Opinion
February 26, 1996
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the order is affirmed, with costs.
We reject the appellants' arguments that the complaint should have been dismissed because the defendant Marriott Facility Management was a "special employer" of the plaintiff, and, since the plaintiff elected to receive workers' compensation benefits from a general employer, they are shielded from any action at law (see, Richiusa v. Kahn Lbr. Millwork Co., 148 A.D.2d 690). The question of whether a special employment relationship exists is usually an issue of fact (see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557; Matter of Abramson v. Long Beach Mem. Hosp., 103 A.D.2d 866), and the issue may in some cases turn on the terms of a written contract (see, Thompson v. Grumman Aerospace Corp., supra, at 559). Given the provisions of the contract between the appellants and the general employer, an issue of fact remains. Balletta, J.P., O'Brien, Ritter, Pizzuto and Altman, JJ., concur.