Bautista v. David Frankel Realty, Inc.

• Decision Date: 02 September 2008
• Docket Number: No. 3185.,No. 112421/04,3185.,112421/04
• Citation: 54 A.D.3d 549,2008 NY Slip Op 6685,863 N.Y.S.2d 638
• Parties: WILLIAM BAUTISTA, Appellant, v. DAVID FRANKEL REALTY, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

54 A.D.3d 549

863 N.Y.S.2d 638

2008 NY Slip Op 6685

WILLIAM BAUTISTA, Appellant, v. DAVID FRANKEL REALTY, INC., Respondent.

No. 3185.

No. 112421/04

Appellate Division of the Supreme Court of the State of New York, First Department.

September 2, 2008.

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about April 25, 2007, which granted defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, the motion denied and the complaint reinstated.

Plaintiff, who worked as a porter at a building owned by 55 East 66th Street Corporation (the Corporation), fell from a ladder while painting an exterior staircase of the building. Plaintiff commenced this action against defendant, the managing agent of the building, asserting causes of action under Labor Law §§ 200, 240 (1) and § 241 (6). Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff, who received workers' compensation benefits from his employer, the Corporation, was defendant's special employee and thus this action is barred by the exclusive remedy provisions of the Workers' Compensation Law. Defendant also asserted that it was entitled to summary judgment because plaintiff's own actions were the sole proximate cause of his injuries. Supreme Court granted the motion on the ground that plaintiff was defendant's special employee, and this appeal by plaintiff ensued.

"[A] general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits. A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991] [citations omitted]). Essential to a special employment relationship "is a working relationship with the injured plaintiff sufficient in kind and degree so that the [putative special employer] may be deemed plaintiff's employer" (Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]). Notably, "a `significant' and `weighty feature' in deciding whether a special employment relationship exists is `who controls and directs the manner, details and ultimate result of the employee's work'—in other words, who determines `all essential, locational and commonly recognizable components of the [employee's] work relationship'" (id., quoting Thompson, 78 NY2d at 558). The question of whether a special employment relationship exists is fact-laden and generally presents an issue for the trier of fact (see Thompson, 78 NY2d at 557; Bellamy v Columbia Univ., 50 AD3d 160 [2008]).

In support of its motion, defendant submitted the management agreement between it and the Corporation, pursuant to which the Corporation retained defendant to perform certain services at the building. The agreement stated that, while defendant was responsible for "[c]aus[ing] to be hired, paid and supervised, all persons necessary . . . to properly maintain and operate the [building]," the persons so hired would be the employees of the Corporation, not defendant. The agreement also stated that defendant was responsible for "[c]aus[ing] the Building to be maintained in such condition as may be directed by [the Corporation]."

Defendant also submitted the deposition testimony of plaintiff and the superintendent of the building, Albert Abreu. Plaintiff testified that he had been hired by the Corporation and that entity paid his wages. Plaintiff also testified that the only person he reported to and received assignments from was Abreu, who directed plaintiff to paint the staircase on the morning of the accident.

While Abreu testified that he was hired and employed by defendant, he also testified that he was paid by the Corporation and that his W-2 forms listed that entity as his employer. Moreover, defendant's counsel tacitly conceded in defendant's reply papers before Supreme Court that Abreu was employed by the Corporation. Abreu lived in the building and was responsible for supervising the seven other men who worked in the building, including plaintiff. Specifically, Abreu stated that "[m]y duties were to oversee that each man did [his] job; they had certain routines to do, and I would follow through and make sure these duties were done. I would give them specific instructions, and that was mainly it."

Abreu also testified that he would speak to Suz Landi, an employee of defendant who served as the property manager of the building, approximately three times per week. Every Wednesday, Abreu would report to defendant's office and meet with Landi to "drop off the payroll" and review purchase orders, tenants' requests and complaints, and proposals from contractors to perform work at the building. Abreu would speak on the telephone with Landi approximately two other days per week to review the status of projects at the building and tenants' requests and complaints. Notably, Abreu answered "yes" to the following question: "Would you deal with, as best as you could, on your own, in the autonomous position that you had, the complaints and requests of the . . . tenants?" (emphasis added). Relatedly, the following colloquy occurred between counsel for plaintiff and Abreu:

"Q: Were you, with respect to your duties as the [superintendent], pretty much autonomous in your position? Would you like me to explain that? I don't want to use a phrase that you might not be comfortable with. You were the boss of everyone else there; is that a fair statement?

"A: Yes, it is.

"Q: You told the other employees what to do?

"A: That is correct.

"Q: What you told them to do is based upon, not only your title, but your experience as someone who had been in the business a good part of your life?

"A: Yes. . . .

"Q: So, is it fair to say that, for example, in 2004, you had a pretty set schedule, and pretty firm understanding of what you wanted the other . . . employees to do?

"A: Yes. . . .

"Q: You would certainly know what to do, unless it was some extraordinary request or complaint; is that a fair statement?

"A: Yes, it is."

While Abreu testified as to his interaction with Landi and delineated what he and Landi would discuss when they spoke, Abreu never testified that Landi instructed him as to what tasks to perform, let alone how to perform them.

Defendant also relied on the affidavit of Landi, who averred that she was Abreu's supervisor and "[i]n that capacity, [she] assigned, supervised, instructed, oversaw, monitored and directed [Abreu's] work duties on a daily basis." Landi further averred that "plaintiff reported directly to . . . Abreu[, who] assigned, supervised, instructed, oversaw, monitored and directed . . . plaintiff's work duties on a daily basis." Thus, according to Landi, defendant "directed [Abreu], who in turn directed the maintenance staff and gave them their daily assignments." Landi concluded that defendant "had comprehensive and exclusive daily control over the work of all the maintenance staff of the . . . building through the building's superintendent [i.e., Abreu]. Defendant had the authority and exercised the right to control all facets of the daily operation of the building and its workers."

Defendant's assertion that plaintiff was its special employee rests on its claim that, as the managing agent of the building, it controlled Abreu's work and Abreu in turn controlled plaintiff's work. The evidence adduced by defendant in support of its motion established that Abreu controlled plaintiff's work. Thus, the resolution of this appeal turns on whether a triable issue of fact exists regarding whether defendant controlled Abreu's work. We conclude that such an issue does exist.

Even assuming the affidavit of Landi would otherwise be sufficient to satisfy defendant's burden on its motion, that affidavit is undermined by Abreu's deposition testimony, which demonstrates the existence of a triable issue of fact with respect to whether defendant controlled and directed the manner, details and ultimate result of Abreu's work. Abreu gave no testimony to the effect that defendant instructed him to paint the staircase, let alone that defendant dictated to him the manner in which that task was to be performed. In fact, Abreu gave no testimony to the effect that defendant controlled and directed the manner and details of his work generally. To the contrary, Abreu testified that he had autonomy in performing his job and supervising the men who worked at the building; the precise extent of that autonomy is not clear from the record, precluding us from determining as a matter of law whether defendant controlled and directed the manner, details and ultimate result of Abreu's work.

We disagree with our dissenting colleague's conclusion that, because Abreu referred to Landi as his "boss" and the Merriam-Webster's Collegiate Dictionary defines "boss" as "a person who exercises control or authority; specifically: one who directs or supervises workers," Abreu's deposition testimony that he had autonomy in performing his job and supervising the men who worked at the building does not demonstrate the existence of a triable issue of fact. The dictionary definition of the word "boss" is not synonymous with the legal term of art "special employer." That Landi exercised general supervisory authority over Abreu from time to time is not sufficient to establish, as a matter of law, that defendant was Abreu's special employer; "a significant and weighty feature in deciding whether a special employment relationship exists is who controls and directs the manner, details and ultimate result of the employee's work" (Fung, 9 NY3d at 359 [internal...