EVANS v. PAPER CONVERSIONS INC

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

Stephanie EVANS, Plaintiff-Respondent, v. P.C.I. PAPER CONVERSIONS, INC., Defendant-Appellant, et al., Defendants.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Defendant-Appellant. Meggesto, Crossett & Valerino, LLP, Syracuse (Heather R. La Dieu of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this negligence and products liability action to recover for injuries sustained when her hand was caught in an offset machine she was operating at the plant of defendant P.C.I. Paper Conversions, Inc. (PCI).  Plaintiff had been placed in the employ of PCI by her general employer, Contemporary Personnel Staffing, Inc. (CPS).  On appeal from an order denying that part of its motion for summary judgment dismissing the complaint on the ground that plaintiff was its special employee and that plaintiff's action against it is thus barred pursuant to Workers' Compensation Law §§ 11 and 29, PCI contends that Supreme Court erred in concluding that there is a triable issue of fact whether plaintiff was a special employee of PCI (see generally Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106, 585 N.E.2d 355).   We disagree, and affirm.   Although PCI established that it exercised complete control over “the manner, details and ultimate result of [plaintiff's] work” (id. at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355;  see Majewicz v. Malecki, 9 A.D.3d 860, 861, 780 N.Y.S.2d 455;  Davis v. Butler, 262 A.D.2d 1039, 691 N.Y.S.2d 845), on this record there is a triable issue of fact whether an agreement or understanding between CPS and PCI restricted PCI from employing plaintiff as an offset machine operator, and thus whether CPS surrendered control over plaintiff's work to PCI with respect to the task plaintiff was performing at the time of her injury (cf. Thompson, 78 N.Y.2d at 559, 578 N.Y.S.2d 106, 585 N.E.2d 355;  see generally O'Brien v. Garden Way Mfg., 72 A.D.2d 860, 860-861, 421 N.Y.S.2d 729).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: