Opinion
June 10, 1991
Appeal from the Supreme Court, Queens County (Hentel, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Scott P. Abuso was injured when he fell from and was hit by a garbage truck owned by the defendant Thomas Toscano, a partner in a business called Mr. T Carting. At the time of the accident, the plaintiff was the sole employee of Tee's Recycling, a recycling business formed by Mr. T Carting in order to sell the recyclable materials it collected. According to the plaintiff, the accident occurred when, in the course of collecting refuse, he touched a hot exhaust pipe and fell under the truck. After accepting Workers' Compensation benefits through Tee's Recycling, the plaintiff commenced this action, inter alia, against Joseph Russo, the driver of the truck and an employee of Mr. T Carting, and Thomas Toscano, John Toscano and Peter Toscano, individually, and doing business as Mr. T Carting, to recover damages for the injuries. These defendants moved for summary judgment dismissing the complaint as against them on the ground that the plaintiff was barred from such recovery by the exclusive remedy provision of the Workers' Compensation Law § 29 (6). The Supreme Court granted this motion, reasoning that a special employment relationship existed between the plaintiff and Mr. T Carting.
We agree. The evidence demonstrates the existence of a special employment relationship between the plaintiff and Mr. T Carting (see, Thompson v Grumman Aerospace Corp., 166 A.D.2d 578; Cameli v Pace Univ., 131 A.D.2d 419). The plaintiff worked under the direction and control of the partners of Mr. T Carting, and was assigned to assist its employee, Russo. While the question of whether a special employment relationship exists is generally one of fact (see, Thompson v Grumman Aerospace Corp., supra; Matter of Abramson v Long Beach Mem. Hosp., 103 A.D.2d 866), the indicia of special employment in this case are so strong that, in the absence of a triable issue, the court properly determined it as a matter of law (see, Richiusa v Kahn Lbr. Millwork Co., 148 A.D.2d 690; Cameli v Pace Univ., supra; Doboshinski v Fuji Bank, 78 A.D.2d 537). In light of this determination, we decline to address the parties' remaining contentions (see, Heritage v Van Patten, 59 N.Y.2d 1017). Mangano, P.J., Kooper, Harwood and Balletta, JJ., concur.