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“Special Employee” Status Defined

Finding that the defendant company had not demonstrated as a matter of law that plaintiff was a “special employee” within the meaning of the Workers’ Compensation Law, the Second Department explained:

The protection against lawsuits brought by injured workers which is afforded to employers by Workers’ Compensation Law §§ 11 and 29(6) extends to special employers … . Thus, an injured person who elects to receive Workers’ Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer …. “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” …. The determination of special employment status is usually a question of fact and may only be made as a “matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . “Although no one [factor] is decisive,’ the question of who controls and directs the manner, details and ultimate result of the employee’s work’ is a significant and weighty feature’ of the analysis” …. The exclusivity provisions of the Workers’ Compensation Law also extend to entities which are alter egos of the injured worker’s employer ….  Abreu v Wel-Made Enters, Inc, 2013 NY Slip 02524, 2012-03166, Index No 36405/07, 2nd Dept 4-17-13

 

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THE FORECLOSURE ACTION WAS AUTOMATICALLY STAYED WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED; EVEN THOUGH THE ORDER GRANTING THE ATTORNEY’S MOTION TO WITHDRAW DIRECTED DEFENDANT TO RETAIN AN ATTORNEY OR GO AHEAD PRO SE, DEFENDANT WAS NEVER SERVED WITH A NOTICE TO APPOINT AN ATTORNEY REQUIRED BY CPLR 321; THEREFORE THE STAY WAS NOT LIFTED AND DEFENDANT’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENSE ATTORNEY TOOK A POSITION ADVERSE TO DEFENDANT STATING THERE WAS NO BASIS FOR DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR CONSIDERATION OF THE MOTION WITH NEW DEFENSE COUNSEL (SECOND DEPT).
Remarks Made In the Course of Litigation Privileged
ABSENT “EXTRAORDINARY CIRCUMSTANCES,” A JUDGE DOES NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS A COMPLAINT (SECOND DEPT). ​
THE ESTATE OF THE MORTGAGOR WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION; THE PROPERTY WAS CONVEYED BEFORE HER DEATH AND THE COMPLAINT DOES NOT SEEK A DEFICIENCY JUDGMENT (SECOND DEPT).
WHETHER DEFENDANT’S CONNECTICUT CONVICTION CAN SERVE AS A PREDICATE FOR SECOND FELONY OFFENDER STATUS CANNOT BE DETERMINED WITHOUT THE CONNECTICUT ACCUSATORY INSTRUMENT; THE UNPRESERVED ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE; MATTER REMITTED FOR A HEARING (SECOND DEPT).
DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT).
IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE, VIDEO SURVEILLANCE OF PLAINTIFF TAKEN BEFORE THE DEPOSITION AND AFTER A DISCOVERY ORDER WAS PRECLUDED FROM BOTH THE SUMMARY JUDGMENT STAGE AND TRIAL; THERE IS NO SPECIFIC DEADLINE FOR PROVIDING VIDEO SURVEILLANCE GATHERED AFTER THE DEPOSITION; THE POST-DEPOSITION VIDEO SURVEILLANCE WAS NOT PRECLUDED (SECOND DEPT).

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Denial of Receipt of Service Mandates a Hearing  No “Special Employee” Relationship