Gadley v. U.S. Sugar Co.

Balio and Boehm, JJ. (dissenting).

We respectfully dissent. The undisputed facts reveal that no EGW representative was present at the U.S. Sugar plant while its replacement workers were there; that plaintiff reported each day to an employee of U.S. Sugar, who told him where he was to work; and that an employee of U.S. Sugar directed plaintiff to work on the bag-making machine. Further, the affidavit of a fellow EGW replacement worker named Carl Funderburk, who had been instructed, trained and supervised on the use of the machine by U.S. Sugar employees, unequivocally shows that, while acting as a special employee of U.S. Sugar, Funderburk instructed plaintiff on the use of the machine.

We disagree with the majority’s assessment of the evidentiary value of the affidavit of James Bonerb. That affidavit reflects that Bonerb, in addition to serving as a vice-president of U.S. Sugar, is the person in charge of the U.S. Sugar plant in Buffalo. There is no evidence in this record that Bonerb lacks first-hand knowledge of the facts stated in his affidavit. Moreover, plaintiff has not asserted that Bonerb lacks personal knowledge of the facts or that his affidavit is insufficient to satisfy defendant’s initial burden on a summary judgment motion. Plaintiff contends that the evidence he has submitted in opposition to the motion is sufficient to raise a factual issue.

Although EGW paid plaintiff’s salary and provided employee benefits, including workers’ compensation coverage, the work was performed for the sole benefit of U.S. Sugar. The record clearly establishes that U.S. Sugar had sole and complete control and direction over the performance of work by plaintiff and other EGW replacement workers. Under the circumstances, as a matter of law, plaintiff was a special employee of U.S. Sugar and the exclusive remedy of worker’s *985compensation benefits constitutes a bar to this action (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553; Jeffords v Professional Bldrs./Remodelers Group, 186 AD2d 989; Lesanti v Harmac Indus., 175 AD2d 664). Thus, we would grant U.S. Sugar’s motion for summary judgment. (Appeal from Order of Supreme Court, Erie County, Whelan, J.—Summary Judgment.) Present—Denman, P. J., Green, Balio, Callahan and Boehm, JJ.