NY Jury Must Consider Whether Defendant was Special Employee Entitled to Exclusive Remedy Defense

A New York appellate court affirmed a trial court’s determination that there were issues of fact as to whether a defendant was the special employee of plaintiff’s employer so as to shield the defendant from tort liability on exclusive remedy grounds [Leonard v. Wenz, 2021 N.Y. App. Div. LEXIS 3747 (2d Dept., June 10, 2021)]. Providing an excellent discussion of the special employer/employee issues related to control, the appellate court agreed that defendant’s deposition testimony conflicted with other evidence as to the level of control which plaintiff’s employer had over defendant. There was no basis upon which the trial court could have granted summary judgment in favor of the defendant.

Background

Plaintiff filed a negligence action seeking to recover for injuries that she allegedly sustained when, during the course of her employment, she was struck by a sheetrock panel being used by defendant in an ongoing construction project. Plaintiff previously had sought and received workers’ compensation benefits from her employer.

Defendant asserted various affirmative defenses, including that he was a “special employee” of plaintiff’s employer and, therefore, the action was barred by the exclusive remedy doctrine set forth in N.Y. Workers’ Comp. Law §§ 11 and 29(6). Following discovery, defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment dismissing those of defendant’s affirmative defenses relating to the special employment and exclusive remedy doctrines. The trial court denied defendant’s motion and plaintiff’s cross motion, prompting defendant’s appeal.

Appellate Court’s Decision

The appellate court initially noted that in determining whether a special employment relationship exists, various factors must be weighed, including:

1. The right to control,
2. The method of payment,
3. The furnishing of equipment,
4. The right to discharge, and
5. The relative nature of the work.

The appellate court agreed with the trial court that defendant had failed to meet his prima facie burden of establishing, as a matter of law, that plaintiff’s complaint was barred by the exclusivity provisions of the New York Workers’ Compensation Law. A review of defendant’s submissions in support of his motion revealed that there were triable issues of fact that precluded a determination as to whether defendant could—at the time of the accident—be characterized as the employee’s special employee.

Conflicting Testimony as to Control

Most significantly, stressed the appellate court, was the fact that deposition testimony given by defendant, certain employees of plaintiff’s employer, and one of defendant’s crew members presented conflicting evidence as to whether—and to what extent—plaintiff’s employer controlled and directed the manner, details and ultimate result of defendant’s work. The appellate court noted that employees of plaintiff’s employer, as well as one of defendant’s crew members, testified that plaintiff’s employer did not provide day-to-day supervision over the projects performed by defendant, whereas defendant testified that he met with the employer’s facilities manager every morning and that the facilities manager monitored his work throughout the day.

The court also noted that deposition testimony presented conflicting accounts as to who dictated defendant’s work schedule, including the number of days that defendant worked, the length of defendant’s workday and the start and end times of defendant’s workday. Inasmuch as issues of fact existed as to whether defendant surrendered and plaintiff’s employer assumed sufficient control over defendant so as to give rise to a special employment relationship, the appellate court said the trial court had properly denied defendant’s motion for summary judgment.