New York Team Secures Appellate Win Under “Special Employee” Exclusivity Provision of New York’s Workers’ Compensation Law

New York, N.Y. (March 18, 2020) - A team that included New York Managing Partner Gregory S. Katz, and Partners Daniel Wang, Nicholas P. Hurzeler, and James M. Strauss recently secured an appellate victory when New York’s Appellate Division, First Department, unanimously affirmed the trial court’s grant of summary judgment in favor of our client, Mar-Can Transportation (Mar-Can). Mr. Katz, who serves as the Chair of Lewis Brisbois’ General Liability and Transportation Practices, managed this matter with Mr. Wang from its inception and handled all pre-trial discovery. Mr. Hurzeler, who serves as Vice-Chair of Lewis Brisbois’ Appellate Practice, authored the winning summary judgment motion, while Mr. Strauss, also a member of the firm’s Appellate Practice, successfully handled the appeal.

In the underlying case, the plaintiff was injured while working as a matron on a Mar-Can bus when another Mar-Can bus hit the bus on which she was riding. At the time of the accident, the plaintiff was an employee of a company that was owned by Mar-Can’s owner and was created solely to hire matrons to work on Mar-Can buses. Accordingly, we moved for summary judgment on grounds that the plaintiff was a “special employee” of Mar-Can and that her case should be dismissed pursuant to the exclusivity provisions of New York’s Workers’ Compensation Law. This law generally precludes an employer’s employee, or “special employee,” from suing her employer for personal injury damages.

In support of our motion at the trial court level, we submitted an extensive affidavit from the owner of Mar-Can and the company that he created to hire matrons to work on Mar-Can buses, noting that Mar-Can, among other things, (1) supervised and controlled all of the plaintiff’s work duties, schedule and responsibilities, (2) had authority to hire and fire her, (3) conducted her work evaluations, and (4) determined her sick and vacation leave.

The trial court precluded the plaintiff from opposing our motion for summary judgment. Nevertheless, we still needed to demonstrate on a prima facie basis that the plaintiff was indeed a “special employee” of Mar-Can. Upon review of our motion papers, the court held that we succeeded in meeting that burden. 
On appeal, the plaintiff challenged the lower court’s finding that we had met the prima facie burden of establishing the plaintiff as a “special employee” of Mar-Can. We wrote an extensive brief to the First Department on the Workers’ Compensation Law’s “special employee” exemption, citing numerous cases with similar fact patterns. We argued that, under ample New York precedent, we had met our prima facie burden of establishing that the plaintiff was a “special employee” of Marc-Can on the date of her accident, and that the lower court’s decision should be affirmed. 

The First Department agreed with our position in full, citing in its decision as indicia of “special employee” status under New York’s Workers’ Compensation Law many of the same factors that Mar-Can’s owner had attested to in his affidavit, and holding unequivocally that “defendants [met] their initial burden to show that [the plaintiff] was Mar-Can’s special employee when the accident happened.”

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