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James v Highland Rehabilitation & Nursing Ctr., 2023 NY Slip Op 06358 [222 AD3d 736]

December 13, 2023

Appellate Division, Second Department

[*1]

Dorothy James, Respondent,

v

Highland Rehabilitation and Nursing Center, Appellant, et al., Defendant.

Sheeley LLP, New York, NY (David Henry Sculnick of counsel), for appellant.

Sobo & Sobo, LLP, Middletown, NY (John A. Del Duco III of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Highland Rehabilitation and Nursing Center appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez-Doles, J.), dated December 8, 2021. The order denied that defendant’s motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

In December 2016, the plaintiff, while walking to her vehicle in the parking lot of the defendant Highland Rehabilitation and Nursing Center (hereinafter Highland), in Middletown, allegedly slipped and fell due to icy conditions. At the time of the accident, the plaintiff worked at Highland as a licensed practical nurse through her employer, Aequor Healthcare Services.

The plaintiff thereafter commenced this action against Highland and another defendant to recover damages for personal injuries, alleging that Highland was negligent in, among other things, failing to maintain the parking lot in a reasonably safe condition. Prior to any motions for summary judgment, the plaintiff entered into a stipulation of discontinuance against the other defendant, leaving Highland as the remaining defendant in this action.

Subsequently, Highland moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiff was a special employee of Highland at the time of the accident and that the complaint insofar as asserted against it was barred by the storm in progress rule. By order dated December 8, 2021, the Supreme Court denied Highland’s motion. Highland appeals.

“The receipt of workers’ compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” ( Hofweber v Soros , 57 AD3d 848 , 849 [2008]; see Everett v CMI Servs. Corp. , 206 AD3d 620 , 623 [2022]; Berry v Viad Corp. , 199 AD3d 632 , 633 [2021]). Indeed, “the receipt of workers’ compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment” ( Slikas v Cyclone Realty, LLC , 78 AD3d 144 , 150 [2010]; see Workers’ [*2] Compensation Law §§ 10, 11, 29 [6]). “A person may be deemed to have more than one employer for purposes of the Workers’ Compensation Law, a general employer and a special employer” ( Schramm v Cold Spring Harbor Lab. , 17 AD3d 661 , 662 [2005]; see Ortega v 669 Meeker Ave., LLC , 191 AD3d 686 , 688 [2021]).

A “special employee” is “one who is transferred for a limited time of whatever duration to the service of another” ( Thompson v Grumman Aerospace Corp. , 78 NY2d 553, 557 [1991]; see Fung v Japan Airlines Co., Ltd. , 9 NY3d 351 , 359 [2007]; Everett v CMI Servs. Corp. , 206 AD3d at 623). “In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge” ( Wilson v A.H. Harris & Sons, Inc. , 131 AD3d 1050 , 1051 [2015]; see Everett v CMI Servs. Corp. , 206 AD3d at 623; Chiloyan v Chiloyan , 197 AD3d 612 , 614-615 [2021]). “Another factor is whether the work being performed was in furtherance of the special employer’s or the general employer’s business” ( Graziano v 110 Sand Co. , 50 AD3d 635 , 636 [2008]). “A significant and weighty factor in determining whether a special employment relationship exists is ‘who controls and directs the manner, details and ultimate result of the employee’s work’ ” ( Gonzalez v Woodbourne Arboretum, Inc. , 100 AD3d 694 , 697 [2012], quoting Thompson v Grumman Aerospace Corp. , 78 NY2d at 558; see Ortega v 669 Meeker Ave., LLC , 191 AD3d at 688). General employment is presumed to continue and such “presumption can be rebutted only upon ‘clear demonstration of surrender of control by the general employer and assumption of control by the special employer’ ” ( Spencer v Crothall Healthcare, Inc. , 38 AD3d 527 , 528 [2007], quoting Thompson v Grumman Aerospace Corp. , 78 NY2d at 557; see Perkins v Crothall Healthcare, Inc. , 148 AD3d 1189 , 1190-1191 [2017]). “The determination of special employment status is usually a question of fact and may only be made as a ‘matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact’ ” ( Abreu v Wel-Made Enters., Inc. , 105 AD3d 878 , 879 [2013], quoting Thompson v Grumman Aerospace Corp. , 78 NY2d at 558; see Everett v CMI Servs. Corp. , 206 AD3d at 623).

Here, Highland failed to establish, prima facie, that the plaintiff was its special employee at the time of the accident and, accordingly, that the complaint insofar as asserted against it was barred by the exclusivity provisions of the Workers’ Compensation Law ( see Dube v County of Rockland , 160 AD3d 807 , 808 [2018]; Alfonso v Pacific Classon Realty, LLC , 101 AD3d 768 , 769-770 [2012]; D’Alessandro v Aviation Constructors, Inc. , 83 AD3d 769 , 771 [2011]). Since Highland failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on this ground, we need not consider the sufficiency of the plaintiff’s opposition papers in this regard ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985]).

Under the storm in progress rule, “[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” ( Solazzo v New York City Tr. Auth. , 6 NY3d 734 , 735 [2005]; see Licari v Brookside Meadows, LLC , 214 AD3d 780 , 782 [2023]). While “[a] lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety” ( Fenner v 1011 Rte. 109 Corp. , 122 AD3d 669 , 670 [2014]), “ ’if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and commonsense would dictate that the rule not be applied’ ” ( Mazzella v City of New York , 72 AD3d 755 , 756 [2010], quoting Powell v MLG Hillside Assoc. , 290 AD2d 345, 345-346 [2002]; see Licari v Brookside Meadows, LLC , 214 AD3d at 781).

While Highland established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule, in opposition, the plaintiff raised triable issues of fact as to the applicability of this rule and as to whether Highland had constructive notice of the icy hazard that allegedly caused her to slip and fall ( see Powell v MLG Hillside Assoc. , 290 AD2d at 346; see also Mike v 91 Payson Owners Corp. , 114 AD3d 420 [2014]; Vosper v Fives 160th, LLC , 110 AD3d 544 [2013]).

Accordingly, the Supreme Court properly denied Highland’s motion for summary judgment dismissing the complaint insofar as asserted against it. Brathwaite Nelson, J.P., Maltese, Ford and Warhit, JJ., concur..