Bellamy v. Columbia University

50 A.D.3d 160, 851 N.Y.S.2d 406

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2008
• Status: Published

Opinions

OPINION OF THE COURT

Lippman, P.J.

Flaintiff alleges that he sustained injuries when, while temporarily assigned by his employer, Troy Associates, a temporary employment agency, to work in one of defendant University’s kitchens, he slipped on a wet, greasy substance that had been permitted to remain on the kitchen floor. It is undisputed that at the time of the accident Troy was plaintiffs employer; it paid plaintiffs salary and benefits, including workers’ compensation, determined which of its clients plaintiff was to report to as well as the duration of any such assignment, monitored plaintiffs performance, and retained the exclusive right to discharge him. Nonetheless, it is defendant’s contention that plaintiff became its special employee when, the day preceding the accident, he reported for work, was handed a university food service uniform and directed to his kitchen work station. Indeed, it is defendant’s contention that plaintiffs special employee status at the time of the accident is made out as a matter of law and, accordingly, that it is entitled to summary judgment dismissing the complaint as barred by the exclusive remedy provisions of Workers’ Compensation Law §§ 11 and 29 (6).

It is, of course, true that an employee, although generally employed by one employer, may be specially employed by another employer, and that a special employer may avail itself of the Workers’ Compensation Law to bar negligence claims against it for injuries sustained by a special employee in the course of special employment. General employment is, however, presumed to continue, and special employment will not be found absent a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). Whether such a complete transfer of control has occurred is ordinarily a fact-sensitive inquiry not amenable to resolution on summary judgment (id.). Only where the defendant is able to demonstrate conclusively that it has assumed exclusive control over “the manner, details and ultimate result of the employee’s work” (id. at 558) is summary adjudication of special employment status and consequent dismissal of an action proper.

While we have in recent cases involving temporary employment awarded summary judgment upon finding that a special employment relationship was made out as a matter of law (see Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 AD3d 155 [2007]; Suarez v Food Emporium, Inc., 16 AD3d 152 [2005]), these were cases in which the defendant’s direct control over the plaintiff’s work was essentially admitted. In Villanueva, the plaintiff, a building painter, testified that he was supervised in the performance of his painting duties by the building superintendent, who was, pursuant to a contract of record, an employee of the defendant special employer (37 AD3d at 156-157); and in Suarez the plaintiff admitted that “either the deli manager or the chef of [the defendant] Food Emporium directed him to report to work on a particular day and the deli manager gave him orders” (16 AD3d at 153). Here, by contrast, there exists neither admission nor other evidence permitting the legal conclusion that there existed a special employment relation.¹ As noted, the decisions as to where plaintiff was to work from day to day were made not by the putative special employer, Columbia, but by the general employer, Troy. Nor does the record establish that once plaintiff reported to work at Columbia he was treated from a supervisory standpoint as a Columbia employee. The only witness produced by defendant to testify as to its supervision of plaintiff, a sous-chef named McMillian, when asked if he recalled what plaintiff’s duties had been, stated: “For that day he was a temp. No I don’t—I can’t. I don’t recall if we called him in as a temp what he was doing.” Indeed, so far as can be discerned from the record, plaintiff, an experienced food preparer, was left essentially unsupervised as he went about his tasks in defendant’s kitchen; his testimony to the effect that no one from Columbia told him how to do his job or supervised him stands uncontradicted. Plainly, this record, in distinction to the records presented in Villanueva and Suarez, does not permit the inference that defendant did in fact assume control over “the manner, details and ultimate result” of plaintiffs work (Thompson, 78 NY2d at 558 [emphasis added]). To the contrary, it more persuasively supports the inference that defendant sought the services of an experienced temp such as plaintiff precisely because it did not wish to have to supervise the “manner, details and ultimate result” of the temp’s work as it would an employee’s, and could, if it were dissatisfied, simply ask the temp’s employer for a replacement.

In any event, there is at the very least a triable issue as to whether there was a sufficient transfer of control to justify the conclusion that plaintiff became defendant’s special employee. It is appropriate to emphasize in this connection that it is not sufficient for the proponent of special employment to show a mere cession by the general employer of some measure of control; the cession must be shown to have been complete, and concomitant with the proponent’s complementary assumption of control. Thus, in Thompson, special employment was established where “combined with other indicia of special employment, the uncontroverted record document [ed] [the special] employer’s comprehensive and exclusive daily control over and direction of the special employee’s work duties” (78 NY2d at 557 [emphasis added]). No remotely comparable showing has been made here (cf. Lane v Fisher Park Lane Co., 276 AD2d 136, 139-140 [2000] [special employment made out where plaintiff “(f)or about one month before the accident. . . was assigned, on a daily, full-time basis, to the same department, where she worked exclusively for two individuals, whom she considered her ‘bosses’ ”]; Hanchett v Graphic Techniques, 243 AD2d 942, 944 [1997] [special employment made out where employee testified that he “worked directly” for a supervisor in the employ of the special employer, worked on projects as part of “a team” with employees of the special employer, some of whom dictated the “ultimate result,” and where there was testimony establishing that the special employer “retained complete control over (the putative employee), including the right to fire him or lay him off as (it) saw fit”]).

While the underlying factual predicate for the finding of special employment is not set forth in all of the decisions upon which the dissent relies (see Roberson v Moveway Transfer & Stor., 44 AD3d 839 [2007]; Bailey v Montefiore Med. Ctr., 12 AD3d 545 [2004]; Dyer v We’re Assoc., 289 AD2d 137 [2001]; Maldonado v Canac Intl., 258 AD2d 415 [1999]; Causewell v Barnes & Noble Bookstores, 238 AD2d 536 [1997]), there is no cited case in which the discernible basis for a finding of special employment is as tenuous as that afforded by the record at bar. The testimony relied upon by the dissent simply does not permit the legal conclusion that plaintiff, in effect, became defendant’s employee. Dellos Scott, Troy’s vice-president, although able to testify as to the degree of control relinquished by Troy, manifestly had no basis to testify as to the level of control actually exercised over plaintiff by defendant.² And, while the dissent makes much of plaintiffs testimony that he was told what job to do, being told what job to do does not suffice to demonstrate the existence of a special employment relation; independent contractors and their employees are routinely instructed as to what they should do by those purchasing their services, but do not therefore become the purchasers’ employees.³ Nor is plaintiffs testimony that he was provided with a uniform highly probative. Rather, what the law requires is a showing of actual control by the party claiming special employer status over the “manner,” “details” and “ultimate result” of the work of the alleged special employee, i.e., that there was between the employer and putative employee “a working relationship. . . sufficient in kind and degree” to justify deeming the defendant the plaintiff’s employer (Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]). Yet, here, notwithstanding the dissent’s extensive eullings from the record and allusion to “uncontroverted evidence of the circumstances of plaintiffs employment,” there is no evidence affirmatively establishing that defendant did in fact supervise plaintiff as it would have supervised an employee. Indeed, defendant’s only supervisory witness identified plaintiff, albeit tentatively, not as an employee, but as a temp, and was completely unable to recall what plaintiff had done while working upon defendant’s premises. Nor was the resulting evidentiary gap closed by plaintiff’s testimony that there were occasionally Columbia “spotters” in the kitchen, since plaintiff explicitly stated in testimony, the credibility of which is not properly at issue in this procedural context, that he was left unsupervised.

While it may be tempting to infer from the general employer’s surrender of control a corresponding assumption of control by the putative special employer, the law is clear that a showing of the former does not suffice to support an inference of the latter. As noted, there must, in addition, be an affirmative showing that complete and exclusive control has in fact been assumed (see Fung, 9 NY3d at 359; Thompson, 78 NY2d at 557, 559).⁴ Here, not even the evidence of the general employer’s surrender of control is conclusive, the general employer having retained the right to assign plaintiff to “customers” (see Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 972 [2001]; cf. Thompson, 78 NY2d at 559), monitor his performance, and terminate him (cf. Hanchett, 243 AD2d at 944). As the general employer’s vice-president put it: “We would do the discharging. The client ... I mean, the guys worked for us” (emphasis added).

Although the dissent, quoting Suarez (16 AD3d at 154), perceives no reason to afford plaintiff “any greater rights to sue [defendant] than all those other employees who equally work under its control,” the quote assumes a set of affairs completely unsupported by this record. There is scant proof before us as to the degree of control exercised by defendant over plaintiff’s work and none as to how defendant’s supervision of plaintiff compared to its supervision of its employees.⁵ The notion, then, that plaintiffs action reflects an unjust expectation, a desire to be treated differently than those similarly situated, is at the very least premature. One might with greater justification question defendant’s expectation that it should be deemed plaintiffs employer and thus shielded from all liability in this matter. So far as can be told from this record, defendant did not hire or even screen plaintiff and did not train him. It did not pay his salary or benefits, and supervised him only minimally, relying upon plaintiff’s employer, Troy, which retained the power to terminate and reassign plaintiff, to rectify any significant dissatisfaction it may have had with the services plaintiff had been dispatched by Troy to provide. Rather than assume the responsibilities of an employer, defendant, Troy’s “customer,” seems to have simply filled a temporary need by purchasing from Troy the services of a trained food preparer. It does not seem probable that there was any contemporaneous expectation, justifiable or otherwise, that this arrangement would give rise to an employment relation. Indeed, the possible existence of such a relation and consequent availability of a workers’ compensation defense apparently did not dawn on defendant until significantly after the action was commenced, a gap of some 15 months having intervened between the service of the complaint and defendant’s motion for leave to amend its answer to include the defense. Certainly, the delay cannot be attributed to lack of discovery, for defendant could have required no discovery to allege facts supporting the existence of a special employment relationship; such facts, to the extent they existed, were undoubtedly in defendant’s possession from before the action’s inception.

In light of defendant’s apparently long oblivion respecting the existence of the alleged special employee relationship, there must be at least a factual question as to whether the lately alleged relationship was one of which plaintiff was aware and to which he consented (see Thompson, 78 NY2d at 558-559; Murray v Union Ry. Co. of N.Y. City, 229 NY 110, 112-113 [1920]; Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972 [2001]).

“[E]mployment, like any other contract, presupposes understanding. The new relation cannot be thrust upon the servant without knowledge or consent. He must understand that he is submitting himself to the control of a new master . . . Understanding may be inferred from circumstances, but understanding there must be. Common-law rights and remedies are not lost by stumbling unawares into a new contractual relation. There can be no

unwitting transfer from one service to another” (Murray at 113 [Cardozo, J.] [emphasis added and citations omitted]).

The dissent, a trifle sententiously, expresses the view that the failure to find a special employment relation on this record would “abrogate a settled legal principle.” However, the “settled legal principle” that would be abrogated by a denial of summary judgment in this case is far from evident. Indeed, the Court of Appeals has consistently reaffirmed the settled legal principle that the presumption of continuing general employment may not be overcome except upon a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” (Thompson, 78 NY2d at 557 [emphasis added]), and has only recently, in reversing a grant of summary judgment predicated upon a finding of special employment, had occasion to emphasize that the “[e]ssential” factor justifying a finding of special employment “is a working relationship with the injured plaintiff sufficient in kind and degree so that the third party . . . may be deemed plaintiffs employer” (Fung, 9 NY3d at 359). Notably, the Court in Fung refused to infer such a relationship from the title of the purported employer, and instead insisted upon evidence of an “actual working relationship between [the putative employer] and the purported ‘employee’ ” (id. at 360). Here, as in Fung, the proponent of special employment has stopped “conspicuously short of explaining its working relationship with [the purported special employee]” (id.). Thus, while the dissent dismisses as insignificant McMillian’s complete lack of recollection as to his purported “supervision” of plaintiff and may instead find it “important” that McMillian identified himself as plaintiffs “supervisor,” its reliance upon title to support the inference of an employment relationship merely replicates an approach to proving special employment specifically rejected in Fung.

The very significant evidentiary hurdle that must be cleared to establish an employment relation as a matter of law has, of course, not always been fully appreciated. In Bynog v Cipriani Group (298 AD2d 164 [2002], mod 1 NY3d 193 [2003]), for example, this Court held that the plaintiffs, waiters provided to the defendant restaurateurs on a temporary basis to supplement their permanent waiting staff, possessed viable Labor Law §§ 191 and 198 claims for compensation from the defendants in light of evidence supporting the inference that the plaintiffs were the defendants’ “employees.” We noted in this connection

that the plaintiffs were required “to adhere to strict guidelines on how and when to serve food and set tables, wear uniforms, including a pin identifying them as respondents’ [Cipriani’s] employees, and perform the same functions as respondents’ own permanent, unionized [employees], to whom plaintiffs reported” (298 AD2d at 164). The Court of Appeals, however, granted summary judgment dismissing the section 191 and 198 claims upon the ground that the plaintiffs, as a matter of law, were not the defendants’ employees, and specifically found that “the Ciprianis did not exert sufficient control over plaintiffs’ performance of their work to render them the special employer of plaintiffs” (1 NY3d at 200, citing Thompson, 78 NY2d at 557). While it is true that there was in Bynog evidence that the putative general employer retained a greater measure of control over the putative employees than appears to have been retained by Troy here, the nature of the actual working relationship between the Bynog plaintiffs and their putative employer did not differ materially from that of the actual working relationship between plaintiff and defendant, at least to the extent that that latter relationship is discernable from the present record. Like the plaintiffs in Bynog, plaintiff was interviewed, hired and compensated by his general employer and was dispatched by that employer to the employer’s “client” to temporarily augment the client’s regular workforce by providing, on a day-today basis, a clearly defined service for which he had been previously trained. Like the Bynog plaintiffs, plaintiff was required to wear a uniform and a pin identifying him as a provider of services on defendant’s behalf and was directed by the client generally as to what he should do. And, like the Bynog plaintiffs, he worked side by side with, and undoubtedly performed many of the same tasks as, the putative employer’s permanent food service employees. It is, nonetheless, clear from Bynog that none of this sufficed to transform plaintiff into defendant’s employee. What was missing in Bynog, and was absent from defendant’s showing in support of its present motion, was evidence of an “actual working relationship” “sufficient in kind and degree” (Fung, 9 NY3d at 360, 359) to show that the putative employer had come to exercise complete control over “all essential, locational and commonly recognizable components of the work relationship” (Thompson, 78 NY2d at 558). As noted, the locational prerogative was evidently retained by plaintiffs employer, Troy (cf. id. at 559), and defendant wholly failed to adduce evidence of anything remotely resembling an actual work relationship in which plaintiff was directly answerable to and supervised by defendant in the details of his work.

Decisions passing upon motions seeking summary adjudication of special employment routinely recite, as indeed the dissent has, that, ordinarily, the existence of a special employment relationship turns on the resolution of factual issues properly left for trial. While there are, of course, cases in which a finding of special employment may be made on summary judgment, the highly fact-sensitive nature of the issue, combined with the presumption that general employment continues and the formidable burden placed on a summary judgment movant to demonstrate the absence of any triable issue of fact, militate against summary adjudication. Circumspection is also appropriate since a finding of special employment may function to deprive an injured plaintiff of a common-law remedy for negligence based on a categorization having nothing to do with the merits of the plaintiffs claim (see Murray, 229 NY at 113). Viewed in this context, but particularly in light of the very equivocal evidence of the alleged employment relation, it is clear that this is not one of those unusual cases in which special employment may be properly adjudicated on summary judgment (see Thompson, 78 NY2d at 557). Defendant’s proof of its assumption of control over “the manner, details and ultimate result” of plaintiff’s work simply was not sufficient to permit a legally conclusive inference that plaintiff was aware of and consented to the alleged change in his employment status.

Accordingly, the order of the Supreme Court, Bronx County (Alexander Hunter, J.), entered January 25, 2007, denying defendant’s motion for summary judgment dismissing the complaint, should be affirmed, without costs.

1 . The dissent’s insistence that we suggest a rule that a finding of special employment on summary judgment must be premised on a plaintiffs admissions reflects a misconstruction of this sentence.

2 . In light of the dissent’s repeated assertion that Troy was utterly absent from defendant’s premises and uninvolved with plaintiffs work there, it is curious that it should rely upon Troy’s principal to detail the relevant circumstances of plaintiffs work in defendant’s kitchen.

3 . The point here is not that plaintiff was an independent contractor, but simply that the giving and taking of directions is not necessarily indicative of an employer-employee relation. Plaintiff, of course, had no burden to establish the precise nature of his relationship to defendant; it was rather defendant’s burden to establish that plaintiff was, in essence, its employee, and that burden was not carried simply by evidence that the plaintiff was given a uniform and directed to a work station.

4 . We perceive no basis to excuse such a showing in cases where the general employer is a temporary employment agency. Certainly, permission for such a dispensation is not to be found in any Court of Appeals decision. Indeed, that Court has expressly rejected a claim of special employment made as to workers obtained by the putative special employer from a temporary employment agency where a sufficient showing of actual control by the putative special employer was not made (Bynog v Cipriani Group, 1 NY3d 193, 200 [2003]).

5 . Contrary to the dissent, we do not “speculate] ” that Columbia may not have supervised plaintiff as it did its general employees. We simply observe that the record affords no basis to conclude as a matter of law that plaintiff was, in fact, treated from a supervisory standpoint as a Columbia employee. Although the dissent appears to suggest that plaintiff has some burden to demonstrate a disparity in treatment, it is rather defendant’s essential burden in demonstrating its entitlement to the Workers’ Compensation Law defense to show parity, i.e., that plaintiff was in fact treated by defendant as it would have treated one of its own similarly situated general employees.