FERGUSON v. NATIONAL GYPSUM SERVICES COMPANY

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

Dave FERGUSON, Plaintiff–Respondent, v. NATIONAL GYPSUM SERVICES COMPANY, Defendant–Appellant.

18

Decided: February 01, 2019

PRESENT:  WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ. PHILLIPS LYTLE LLP, BUFFALO (DANIEL R. MAGUIRE OF COUNSEL), FOR DEFENDANT–APPELLANT. COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (ETHAN W. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.

Memorandum:  Plaintiff, an employee of nonparty Remedy Intelligent Staffing, LLC (Remedy), commenced this action seeking damages for injuries he allegedly sustained while working at defendant's facility.  We agree with defendant that Supreme Court erred in denying its motion seeking summary judgment dismissing the complaint.

Defendant met its initial burden on the motion by establishing that plaintiff was a special employee of defendant and thus that his action against defendant is barred by the exclusive remedy provision of the Workers' Compensation Law. It is well settled that “a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits” (Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991] ).  “[A] person's categorization as a special employee is usually a question of fact”;  however, a “determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” (id. at 557–558, 578 N.Y.S.2d 106, 585 N.E.2d 355).  Here, defendant demonstrated that it exercised “complete and exclusive control over the manner, details and ultimate results of plaintiff's work” (Leone v. Miller Hardwood Co., 254 A.D.2d 734, 734, 678 N.Y.S.2d 561 [4th Dept. 1998];  see Lesanti v. Harmac Indus., 175 A.D.2d 664, 664–665, 573 N.Y.S.2d 802 [4th Dept. 1991] );  that Remedy “was not present at the job site and had no right to direct, supervise or control plaintiff's work” (Rucci v. Cooper Indus., 300 A.D.2d 1078, 1079, 752 N.Y.S.2d 484 [4th Dept. 2002] );  that defendant provided plaintiff with all the training and materials necessary for plaintiff to perform his job (see id.);  and that defendant “had the authority to fire plaintiff with respect to his employment at its job site” (id.).  Plaintiff failed to raise a triable issue of fact in opposition to the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).