- April 23, 2018
Ginsberg, LLP, New York, NY (Michael P. Mangan of counsel),
Margaret G. Klein (Mauro Lilling Naparty LLP, Woodbury, NY
[Matthew W. Naparty and Jennifer B. Ettenger], of counsel),
for respondents Cammeby's Management Co., Cammeby's
Realty Corp., Cammeby's International Group, Jersey
Central Management, LLC, Mid-Queens Limited Partnership, and
Queens Fresh Meadows, LLC.
S. ROMAN, J.P. JEFFREY A. COHEN ROBERT J. MILLER JOSEPH J.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Queens
County (Marguerite A. Grays, J.), entered February 26, 2016.
The order, insofar as appealed from, granted that branch of
the motion of the defendants Cammeby's Management Co.,
Cammeby's Realty Corp., Cammeby's International
Group, Jersey Central Management, LLC, Mid-Queens Limited
Partnership, and Queens Fresh Meadows, LLC, which was for
summary judgment dismissing the complaint insofar as asserted
against the defendant Mid-Queens Limited Partnership.
that the order is affirmed insofar as appealed from, with
plaintiff Vlada Spasic (hereinafter the injured plaintiff)
allegedly was injured while working as a maintenance worker
in an apartment complex owned by the defendant Kew Garden
Associates (hereinafter KGA) and managed by the defendant
Mid-Queens Limited Partnership (hereinafter Mid-Queens).
Although the injured plaintiff was employed by KGA, his work
was supervised by property manager Chaim Rose, who was
employed by Mid-Queens.
injured plaintiff, and his wife suing derivatively, commenced
this action, inter alia, to recover damages for personal
injuries. In the order appealed from, the Supreme Court,
inter alia, granted the motion of several defendants
(hereinafter the moving defendants) for summary judgment
dismissing the complaint insofar as asserted against them.
The plaintiffs appeal from so much of the order as granted
that branch of the motion which was for summary judgment
dismissing the complaint insofar as asserted against
Compensation Law §§ 11 and 29(6) restrict an
employee from suing his or her employer or coemployee for an
accidental injury sustained in the course of
employment'' (Fung v Japan Airlines Co.,
Ltd., 9 N.Y.3d 351, 357). "[A] general employee of
one employer may also be in the special employ of another,
notwithstanding the general employer's responsibility for
payment of wages and for maintaining workers'
compensation and other employee benefits' (Thompson v
Grumman Aerospace Corp., 78 N.Y.2d 553, 557).
"Although no one factor is determinative, a significant
and weighty feature in deciding whether a special employment
relationship exists is who controls and directs the manner,
details and ultimate result of the employee's work-in
other words, who determines all essential, locational and
commonly recognizable components of the [employee's] work
relationship" (Fung v Japan Airlines Co., Ltd.,
9 N.Y.3d at 359 [citations and internal quotation marks
omitted]). "Other factors include who is responsible for
the payment of wages and the furnishing of equipment, who has
the right to discharge the employee, and whether the work
being performed was in furtherance of the special
employer's or the general employer's business"
(Franco v Kaled Mgt. Corp., 74 A.D.3d 1142,
1142-1143 [internal quotation marks omitted]).
the moving defendants made a prima facie showing that
Mid-Queens was entitled to summary judgment on the ground
that it was the injured plaintiff's special employer. The
evidence submitted by the moving defendants established that
Mid-Queens controlled and directed the manner, details, and
ultimate result of the injured plaintiff's work, the
injured plaintiff's work was done in furtherance of
Mid-Queens' business, and Mid-Queens had the right to
discharge the injured plaintiff (see Akins v D.K.
Interiors, Ltd., 65 A.D.3d 946; Ugijanin v 2 W. 45th
St. Joint Venture, 43 A.D.3d 911, 913; Gubitosi v
National Realty Co., 247 A.D.2d 512). In opposition, the
plaintiffs failed to raise a triable issue of fact.
we agree with the Supreme Court's determination to grant
to that branch of the moving defendants' motion which was
for summary judgment dismissing the complaint insofar as
asserted against Mid-Queens.
light of our determination, we need not reach the