609 N.Y.S.2d 918 | N.Y. App. Div. | 1994
—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (G. Aronin, J.), dated June 2, 1992, which granted the separate motions of the defendants Lee’s Pontiac, Inc., and Norman Stephenson, in which the defendant Claude Merker joined, for summary judgment dismissing the complaint, on the ground that the plaintiffs’ exclusive remedy is found in the Workers’ Compensation Law.
Ordered that the order is affirmed, with one bill of costs.
We agree. The evidence demonstrates the existence of such a special employment relationship (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557; Cameli v Pace Univ., 131 AD2d 419). While the plaintiff was an employee of Lee’s Toyota, he acted as the Assistant General Manager of both Lee’s Toyota and Lee’s Pontiac, with general supervisory responsibilities of aspects of both, including the supervision of the jointly-operated service department. Employees of both entities were in his charge generally. Moreover, the plaintiff took his orders directly from Lee Feore, the owner, president, and general manager of both corporations. While the question of whether a person can be categorized as a special employee is generally one of fact, the indicia of special employment in this case are so strong that the court properly determined the issue as a matter of law (see, Thompson v Grumman Aerospace Corp., supra, at 557-558; Carreras v Lawrence Aviation Indus., 201 AD2d 693; Abuso v Mack Trucks, 174 AD2d 590, 591; Richiusa v Kahn Lbr. & Millwork Co., 148 AD2d 690, 692; cf., Oden v Chemung County Indus. Dev. Agency, 183 AD2d 998,
To the extent that the plaintiffs negligence claim against defendant Stephenson is based on vicarious liability for the acts of Merker, Stephenson is derivatively entitled to the immunity enjoyed by Merker as an employee of Lee’s Pontiac (see, Kenny v Bacolo, 61 NY2d 642, 645; Ulysse v Nelsk Taxi, 135 AD2d 528, 530; see also, Christiansen v Silver Lake Contr. Corp., 188 AD2d 507, 508; Jaglall v Supreme Petroleum Co., 185 AD2d 971, 972; Constantine v Sperry Corp., 149 AD2d 394, 395).
We have considered the plaintiffs’ remaining contention and find it to be without merit (Ulysse v Nelsk Taxi, supra). Balletta, J. P., Rosenblatt, Ritter and Altman, JJ., concur.