Opinion
11074 Index 152665/13
02-20-2020
Alejo RAMOS, Plaintiff–Respondent, v. 110 BENNETT AVENUE, LLC, et al., Defendants–Appellants.
Carol R. Finocchio, New York (Marie Hodukavich of counsel), for appellants. Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for respondent.
Carol R. Finocchio, New York (Marie Hodukavich of counsel), for appellants.
Law Office of Ephrem J. Wertenteil, New York (Ephrem J. Wertenteil of counsel), for respondent.
Gische, J.P., Webber, Oing, Singh, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered May 9, 2019, which, inter alia, denied the motion of defendant 110 Bennett Avenue, LLC (Owner) for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Owner failed to establish that plaintiff was its special employee when plaintiff's accident occurred on Owner's property. Although plaintiff worked as the superintendent of Owner's property, there is no evidence that Owner assumed exclusive control over "the manner, details and ultimate result of the employee's work" ( Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991] ). Rather, the evidence shows that employees of defendant Rose Associates, Inc. (Rose) supervised and directed plaintiff's work.
Contrary to Owner's arguments, its general instructions to clean and maintain the building does not establish sufficient control and direction of the manner and details of plaintiff's work to establish a special employment relationship (see Bautista v. David Frankel Realty, Inc., 54 A.D.3d 549, 553, 863 N.Y.S.2d 638 [1st Dept. 2008] ). Owner's representative testified that she visited the property only four times a year, and made only general observations about the property's condition. Moreover, Owner's reimbursement of plaintiff's wages, benefits, and worker's compensation insurance are insufficient to show that a special employment relationship existed, absent other evidence showing that it directed and controlled plaintiff's duties (see Ortiz v. Rose Nederlander Assoc., Inc., 90 A.D.3d 454, 455, 933 N.Y.S.2d 684 [1st Dept. 2011] ; Evans v. Citicorp, 276 A.D.2d 370, 714 N.Y.S.2d 473 [1st Dept. 2000] ).
The fact that Rose, as general employer, exerted the amount of control that it did over plaintiff's work establishes that it did not cede exclusive control to Owner (see Bayona v. Hertz Corp., 148 A.D.3d 608, 50 N.Y.S.3d 353 [1st Dept. 2017]. Furthermore, the management agreement between Owner and Rose specifically stated that plaintiff was deemed an employee of Rose and not an employee of Owner (see Bautista, 54 A.D.3d at 554, 863 N.Y.S.2d 638 ).
We have considered Owner's remaining arguments and find them unavailing.