BLACKBURN v. GOR MAC ELECTRIC INC

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

Roger J. BLACKBURN, Respondent, v. GOR-MAC ELECTRIC, INC., Appellant, et al., Defendant.

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, WISNER, BALIO and BOEHM, JJ. Rodgers, Menard & Coppola, L.L.P. by Olney Clowe, Buffalo, for Defendant-Appellant Gor-Mac Electric, Inc. Moran and Kufta, P.C. by Stephen O'Brien, Rochester, for Plaintiff-Respondent.

Plaintiff was injured when he slipped while attempting to move a pipe threading machine onto a sheet of plywood.   He alleged that an employee of defendant Gor-Mac Electric, Inc. (Gor-Mac), negligently cleaned up oil in the vicinity of the machine.   Plaintiff asserted causes of action pursuant to Labor Law §§ 200 and 241(6) and for common-law negligence.   The Labor Law causes of action were dismissed upon stipulation, and Gor-Mac moved for summary judgment on the common-law negligence cause of action.   Supreme Court denied the motion.   We reverse.

There is no question that the Gor-Mac employee was acting within the scope of his employment when he cleaned up the oil (see generally, Cornell v. State of New York, 46 N.Y.2d 1032, 416 N.Y.S.2d 542, 389 N.E.2d 1064, rearg. denied 47 N.Y.2d 951, 419 N.Y.S.2d 1028, 393 N.E.2d 1051).   Gor-Mac established, however, that the employee was a “loaned servant”, that is, he was in the special service of defendant Eastman Kodak Company (Eastman Kodak) (see, Ramsey v. New York Central R.R. Co., 269 N.Y. 219, 199 N.E. 65).   According to the affidavit of the president of Gor-Mac, the employee was loaned to Eastman Kodak on an as-needed basis, worked under the direct supervision and control of Eastman Kodak and took orders for work assignments from Eastman Kodak supervisory personnel.   Thus, the employee was transferred for a limited time to the service of Eastman Kodak, and Gor-Mac was not responsible for his alleged negligence during that time period (see, Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13, 19, 308 N.Y.S.2d 337, 256 N.E.2d 506).

Order unanimously reversed on the law with costs, motion granted and complaint dismissed against defendant Gor-Mac Electric, Inc.

MEMORANDUM: