Vincente v. Silverstein Prop. Inc.

Full title: Tirso Vincente, Plaintiff(s), v. Silverstein Properties, Inc., River Place…

Court: Supreme Court, Bronx County

Date published: Feb 24, 2009

13204/04 (N.Y. Sup. Ct. Feb. 24, 2009)

Opinion

13204/04

02-24-2009

Tirso Vincente, Plaintiff(s), v. Silverstein Properties, Inc., River Place I, LLC, River Place Holdings Limited Partnership and River Place I Holdings, LLC, Defendant(s). Silverstein Properties, Inc., Third-Party Plaintiff(s), American Building Maintenance Co., of New York, sued herein as American Building Maintenance Company, Third-Party Defendant(s).

Plaintiff's Attorney - Kevin E. Rockitter Defendant's Attorneys - Paganini, Herling & Assocs. Jeffrey Samel & Assocs.

John A. Barone

Plaintiff's Attorney - Kevin E. Rockitter

Defendant's Attorneys - Paganini, Herling & Assocs.

Jeffrey Samel & Assocs.

John A. Barone, J.

This is a motion for summary judgment on the complaint by defendant Silverstein combined with a motion on the third-party complaint by third-party defendant American

Building (ABM) for summary judgment on the third-party complaint. The dominating issue in both motions is whether plaintiff Tirso Vincente is a special employee of Silverstein Properties. There are other issues to be sure, but the determination of these issues will flow naturally upon the resolution of the special employee questions.

FACTS

Plaintiff Vincente Tirso was employed by third-party defendant ABM as a handyman. He worked exclusively at Riverplace on the maintenance staff. Riverplace is a residential high-rise in Manhattan on West 42nd Street near the westside piers. While Vincente was paid by ABM he worked under the direct supervision of Silverstein employees. On May 15, 2001 Vincente was operating a circular saw which had been modified by agents of Silverstein. A serious accident occurred while Vincente operated the saw. He lost the second and third digits of his right index finger. He also fractured a finger and severed the middle finger. The fracture was repaired by open reduction surgery and the middle finger was successfully reattached. The digital loss of the index finger was too severe to allow for reattachment.

Plaintiff sued Silverstein which in turn impleaded ABM.

LAW OF THE CASE

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320. Once movant meets his initial burden, then burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557. The Court of Appeals has stated in the case of Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065:

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the Court as a matter of law in directing judgment' in his favor (CPLR 3212[b]) and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact'. Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case... .

Vincente is unquestionably a covered worker under the New York Workers' Compensation Law. As such his sole remedy vis a vis his employer is to apply for workers compensation benefits under the employer's policy. Plaintiff has done this and is receiving benefits thereunder. Under the law, however, the worker retains his right to sue third parties whom he alleges were wholly or partially liable for his injury. However if a third-party is deemed a "special employer" then the workers is limited to his remedies under workers' compensation. In this case Silverstein claims to be such a special employer and has accordingly moved for summary judgment against Vincente.

The question of special employee status is a factual one. McGreevy v. Jameson, 300 AD2d 897, and each case is accordingly fact specific.

In this case on the one hand Vincente was generally supervised by Silverstein employees he was paid by ABM and wore an ABM uniform on the job. Thus the issue of Vincente's status requires a closer inspection of the facts. Vincente began working at River Place in April of 2001. His duties were of a general maintenance/handyman type. He would report to two Silverstein employees, the assistant supervisor Jerome Resker and an assistant supervisor "Flavio". He also took directions from two other Silverstein employees, building engineers "Kevin" and "John". There was also an ABM foreman of the cleaning and maintenance crew, Paul Cucco, who distributed the paycheck to the ABM workers. ABM provided safety meetings for its employees, distributed safety manuals and posted safety signs in the employee lunchroom. Permission for overtime work came through ABM. On the job Vincente reported only to Silverstein employees and no ABM supervisor had ever directed his work.

Generally a worker is not a special employee of a third party unless his general employer has relinquished direction and control of him. Sweet v. Board of Ed, 290 NY 73; Murray v. Union Ry, 229 NY 110; Schweitzer v. Thompson & Morris Co., 229 NY 97.

In Gherghinoiu v. ATLO Properties, 32 AD2d 314 plaintiff, a maintenance worker, though listed as an employee of the maintenance company was deemed a special employee of the property owner where his work was directed and controlled on a daily basis by landlord and where he reported directly to a foreman of the property owner. In Navarette v. A.V. Pasta Products, Inc., 32 AD3d 1003, the Court decided that the key to determining the status of a worker is to ascertain who controls and directs the manner, details and ultimate result of the employees work. See also Suarez v. Food Emporium, Inc., 16 AD3d 152.

In this case there is no question that plaintiff reported on a daily basis to Silverstein, that his equipment, including the circular saw in question, was issued by Silverstein, that he was supervised by Silverstein employees and that he was supervised primarily by Silverstein employees. These are the most important factors set forth by the Appellate Division for determining special employee status. Based on the precedents handed down by higher courts it must be concluded that plaintiff is a special employee of Silverstein. Accordingly plaintiffs claim must be limited to his remedies under the Workers Compensation Law. Accordingly defendants motion for summary judgment is granted. Motion by third-party defendant is rendered moot thereby.

This constitutes the decision and order of this Court.

John A. Barone, JSC