MALDONADO v. [And A Third-Party Action]

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

Ivan MALDONADO, Plaintiff-Respondent, v. CANAC INTERNATIONAL, INC., Defendant-Appellant, Metro-North Commuter Railroad, Defendant. [And A Third-Party Action]

Decided: February 25, 1999

NARDELLI, J.P., LERNER, MAZZARELLI and SAXE, JJ. Jeffrey K. Kestenbaum, for plaintiff-respondent. John J. McDonough, for defendant-appellant.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 5, 1997, which denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

Although plaintiff was employed by and received his pay from A & A Staffing Temporary Personnel, and was assigned by A & A to perform work for defendant Canac on a tie-replacement project, plaintiff's status as special employee is established by virtue of Canac's comprehensive and exclusive daily control over and direction of plaintiff, and the corresponding absence of any supervision or control over the plaintiff's duties by A & A (see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557-558, 578 N.Y.S.2d 106, 585 N.E.2d 355).  This is true despite plaintiff's being in A & A's general employ, and A & A's right to hire or fire him and payment of his Workers' Compensation Insurance (see, Brooks v. Chemical Leaman Tank Lines, 71 A.D.2d 405, 407, 422 N.Y.S.2d 695).   Plaintiff failed to present evidence successfully refuting defendant's showing that plaintiff's status was that of a special employee of defendant Canac at the time he sustained his injuries (see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106, 585 N.E.2d 355, supra;  Brooks v. Chemical Leaman Tank Lines, 71 A.D.2d 405, 422 N.Y.S.2d 695, supra ).

The court's reliance, in part, on defendant's failure to produce the actual contract between A & A and Canac, was error.   Even if the contract had been produced, and it provided that employees of A & A assigned to work under Canac's direction “shall at all times be employees of A & A and not of Canac”, the application of the law as set forth in Thompson v. Grumman Aerospace Corp., supra, would still require that summary judgment be granted to the special employer.


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