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
"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)
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'
, IT IS ORDERED that motion no.
M-65181 be denied.