BERNARD v. [And a Third-Party Action] (2003)

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered on or about March 5, 2003, which, insofar as appealed from as limited by the brief, denied defendant A.R. Vays's motion for summary judgment dismissing the complaint and third-party complaint as against it, unanimously affirmed, without costs.

The evidence presents triable issues of fact regarding whether plaintiff was a special employee of defendant A.R. Vays at the time plaintiff sustained his injuries.   Questions of fact were raised by the testimony of Fred Vays, the president of A.R. Vays, with respect to whether the company had the requisite degree of supervision and control over plaintiff's work so as to qualify as a special employer. At his first deposition, Mr. Vays testified that he had two on-site supervisors, one who worked for A.R. Vays and another who worked for plaintiff's employer, defendant Future Development and Construction Corp. However, at his second deposition, Mr. Vays testified that A.R. Vays had a job superintendent at the site who directed both A.R. Vays employees and Future employees (see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355).