Bautista v. David Frankel Realty, Inc.

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about April 25, 2007, which granted defendant’s motion for summary judgment dismissing the complaint, reversed, on the law, without costs, the motion denied and the complaint reinstated. Plaintiff, who worked as a porter at a building owned by 55 East 66th Street Corporation (the Corporation), fell from a lad — 550 — der while painting an exterior staircase of the building. Plaintiff commenced this action against defendant, the managing agent of the building, asserting causes of action under Labor Law §§ 200, 240 (1) and § 241 (6). Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff, who received workers’ compensation benefits from his employer, the Corporation, was defendant’s special employee and thus this action is barred by the exclusive remedy provisions of the Workers’ Compensation Law. Defendant also asserted that it was entitled to summary judgment because plaintiff’s own actions were the sole proximate cause of his injuries. Supreme Court granted the motion on the ground that plaintiff was defendant’s special employee, and this appeal by plaintiff ensued. “[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. A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991] [citations omitted]). Essential to a special employment relationship “is a working relationship with the injured plaintiff sufficient in kind and degree so that the [putative special employer] may be deemed plaintiffs employer” (Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]). Notably, “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’ ” (id., quoting Thompson, 78 NY2d at 558). The question of whether a special employment relationship exists is fact-laden and generally presents an issue for the trier of fact (see Thompson, 78 NY2d at 557; Bellamy v Columbia Univ., 50 AD3d 160 [2008]). In support of its motion, defendant submitted the management agreement between it and the Corporation, pursuant to which the Corporation retained defendant to perform certain services at the building. The agreement stated that, while defendant was responsible for “[c]aus[ing] to be hired, paid and supervised, all persons necessary ... to properly maintain and operate the [building],” the persons so hired would be the em — 551 — ployees of the Corporation, not defendant. The agreement also stated that defendant was responsible for “[c]aus[ing] the Building to be maintained in such condition as may be directed by [the Corporation].” Defendant also submitted the deposition testimony of plaintiff and the superintendent of the building, Albert Abreu. Plaintiff testified that he had been hired by the Corporation and that entity paid his wages. Plaintiff also testified that the only person he reported to and received assignments from was Abreu, who directed plaintiff to paint the staircase on the morning of the accident. While Abreu testified that he was hired and employed by defendant, he also testified that he was paid by the Corporation and that his W-2 forms listed that entity as his employer. Moreover, defendant’s counsel tacitly conceded in defendant’s reply papers before Supreme Court that Abreu was employed by the Corporation. Abreu lived in the building and was responsible for supervising the seven other men who worked in the building, including plaintiff. Specifically, Abreu stated that “[m]y duties were to oversee that each man did [his] job; they had certain routines to do, and I would follow through and make sure these duties were done. I would give them specific instructions, and that was mainly it.” Abreu also testified that he would speak to Suz Landi, an employee of defendant who served as the property manager of the building, approximately three times per week. Every Wednesday, Abreu would report to defendant’s office and meet with Landi to “drop off the payroll” and review purchase orders, tenants’ requests and complaints, and proposals from contractors to perform work at the building. Abreu would speak on the telephone with Landi approximately two other days per week to review the status of projects at the building and tenants’ requests and complaints. Notably, Abreu answered “yes” to the following question: “Would you deal with, as best as you could, on your own, in the autonomous position that you had, the complaints and requests of the . . . tenants?” (emphasis added). Belatedly, the following colloquy occurred between counsel for plaintiff and Abreu: “Q: Were you, with respect to your duties as the [superintendent], pretty much autonomous in your position? Would you like me to explain that? I don’t want to use a phrase that you might not be comfortable with. You were the boss of everyone else there; is that a fair statement? “A: Yes, it is. “Q: You told the other employees what to do? — 552 — “A: That is correct. “Q: What you told them to do is based upon, not only your title, but your experience as someone who had been in the business a good part of your life? “A: Yes. . . . “Q: So, is it fair to say that, for example, in 2004, you had a pretty set schedule, and pretty firm understanding of what you wanted the other . . . employees to do? “A: Yes. . . . “Q: You would certainly know what to do, unless it was some extraordinary request or complaint; is that a fair statement? “A: Yes, it is.” While Abreu testified as to his interaction with Landi and delineated what he and Landi would discuss when they spoke, Abreu never testified that Landi instructed him as to what tasks to perform, let alone how to perform them. Defendant also relied on the affidavit of Landi, who averred that she was Abreu’s supervisor and “[i]n that capacity, [she] assigned, supervised, instructed, oversaw, monitored and directed [Abreu’s] work duties on a daily basis.” Landi further averred that “plaintiff reported directly to . . . Abreu[, who] assigned, supervised, instructed, oversaw, monitored and directed . . . plaintiffs work duties on a daily basis.” Thus, according to Landi, defendant “directed [Abreu], who in turn directed the maintenance staff and gave them their daily assignments.” Landi concluded that defendant “had comprehensive and exclusive daily control over the work of all the maintenance staff of the . . . building through the building’s superintendent [i.e., Abreu], Defendant had the authority and exercised the right to control all facets of the daily operation of the building and its workers.” Defendant’s assertion that plaintiff was its special employee rests on its claim that, as the managing agent of the building, it controlled Abreu’s work and Abreu in turn controlled plaintiffs work. The evidence adduced by defendant in support of its motion established that Abreu controlled plaintiffs work. Thus, the resolution of this appeal turns on whether a triable issue of fact exists regarding whether defendant controlled Abreu’s work. We conclude that such an issue does exist. Even assuming the affidavit of Landi would otherwise be sufficient to satisfy defendant’s burden on its motion, that affidavit is undermined by Abreu’s deposition testimony, which demonstrates the existence of a triable issue of fact with respect to whether defendant controlled and directed the manner, details — 553 — and ultimate result of Abreu’s work. Abreu gave no testimony to the effect that defendant instructed him to paint the staircase, let alone that defendant dictated to him the manner in which that task was to be performed. In fact, Abreu gave no testimony to the effect that defendant controlled and directed the manner and details of his work generally. To the contrary, Abreu testified that he had autonomy in performing his job and supervising the men who worked at the building; the precise extent of that autonomy is not clear from the record, precluding us from determining as a matter of law whether defendant controlled and directed the manner, details and ultimate result of Abreu’s work. We disagree with our dissenting colleague’s conclusion that, because Abreu referred to Landi as his “boss” and the Merriam-Webster’s Collegiate Dictionary defines “boss” as “a person who exercises control or authority; specifically: one who directs or supervises workers,” Abreu’s deposition testimony that he had autonomy in performing his job and supervising the men who worked at the building does not demonstrate the existence of a triable issue of fact. The dictionary definition of the word “boss” is not synonymous with the legal term of art “special employer.” That Landi exercised general supervisory authority over Abreu from time to time is not sufficient to establish, as a matter of law, that defendant was Abreu’s special employer; “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” (Fung, 9 NY3d at 359 [internal quotation marks omitted and emphasis added]). Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc. (37 AD3d 155 [2007]), on which the dissent relies, is distinguishable. In Villanueva the plaintiff, an employee of a building that defendant management company managed pursuant to an agreement with the building’s owner, was injured when he fell from a ladder while working at the building. The plaintiff commenced an action to recover damages against, among others, the management company, and the management company moved for summary judgment dismissing the complaint as against it on the ground that the plaintiff was its special employee. In determining that the management company made a prima facie showing of entitlement to judgment as a matter of law, we noted that the affidavit of the management company’s president “established that [the management company] was exclusively responsible for the maintenance and repair of the premises” (id. at 156). Our determination in Villanueva that — 554 — the management company made a prima facie showing that it was the plaintiffs special employer also rested in part on deposition testimony by the management company’s president that “he supervised maintenance employees and the superintendent and manager at the premises” (id.). Moreover, under the management agreement, the superintendent, who supervised the work plaintiff was performing at the time of his accident, was an employee of the management company (id. at 156-157). Here, however, as noted above, Abreu testified that he had autonomy in performing his job and supervising the men who worked at the building. Additionally, albeit not decisively, contrary to the agreement in Villanueva the management agreement between defendant and the Corporation expressly states that maintenance personnel are the employees of the Corporation, not defendant.1 Our dissenting colleague believes that, in addition to Ramirez v Miller (41 AD3d 298 [2007], Iv dismissed 10 NY3d 784 [2008]), Ayala v Mutual Hous. Assn., Inc. (33 AD3d 343 [2006]), Erazo v 136 E. Mgt. (302 AD2d 282 [2003]) and Brunetti v City of New York (286 AD2d 253 [2001]) compel the conclusion that summary judgment must be granted to defendant. To be sure, each of these decisions holds that the defendant was entitled to summary judgment dismissing the complaint as against it on the ground that it was the plaintiffs special employer. The absence of triable issues of fact on the issue of special employment in these cases, however, certainly does not mean that no triable issue of fact exists in this case; the issue of whether a worker is the special employee of a putative special employer is a “highly fact-sensitive” inquiry (Bellamy, 50 AD3d at 169). In light of Abreu’s testimony that he exercised autonomy (the extent of which cannot be discerned on this record) in performing his job and supervising the men who worked at the building—and the absence of any indication in any of the decisions relied upon by our dissenting colleague of similar evidence in those cases—we conclude that those cases do not control the outcome of this appeal (see Matter of Seelig v Koehler, 76 NY2d 87, 92 [1990] [distinguishing prior decisions and observing that “the identification and weighing of all the unique and particular facts of each case governs”], cert denied 498 US 847 [1990]; Roosa v Harrington, 171 NY 341, 350 [1902] [“each case, as it arises, — 555 — must be viewed and decided according to its own particular facts and circumstances, and will become a controlling precedent, only, where the facts are the same”]). Needless to say, we regret that our dissenting colleague believes we evince a “breathtaking disregard” for precedent and seek to “conjure” a triable issue of fact. In short, because this Court has determined in other cases that a particular building manager was the special employer of a particular employee of a building it hardly follows that defendant is, as a matter of law, the special employer of plaintiff. To so hold would be to adopt a rule that affords all building managers the status of special employers of the employees of the buildings the building managers operate. Such a rule would offend the well-settled principle that the title of the putative special employer, e.g., a managing agent, is not controlling, but rather the actual working relationship between the putative special employer and the purported special employee {Fung, 9 NY3d at 360). With respect to the conclusion of our dissenting colleague that defendant is entitled to summary judgment, we note that, even assuming that a reasonable inference can be drawn that defendant controlled and directed the manner and detail of Abreu’s work and thus that defendant controlled and directed the manner and detail of plaintiffs work, that inference is not the only reasonable inference that can be drawn from the record. Rather, a reasonable inference also can be drawn that defendant did not control and direct the manner and detail of Abreu’s work and concomitantly that defendant did not, through Abreu, control and direct the manner and detail of plaintiffs work. Stated differently, a reasonable inference can be drawn that Abreu, an employee of the Corporation, exercising the autonomy he had in doing his job and supervising the men, controlled and directed the manner and detail of plaintiffs work.2 In light of the principles that general employment is presumed to continue and the question of whether a special employment relationship exists is generally one for the trier of — 556 — fact, and the requirement that we draw all reasonable inferences in favor of the party opposing summary judgment (see Henderson v City of New York, 178 AD2d 129, 130 [1991]; see also Sodexho Mgt., Inc. v Nassau Health Care Corp., 23 AD3d 370, 371 [2005]), defendant failed to demonstrate its entitlement to judgment as a matter of law. Defendant also asserts that “the delegation [pursuant to the management agreement] by the [Corporation] to [defendant] of the exclusive management and control of the building . . . constitutes the requisite degree of control” necessary to create a special employment relationship between plaintiff and defendant. First, plaintiff was not a party to the management agreement and the agreement “does not purport to define or resolve the issue of [plaintiffs] special employment status” (Thompson, 78 NY2d at 560). The agreement, therefore, regardless of its terms, is not determinative of the issue of whether plaintiff was defendant’s special employee (id.). Second, assuming defendant did have the exclusive right to manage and control the building, such a right standing alone would be insufficient to support summary judgment in defendant’s favor. To rebut the presumption of general employment the putative special employer must clearly demonstrate that the general employer surrendered control over the employee and that the putative special employer assumed such control (Thompson, 78 NY2d at 557; see Sanfilippo, supra). Here, as discussed above, defendant failed to demonstrate clearly that it assumed complete and exclusive control over Abreu and thus failed to demonstrate that it assumed complete and exclusive control over plaintiff. At bottom, we hold only that, under the particular facts of this case, defendant failed to make a prima facie showing that it was plaintiffs special employer. Of course, defendant may have been plaintiffs special employer and our dissenting colleague has marshaled arguments in support of that conclusion. Our function at this juncture, however, is not to decide an issue of fact but to determine whether one exists (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [“issue-finding, rather than issue-determination, is the key to (reviewing a motion for summary judgment)” (internal quotation marks and citation omitted)]). Since defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, its motion must be denied regardless of the sufficiency of plaintiffs opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant’s contention that it is entitled to summary judgment on the ground that plaintiff’s actions were the sole — 557 — proximate cause of his injuries is without merit. “Where a plaintiffs actions are the sole proximate cause of his injuries, liability under Labor Law § 240 (1) does not attach. Instead, the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them” (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [internal quotation marks, citations and ellipsis omitted]). As defendant submitted no evidence that adequate safety devices were available to plaintiff or that plaintiff was directed to use such devices, it failed to make a prima facie showing that plaintiffs actions were the sole proximate cause of his injuries (see Ferluckaj v Goldman Sachs & Co., 50 AD3d 359, 362 [2008]; Balbuena v New York Stock Exch., Inc., 49 AD3d 374, 375-376 [2008]; see also De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 950 [2003]; cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]). Defendant’s argument that it is entitled to summary judgment dismissing plaintiff’s cause of action under Labor Law § 240 (1) on the ground that plaintiff was not engaged in an activity protected by that statute was not raised before Supreme Court and we decline to consider it. Concur—Gonzalez, McGuire and Moskowitz, JJ. Footnotes [1] Of course, the presence of this provision is not dispositive on the issue of whether defendant was plaintiffs special employer (see Thompson, 78 NY2d at 559). Such a provision, however, contrary to the assertion of our dissenting colleague, is a factor that we must consider in determining whether a triable issue of fact exists on that score. [2] To answer our dissenting colleague’s query regarding who, if not Landi, controlled Abreu’s work, one need only look to the well-established rule that, absent a clear showing of the surrender of control by the general employer and the assumption of sufficient control by the special employer, general employment is presumed to continue. Moreover, our dissenting colleague implicitly assumes that Abreu’s work always was controlled by someone, i.e., Landi. As is indicated by Abreu’s testimony about the autonomy he sometimes exercised, that simply is not so. Furthermore, defendant must establish that it affirmatively exercised sufficient control over Abreu (see Thompson, 78 NY2d at 557; Sanfilippo v City of New York, 239 AD2d 296 [1997]).