Kramer v. NAB Construction Corp.

• Decision Date: 30 April 2001
• Citation: 724 N.Y.S.2d 187,282 A.D.2d 714
• Parties: (A.D. 2 Dept. 2001) Elaine Kristine Kramer, plaintiff-respondent v NAB Construction Corp., defendant third-party plaintiff-respondent-appellant; Simpson Metal Industries, Inc., third-party defendant-appellant. 2000-02791 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 187

724 N.Y.S.2d 187 (A.D. 2 Dept. 2001)

Elaine Kristine Kramer, plaintiff-respondent v NAB Construction Corp., defendant third-party plaintiff-respondent-appellant;

Simpson Metal Industries, Inc., third-party defendant-appellant.

2000-02791

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

April 30, 2001

McAndrew, Conboy & Prisco, Woodbury, N.Y. (Robert M. Ortiz of counsel), for third-party defendant-appellant.

Brody, Fabiani & Cohen, New York, N.Y. (John V. Fabiani, Jr., of counsel), for defendant third-party plaintiff-respondent-appellant.

Robert F. Danzi, Westbury, N.Y. (Mona C. Engel of counsel), for plaintiff-respondent.

CORNELIUS J. O'BRIEN, J.P., LEO F. McGINITY, HOWARD MILLER, NANCY E. SMITH, JJ.

In an action to recover damages for personal injuries, the third-party defendant, Simpson Metal Industries, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated February 22, 2000, as denied its motion pursuant to CPLR 4404 to set aside the jury verdict and for judgment in its favor dismissing the third-party complaint or, in the alternative, for a new trial, and the defendant, NAB Construction Corp., separately appeals, as limited by its brief, from so much of the same order as denied its motion pursuant to CPLR 4404 for judgment in its favor dismissing the complaint, or, in the alternative, for a new trial.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the motions insofar as they were to dismiss the complaint and the third-party complaint, respectively, are granted.

The plaintiff received benefits under the Workers' Compensation Law following an injury she sustained while driving a truck owned by her employer, Simpson Metal Industries, Inc. (hereinafter Simpson). At the time of her accident, the plaintiff was working on a construction project on the Brooklyn Bridge for NAB Construction Corp. (hereinafter NAB). She commenced this action against NAB in which she alleges that NAB negligently maintained the truck.

When an employee receives Workers' Compensation benefits from his or her general employer, a special employer is shielded from an action at law commenced by the employee (see, Workers' Compensation Law § 29[6]; Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553). On a prior appeal, we concluded that there were issues of fact as to the plaintiffs employment status vis-a-vis NAB which precluded granting NAB's pre-trial motion to dismiss the complaint on the ground that it was barred by the exclusivity provision of the Workers' Compensation Law (see, Kramer v NAB Constr. Corp., 250 A.D.2d 818).

Following presentation of evidence on the issue of liability, the Supreme Court determined, as a matter of law, that the plaintiff was not a special employee of NAB and denied NAB's motion to dismiss the complaint based on its Workers' Compensation Law defense. The Supreme Court adhered to this determination in denying NAB's motion pursuant to CPLR 4404.

We conclude that the evidence adduced at the trial established, as a matter of law, that the plaintiff was a special employee of NAB. A special employee is one who is transferred for a limited time to the service of...