Wilson v. A.H. Harris & Sons, Inc.

• Decision Date: 16 September 2015
• Docket Number: 2014-09336, Index No. 9197/12.
• Citation: 16 N.Y.S.3d 589,131 A.D.3d 1050,2015 N.Y. Slip Op. 06808
• Parties: Douglas WILSON, appellant, v. A.H. HARRIS & SONS, INC., respondent.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1050

16 N.Y.S.3d 589

2015 N.Y. Slip Op. 06808

Douglas WILSON, appellant

v.A.H. HARRIS & SONS, INC., respondent.

2014-09336, Index No. 9197/12.

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

Sept. 16, 2015.

Alex Smith, Middletown, N.Y., for appellant.

Thomas K. Moore (Andrea G. Sawyers, Melville, N.Y. [David R. Holland ], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated July 16, 2014, which granted the defendant's motion for summary judgment dismissing the complaint and denied his cross motion for summary judgment dismissing the second and third affirmative defenses.

ORDERED that the order is affirmed, with costs.

The plaintiff, an employee of nonparty Adecco, a provider of temporary staffing services, was working at the defendant's premises, assisting a corporate operations manager as the defendant had trained him to do, when he allegedly sustained personal injuries. The plaintiff applied for and received workers' compensation benefits from Adecco's insurance carrier. The plaintiff also commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending that the action was barred by the exclusivity provisions of the Workers' Compensation Law. The plaintiff cross-moved for summary judgment dismissing the second and third affirmative defenses, which alleged that the action was barred by the exclusivity provisions of the Workers' Compensation Law. The Supreme Court granted the motion and denied the cross motion.

“ ‘In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment’ ” (Matias v. City of New York, 127 A.D.3d 1145, 1146, 7 N.Y.S.3d 509, quoting Maropakis v. Stillwell Materials Corp., 38 A.D.3d 623, 623, 833 N.Y.S.2d 122 ; see Workers' Compensation Law §§ 11, 29[6] ). For purposes of the Workers' Compensation Law, a person may be deemed to have more than one employer, a general employer and a special employer (see Munion v. Trustees of Columbia Univ. in City of N.Y., 120 A.D.3d 779, 991 N.Y.S.2d 460 ). “The receipt of Workers' Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” (Pena v. Automatic Data Processing, Inc., 105 A.D.3d 924, 924, 963 N.Y.S.2d 357 ).

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 Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 359, 850 N.Y.S.2d 359, 880 N.E.2d 845 ). In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee's work, the method of payment, the furnishing of equipment, and the right to discharge (see Munion v. Trustees of Columbia Univ. in City of N.Y., 120 A.D.3d at 780, 991 N.Y.S.2d 460 ; Ugijanin v. 2 W. 45th St. Joint Venture, 43 A.D.3d 911, 913, 841 N.Y.S.2d 611 ). “A significant and weighty factor ... is ‘who controls and directs the manner, details and ultimate result of the employee's work’ ” (Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697, 954 N.Y.S.2d 113, quoting Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355 ; see Graziano v. 110 Sand Co., 50 A.D.3d 635, 636, 855 N.Y.S.2d 203 ; ...