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

George Albert SALMON, Plaintiff-Appellant, v. ROCKEFELLER CENTER MANAGEMENT CORP., Defendant-Respondent.

Decided: November 26, 2002

NARDELLI, J.P., TOM, LERNER, MARLOW, and GONZALEZ, JJ. Roy J. Karlin, for Plaintiff-Appellant. Mauro Goldberg & Lilling LLP (Kenneth Mauro, Matthew W. Naparty) for Defendant-Respondent.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered May 24, 2001, in a jury trial, dismissing the complaint after the close of evidence, in an action in which plaintiff, an employee of non-party building owner Rockefeller Center Properties (RCP), seeks to recover for personal injuries allegedly caused by defendant Rockefeller Center Management Corp. (RCMC)'s negligent maintenance of an elevator in the building, unanimously affirmed, without costs.

Plaintiff's evidence that building personnel who signed contracts with elevator maintenance companies on behalf of RCMC, and in other ways appeared to be RCMC employees responsible for elevator maintenance, was “conclusively answered” with evidence (see McDonald v. Metropolitan St. Ry., 167 N.Y. 66, 70, 60 N.E. 282), including W-2 forms, establishing that such personnel, contrary to their mistaken understanding, were not employees of RCMC but RCP, i.e., plaintiff's co-employees.   Therefore, workers' compensation is plaintiff's exclusive remedy.   Certainly, there is no evidence that particular personnel of RCMC supervised the personnel that plaintiff claims were responsible for elevator maintenance.   We have considered plaintiff's other arguments and find them unavailing.