Bautista v. David Frankel Realty, Inc.

Friedman, J.P.,

dissents in a memorandum as follows: As set forth later in this dissent, this Court has considered the issue of special employment in the building management context in at least eight recent decisions. In those cases, decided by benches that included members of the present majority, we found that a special employment relationship between the defendant managing agent and the plaintiff employee had been established as a matter of law. With breathtaking disregard for our precedents, the majority declines to follow these decisions without making a serious effort to distinguish them factually, while failing to cite a single decision of this Court in which a triable issue as to special employment was held to exist on a comparable record. The foregoing is all the more remarkable because plaintiff has presented no evidence to controvert defendant’s evidence that a special employment relationship existed between the parties.

Plaintiff, a porter at a residential building owned by nonparty 55 East 66th Street Corporation (55 East), suffered an on-the-job injury, for which he collected workers’ compensation benefits. It is undisputed that 55 East was the general employer of the building staff, including plaintiff and the building super*558intendent, plaintiffs “boss.” The record also contains uncontroverted evidence establishing that the entity 55 East hired to act as the building’s managing agent—defendant David Frankel Realty, Inc. (DFR)—was the “boss” of plaintiffs boss, the building superintendent (as the latter testified), and that DFR, pursuant to its contract with 55 East, made decisions concerning the hiring and firing of members of the building staff and otherwise “controlled] and directed] the manner, details and ultimate result of the . . . work” of the building staff, including plaintiff (Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007], quoting Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558 [1991]). Although plaintiff has not come forward with an iota of evidence rebutting DFR’s proof that he was DFR’s special employee, the majority holds that Supreme Court erred in dismissing this action against DFR pursuant to the bar of Workers’ Compensation Law §§ 11 and 29 (6). Because I believe that the majority’s decision is contrary to well-settled law, I respectfully dissent.

The majority agrees with me that, contrary to plaintiff’s contentions, the record establishes that the building superintendent, Albert Abreu—whom plaintiff described as his “boss” and his “supervisor”—controlled plaintiffs work. The majority and I also agree that, if DFR, the managing agent, was the special employer of Abreu, plaintiffs supervisor, then DFR also would have to be deemed plaintiffs special employer, consistent with prior decisions this Court has rendered in cases with similar fact patterns (see Ramirez v Miller, 41 AD3d 298, 298-299 [2007], Iv dismissed 10 NY3d 784 [2008]; Ayala v Mutual Hous. Assn., Inc., 33 AD3d 343, 344 [2006]; Erazo v 136 E. Mgt., 302 AD2d 282 [2003]; Brunetti v City of New York, 286 AD2d 253 [2001]). Where the majority and I disagree is on whether the record establishes that Abreu, although a general employee of 55 East, was himself a special employee of DFR. In my view, the evidence set forth below—which has not been disputed or controverted in any way by plaintiff—eliminates any triable issue as to the relationship between Abreu and DFR. Plainly, Abreu was a special employee of DFR.

Abreu’s testimony about his relationship with DFR was clear enough. Abreu testified that he “had to appear at [DFR’s] office on Wednesday” each week, at which time he would “report to [his] boss” (emphasis added), a DFR vice-president named Suz Landi. Abreu testified that, when he went to his Wednesday meetings with Landi at DFR, he would “bring purchase orders” and “reports of tenants’ questions,” “bring over proposals from contractors,” “drop off the payroll,” and “report to [Landi] the *559existing overall problems in the building.” In addition, Abreu filed a report about plaintiffs accident with Landi at DFR, which he said was “mandatory.”

In her affidavit in support of DFR’s motion for summary judgment, Suz Landi averred:

“[DFR] is a managing agent for numerous residential apartment buildings in New York City including the building located at 55 East 66th Street, New York, New York. That building is owned by [55 East]. I am the property manager for the apartment building owned by [55 East]. . . .
“In my capacity as property manager for 55 East 66th Street, I was the direct supervisor of Albert Abreu, the superintendent of the apartment building on June 3, 2004 [the date of plaintiffs accident]. In that capacity, I assigned, supervised, instructed, oversaw, monitored and directed his work duties on a daily basis.
“The plaintiff herein was a porter in the building. The plaintiff reported directly to Mr. Abreu. Albert Abreu assigned, supervised, instructed, oversaw, monitored and directed the plaintiffs work duties on a daily basis.
“[DFR], the managing agent, hired, supervised and paid the maintenance staff, and terminated workers if necessary. The managing agent directed the superintendent, who in turn directed the maintenance staff and gave them their daily assignments.
“[DFR] collected maintenance payments from shareholders and paid the workers wages from the building account; provided the plaintiffs paycheck, carried workers compensation, liability and unemployment insurance, and withheld Social Security.
“[DFR] had comprehensive and exclusive daily control over the work of all the maintenance staff of the apartment building through the building’s superintendent. [DFR] had the authority and exercised the right to control all facets of the daily operation of the building and its workers.
“The maintenance people were not directly supervised or directed by [55 East].”

The management agreement between DFR and 55 East provided, inter alia, that DFR would “[c]ause to be hired, paid and supervised, all persons necessary or desirable in order to properly maintain and operate the Premises who, in each instance, shall be [55 East’s] and not [DFR’s] employees, and cause to be discharged all persons unnecessary or undesirable.” The management agreement also provided that DFR would “[c]ause the Building to be maintained in such condition as may be directed by [55 East].”

*560Special 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). “[A] ‘significant’ and ‘weighty feature’ in deciding whether a special employment relationship exists is ‘who controls and directs the manner, details and ultimate result of the employee’s work’—in other words, who determines ‘all essential, locational and commonly recognizable components of the [employee’s] work relationship’ ” (Fung, 9 NY3d at 359, quoting Thompson, 78 NY2d at 558). Another principal factor in the analysis is which entity holds the power of “hiring and discharging” the employee (Fung, 9 NY3d at 359, citing Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d 911, 913 [2007]). The general employer’s retention of “responsibility for payment of wages and for maintaining workers’ compensation and other employee benefits” is not inconsistent with the existence of a special employment relationship (Thompson, 78 NY2d at 557). Further, “the 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).

In this case, DFR made a prima facie showing that it was the special employer of Abreu, plaintiffs supervisor, and therefore the special employer of plaintiff himself, notwithstanding that 55 East, which paid both men’s wages, was their general employer. Abreu testified that his “boss” was Suz Landi, the DFR vice-president who served as the property manager of the building, and that he was required to file a report about plaintiff’s accident with Landi. That DFR directed and controlled the work of the building staff is confirmed by Landi’s affidavit, as well by the management agreement between 55 East and DFR, which gave DFR the power and responsibility to hire, fire, and supervise 55 East’s employees engaged in the maintenance and operation of the building. Since plaintiff has not come forward with any countervailing evidence, DFR is entitled to summary judgment dismissing the complaint as barred by the Workers’ Compensation Law.

The conclusion that the record establishes that DFR was plaintiffs special employer is consistent with numerous decisions this Court has rendered in the building management context, in which we have held that a managing agent with the undisputed power to hire, fire and supervise the building staff is the special employer of the staff members as a matter of law (see Gomez v Penmark Realty Corp., 50 AD3d 607 [2008]; Ramirez v Miller, 41 AD3d 298 [2007], supra; Villanueva v *561Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37 AD3d 155 [2007]; Ayala v Mutual Hous. Assn., Inc., 33 AD3d 343 [2006], supra; Gherghinoiu v ATCO Props. & Mgt., Inc., 32 AD3d 314 [2006], Iv denied 7 NY3d 716 [2006]; Hughes v Solovieff Realty Co., L.L.C., 19 AD3d 142 [2005]; Erazo v 136 E. Mgt., 302 AD2d 282 [2003], supra; Evans v Citicorp, 276 AD2d 370 [2000]). The majority fails to identify a single precedent of this Court decided in the building management context that supports the result it reaches here.

Contrary to the majority’s claim, I do not propose that we adopt a rule under which “all building managers [are afforded] the status of special employers of the employees of the buildings the building managers operate.” I do, however, believe that we should adhere to this Court’s own precedents holding that clear and uncontroverted evidence that a building manager directed and supervised the building staff—such as we have in the record before us—establishes the existence of a special employment relationship between the building manager and the building staff as a matter of law. The majority departs from this line of precedent without explanation or justification.

While basically ignoring the foregoing case law, the majority asserts that Abreu’s deposition testimony somehow creates an issue of fact as to whether DFR was his special employer. This position is baffling. Abreu, without any prompting by the lawyer examining him, characterized Landi of DFR as his “boss,” a common English word defined as “a person who exercises control or authority; specifically, one who directs or supervises workers” (Merriam-Webster’s Collegiate Dictionary 133 [10th ed]). Abreu further testified that he was required to “report” to Landi once a week to discuss all aspects of the building’s operations, and that he was required to file a report about plaintiff s accident with Landi. If more than this uncontroverted evidence were needed, it is certainly supplied by the description of DFR’s authority over the building’s staff in Landi’s affidavit, and by DFR’s management agreement, which gave DFR the power and responsibility to hire, pay, supervise and discharge all members of the building staff. Not a word of Abreu’s testimony contradicts the picture of the extent of DFR’s authority given by Landi’s affidavit and the management agreement.

While the majority gives short shrift to Landi’s affidavit, that affidavit is no less factually detailed than the affidavits on which this Court granted special employers summary judgment in two prior unanimous decisions in which a member of the majority of the instant panel participated.

In Villanueva v Southeast Grand St. Guild Hous. Dev. Fund *562Co., Inc. (supra), we granted the defendant management company (Residential) summary judgment on the special employment issue based on the affidavit of its president (John Cameron). We found that Cameron’s affidavit “established that [Residential] was exclusively responsible for the maintenance and repair of the premises” (37 AD3d at 156). The relevant portions of Cameron’s affidavit read as follows (paragraph numbers omitted):

“That at the time of the accident herein, as per the management agreement, Residential . . . was exclusively responsible for the maintenance and repair of the premises .... The site superintendent . . . and the site manager . . . were employed by [the owner] but they and all of the other site employees reported directly to and were supervised by myself at the time of the accident herein.
“That the site owner . . . had no direct involvement in the day-to-day operation, control, maintenance and supervision of the premises at the time of the accident herein.
“That Residential. . . and myself had the ultimate authority and responsibility for the hiring, disciplining and/or firing of site personnel at the time of the accident herein.”

Similarly, in Gherghinoiu v ATCO Props. & Mgt., Inc. (supra), we granted the defendant managing agent of a property summary judgment on the special employment issue based on the affidavit of its treasurer, Leonard Bernacke (32 AD3d at 315). The entire discussion of direction and control over the plaintiffs work in Bernacke’s affidavit was as follows: “That though [the owner] was listed as the plaintiffs employer, it was the employees and/or executives of [the managing agent] that utilized, directed and controlled the manner and methods of [the owner’s] maintenance workers, including the plaintiff. Further, it was solely [the managing agent] that had the ability to hire and/or fire the maintenance workers that worked at [the property]” (paragraph number omitted). Notably, the record of the Gherghinoiu decision does not contain any deposition transcript, indicating that our holding on the special employment issue in that case was based entirely on the Bernacke affidavit.

If we were correct in rendering summary judgment on the special employment issue in Villanueva and Gherghinoiu based on the above-quoted affidavits, I do not understand why we should not rely on the Landi affidavit (to the extent such reliance may be necessary) in affirming the grant of summary judgment on the special employment issue in this case.

I see no merit in the majority’s suggestion that Villanueva can be distinguished from this case based on the provision in *563DFR’s management agreement that members of the building staff “shall be [55 East’s] and not [DFR’s] employees.” Although the majority concedes that this provision is not “decisive[ ]” of the special employment issue, it would be more accurate to say that the provision is essentially irrelevant. In addressing a similar contractual provision in the seminal decision on this issue, the Court of Appeals stated: “While the ATS-Grumman contract provides that ATS is to be considered Thompson’s employer, that provision alone is insufficient to establish as a matter of law that Thompson was not also a special employee of Grumman. Moreover, in the context of this record, it fails to raise a question of fact as to his special employment status” (Thompson, 78 NY2d at 559). This Court, following Thompson, held to the same effect in Maldonado v Canac Intl. (258 AD2d 415 [1999]): “Even if the contract . . . provided that employees of A&A assigned to work under Canac’s direction ‘shall at all times be employees of A&A and not of Canac’, the application of the law as set forth in Thompson v Grumman Aerospace Corp. (supra) would still require that summary judgment be granted to the special employer [Canac].” In addition, the record of our 2007 decision in Ramirez v Miller (supra) shows that the building management agreement in that case contained a provision substantially identical to the one here, requiring the managing agent to “[c]ause to be hired, paid and supervised, all persons necessary to be employed in order to properly maintain and operate the Building, who, in each instance, shall he the Owner’s and not the Agent’s employees, and cause to be discharged all persons unnecessary or undesirable” (emphasis added). Consistent with Thompson and Maldonado, we affirmed summary judgment for the managing agent on the special employment issue in Ramirez notwithstanding the above-quoted contractual provision.

In the end, the sole basis for the majority’s attempt to conjure a triable issue out of the simple and undisputed facts of this case is Abreu’s affirmative answer to a clumsily constructed question by plaintiffs counsel that included the assertion that Abreu held an “autonomous position.” That Abreu, as the resident building superintendent, exercised some degree of autonomy in carrying out his day-to-day duties is neither surprising nor in any way inconsistent with his having been a special employee of DFR. Far from claiming to be an independent contractor, Abreu referred to Landi as his “boss”; he acknowledged that he filed his income tax returns with a W-2 form; and—most tellingly—he initially testified that it was his *564understanding that he was “employed by [DFR].”* Since it is undisputed Abreu was an employee—one who works subject to the direction and control of another—some entity must have exercised that direction and control. The only entity the record evidence identifies as exercising direction and control over Abreu is DFR, through Landi. In other words, if the majority is correct that a reasonable inference could be drawn that Landi was not controlling Abreu’s work, the question is, who was? Plaintiff has offered nothing to show that Abreu’s work was controlled by someone other than Landi, and certainly has not come forward with a sliver of evidence to show that Abreu reported to any officer or employee of 55 East, the general employer. Indeed, neither plaintiff nor the majority identifies any evidence in the record that would support an inference that Abreu (and, therefore, plaintiff) was not a special employee of DFR.

In view of the majority’s focus on Abreu’s exercise of some autonomy in carrying out his day-to-day duties, it should also be noted that a person’s having some degree of autonomy in performing his job is not inconsistent with his being subject to another’s control for purposes of employment law. For example, a medical resident treating patients at a hospital, an associate attorney conducting a deposition, a police officer on patrol, and a foreman at a factory are all considered employees. Thus, in asking who, if not Landi, was controlling Abreu’s work, I do not make the inapt assumption the majority apparently ascribes to me that some supervisor had to be constantly hovering over Abreu as he performed his job. As a person who held a position of some responsibility, Abreu presumably performed his job without an overseer looking over his shoulder every minute, but this does not mean that no one had “control” over his work within the contemplation of Thompson and its progeny.

For the foregoing reasons, I believe that plaintiff’s action against DFR is barred by the Workers’ Compensation Law, and, on that ground, I would affirm Supreme Court’s grant of summary judgment dismissing the complaint. I therefore find it unnecessary to reach the parties’ remaining arguments.

It is striking that the majority completely ignores Abreu’s testimony that his own understanding was that DFR was his employer. While Abreu subsequently acknowledged that 55 East was his employer after it was brought to his attention that 55 East signed his paychecks and issued his W-2 form, not a word of his testimony casts doubt on DFR’s authority over his work.