PUCKETT v. Donald J. Braasch Construction, Inc., Appellant. (Appeal No. 2.) (1997)

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

Robert A. PUCKETT and Patricia Puckett, Respondents, v. COUNTY OF ERIE, Buffalo Bills, Inc., A.D.F. Construction Corporation, Clarence Equipment Rental and Sales, Inc., Respondents, Donald J. Braasch Construction, Inc., Appellant. (Appeal No. 2.)

Decided: November 19, 1997

Before GREEN, J.P., and PINE, WISNER, BALIO and FALLON, JJ.

O'Shea, Reynolds & Cummings by William Long, Jr., Buffalo, for Defendant-Appellant Braasch Construction, Inc. Eugene C. Tenney by Courtney McCartney, Buffalo, for Plaintiff-Respondent Puckett. Brown & Kelly, L.L.P. by Carlton Brownell, Buffalo, for Defendants County of Erie and Buffalo Bills, Inc. Quackenbush, Cessario and Hamlin, Buffalo, for Defendant Clarence Equipment Rental and Sales, Inc.

Supreme Court properly denied the motion of Donald J. Braasch Construction, Inc. (defendant), for summary judgment dismissing the complaint and cross claims on the ground that Robert A. Puckett (plaintiff) was a special employee of defendant. On the record before us, plaintiff's employment status at the time of the accident cannot be determined as a matter of law (see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557-558, 578 N.Y.S.2d 106, 585 N.E.2d 355). While plaintiff worked sporadically for defendant at the construction site pursuant to an informal agreement between his general employer and defendant, he also worked at the site for his general employer. Defendant has not shown “a clear demonstration of surrender of control by the general employer and assumption of control by the special employer” (Thompson v. Grumman Aerospace Corp., supra, at 557, 578 N.Y.S.2d 106, 585 N.E.2d 355).

Order unanimously affirmed without costs.

MEMORANDUM:

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