CROCHE v. Bassuk Bros., Inc., Respondent.

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

Diego CROCHE, et al., Appellants, v. WYCKOFF PARK ASSOCIATES, et al., Defendants; Bassuk Bros., Inc., Respondent.

Decided: July 31, 2000

DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, SONDRA MILLER, DANIEL F. LUCIANO and HOWARD MILLER, JJ. William Pagan & Associates, P.C., New York, N.Y. (Tania M. Pagan and Stacey Rinaldi Guzman of counsel), for appellants. John J. Feeley, New York, N.Y. (Eugene Guarneri of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Thomas, J.), dated May 4, 1999, as granted that branch of the motion of the defendants Bassuk Bros., Inc., Arnold Bassuk, Irving Bassuk, and Bas Freebar Realty Corp. which was for summary judgment dismissing the complaint insofar as asserted against the defendant Bassuk Bros., Inc.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff Diego Croche (hereinafter the plaintiff) was injured during the course of his employment as a superintendent of premises owned by the defendant Wyckoff Park Associates and managed by the defendant Bassuk Bros., Inc. The Supreme Court properly dismissed the complaint insofar as asserted against the defendant Bassuk Bros., Inc., on the ground that recovery was barred by the Workers' Compensation Law. Bassuk Bros., Inc., made a prima facie showing that the plaintiff was its special employee (see, CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also, Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106, 585 N.E.2d 355;  Gjelaj v. Dwelling Mgrs., 251 A.D.2d 4, 672 N.Y.S.2d 713;  Levine v. Lee's Pontiac, 203 A.D.2d 259, 609 N.Y.S.2d 918), and the plaintiffs failed to raise a triable issue of fact as to the special employee status (see, CPLR 3212[b];  Zuckerman v. City of New York, supra, at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Accordingly, since the plaintiff elected to accept Workers' Compensation benefits from his general employer, he is barred from maintaining an action at law against Bassuk Bros., Inc., his special employer (see, Gubitosi v. National Realty Co., 247 A.D.2d 512, 669 N.Y.S.2d 321).

MEMORANDUM BY THE COURT.

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