Workers’ compensation is generally the exclusive remedy of an employee against his or her employer for injuries incurred in the course and scope of employment. In New York, this protection applies not only to the employee’s actual employer but also to any “special employer.” Special employment exists when an employee is transferred for a limited time to the service of the special employer. There must, however, be some evidence of employment by the purported special employer.
One New York court recently considered whether a defendant was a special employer in Clarke v. 750-760 Pelham Pkwy Owner LLC. This case arises from injuries sustained by the plaintiff when he fell from a ladder while painting or scraping a building. The plaintiff filed suit against a number of defendants, including the owner of the property where he was working, 750-760 Pelham Parkway Owner LLC (“750-760”). The plaintiff worked for 1160 Cromwell Avenue Owner LLC (“1160”) and received workers’ compensation benefits from his employer. He received directions and supplies from Paul Kirby of Kirby Construction Corp. Kirby was hired by either a consultant working for a managing agent or the property owner.
750-760 moved for summary judgment, arguing that recovery was barred under the Workers’ Compensation Law because it was a special employer of the plaintiff. In a motion for summary judgment, the moving party has the burden of showing, with admissible evidence, that there are no genuine issues of fact. If the moving party cannot make such a showing, the motion must be denied.
The court pointed out that whether a defendant is a special employer is generally a question of fact, but it can be deemed a matter of law if a determination can be made based upon undisputed facts. The factors to be considered include who furnishes equipment to the employee, who pays the employee’s wages, who directs and controls the employee, and whether the employee’s work is in furtherance of the alleged special employer’s business. Control and direction is a significant factor.
The court found that the defendant property owner failed to meet the burden of proof. The evidence showed that 1160 paid the plaintiff, and Kirby directed his activities and provided his equipment, including the ladder from which he fell. The court found that the defendant property owner failed to submit any “indicia of employment.” The court specifically referenced payroll records, an employment application, or a W2 form. The court also found that the defendant property owner failed to provide any evidence regarding how it managed the plaintiff or who supervised his work and hours. The court found that there was “not one scintilla of evidence that suggests that plaintiff worked in any capacity for any of the defendants…” The court was also “utterly persuade[d]” by the testimony of 750-760’s principal that he did not control or direct the work. The court denied 750-760’s motion for summary judgment.
The other defendants moved for summary judgment, arguing that the Labor Laws in question did not apply to them. The court found that there were too many factual disputes regarding the roles of some of the defendants and whether they were owners or agents of the owners, but it did grant summary judgment to one of the defendants without significant discussion. The court also granted partial summary judgment to the plaintiff as to his Labor Law § 240(1) claim against 750-760 only.
Our New York construction accident attorney knows that defendants often claim special employer status as a defense to personal injury claims. We understand New York Labor Laws and how to challenge inappropriate claims of special employment.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
More Blog Entries:
New York Construction Site Fall Case Survives Summary Judgment Motions by All Defendants, June 3, 2013, New York Injury Lawyer Blog
