Week of June 18-24

This week, in Cartagena v. Access Staffing, LLC, ___AD3d___, 2017 NY Slip Op 05025, *1-2 [2017].), the Appellate Division, First Department revisited the question of what constitutes a “special employment” relationship for the purposes of the Workers’ Compensation bar.  

The decision was limited in its discussion of the relevant factors to consider when assessing whether such a relationship exists, but the Court cited to recent Appellate Division, First Department cases to illustrate the relevant legal principles and factors involved. In Holmes v. Bus. Relocation Servs., Inc., 117 AD3d 468, 468-469 [1st Dept 2014].), the issue was whether the plaintiff was the “special employer” of the defendant. The Court focused on whether the general employer relinquished “complete and exclusive control” of the plaintiff to the defendant. The Court in Holmes held that “[a]lthough plaintiff used defendant’s trucks and was told where and when to deliver and pick up voting machines, this does not establish as a matter of law that [the general employer] surrendered complete control and direction over plaintiff’s work or that defendant assumed such control and direction…Nor did [the general employer’s] relinquishment of contact with and direct supervision of plaintiff after assigning him to defendant establish that defendant had in fact assumed ‘complete and exclusive control’ over plaintiff’s work…Notably, although plaintiff was accompanied by one of defendant’s supervisors during his deliveries and pickups of the voting machines, the supervisor testified that he did not supervise drivers.” Ibid. at 469. 

The Court compared Holmes with its recent decision in Berhe v. Trustees of Columbia Univ. in the City of N.Y., 146 AD3d 697, 697 [1st Dept 2017].). There, the facts clearly demonstrated that plaintiff’s general employer, the temporary employment agency, relinquished complete and exclusive control of the employee to the defendant Faculty House. Thus, the defendant was entitled to summary judgment and a dismissal of the complaint pursuant to the Workers’ Compensation bar:

The general manager of defendants’ catering facility, Faculty House, requested plaintiff, a server, by name from the temporary employment agency through which plaintiff was assigned to Faculty House, retained the right to discharge him from Faculty House, and provided his uniform jacket. The general manager planned each event according to a particular schedule, menu, and sequence, with specific tables and tasks assigned to different servers, including plaintiff; the employment agency had no involvement in or knowledge of these details. The general manager arranged the schedules of the workers, including plaintiff, and their hours, and either he or a banquet manager dictated their break and meal times. The general manager was also present at each event to ensure proper service, including by plaintiff, and that the event proceeded according to plan.      

To be sure, there are a number of factors to consider when assessing whether an employer is a “special employer” as a matter of law. These non-exclusive factors include: (a) who is responsible for the payment of plaintiff’s wages; (b) who furnishes the equipment needed for the work; (c) who had the right to hire and discharge the worker; and (d) whether the plaintiff’s work was in furtherance of the business of the special employer or the general employer. Rothenberg v. Erie Metal Stamping Co., 204 AD2d 249, 250 [1st Dept 1994].).  However, the most important factor is “who controls and directs the manner, details and ultimate result of the employee’s work.” Suarez v. Food Emporium, Inc., 16 AD3d 152, 153 [1st Dept 2005].).  

These cases make clear that the “special employement” inquiry is heavily fact intensive. Thus, if the “special employment” defense is a viable in your case, and if you are preparing an affidavit in support of a motion for summary judgment or even just preparing for a deposition, you need be very specific with the averments you draft on the insured’s behalf and/or for the questions that you may need to ask the insured at their deposition in case plaintiff or another party fails to ask them. It would be wise to tailor those averments and/or questions based on the factors outlined immediately above, or else that question will be going to the finder of fact. 

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