyan v Chiloyan, 197 A.D.3d 612, 614-615). "Another factor is whether the work being performed was in furtherance of the special employer's or the general employer's business" (Graziano v 110 Sand Co., 50 A.D.3d 635, 636). "A significant and weighty factor in determining whether a special employment relationship exists is 'who controls and directs the manner, details and ultimate result of the employee's work'" (Gonzalez v Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697, quoting Thompson v Grumman Aerospace Corp., 78 N.Y.2d at 558; see Ortega v 669 Meeker Ave., LLC, 191 A.D.3d at 688). General employment is presumed to continue and such "presumption can be rebutted only upon 'clear demonstration of surrender of control by the general employer and assumption of control by the special employer'" (Spencer v Crothall Healthcare, Inc., 38 A.D.3d 527, 528, quoting Thompson v Grumman Aerospace Corp., 78 N.Y.2d at 557; see Perkins v Crothall Healthcare, Inc., 148 A.D.3d 1189, 1190-1191). "The determination of special employment status is usually a question of fact and may only be made as a 'matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact'" (Abreu v Wel-Made Enters., Inc., 105 A.D.3d 878, 879, quoting Thompson v Grumman Aerospace Corp., 78 N.Y.2d at 558; see Everett v CMI Servs. Corp., 206 A.D.3d at 623).
Here, Highland failed to establish, prima facie, that the plaintiff was its special employee at the time of the accident and, accordingly, that the complaint insofar as asserted against it was barred by the exclusivity provisions of the Workers' Compensation Law (see Dube v County of Rockland, 160 A.D.3d 807, 808; Alfonso v Pacific Classon Realty, LLC, 101 A.D.3d 768, 769-770; D'Alessandro v Aviation Constructors, Inc., 83 A.D.3d 769, 771). Since Highland failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on this ground, we need not consider the sufficiency of the plaintiff's opposition papers in this regard (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
Under the storm in progress rule, "[a] property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter" (Solazzo v New York City Tr. Auth., 6 N.Y.3d 734, 735; see Licari v Brookside Meadows, LLC, 214 A.D.3d 780, 782). While "[a] lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety" (Fenner v 1011 Rte. 109 Corp., 122 A.D.3d 669, 670), "'if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied'" (Mazzella v City of New York, 72 A.D.3d 755, 756, quoting Powell v MLG Hillside Assoc., 290 A.D.2d 345, 345-346; see Licari v Brookside Meadows, LLC, 214 A.D.3d at 781).
While Highland established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule, in opposition, the plaintiff raised triable issues of fact as to the applicability of this rule and as to whether Highland had constructive notice of the icy hazard that allegedly caused her to slip and fall (see Powell v MLG Hillside Assoc., 290 A.D.2d at 346; see also Mike v 91 Payson Owners Corp., 114 A.D.3d 420; Vosper v Fives 160th, LLC, 110 A.D.3d 544).
Accordingly, the Supreme Court properly denied Highland's motion for summary judgment dismissing the complaint insofar as asserted against it.
BRATHWAITE NELSON, J.P., MALTESE, FORD and WARHIT, JJ., concur.