Smith v. Kingsbrook Jewish Medical Center

Mar 15, 2004
Versions:5 A.D.3d 586
772 N.Y.S.2d 862

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Winslow, J.), entered June 24, 2003, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

When an employee elects to receive Workers’ Compensation benefits from his general employer, a special employer is shielded from any action at law commenced by the employee (see Kramer v NAB Constr. Corp., 282 AD2d 714 [2001]; cf. Thompson v Grumman Aerospace Corp., 78 NY2d 553 [1991]). A person’s categorization as a special employee is usually a question of fact (see Thompson v Grumman Aerospace Corp., supra at 557; Hintze v Brookhaven Natl. Lab., 278 AD2d 456 [2000]). Here, the defendant failed to establish that it directed the work and exercised such a degree of control over the plaintiff Ernest Smith that he must be considered its special employee. Thus, the defendant’s motion for summary judgment dismissing the complaint was properly denied. Ritter, J.P., H. Miller, Crane and Cozier, JJ., concur.