Dube v. Cnty. of Rockland

• Decision Date: 18 April 2018
• Docket Number: Index No. 30438/11,2016–00061
• Citation: 160 A.D.3d 807,75 N.Y.S.3d 239
• Parties: Richard DUBE, et al., plaintiffs-appellants, v. COUNTY OF ROCKLAND, et al., respondents, USPLabs, LLC, defendant-appellant, et al., defendant (and a third-party action).
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 807

75 N.Y.S.3d 239

Richard DUBE, et al., plaintiffs-appellants,

v.COUNTY OF ROCKLAND, et al., respondents, USPLabs, LLC, defendant-appellant, et al., defendant (and a third-party action).

2016–00061

Index No. 30438/11

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

Argued—February 2, 2018

April 18, 2018

Queller, Fisher, Washor, Fuchs & Kool, LLP, New York, N.Y. (Matthew J. Maiorana and Jonny Kool of counsel), for plaintiffs-appellants.

Cozen O'Connor, New York, N.Y. (Vincent P. Pozzuto and Ryan T. Kearney of counsel), for defendant-appellant.

Saretsky Katz & Dranoff, LLP, New York, N.Y. (Robert B. Weissman of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a consolidated action, inter alia, to recover damages for personal injuries, etc., the plaintiffs and the defendant USPLabs, LLC, separately appeal from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated December 11, 2015. The order granted the motion of the defendants County of Rockland, Rockland County Sheriff's Department, and Rockland Regional Rescue, Entry and Counter–Terrorism Team, for summary judgment dismissing the complaint asserted against them.

ORDERED that the appeal by the defendant USPLabs, LLC, is dismissed, as it is not aggrieved by the order appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further, ORDERED that the order is reversed on the appeal by the plaintiffs, on the law, and the motion of the defendants County of Rockland, Rockland County Sheriff's Department, and Rockland Regional Rescue, Entry and Counter–Terrorism Team, for summary judgment dismissing the complaint asserted against them is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiff Richard Dube, a police officer employed by the Town of Ramapo, was selected as a candidate for the Rockland Regional Rescue, Entry and Counter–Terrorism Team (hereinafter REACT), a part-time SWAT team comprised of specially trained police officers from participating law enforcement agencies in Rockland County. During a physical fitness test in connection with his candidacy for REACT, Dube suffered heat stroke and sustained personal injuries. Dube, and his wife suing derivatively, commenced an action against the County, the Rockland County Sheriff's Department, and REACT (hereinafter collectively the County of defendants). The action was consolidated with an action the plaintiffs commenced against USPLabs, LLC, the manufacturer of a vitamin supplement Dube was taking at the time he fell ill. The County defendants moved for summary judgment dismissing the complaint asserted against them, contending that Dube was their special employee and therefore barred from commencing an action against them pursuant to Workers' Compensation Law §§ 11 and 29(6). The County defendants also contended that they were entitled to summary judgment dismissing the complaint based upon governmental immunity, the "firefighter's rule," and the doctrine of primary assumption of risk. The Supreme Court granted the motion, determining that Dube was a special employee of the County defendants, but without addressing the other grounds for summary judgment. The plaintiffs appeal.

An employee who is entitled to receive workers' compensation benefits may not sue his or her general employer or special employer for injuries occurring during the course of employment (see Workers' Compensation Law §§ 11, 29[6] ; Bostick v. Penske Truck Leasing Co., L.P., 140 A.D.3d 999, 1000, 34 N.Y.S.3d 468 ; Franco v. Kaled Mgt. Corp., 74 A.D.3d 1142, 1142, 903 N.Y.S.2d 512 ; Pena v. Automatic Data Processing, Inc., 73 A.D.3d 724, 724, 900 N.Y.S.2d 393 ). A special employee is "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, 578 N.Y.S.2d 106, 585 N.E.2d 355 ; see Zupan v. Irwin Contr., Inc., 145 A.D.3d 715, 718, 43 N.Y.S.3d 113 ). The determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including who controls and directs the manner of the employee's work, who is responsible for payment of wages and benefits, who furnishes equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business (see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355 ; Schramm v. Cold Spring Harbor Lab., 17 A.D.3d 661, 662, 793 N.Y.S.2d 530 ). General employment is presumed to continue, and the presumption can only be rebutted by a "clear demonstration of surrender of control by the general employer and assumption of control by the special employer" ( Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 ; see Perkins v. Crothall Healthcare, Inc., 148 A.D.3d 1189, 1190, 51 N.Y.S.3d 118 ; D'Alessandro v....