DiGirolomo v. Goldstein

• Decision Date: 27 June 2012
• Citation: 947 N.Y.S.2d 164,96 A.D.3d 992,2012 N.Y. Slip Op. 05134
• Parties: Dawn DIGIROLOMO, respondent, v. June GOLDSTEIN, appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 992

947 N.Y.S.2d 164

2012 N.Y. Slip Op. 05134

Dawn DIGIROLOMO, respondent,

v.June GOLDSTEIN, appellant.

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

June 27, 2012.

Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellant.

Petrocelli & Christy, New York, N.Y. (Michael D. Zentner of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), entered November 18, 2011, as denied her motion for summary judgment dismissing the complaint and granted those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability and dismissing the fifth affirmative defense.

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

The plaintiff, a home health aide, was assigned by her employer, Better Home Health Care, Inc. (hereinafter Better Home), to assist the defendant's decedent, Irving Brown, at his home. While returning home from a doctor's appointment, Brown was involved in a traffic accident in which the plaintiff, a passenger in his vehicle, was injured. The plaintiff commenced this action to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint on the ground that Brown was the plaintiff's special employer and, thus, the plaintiff was barred by the exclusivity provisions of the Workers' Compensation Law from suing him at law, since she had elected to receive Workers' Compensation benefits through Better Home. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability and dismissing the defendant's fifth affirmative defense based on the exclusivity provisions of the Workers' Compensation Law. The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint and granted those branches of the plaintiff's cross motion which were for summary judgment on the issue of liability and dismissing the fifth affirmative defense. On appeal, the defendant contends that the plaintiff was a special employee of Brown and therefore was barred from recovery in this action based on the exclusivity provisions of the Workers' Compensation Law.

When an employee elects to receive Workers' Compensation benefits from his or her general employer, a special employer is shielded from any action at law commenced by the employee ( seeWorkers' Compensation Law § 29[6]; Vanderwerff v. Victoria Home, 299 A.D.2d 345, 749 N.Y.S.2d 75;Martin v. Baldwin Union Free School Dist., 271 A.D.2d 579, 580, 706 N.Y.S.2d 712). A special employee is one who is transferred for a limited time of whatever duration to the service of another ( see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355). “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” ( id.). “Principal factors in determining whether a special relationship exists include the right to control, the method of payment, the furnishing of equipment, the right to discharge, and the relative nature of the work” ( Martin v. Baldwin Union Free School Dist., 271 A.D.2d at 580, 706 N.Y.S.2d 712;see Dulak v. Heier, 77 A.D.3d 787, 787–788, 909 N.Y.S.2d 743). A significant and weighty factor is who...