New York State Court of Claims

New York State Court of Claims

USMANI v. THE CITY UNIVERSITY OF NEW YORK, #2002-016-064, Claim No. 97732, Motion No. M-65181


Motion for summary judgment dismissing claim on grounds that claimant was a special employee was denied on the grounds that material issues of fact remained.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Tantleff, Cohen & Tantleff, P.C.By: Edward D. Tantleff, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 25, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion for summary judgment dismissing the claim of Muhammad Usmani and Zebun Usmani.[1] In such claim, it is alleged that because of defendant's negligence, Muhammad Usmani tripped and fell on a protruding metal strip in a lobby at New York Technical College in Brooklyn. At the time of the incident, Usmani was working as a security guard at the college. He was an employee of Trent Investigation & Security International Corp. ("Trent"), which had contracted with the college to provide security guards for the campus. Following the incident, Usmani collected workers' compensation benefits from Trent. Defendant asserts that claimant was a "special employee" of the City University of New York ("CUNY"), and that accordingly, CUNY is shielded from an action at law, with claimant's sole remedy being workers' compensation benefits. It has been held that:
One who is in the general employ of one party may be in the special employ of another despite the fact that the general employer is responsible for the payment of wages, has the power to hire and fire, has an interest in the work performed by the employee, maintains Workers' Compensation for the employee and provides some, if not all, of the employee's equipment. Relevant in resolving the issue is who controls the employee's manner of working and the details of the work . . . The presumption is that the general employment continues in the absence of clear proof of surrender of control . . . The question is frequently one of law. However, where the elements of the employment or of the particular work being done bespeak both general and special employment the question is one of fact for the jury . . .

Brooks v Chemical Leaman Tank Lines, Inc.
, 71 AD2d 405, 407, 422 NYS2d 695, 697 (1st Dept 1979) (citations omitted).

"Although no single factor is dispositive in determining whether a special employment relationship exists, a number of factors are weighed, including, but not limited to, the right to and degree of supervision and control by the alleged employer over the manner, details and ultimate result of the work of the special employee . . . the method of payment, the right to discharge, the furnishing of equipment, and the nature and purpose of the work . . . Of these factors the most important is the degree of control the alleged special employer has over the work of the employee . . ." Rothenberg v Erie Metal Stamping Co., Inc., 204 AD2d 249, 250, 612 NYS2d 149, 150-151 (1st Dept 1994) (citations omitted).

In Thompson v Grumman Aerospace Corporation, 78 NY2d 553, 557, 578 NYS2d 106, 108 (1991), a sheet metal mechanic assigned to another company's plant was found to be a special employee where "combined with other indicia of special employment, the uncontroverted record document[ed] [the special] employer's comprehensive and exclusive daily control over and direction of the special employee's work duties for almost a full year with the corresponding complete absence of any supervision or control of his work duties by the originating general employer." Such employee had worked exclusively at the special employer's plant for a year, had reported daily to a supervisor at the special employer who assigned, supervised, instructed, oversaw, monitored and directed his work duties on a daily basis, where the special employer fixed his wages and benefits, and where there were no supervisory personnel from his general employer at the plant where he was assigned.

In this case, defendant argues that Usmani was CUNY's special employee since he reported daily to a CUNY supervisor who determined his post and responsibilities, determined his hours of work, approved his vacation schedule and was notified by claimant when he called in sick. See the May 6, 2002 affidavit of Guy Lovell, attached to defendant's moving papers.

Claimant has pointed out, however, that he was paid by Trent, supplied his uniform and badge by Trent, required to notify Trent should he wish to call in sick, and that he would report any job problems to Trent. See the May 22, 2002 affidavit of Muhammad Usmani, attached to claimant's opposition papers.

I find that material issues of fact remain which prevent a grant of summary judgment. See, e.g., Ozzimo v H.E.S., Inc., 249 AD2d 912, 913, 672 NYS2d 197, 198 (4th Dept 1998), in which it was stated that a determination as to special employee status "should not be resolved on a motion for summary judgment unless the special employer's comprehensive and exclusive control and direction of the manner, details and ultimate results of the employee's work have been incontrovertibly established . . ." Such comprehensive and exclusive control and direction has not been established at this point.

For the foregoing reasons, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-65181 be denied.

June 25, 2002
New York, New York

Judge of the Court of Claims

  1. [1]Because the claim of Zebun Usmani is derivative in nature, references herein will be to Muhammad Usmani in the singular, unless the context indicates otherwise.
  2. [2]The following were reviewed: defendant's notice of motion with affirmation in support, the affidavit of Guy Lovell and exhibits A and B; claimant's affirmation in opposition; and defendant's reply affirmation with exhibit C.