Armstrong v. Foxcroft Nurseries

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Mercure
• Citation: Armstrong v. Foxcroft Nurseries, 724 N.Y.S.2d 551, 283 AD2d 814 (N.Y. App. Div. 2001)
• Decision Date: 17 May 2001
• Parties: (A.D. 3 Dept. 2001) SHANE ARMSTRONG, Appellant, v FOXCROFT NURSERIES INC., Respondent. 88417 : THIRD JUDICIAL DEPARTMENT

Page 551

724 N.Y.S.2d 551 (A.D. 3 Dept. 2001)

SHANE ARMSTRONG, Appellant, v FOXCROFT NURSERIES INC., Respondent.

88417

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

May 17, 2001

E. Stewart Jones P.L.L.C. (David J. Taffany of counsel), Troy, for appellant.

Pennock & Breedlove L.L.P. (Catherine A. Speaneas of counsel), Clifton Park, for respondent.

Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ.

Mercure, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered August 30, 2000 in Rensselaer County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff, an equipment operator, was injured while working on a landscape construction project in Connecticut. The injury occurred when he attempted to adjust the forks on a forklift and one of the forks fell on his leg. Crow and Sutton Associates (hereinafter C & S), a corporation, was the landscape contractor for the project and the forklift was owned by defendant. After issue was joined in this personal injury action arising out of plaintiff's work-related accident, defendant moved for summary judgment on the ground that the action is barred as a result of plaintiff's receipt of workers' compensation benefits and his status as a special employee of defendant. Supreme Court granted the motion and plaintiff appeals. We reverse.

"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 N.Y.2d 553, 557 [citation omitted]). "Although a determination concerning a worker's status as a'special employee' is generally a question of fact, summary judgment may nevertheless be granted where the relevant facts establish that the special employer controlled and directed the manner, details and ultimate result of the employee's work * * *" (Jaynes v County of Chemung, 271 A.D.2d 928, 929-930, lv denied 95 N.Y.2d 762 [citations omitted]). Summary judgment is not appropriate, however, when the alleged special employer's exclusive control and direction of the manner, details and ultimate results of the employee's work have not been incontrovertibly established (see, Oden v Chemung County Indus. Dev. Agency, 183 A.D.2d 998). In this case, defendant submitted no evidence that, as the alleged special employer, it had exclusive control and direction over the manner, details and ultimate result of the work being performed by plaintiff at the time of his injury.

It is undisputed that defendant, C & S and a third corporation were owned in whole or in part by James Sutton and his wife and that the three corporations had common management. It is also undisputed that plaintiff performed work for all three corporations, but there is no evidence that he did so simultaneously or in a dual capacity (cf., Levine v Lee's Pontiac, 203 A.D.2d 259). Rather, he apparently performed work for one corporation at a time and was paid by the particular corporation for which he performed work. The record further demonstrates that defendant and C & S were engaged in separate and distinct businesses. Defendant was in the business of growing trees and corn, which it conducted at its yard or nursery, while C & S was in the business of...