OPINION OF THE COURT
Memorandum.
Order unanimously reversed without costs, defendant’s motion granted to the extent it sought renewal, and, upon renewal, defendant’s motion for summary judgment granted and complaint dismissed.
Plaintiff was a passenger in a vehicle operated by defendant which was involved in an accident. At the time of the accident, defendant was a group home counselor employed by the Quеensboro Society for the Prevention of Cruelty to Children and the vehicle was owned by Queensboro. Plaintiff was employed by a temporary employment agency known as “Tempоsitions” and had been assigned to work as a counselor at Queensboro’s Corona Group Home for at least six months prior to the accident. The accident occurred when the plaintiff and defendant were on their way to a picnic with three girls from the group homе.
Defendant cross-moved for summary judgment on the ground that workers’ compensation was plaintiff’s exclusive remedy and, therefore, a bar to the instant action (Workers’ Compensation Law § 29 [6]). In support of the cross motion, defendant relied upon plaintiffs deposition testimony and upon the affidavit of Ms. Thrasher, the supervisor of Queensboro’s Corona Group Home. The cross motion was denied, the court finding itself unable to determine whether plaintiff was a special employee as a matter of law based upon the information submitted, and emphasizing that it gave little weight to Ms. Thrasher’s
A mоtion to renew is based upon new facts not offered on the prior motion that could change the prior determination (or on a change in the law that would change the priоr determination), and must contain a reasonable justification for the failure to present such facts in the prior motion (see CPLR 2221 [e] [2], [3]). The requirement that a motion for renewal be based upon newly discovered facts is a flexible one, and a court may, in its discretion, grant renewаl even upon facts known to the movant at the time of the original motion (see Granato v Waldbaum’s, Inc.,
The deposition testimony of Ms. Thrasher, while perhaps not containing new facts, set them forth in a more detailed manner and was unavailable at the time that the original motion was made. Moreover, the deposition testimony was offered to persuade the court to reconsider issues that it had raised sua sponte in its original decision (see Scannell v Mt. Sinai Med. Ctr.,
Turning to the merits of thе underlying application, while it is true that Tempositions paid plaintiffs salary, the evidence submitted by defendant clearly demonstrated that Queensboro directly supervised and contrоlled the material aspects of plaintiffs work there. Plaintiff failed to show that Tempositiоns exercised any direction or control over her work at Queensboro. Although a person’s categorization as a special employee is usually a question of fact, this is not a per se rule. The determination of a worker’s special employment status “may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” such as “where the undisputed facts establish that the general employer was performing no work for the speciаl employee and
Pesce, PJ., Aronin and Patterson, JJ., concur.