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PLAINTIFF WAS DEFENDANT’S SPECIAL EMPLOYEE WHEN INJURED, PLAINTIFF’S SOLE REMEDY IS WORKERS’ COMPENSATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant demonstrated plaintiff was its special employee. Therefore plaintiff’s sole remedy for his on the job injury is workers’ compensation:

It is well settled that “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] person’s categorization as a special employee is usually a question of fact”; however, a “determination of 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” … . Here, defendant demonstrated that it exercised “complete and exclusive control over the manner, details and ultimate results of plaintiff’s work” … ; that Remedy [plaintiff’s usual employer] “was not present at the job site and had no right to direct, supervise or control plaintiff’s work’’ … ; that defendant provided plaintiff with all the training and materials necessary for plaintiff to perform his job … ; and that defendant “had the authority to fire plaintiff with respect to his employment at its job site” … . Ferguson v National Gypsum Servs. Co., 2019 NY Slip Op 00709, Fourth Dept 2-1-19

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