JAYNES, III v. County of Chemung

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: <P>Mugglin, J.</P&gt
• Citation: JAYNES, III v. County of Chemung, 271 A.D.2d 928, 707 N.Y.S.2d 516 (N.Y. App. Div. 2000)
• Decision Date: 27 April 2000
• Parties: RAYMOND W. JAYNES, III, et al., Respondents,<BR>v.<BR>COUNTY OF CHEMUNG, Appellant. (And a Third-Party Action.)

271 A.D.2d 928

707 N.Y.S.2d 516

RAYMOND W. JAYNES, III, et al., Respondents,

v.COUNTY OF CHEMUNG, Appellant. (And a Third-Party Action.)

Mugglin, J.

Decided April 27, 2000.

Crew III, J. P., Peters, Spain and Graffeo, JJ., concur.

Mugglin, J.

Plaintiff Raymond W. Jaynes, III (hereinafter plaintiff), and his wife derivatively, commenced this action against defendant asserting violations of Labor Law §§ 200, 240 (1) and § 241 (6). On the date of the accident, plaintiff, an employee of third-party defendant, Silverline Construction, Inc., was working in conjunction with employees of defendant in the demolition and reconstruction of a Chemung County bridge. As an employee of defendant attempted to move a portion of demolished concrete with an excavating machine, the concrete slipped from its bucket and struck an iron beam, causing the beam to strike plaintiff in the head.

Several weeks prior to the scheduled trial, defendant moved for an order granting it permission to amend its answer to include the affirmative defense that plaintiff was a "special employee" of defendant, thus making his exclusive remedy pursuant to the Workers' Compensation Law. The amendment was granted and defendant sought summary judgment dismissing plaintiffs' complaint. In the alternative, defendant sought partial summary judgment dismissing plaintiffs' claim asserted under Labor Law § 240 (1). Silverline cross-moved for similar relief. Plaintiffs cross-moved for partial summary judgment on the issue of liability against defendant on the claims asserted under Labor Law §§ 200 and 241 (6). Supreme Court denied the motions of defendant and Silverline to the extent of finding that triable issues of fact precluded a finding that plaintiff, at the time of his injury, was a "special employee" of defendant, but granted the motions to the extent of dismissing plaintiffs' Labor Law § 240 (1) claim. Supreme Court also denied plaintiffs' cross motion in every respect. Defendant appeals.^[*] We modify Supreme Court's order and dismiss the entire complaint.

In our view, the record establishes as a matter of law that plaintiff was a "special employee" of defendant at the time of his injury. 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 (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557-558; O'Connell Elec. Corp. v Murnane/ Kennedy, 252 AD2d 851, 852; Matter of Shoemaker v Manpower, Inc., 223 AD2d 787, lv dismissed 88 NY2d 874). "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., supra, at 557). An employee of one party may be a special employee of another party even if the former pays the employee's salary and benefits and has the ability to hire and terminate the employee (see, id., at 557; Matter of Quick v Steuben County Self-Ins. Plan, 242 AD2d 833, lv dismissed 91 NY2d 866). The foregoing, in addition to other factors, may sufficiently establish the status of "special employee" as a matter of law to support a grant of summary judgment.

Here, defendant entered into an hourly agreement with Silverline as the successful bidder to provide manpower, a service truck and certain tools. Under the agreement, defendant paid for the hours worked by the employees assigned by Silverline directly to Silverline without inclusion of any benefits or holiday pay. Silverline was responsible for the payment of its employees and any other benefits, including workers' compensation. Although Silverline selected the particular employees for assignment to defendant, it...