The following papers numbered 1-8 were read on defendants motion to dismiss the complaint on the ground, among others, that it was the plaintiff’s special employer pursuant to Workers’ Compensation Law §§11 and 29 and on plaintiff’s cross-motion for partial summary judgment: Notice of Motion/ Meenagh Affirmation/Exhibits A-M/ Memorandum of Law 1-4 Notice of Cross-Motion/Kaplan Affirmation/ Exhibits 1 -7 5-7 Reply Affirmation 8 This action arises from an alleged fall on July 8, 2016 at a construction site located at 2323 South Road, Poughkeepsie, New York. At the time, plaintiff was placed in the temporary employ of the defendant, A-W Coon & Sons, Inc. (hereinafter “A-W Coon”) by a temporary employment agency, Carol Temporaries, which paid his salary and maintained Workers’ Compensation coverage for him. Plaintiff allegedly fell into an excavation hole while he was taping off the area with caution tape. According to his testimony, on the day of the accident, plaintiff was assigned to clean up the construction site with one other person and at some time between 12 and 2 pm, the foreman from A-W Coon instructed him to tape off all ground openings. Plaintiff would place stakes in the ground at various locations around the opening and attach the caution tape to the stakes. A-W Coon has unequivocally demonstrated that during the time the plaintiff worked for it, including the day he was injured while performing his duties on the premises, they “exclusively controlled and directed the manner, details and ultimate result of the plaintiff’s work while on the premises owned by [defendant, One Page Park, LLC] where the accident occurred.” (Bailey v. Montefiore Medical Center, 12 AD3d 545 [2d Dept 2004] quoting, Causewell v. Barnes & Noble Bookstores, 238 AD2d 536 [2d Dept 1997]). Arvine “Pete” Coon, III, director of construction for A-W Coon, testified that he was foreman of the subject construction site and oversaw all of the work including directing A-W Coon workers as to their duties and overseeing the safety of said workers at the site. Prior to the accident, Mr. Coon directed the plaintiff to tape off all ground openings. He gave this direction immediately following lunch because plaintiff had asked to leave early that day. Every other day, plaintiff had performed that task at the end of the day. Mr. Coon further explained that plaintiff would perform this task by himself every day and after he completed the task, Mr. Coon would inspect the areas to make sure that plaintiff performed the task correctly. There had not been any issues with plaintiff’s work prior to the accident. Shortly after the accident, plaintiff applied for and received workers’ compensation benefits under Carol Temporaries’ policy. Thus, it is defendants’ contention that plaintiff was a special employee of A-W Coon as a matter of law, and the complaint should be dismissed as barred by the Workers’ Compensation Law. “[T]he receipt of workers’ compensation benefits is the exclusive remedy that a worker may obtain against an employee for losses suffered as a result of an injury sustained in the course of employment” (Charles v. Broad St. Dev., LLC, 95 AD3d 814 [2d Dept 2012] [internal quotation marks omitted]; see Workers’ Compensation Law §§11, 29[6]). “‘A person may be deemed to have more than one employer for purposes of the Workers’ Compensation Law, a general employer and a special employer’” (Alfonso v. Pacific Classon Realty, LLC, 101 AD3d 768, 769 [2d Dept 2012], quoting Slikas v. Cyclone Realty, LLC, 78 AD3d 144, 150 [2d Dept 2010]). A “special employee” is defined as “one who is transferred for a limited time of whatever duration to the service of another” (see James v. Crystal Springs Water, 164 AD3d 660 [2d Dept 2018] quoting, Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). A person’s status as a special employee is generally a question of fact, but may be determined as a matter of law where particular, undisputed critical facts compel the conclusion that there is no triable issue of fact (Thompson v. Grumman Aerospace Corp. 78 NY2d at 558). Many factors are weighed in deciding whether a special employment relationship exists and while no one factor is determinative in deciding whether or not a special employment relationship exists, the most significant factor is who controls and directs the manner, details and ultimate result of the employee’s work (Munion v. Trustees of Columbia Univ. in City of NY 120 AD3d 779, 780 [2d Dept 2014], quoting Schramm v. Cold Spring Harbor Lab., 17 AD3d 661, 662 [2d Dept 2005]). Here, defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint as there is no question that plaintiff received workers’ compensation benefits. In addition, defendants demonstrated through the plaintiff’s deposition testimony and the deposition testimony Mr. Coon that A-W Coon controlled and directed the manner, details and ultimate result of the plaintiff’s work. Thus, A-W Coon established, prima facie, that it was the plaintiff’s special employer. In opposition to this prima facie showing, plaintiff has failed to raise a triable issue of fact. Plaintiff’s deposition in which he asserted that he received no training or supervision while working at defendants’ job site is insufficient to raise a triable issue of fact (TDS Leasing LLC v. Tradito, 148 AD3d 1079 [2d Dept 2017]). By his own admissions, A-W Coon was solely responsible for plaintiff’s job assignments and the site and hours of his work, checked his work after the fact and supplied him with all necessary tools and equipment to perform his work. Even in his Bill of Particulars, plaintiff names A-W Coon as his employer at the time of the accident (Exhibit D 16). Accordingly, it is hereby ORDERED that defendants’ motion for summary judgment(seq. #11) dismissing the complaint on the ground that the action was barred by the exclusivity provisions of the Workers’ Compensation Law is granted since the defendant, A-W Coon & Sons, Inc., was plaintiff’s special employer, and since he received Workers’ Compensation benefits from his general employer, Carol Temporaries, Inc.; and it is further ORDERED that the complaint is dismissed, and the parties need not appear as scheduled on October 2, 2019, and it is further ORDERED that plaintiff’s motion for partial summary judgment (seq. #2) is denied. In light of this determination, the Court need not address defendants’ remaining contentions. The foregoing constitutes the Decision and Order of this Court. Dated: August 28, 2019 Goshen, New York
