JAYNES III v. (And a Third-Party Action.)

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

Raymond W. JAYNES III et al., Respondents, v. COUNTY OF CHEMUNG, Appellant. (And a Third-Party Action.)

Decided: April 27, 2000

Before:  CREW III, J.P., PETERS, SPAIN, GRAFFEO and MUGGLIN, JJ. Davidson & O'Mara (Donald S. Thomson of counsel), Elmira, for appellant. Lo Pinto, Schlather, Solomon & Salk (Diane V. Bruns of counsel), Ithaca, for respondents.

Appeal from an order of the Supreme Court (Castellino, J.), entered September 29, 1999 in Chemung County, which, inter alia, partially denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff Raymond W. Jaynes III (hereinafter plaintiff), and his wife derivatively, commenced this action against defendant asserting violations of Labor Law §§ 200, 240(1) and § 241(6).   On the date of the accident, plaintiff, an employee of third-party defendant, Silverline Construction Inc., was working in conjunction with employees of defendant in the demolition and reconstruction of a Chemung County bridge.   As an employee of defendant attempted to move a portion of demolished concrete with an excavating machine, the concrete slipped from its bucket and struck an iron beam, causing the beam to strike plaintiff in the head.

Several weeks prior to the scheduled trial, defendant moved for an order granting it permission to amend its answer to include the affirmative defense that plaintiff was a “special employee” of defendant, thus making his exclusive remedy pursuant to the Workers' Compensation Law.   The amendment was granted and defendant sought summary judgment dismissing plaintiffs' complaint.   In the alternative, defendant sought partial summary judgment dismissing plaintiffs' claim asserted under Labor Law § 240(1).   Silverline cross-moved for similar relief.   Plaintiffs cross-moved for partial summary judgment on the issue of liability against defendant on the claims asserted under Labor Law §§ 200 and 241(6).   Supreme Court denied the motions of defendant and Silverline to the extent of finding that triable issues of fact precluded a finding that plaintiff, at the time of his injury, was a “special employee” of defendant, but granted the motions to the extent of dismissing plaintiffs' Labor Law § 240(1) claim.   Supreme Court also denied plaintiffs' cross motion in every respect.   Defendant appeals.1  We modify Supreme Court's order and dismiss the entire complaint.

 In our view, the record establishes as a matter of law that plaintiff was a “special employee” of defendant at the time of his injury.   Although a determination concerning a worker's status as a “special employee” is generally a question of fact, summary judgment may nevertheless be granted where the relevant facts establish that the special employer controlled and directed the manner, details and ultimate result of the employee's work (see, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557-558, 578 N.Y.S.2d 106, 585 N.E.2d 355;  O'Connell Elec. Co. v. Murnane/Kennedy, 252 A.D.2d 851, 852, 675 N.Y.S.2d 697;  Matter of Shoemaker v. Manpower Inc., 223 A.D.2d 787, 635 N.Y.S.2d 816, lv. dismissed 88 N.Y.2d 874, 645 N.Y.S.2d 448, 668 N.E.2d 419).  “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another * * * ” (Thompson v. Grumman Aerospace Corp., supra, at 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 [citation omitted] ).   An employee of one party may be a special employee of another party even if the former pays the employee's salary and benefits and has the ability to hire and terminate the employee (see, id., at 557, 578 N.Y.S.2d 106, 585 N.E.2d 355;  Matter of Quick v. Steuben County Self-Ins. Plan, 242 A.D.2d 833, 662 N.Y.S.2d 608, lv. dismissed 91 N.Y.2d 866, 668 N.Y.S.2d 561, 691 N.E.2d 633).   The foregoing, in addition to other factors, may sufficiently establish the status of “special employee” as a matter of law to support a grant of summary judgment.

Here, defendant entered into an hourly agreement with Silverline as the successful bidder to provide manpower, a service truck and certain tools.   Under the agreement, defendant paid for the hours worked by the employees assigned by Silverline directly to Silverline without inclusion of any benefits or holiday pay.   Silverline was responsible for the payment of its employees and any other benefits, including workers' compensation.   Although Silverline selected the particular employees for assignment to defendant, it retained the authority to replace those employees at will.   Once the Silverline employees were assigned to defendant, however, defendant was solely responsible for placing those employees on a particular project and, on a daily basis, directing what work would be performed, when it would be performed and the manner in which it would be performed.   In other words, Silverline performed no work for defendant and retained no authority over the work of its employees once they were assigned to defendant in accordance with the agreement.

Under these circumstances, we are convinced that plaintiff was a “special employee” of defendant at the time of his injury and, thus, that workers' compensation provided his exclusive remedy.   We are not persuaded that because Silverline employees went directly to the job site without first reporting to the County barn as defendant's employees did, or that Silverline retained the authority to replace employees at defendant's projects with other employees without consultation with defendant, alters the ultimate conclusion.   Likewise, we are not convinced, as plaintiff contends, that one of Silverline's employees, acting as a supervisor in the absence of defendant's working supervisor, operates to preclude a finding that plaintiff was a “special employee” as a matter of law.

The record clearly establishes that when defendant's working supervisor left the project site, Silverline's supervisor employee was left in charge directing all employees in connection with the project.   In fact, after defendant's working supervisor left the project site on the date of plaintiff's injury, it was Silverline's employee, acting as head of the project, who directed defendant's employee to continue using the excavator to move concrete pieces which eventually resulted in plaintiff's injuries.   There is no question, based on the entirety of the record, that defendant used both plaintiff and the supervisor supplied by Silverline pursuant to the contract as it saw fit by assigning them to bridge replacement projects controlled exclusively by defendant.   Accordingly, Supreme Court erred when it found that questions of fact prohibited a determination of plaintiff's status as a “ special employee” of defendant.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as partially denied defendant's motion;  said motion granted in its entirety, summary judgment awarded to defendant and complaint dismissed;  and, as so modified, affirmed.

FOOTNOTES

1.   Neither Silverline nor plaintiffs have sought review of Supreme Court's order.

MUGGLIN, J.

CREW III, J.P., PETERS, SPAIN and GRAFFEO, JJ., concur.

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