Vargas v. Tufaro Bus Co.

Appellate Division of the Supreme Court of New York

Vargas v. Tufaro Bus Co.

245 A.D.2d 366, 666 N.Y.S.2d 437, 1997 N.Y. App. Div. LEXIS 12771

Appellate Division of the Supreme Court of the State of New York·Decided December 8, 1997·Published

Opinion

—In a negligence action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Vinik, J.), dated July 12,1996, which denied her motion to strike the defendant’s third affirmative defense and granted the defendant’s cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered October 28, 1996, dismissing the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

Based on the evidence demonstrating that the defendant exercised control and supervision over the plaintiff, the [367]*367Supreme Court properly concluded that the plaintiff was a special employee of the defendant as a matter of law, and that the instant action therefore is barred by the plaintiff’s recovery of Workers’ Compensation benefits (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558; Olsen v We’ll Manage, 214 AD2d 715; Cameli v Pace Univ., 131 AD2d 419, 420). Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.

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—In a negligence action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Vinik, J.), dated July 12,1996, which denied her motion to strike the defendant’s third affirmative defense and granted the defendant’s cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered October 28, 1996, dismissing the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

Based on the evidence demonstrating that the defendant exercised control and supervision over the plaintiff, the [367]*367Supreme Court properly concluded that the plaintiff was a special employee of the defendant as a matter of law, and that the instant action therefore is barred by the plaintiff’s recovery of Workers’ Compensation benefits (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558; Olsen v We’ll Manage, 214 AD2d 715; Cameli v Pace Univ., 131 AD2d 419, 420). Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.

Vargas v. Tufaro Bus Co., 245 A.D.2d 366, 666 N.Y.S.2d 437, 1997 N.Y. App. Div. LEXIS 12771 (N.Y. Ct. App. 1997).

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245 A.D.2d 366 (Vargas v. Tufaro Bus Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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