Oden v. Chemung County Indus. Development Agency

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WEISS
• Citation: Oden v. Chemung County Indus. Development Agency, 583 N.Y.S.2d 854, 183 A.D.2d 998 (N.Y. App. Div. 1992)
• Decision Date: 07 May 1992
• Parties: Julius ODEN, Appellant, v. CHEMUNG COUNTY INDUSTRIAL DEVELOPMENT AGENCY et al., Defendants and Third-Party Plaintiffs, and J.P.W. Erectors, Inc. et al., Defendants and Third-Party Plaintiffs-Respondents; Streeter Associates, Inc., Third-Party Defendant-Appellant.

Page 854

583 N.Y.S.2d 854

183 A.D.2d 998

Julius ODEN, Appellant, v. CHEMUNG COUNTY INDUSTRIAL DEVELOPMENT AGENCY et al Defendants and Third-Party Plaintiffs and J.P.W. Erectors, Inc. et al., Defendants and Third-Party Plaintiffs-Respondents Streeter Associates, Inc., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Third Department.

May 7, 1992.

John W. Young (Alfred Paniccia Jr., of counsel), Binghamton, for appellant.

Williamson, Clune & Stevens (John H. Hanrahan III, of counsel), Ithaca, for third-party defendant-appellant.

O'Connor, Gacioch & Pope (Hugh B. Leonard, of counsel), Binghamton, for J.P.W. Erectors Inc., defendant and third-party plaintiff-respondent.

Levene, Gouldin & Thompson (John E. Murray, of counsel), Binghamton, for Personnel Pool Temporary Services Inc. and another, defendants and third-party plaintiffs-respondents.

Davidson & O'Mara (Weeden A. Wetmore, of counsel), Elmira, for Chemung County Indus. Development Agency and another defendants and third-party plaintiffs.

Before WEISS, P.J., and MIKOLL, LEVINE, CREW and MAHONEY, JJ.

WEISS, Presiding Justice.

Appeal from an order of the Supreme Court (Ellison, J.), entered July 29, 1991 in Chemung County, which, inter alia, granted certain defendants' motions for summary judgment dismissing the complaint and all cross claims against them.

Plaintiff was injured when a small hydraulic crane owned by defendant J.P.W. Erectors Inc. (hereinafter JPW) and operated by defendant David E. Dyer apparently struck and caused a vertical steel support column from which a catwalk had just been removed to fall. Plaintiff was employed by defendant Streeter Associates Inc., the general contractor on a reconstruction project at defendant Anchor Glass Container Corporation's facility in the City of Elmira, Chemung County. The premises were owned by defendant Chemung County Industrial Development Agency. Streeter contracted with JPW to provide the crane required in the demolition. JPW also provided Dyer as the crane operator, who in turn had been provided to JPW pursuant to a contract with defendant Personnel Pool Temporary Services, Inc.

In the performance of his work, Dyer had come under the direction of Streeter employees to some degree in the operation of the crane. This was necessary because of Streeter's knowledge of the job requirements, of the need to coordinate the crane with Streeter's activities, and of the tightly constricted area within which the equipment was required to operate. Personnel Pool, JPW and Dyer each moved for summary judgment upon the theory that Dyer had become the special employee of Streeter for the entire time during which he operated the crane on the Anchor project.

Supreme Court agreed, finding that Dyer was indeed under the exclusive control of Streeter and determining that he was Streeter's special employee who thus became plaintiff's coemployee against whom this action was barred by Workers' Compensation Law § 29(6). Supreme Court also denied plaintiff's motion for partial summary judgment against all defendants on the issue of Labor Law § 240(1) liability, finding that issues of fact existed as to why the column fell. Plaintiff and Streeter have appealed.

The creation of a special employment relationship presents a factual question incapable of resolution on a motion for summary judgment unless the special employer's comprehensive and exclusive control and direction of the manner, details and ultimate results of the employee's work has been incontrovertibly established (Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558, 578 N.Y.S.2d 106, 585 N.E.2d 355). General employment is presumed to continue, but that presumption may be overcome upon a clear demonstration of surrender of complete control by the general employer and the assumption of control by the special employer (id., at 557, 578 N.Y.S.2d 106, 585 N.E.2d 355; see, Irwin v. Klein, 271 N.Y. 477, 485, 3 N.E.2d 601).

Here, the record presents unresolved issues of fact which require a trial. While Dyer's testimony would lead Supreme Court to believe that his role in operating the crane was no more than that of a minion who received direction from those around him without independent thought other than as an observant co-worker, his own description of his role is contradicted by evidentiary proof in the record. The crane's operating manual, the opinion of plaintiff's expert as to the operator's role and why it is an industry practice to include operators with equipment leases, and even the testimony of the...