McCormick v. Our Lady of Mercy Medical Center

Appellate Division of the Supreme Court of New York

McCormick v. Our Lady of Mercy Medical Center

261 A.D.2d 334, 690 N.Y.S.2d 430, 1999 N.Y. App. Div. LEXIS 5831

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 27, 1999

StatusPublished

This text of 261 A.D.2d 334 (McCormick v. Our Lady of Mercy Medical Center) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCormick v. Our Lady of Mercy Medical Center, 261 A.D.2d 334, 690 N.Y.S.2d 430, 1999 N.Y. App. Div. LEXIS 5831 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about September 15, 1998, which granted defendant’s motion to renew and/or reargue a prior order, same court and Justice, entered April 1, 1998, denying defendant’s motion for summary judgment to dismiss the complaint, and, upon renewal and/or reargument, adhered to its prior order, unanimously affirmed, without costs. Appeal from the prior order unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.

The court erred to the extent that it interpreted the April 15, 1997 order of Justice Luis Gonzalez as granting defendant leave to renew its original summary judgment motion upon taking the deposition of a witness with personal knowledge of the accident, since that prior order indicated that renewal was premised on defendant’s production of a witness with knowledge of plaintiff’s alleged status as a special employee. Nevertheless, summary judgment was properly denied. There remain triable issues of fact as to whether or not plaintiff, a temporary employee placed at defendant hospital by an agency, was defendant’s special employee, whose remedy would be limited to workers’ compensation. There was evidence that defendant was somewhat restricted in the degree and manner in which it could alter plaintiffs assignment or terminate her employment, that defendant apparently had to notify the agency every two weeks of the amount of time it needed plaintiff, and that plaintiff reported to the agency to the extent she submitted her time sheets and received her paychecks and other benefits directly from the agency (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553; Sanfilippo v City of New York, 239 AD2d 296). Concur — Nardelli, J. P., Tom, Mazzarelli and Buckley, JJ.

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—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about September 15, 1998, which granted defendant’s motion to renew and/or reargue a prior order, same court and Justice, entered April 1, 1998, denying defendant’s motion for summary judgment to dismiss the complaint, and, upon renewal and/or reargument, adhered to its prior order, unanimously affirmed, without costs. Appeal from the prior order unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.

The court erred to the extent that it interpreted the April 15, 1997 order of Justice Luis Gonzalez as granting defendant leave to renew its original summary judgment motion upon taking the deposition of a witness with personal knowledge of the accident, since that prior order indicated that renewal was premised on defendant’s production of a witness with knowledge of plaintiff’s alleged status as a special employee. Nevertheless, summary judgment was properly denied. There remain triable issues of fact as to whether or not plaintiff, a temporary employee placed at defendant hospital by an agency, was defendant’s special employee, whose remedy would be limited to workers’ compensation. There was evidence that defendant was somewhat restricted in the degree and manner in which it could alter plaintiffs assignment or terminate her employment, that defendant apparently had to notify the agency every two weeks of the amount of time it needed plaintiff, and that plaintiff reported to the agency to the extent she submitted her time sheets and received her paychecks and other benefits directly from the agency (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553; Sanfilippo v City of New York, 239 AD2d 296). Concur — Nardelli, J. P., Tom, Mazzarelli and Buckley, JJ.

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Bluebook (online)

261 A.D.2d 334, 690 N.Y.S.2d 430, 1999 N.Y. App. Div. LEXIS 5831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormick-v-our-lady-of-mercy-medical-center-nyappdiv-1999.

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