Chiloyan v. Chiloyan

• Decision Date: 20 March 2019
• Docket Number: 2018–02910,Index No. 150991/14
• Citation: 96 N.Y.S.3d 314,170 A.D.3d 943
• Parties: Vanik CHILOYAN, respondent, v. Eduard CHILOYAN, appellant (and a third-party action).
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 943

96 N.Y.S.3d 314

Vanik CHILOYAN, respondent,

v.Eduard CHILOYAN, appellant (and a third-party action).

2018–02910

Index No. 150991/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 19, 2018

March 20, 2019

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Lindsay J. Kalick and Patrick Lawless of counsel), for appellant.

Law Office of Yuriy Prakhin P.C., Brooklyn, N.Y. (Gregory Nahas of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated March 2, 2018. The order, insofar as appealed from, denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2010, the defendant, individually, entered into a contract pursuant to which he agreed to exclusively operate his van to transport passengers for nonparty R.W. Express, LLC (hereinafter R.W. Express). Shortly thereafter, the defendant formed Van Air Service, Inc. (hereinafter Van Air), in order to continue operating his van for R.W. Express. At about the same time, the plaintiff also began operating the van to transport passengers for R.W. Express. On September 16, 2012, the plaintiff allegedly sustained personal injuries when the van, which he was operating, was involved in a collision with another vehicle. The plaintiff filed a claim for workers' compensation benefits indicating that his employer was R.W. Express. In October 2013, the Workers' Compensation Board (hereinafter the Board) determined that the plaintiff was entitled to receive workers' compensation benefits from the insurance carrier of R.W. Express.

Subsequently, the plaintiff commenced this action against the defendant, as the registered owner of the van, alleging, inter alia, that he sustained serious injuries due to the defendant's negligent maintenance of the van. Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint, contending that this action was barred by the exclusivity provision of the Workers' Compensation Law because he was either the plaintiff's employer or co-employee. The Supreme Court denied the motion, and the defendant appeals.

Generally, workers' compensation benefits are the sole and exclusive remedy of an employee against an employer for injuries sustained in the course of employment (see Workers Compensation Law §§ 11, 29[6] ; Weiner v. City of New York, 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 970 N.E.2d 427 ; Wilson v. A.H. Harris & Sons, Inc., 131 A.D.3d 1050, 1051, 16 N.Y.S.3d 589 ). "[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board" ( Botwinick v. Ogden, 59 N.Y.2d 909, 911, 466 N.Y.S.2d 291, 453 N.E.2d 520 ; see O'Rourke v. Long, 41 N.Y.2d 219, 224, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ; Aprile–Sci v. St. Raymond of Penyafort R.C. Church, 151 A.D.3d 671, 672, 55 N.Y.S.3d 421 ). "The issue of whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board" ( Owens v. Jea Bus Co., Inc., 161 A.D.3d 1188, 1189, 77 N.Y.S.3d 141 ; see Alfonso v. Lopez, 149 A.D.3d 1535, 1536, 52 N.Y.S.3d 780 ; Matter of Saratoga Skydiving Adventures v. Workers' Compensation Bd., 145 A.D.3d 1333, 1334, 42 N.Y.S.3d 696 ). The findings of the Board are final and conclusive unless reversed on direct appeal (see Workers' Compensation Law § 23 ), and are not subject to collateral attack in a plenary action (see Cunningham v. State of New York, 60 N.Y.2d 248, 253, 469 N.Y.S.2d 588, 457 N.E.2d 693 ; Aprile–Sci v. St. Raymond of Penyafort R.C. Church, 151 A.D.3d at 673, 55 N.Y.S.3d 421 ).

Here, contrary to the defendant's contentions, he did not demonstrate, prima facie, that the plaintiff was an employee of Van Air. In this regard, the Board found that the plaintiff was an employee of R.W. Express within the meaning of the Workers' Compensation Law given its determination that the workers' compensation carrier of R.W. Express was liable for the plaintiff's claim. The coverage issue was necessarily determined by the Board (see Aprile–Sci v. St. Raymond of Penyafort R.C. Church , 151 A.D.3d at 673, 55 N.Y.S.3d 421 ; Rigopolous v. American Museum of Natural History , 297 A.D.2d 728, 729, 747 N.Y.S.2d 566 ).

"A special employee is ‘one who is transferred for a limited time of whatever duration to the service of another,’ and limited liability inures to the benefit of both the general and special employer" ( Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 359, 850 N.Y.S.2d 359, 880 N.E.2d 845, quoting Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 ). Although a person's categorization as a special employee is usually a question of fact, " ‘the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact’ " ( Munion v. Trustees of Columbia Univ. in City of N.Y., 120 A.D.3d 779, 780, 991 N.Y.S.2d 460, quoting Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 557–558, 578 N.Y.S.2d 106, 585 N.E.2d 355 ; see James v. Crystal Springs Water, 164 A.D.3d 660, 661–662, 81 N.Y.S.3d 553 ). "Many factors are weighed in deciding whether a special employment relationship exists, and generally no single one is decisive ... Principal factors include who has the right to control the employee's work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and...