Opinion
September 23, 1985
Appeal from the Supreme Court, Kings County (Pizzuto, J.).
Judgment affirmed, without costs or disbursements.
Defendant's primary contention on appeal is that she is a general employer of Joseph L. Restivo (hereinafter plaintiff), that workers' compensation insurance had been secured for him, and that his injury occurred within the scope of his employment so that her liability under the Workers' Compensation Law is exclusive of all other liability (see, Workers' Compensation Law § 11; Billy v Consolidated Mach. Tool Corp., 51 N.Y.2d 152; Heritage v Van Patten, 59 N.Y.2d 1017, affg 90 A.D.2d 936; O'Rourke v Long, 41 N.Y.2d 219). Defendant's attorney conceded that plaintiff's special employer was Weinreb Management, a partnership of which defendant was not a member. This fact, however, is not conclusive. A worker might be employed by two or more employers for the purpose of determining whether those employers are shielded by the Workers' Compensation Law from liability in an action at law (see, e.g., Brooks v Chemical Leaman Tank Lines, 71 A.D.2d 405; Pichardo v Kreger Truck Renting Co., 57 A.D.2d 177; Poppenberg v Reliable Maintenance Corp., 89 A.D.2d 791). In this case, an issue of fact was created when, on her previous motion for summary judgment, defendant submitted certain evidence that she, along with others, was plaintiff's general employer, while plaintiff denied that he was employed by her, or anyone other than Weinreb Management (cf. Monteleone v Cardiff Corp., 88 A.D.2d 587). Rather than have this issue submitted to the jury, defendant requested and was granted an immediate trial of this question (see, CPLR 3212 [c]). The court (Bernstein, J.), after the trial of the workers' compensation issue, found that defendant was not plaintiff's general employer. This determination is supported by the weight of the evidence adduced at the trial pursuant to CPLR 3212 (c). We note, in particular, that defendant did not testify at that trial on the workers' compensation issue (or at the subsequent trial on the issue of liability) so that the record is devoid of any proof that she hired, supervised, or controlled plaintiff in any way. Accordingly, the finding that she was not his employer must be affirmed.
Defendant also contends that certain errors committed by the trial court deprived her of a fair trial. We have reviewed all of these contentions and find them to be without merit. Lazer, J.P., O'Connor, Weinstein and Niehoff, JJ., concur.