Bellamy v. Columbia University

Marlow, J. (dissenting).

Defendant Columbia University was a client of nonparty Troy Associates, a temporary staffing company that provided Columbia with food service workers upon request. On October 24, 2002, Troy sent plaintiff Dennis Bellamy to Columbia to work as a cook at a cafeteria for Columbia students. In the course of his work at Columbia that day, plaintiff slipped and fell on a greasy substance on a kitchen floor. Plaintiff subsequently sued Columbia for the injuries he allegedly suffered as a result.

The question on this appeal is whether Columbia is entitled to summary judgment determining that Workers’ Compensation Law §§11 and § 29 (6) bar this action on the ground that *170plaintiff was a special employee of Columbia at the time of the incident. In my view, on this record, Columbia’s summary judgment motion should have been granted, because the three witnesses whose depositions appear in the record—Troy’s senior vice-president, Columbia’s kitchen manager, and plaintiff—all testified that plaintiff worked at Columbia under the direct supervision and control of Columbia, not Troy. In the absence of any countervailing evidence, this establishes, as a matter of law, that a special employment relationship existed between plaintiff and Columbia while he worked there.

' While many factors can determine special employment status, “a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee’s work” (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558 [1991]). In analyzing this critical issue, I find the following EBT excerpts particularly relevant and significant.

Bellos Scott, Troy’s senior vice-president, gave the following testimony:

“Q. Who designated the location where Mr. Bellamy was to perform his job?
“A. Liane.
“Q. And that would be Columbia University?
“A. Columbia University.
“Q. Who designated the position that Mr. Bellamy would fill when he was at Columbia University?
“A. The client, Liane Bunco. . . .
“Q. . . . In terms of the specifics of how he would be doing deli work [at Columbia], where he would be doing it and what deli he would be doing it in, who would make that designation?
“A. The client, Liane Bunco.
“Q. Columbia University?
“A. Bight.
“Q. When you sent Mr. Bellamy to Columbia University, did anyone from Troy Associates go to Columbia University?
*171“A. No.
“Q. Did anyone from Troy direct Mr. Bellamy in terms of how to do his job at Columbia University?
“A. No. . . .
“Q. Did anyone from Troy Associates exercise any control over Mr. Bellamy while he was at Columbia University? . . .
“A. No.
“Q. Did anyone from Troy specify the details of how Mr. Bellamy was to do his job while he was at Columbia University?
“A. No.
“Q. Do you know whether, in October of 2002, Troy sent anyone to the Columbia University dining facility to oversee any of the work[ ] being performed by Troy personnel there? . . .
“A. Troy would not send a, a staff member to oversee our staff at a client location. . . .
“Q. And it would be someone from Columbia who exercised the control over Mr. Bellamy while he’s at Columbia, to the extent of telling him where to cook and where to be at any given time; is that correct?
“A. That’s correct.
“Q. And Troy would tell him to be at Columbia from, say, eleven a.m. to 4:30 p.m.; correct?
“A. Correct.
“Q. Once Mr. Bellamy’s at Columbia, Columbia tells him basically what to do?
“A. Exactly.
“Q. They would tell him what deli mates he should be working with that day, right, or whatever he has to do in the deli?
“A. Yes. . . .
“Q. If he has to cook breakfast food, they’d tell him which breakfast food he had to cook; correct?
*172“A. Yes.
“Q. They’d give him the menu for the day?
“A. Yes.
“Q. Troy wouldn’t do any of that, would they?
“A. No.
“Q. If Mr. Bellamy’s cooking was not as good as it should be, would Columbia be the one to make that judgment or would Troy?
“A. Columbia. . . .
“Q. [Wjould you make a joint decision with the client, based upon the feedback you got from the client, as to whether the employee was working out?
“A. That would basically come from the client.
“Q. Now, if any employee was intended to work certain hours, say, from eleven a.m. to four p.m., and that was on printed assignment forms that you produced here today, what would be the procedure if the client needed an employee to work overtime? Would the client call you first, your office?
“A. Generally speaking, he would speak to the— directly to the, uh, employee.
“Q. Would there have to be clearance from Troy before the employee worked overtime, since Troy is the one who’s actually paying the employee?
“A. No.”

Plaintiff testified as follows:

“Q. So, Columbia gave you your assignment [when you reported there]?
“A. Yes.
“Q. Did Columbia tell you where you were going to be working?
“A. Yes.
“Q. They told you what your job duties would be?
“A. Yes. . . .
*173“Q. When you were washing dishes [on a prior occasion when you worked at Columbia], was there anyone from Columbia there supervising?
“A. Yes.
“Q. Did they make sure that the dishes got washed correctly?
“A. Make sure of the safety and stuff, yes. . . .
“Q. So, Troy would call you and tell you that Columbia needed someone?
“A. Yes.
“Q. They would send you to Columbia?
“A. Yes.
“Q. Did anyone from Troy ever go to Columbia University in terms of supervising anyone from Troy who was there?
“A. No.
“Q. Once Troy told you to go to Columbia University, it was university people that told you how to do the job and what you were supposed to be doing, is that correct?
“A. Yes. . . .
“Q. Did you have a special uniform that you had to wear in the kitchen?
“A. Every day you got new aprons and hats.
“Q. Who provided the aprons and hats?
“A. Downstairs—the supervisor—I don’t know his name—in that office right there outside the kitchen.
“Q. But he’s from Columbia?
“A. Yes.
“Q. Besides the apron and hat, did Columbia give you anything else to wear?
“A. Gloves, rubber gloves, and they gave us, I think, a scarf or a pin; you know, a certain dress code they had, uniform dress code.
*174“Q. So, Columbia set the dress code?
“A. Yes.
“Q. Did they give you any kind of white serving jacket or anything like that?
“A. Yes. They gave us a uniform, the kitchen cafeteria uniform.
“Q. What about pants?
“A. Yes.
“Q. When you got to Columbia, the first day at John Jay [a building] the week before, who told you what job you would have?
“A. Troy told me. Troy told me what I am going for.
“Q. Who told you what station you would be working at?
“A. I forgot her name. She was the manager.
“Q. The manager, was it a Columbia person?
“A. Yes.
“Q. So, Troy told you to go to Columbia, and Columbia told you what job you would do specially?
“A. Yes. You got to listen to the clients, yes.
“Q. Can you describe the manager who you reported to there?
“A. She was a [Cjaucasian female. . . .
“Q. Did she tell you that you had to be working at the station that you were working at?
“A. Yes, sir. . . .
“Q. Did Columbia have another supervisor there to watch you cook?
“A. They had a few spotters.
“Q. What would a spotter do?
“A. I wouldn’t call them a spotter. I would call them like a supervisor. They make sure everyone knew what they were doing.
*175“Q. Making sure you knew what you were doing?
“A. Making sure you were doing it right. They weren’t breathing down your back though. . . .
“Q. You mentioned a menu. Did Columbia give you a list of foods that you were going to have to cook?
“A. No. They just told me what was at my station. They told me what I was going to have at my station.
“Q. Did they give you a list of ingredients you needed?
“A. No.
“Q. What documents, if any, did Columbia give you, what piece of paper?
“A. They didn’t give me any. It was verbal. . . .
“Q. Did anyone from Columbia make sure that your station was cleaned correctly before you left?
“A. No. Well, before I left, yes. Before I left, yes—I am sorry—but I knew what to do anyway. I am used to doing that work. . . .
“Q. So, at the end of the day, Columbia would give you—
“A. Fill out my time slip.
“Q.—a time slip? Then would you bring that back to Troy?
“A. Yes, sir. . . .
“Q. You went there [to Columbia] on Thursday [the day of the accident], got changed, and then you went upstairs and they told you where you would be working?
“A. Yes. . . .
“Q. Were there supervisors in the kitchen while you were cooking?
“A. No, not over me.
“Q. Not over you, but were they in the area or were they walking around?
*176“A. They would come by once in a blue [sic], once an hour.
“Q. Who did those people work for?
“A. They worked for Columbia.”

Finally, Gregory McMillian, the Columbia sous-chef and kitchen manager, testified: “I was Mr. Bellamy’s supervisor.” McMillian, in his capacity as supervisor, completed and signed a Columbia accident report form for this incident.

The foregoing uncontroverted evidence establishes that a special employment relationship existed between Columbia and plaintiff at the time of the accident. “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another” (Thompson, 78 NY2d at 557, citing Brooks v Chemical Leaman Tank Lines, 71 AD2d 405, 407 [1979]; see also Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]; Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 AD3d 155, 156 [2007]).

Special employment is demonstrated by evidence of the “surrender of control by the general employer and assumption of control by the special employer” (Thompson, 78 NY2d at 557). “[T]he determination of special employment status may be made as , a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” (id. at 557-558). Which entity “controls and directs the manner, details and ultimate result of the employee’s work” is “a significant and weighty” factor in reaching this conclusion (id. at 558; see also Fung, 9 NY3d at 359; Lane v Fisher Park Lane Co., 276 AD2d 136, 140 [2000] [special employment was established as a matter of law where there was no evidence that the general employer “played any role in supervising or directing plaintiff as she carried out her assignments for the (special employer)”]; Hanchett v Graphic Techniques, 243 AD2d 942, 944 [1997] [special employment was established as a matter of law where, although the general employer issued the employee’s pay checks, “it did not control, assign, supervise or direct his work once he was sent to” the special employer]).

Based on plaintiffs self-described on-site duties, consistent as his testimony is with the deposition testimony of the representatives of both Troy and defendant, this record leaves not the slightest doubt that plaintiff has failed to raise an inference to support his claim that he was not defendant’s special employee. Indeed, while plaintiff was working at Columbia, it was Colum*177bia, not Troy, that “control[led] and direct[ed] the manner, details and ultimate result of [his] work” (Thompson, 78 NY2d at 558). Troy could not have been supervising plaintiff, since both plaintiff and Scott, Troy’s vice-president, testified that Troy did not send any personnel to supervise its employees’ work at client locations. Plaintiff and Scott also testified that, when plaintiff arrived at Columbia, Columbia personnel assigned him specific tasks, told him where to work, supervised his performance, and made sure he cleaned his station before he left. Plaintiff further testified that Columbia provided him with a uniform to wear, including an apron, hat, gloves, and pants. Also, Troy’s vice-president testified that a Troy client was not required to seek Troy’s approval before asking an employee provided by Troy to work overtime. The Columbia kitchen manager, for his part, testified he was plaintiffs “supervisor” and identified himself as such on the contemporaneous accident report of this incident. Finally, Troy’s vice-president testified that it was Columbia, not Troy, that judged the acceptability of plaintiffs work and determined whether he would work for Columbia in the future. This evidence plainly evinces “surrender of control by the general employer and assumption of control by the special employer” (id. at 557).

In Maldonado v Canac Inti. (258 AD2d 415 [1999]), this Court held that the plaintiff was the defendant’s special employee despite being in the general employ of a temporary agency that had the right to hire or fire him and that paid his workers’ compensation insurance. Maldonado’s employment status as a special employee was instead “established by virtue of [defendant’s] comprehensive and exclusive daily control over and direction of plaintiff, and [a] corresponding absence of any supervision or control over the plaintiffs duties by [the general employer]” (id.). Here, the record establishes a strikingly similar exercise of control by defendant over plaintiff and a corresponding lack of control by Troy over plaintiffs daily activities.

The uncontroverted evidence of the circumstances of plaintiffs employment in defendant’s dining hall leads to the inescapable conclusion that “[p]laintiff’s entire, undisputed work environment . . . when all viewed together, demonstrates as a matter of law that [defendant’s] responsibility for plaintiffs safety is, and can be, no different from its responsibility for the safety of all its employees” (Suarez v Food Emporium, Inc., 16 AD3d 152, 153 [2005]). Therefore, “[t]here is no reason, based on such uncontested circumstances, to give this special em*178ployee . . . any greater rights to sue [defendant] than all those other employees who equally work under its control” (id. at 153-154).

The majority points out, and I agree, that plaintiffs deposition testimony that none of defendant’s employees told him how to cook “stands uncontradicted” in the record. This is neither surprising nor determinative, as plaintiff was hired as an experienced cook. The majority also points to plaintiff’s testimony that, because he knew how to do his job, Columbia personnel did not supervise him closely (as he put it, “[t]hey weren’t breathing down your back”). However, I am not aware of any authority for a view that special employment does not exist unless a defendant establishes any particular type or number of acts manifesting control. Thus, it is inconsequential that plaintiff, when asked whether “anyone from Columbia ever actually t[old] you how to do your job,” answered: “No. I knew how to do it.” Plaintiff, an experienced cook, had no need for training, but, like other employees, was subject to supervision.1

In any event, this aspect of the record does not address the critical inquiry of direction and control. In that regard, plaintiff notably testified that “defendant] told [him] what job [he] would do specifically.” As noted above, plaintiff testified that, although Troy assigned him to work at defendant’s dining hall, Troy did not send its own people to supervise him there. Once plaintiff reported to work, defendant provided him with a cafeteria uniform in accordance with defendant’s dress code, assigned him to a work station, and instructed him as to what he would be doing that day. According to plaintiff, defendant’s supervisors were present to ensure the workers, including plaintiff, knew what they were doing. At the end of the day, defendant would fill out plaintiffs time sheet. Plaintiff was not required to ask Troy’s permission to work overtime.

The majority also contends that summary judgment on the special employment issue has been granted only where “the defendant’s direct control over the plaintiff’s work [i]s essentially admitted.” Whether or not this characterization of prior decisions is correct (and I am not persuaded that it is), in this case—as is clear from the quoted excerpts of plaintiff’s testimony—plaintiff has indeed admitted facts establishing that he worked under Columbia’s “direct control.” For example, *179when asked if it was true that “Troy told you to go to Columbia, and Columbia told you what job you would do specifically,” plaintiff replied: “Yes. You got to listen to the clients, yes” (emphasis added). Similarly, he testified that, while cooking, he was aware Columbia supervisors were there to “make sure everyone knew what they were doing.” These sworn statements by plaintiff himself, in my view, completely put to rest the majority’s unsupported assertion that “plaintiff explicitly stated . . . that he was left unsupervised” at Columbia.

Plaintiffs testimony also disposes of the majority’s suggestion, through its quotation of Murray v Union Ry. Co. of N.Y. City (229 NY 110, 113 [1920]), that a finding of special employment on this record would violate the rule that such a relationship does not exist unless the worker “understand^] that he is submitting himself to the control of a new master.” The above excerpts, quoted verbatim from the record, make clear plaintiff was aware Columbia was supervising his work for it, and that Troy (which did not send any supervisory personnel to Columbia) had relinquished control over plaintiff while he was performing that work. Murray is readily distinguishable, because the basis for the result in that case was that the general employer’s “representative was, or seemed to be, in continuous authority” over the plaintiff while he was working as a guard on the defendant’s railroad (id.). In particular, Judge Cardozo’s decision notes that, when the Murray plaintiff arrived at the premises of the defendant railroad, “he found one of the employees of the [general employer] giving orders to the watchmen, and assigning them to duty” (id. at 112). Here, by contrast, no representative of Troy was present at Columbia to supervise or control any of plaintiffs work.

The fact that, as the majority emphasizes, Troy made “the decisions as to where plaintiff was to work from day to day”— i.e., whether to assign plaintiff to Columbia or some other client on a given day—is of no moment. The determination of the special employment issue depends on whether it was the general employer or the alleged special employer that directed and controlled the employee’s work for the benefit of the alleged special employer while that work was being performed.2 Indeed, the general employer initiates every special employment rela*180tionship by “transferring] [the employee] ... to the service of another” (Thompson, 78 NY2d at 557). Thus, if the general employer’s initial assignment of the employee to the alleged special employer were sufficient to create a triable issue of special employment, it would never be appropriate to render summary judgment determining that such a relationship existed. This is not the law (see Maldonado, 258 AD2d 415 [1999] [“Although plaintiff . . . was assigned by A&A (his general employer) to perform work for defendant Canac . . . plaintiffs status as special employee is established by virtue of Canac’s comprehensive and exclusive daily control over and direction of plaintiff, and the corresponding absence of any supervision or control over the plaintiffs duties by A&A”]).

It is neither surprising nor significant that McMillian, the Columbia kitchen manager, when deposed 2½ years after the event, had no specific recollection of plaintiffs duties. What I find important is that McMillian testified, without contradiction, that he “was [plaintiffs] supervisor” the day plaintiff fell. Nor is it significant that plaintiff was assigned to Columbia on a day-to-day basis, rather than for an extended period of time, since special employment exists when an employee “is transferred for a limited time of whatever duration to the service of another” (Thompson, 78 NY2d at 557 [emphasis added]). Also unavailing is the testimony of Scott, Troy’s vice-president, that “Troy would do the discharging” of its employees when that became necessary. It is well settled that the general employer’s retention of the right to discharge the employee does not bar a finding of special employment as a matter of law, where the record otherwise warrants such a finding (see Ramirez v Miller, 41 AD3d 298 [2007]; Gannon v JWP Forest Elec. Corp., 275 AD2d 231, 232 [2000]; Maldonado, 258 AD2d 415 [1999]).3

*181The majority states that a customer’s assignment of a task to an independent contractor does not turn the independent contractor into an employee of the customer. While I agree with this point as far as it goes, it has no bearing on the outcome of this appeal. Indeed, plaintiff does not claim he was acting as an independent contractor when he donned the uniform Columbia provided him, went to the cooking station Columbia assigned him, and, under the supervision of Columbia personnel, cooked the meals Columbia told him to cook in Columbia’s cafeteria. Neither does the majority cite any case in which a worker performing such routine tasks under supervision was held to be acting as an independent contractor. While the majority states that its “point ... is not that plaintiff was an independent contractor,” the point overlooked is that, since plaintiff does not deny that he was an employee, some entity must have been directing and controlling his work at Columbia. The record establishes that Troy could not have been, and that Columbia in fact was, playing that role while plaintiff was at Columbia.

I also observe that the majority does not cite any case where a triable issue was held to exist under the Workers’ Compensation Law as to whether a temporary worker assigned by a temporary staffing agency to one of the agency’s clients was the special employee of the client for the duration of the assignment. While the majority cites two decisions in which the defendant was denied judgment as a matter of law on the special employment issue (Murray v Union Ry. Co. of N.Y. City, 229 NY 110 [1920], supra [detective agency employee injured while guarding railroad]; Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972 [2001] [refrigeration company employee injured while working at chemical plant]), neither case involved a temporary worker whose general employer was a temporary staffing agency with no involvement (aside from the provision of temporary workers) in the operations of its clients. In Murray and Short, issues of fact existed whether the general employer continued to direct and control the plaintiffs work while he worked at the premises of the alleged special employer. *182No such question exists here, since it is undisputed that no Troy supervisory personnel were present at the Columbia food service premises while plaintiff was working there.

Several relatively recent decisions by this Court and other departments of the Appellate Division have held that a temporary worker, sent by a temporary staffing agency to work for a client of the agency at a location where the agency has no supervisory personnel, is, as a matter of law, the client’s special employee while working under the client’s direction and control (see Roberson v Moveway Transfer & Stor., 44 AD3d 839 [2d Dept 2007]; Suarez v Food Emporium, Inc., 16 AD3d 152 [1st Dept 2005], supra; Bailey v Montefiore Med. Ctr., 12 AD3d 545 [2d Dept 2004]; Niranjan v Airweld, Inc., 302 AD2d 572 [2d Dept 2003]; Dyer v We’re Assoc., 289 AD2d 137 [1st Dept 2001]; Lane v Fisher Park Lane Co., 276 AD2d 136 [1st Dept 2000], supra; Maldonado v Canac Intl., 258 AD2d 415 [1st 1999], supra; Hanchett v Graphic Techniques, 243 AD2d 942 [3d Dept 1997], supra; Causewell v Barnes & Noble Bookstores, 238 AD2d 536 [2d Dept 1997], supra). None of these cases can, in my judgment, be meaningfully distinguished from the one at bar.

It is puzzling that the majority cites Bynog v Cipriani Group (1 NY3d 193 [2003], modfg 298 AD2d 164 [2002]), since that decision (in which the Workers’ Compensation Law’s bar to tort actions was not at issue) actually supports Columbia’s position on this appeal. In Bynog, the Court of Appeals held that professional waiters employed by a temporary staffing agency (M.J. Alexander & Co., Inc. [MJA]) had no claim under article 6 (“Payment of Wages”) of the Labor Law against the operators of the banquet halls (collectively, the Ciprianis) where the waiters had been assigned to work on various occasions. One factor critical to the Court’s determination that the waiters were not employees of the Ciprianis was the uncontroverted evidence that the waiters’ work at the banquet halls was supervised by MJA, the temporary staffing agency, not by the Ciprianis. The Court stated (1 NY3d at 199):

“In most cases Alexander [the principal of MJA] attends the banquets and supervises the temporary waiters personally. If he is not in attendance, one of the temporary waiter captains supervises the others.
“If a problem does arise, the MJA handbook states that the temporary waiter should inform either Mi*183chael Alexander, if he is present, one of his appointed captains if he is not, or simply wait until after the event and report the problems to Alexander. The handbook instructs the temporary waiters not to contact the ‘client’ directly.”

In view of the undisputed evidence that the Ciprianis did not supervise the temporary waiters while they were working at the banquet halls, the Bynog Court held: “Even if we were to conclude that the special employment doctrine is applicable in this context and that plaintiffs were the general employees of MJA, the fact remains that the Ciprianis did not exert sufficient control over plaintiffs’ performance of their work to render them the special employer of plaintiffs” (id. at 200, citing Thompson, 78 NY2d at 557).4 In the instant case, of course, Columbia did precisely what the Ciprianis did not do in Bynog, namely, “exert . . . control over [the worker’s] performance of [his] work” at the client’s facility.

With the undisputed facts of this case and the authority cited as a backdrop, I respectfully suggest that the majority’s position would effectively abrogate a settled legal principle. While there are occasions when such a change in the law is appropriate, I do not believe that we, as an intermediate appellate court, have the power in this situation to make the change, especially since the legal principle in question has been so recently reiterated by the Court of Appeals (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351 [2007], supra). Even if the course taken by the majority were not foreclosed by the Court of Appeals, I most respectfully submit that the majority has not persuasively demonstrated any recent change in circumstance or any fatal flaw in existing legal doctrine to justify abandoning settled precedent.

Consequently, as plaintiff has elected to receive workers’ compensation benefits for his injuries, Columbia, as plaintiffs special employer at the time of his accident, should be shielded from this action at law (see Workers’ Compensation Law §§ 11, 29 [6]). Accordingly, I would reverse the order on appeal and dismiss the action.

Mazzarelli and Buckley, JJ., concur with Lippman, P.J.; Friedman and Marlow, JJ., dissent in a separate opinion by Marlow, J.

*184Order, Supreme Court, Bronx County, entered January 25, 2007, affirmed, without costs.

. I find no support in the record for the majority’s speculation that Columbia may have subjected plaintiff to a lesser degree of supervision than its general employees having comparable skills.

. See Brown v Bruckner Plaza Assoc., 295 AD2d 207, 208 (2002) (worker was special employee where there was “no showing that [the general employer] retained any authority over the work of its laborers once they were assigned” to the special employer [emphasis added]); Lane v Fisher Park Lane *180Co., 276 AD2d 136, 140 (2000), supra (plaintiff was special employee where there was “no showing that [the general employer] played any role in supervising or directing plaintiff as she carried out her assignments for the [special employer]” [emphasis added]); Hanchett v Graphic Techniques, 243 AD2d 942, 944 (1997), supra (worker was special employee where the general employer “did not control, assign, supervise or direct his work once he was sent to” the special employer [emphasis added]); Causewell v Barnes & Noble Bookstores, 238 AD2d 536 (1997) (plaintiff was defendant’s special employee where defendant’s “employees exclusively controlled and directed the manner, details, and ultimate result of the plaintiffs work while on the premises owned by [defendant] where the accident occurred” [emphasis added]).

. In any event, while Troy obviously retained the power to determine whether plaintiff would remain its general employee, the record establishes, *181and the majority concedes, as previously noted, that it was Columbia that decided whether plaintiff could continue to work on its premises. Further, to the extent the majority questions the competence of the Troy vice-president’s testimony, I see no basis to question the Troy vice-president’s knowledge that Troy does not supervise its temporary workers while they are working for a Troy client. Moreover, to reiterate, both plaintiff and the Columbia kitchen manager testified that plaintiff worked at Columbia under the supervision of Columbia personnel.

. The quoted language from Bynog demonstrates that the Court of Appeals did not determine that the special employment doctrine applied in the context of that case, nor did the Court determine that the waiters were general employees (as opposed to independent contractors) of MJA. Again, plaintiff in this case does not claim to have been an independent contractor.