BOUNDS v. THE STATE OF NEW YORK, #2007-009-170, Claim No. 106890
In a decision limited to the sole issue of whether claimant was a “special
employee” of the defendant at the time of his accident, this Court found
that claimant was not a special employee, and was therefore entitled to damages
under his Labor Law § 240(1) cause of action.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
MICHAELS & SMOLAK, P.C.
BY: Michael G. Bersani, Esq.,Of Counsel.
HON. ANDREW M. CUOMO
Patricia M. Bordonaro, Esq.,
March 6, 2007
See also (multicaptioned
Claimant commenced this action seeking to recover for personal injuries
sustained by him when he fell while working on scaffolding at Cayuga Lake State
Park on February 6, 2001. At the time, claimant was a public assistance
recipient and was participating in the Work Experience Program (W.E.P.) of the
Seneca County Department of Social Services. After his accident, claimant
sought and received workers’ compensation benefits from Seneca County, and
then commenced this action against the State asserting a cause of action
pursuant to Labor Law § 240(1).
In a Decision and Order dated March
, this Court granted claimant’s motion for partial summary judgment as to
the issue of liability on his Labor Law § 240(1) cause of action, and
denied defendant’s cross-motion seeking summary judgment dismissing the
By a Memorandum and Order dated December 22, 2005, the Appellate
Division, Fourth Department (24 AD3d 1212), modified the judgment which had been
entered pursuant to this Court’s Decision and Order, and remanded this
matter for a determination, on the facts, as to whether claimant was a special
employee of the defendant at the time of his accident. If so, claimant’s
exclusive remedy would be limited to the benefits provided by the Workers’
Compensation Law. This decision is therefore limited to a resolution of such
Testimony at the trial established that claimant, at the time of his
accident, was a public assistance recipient residing in Seneca County. As a
condition of receiving public assistance benefits, claimant was required to
participate in the W.E.P. of the Seneca County Department of Social Services.
Under this program (authorized by Social Services Law §§
330-342), claimant (and others) could be assigned to work on different public
works projects throughout the county, as arranged and determined by the
County’s employment and training counselor.
On the date of the
accident, claimant testified that he was picked up at his home by John Cafaro,
the “workforce monitor” with the Seneca County W.E.P. Mr. Cafaro
transported claimant and another worker, William Kuhlman, to Cayuga Lake State
Park and told the workers that they were going to split wood at the State Park
that day. Mr. Cafaro left Mr. Bounds and Mr. Kuhlman at the park, and the
workers started their assigned duties of splitting wood. The log-splitter,
however, was leaking gasoline and caught fire. Claimant and Mr. Kuhlman
therefore decided to stop splitting the wood, and they returned the log-splitter
to the maintenance garage at the park.
Since they were unable to continue
with their original duties, claimant and Mr. Kuhlman were then directed by John
Dawson, Park Manager, to erect a scaffold in the garage so that they could then
clean and dust the interior ceiling of the garage in preparation for painting.
After he instructed the workers on what they were expected to do, Mr. Dawson
left the area and did not supervise the erection of the scaffold by claimant and
Mr. Kuhlman, and he was not present when claimant was injured.
climbing up the scaffolding to start cleaning the ceiling, claimant sustained
his injuries when he slipped through a gap between the two planks of the
scaffold. These planks were not secured, and they slid apart as claimant
stepped from one plank to the other.
After this accident, Mr. Kuhlman
called a representative from Seneca County to report claimant’s injury.
Mr. Cafaro then came back to the park and drove claimant to the emergency room
at Geneva General Hospital. Mr. Cafaro waited for claimant while he was
examined, drove claimant to pick up his prescribed medication after he was
released, and then drove him home.
Although initially there was some
confusion in his testimony, claimant acknowledged that he only worked at the
State Park on two days during the entire time that he participated in the W.E.P.
In addition to the day of the accident, Mr. Bounds also testified that he worked
at the State Park the day before the accident occurred, when his job duties
entailed the stacking of logs, which he did alongside Mr. Cafaro.
Following his injury, claimant returned to work through the W.E.P.,
although he had certain medical restrictions placed upon him. He testified that
Mr. Cafaro was responsible for ensuring that claimant was given work assignments
which were appropriate for these restrictions. Additionally, claimant testified
that if he was unable to work due to illness, or for whatever reason, he was
instructed to notify the County, and not the particular worksite agency where he
was assigned. He never returned to work at the State Park following this
accident, even though he participated in the
W.E.P. for approximately one
John Cafaro, the workforce monitor, also testified at the trial. He
confirmed that on the morning of the day of the accident, he drove claimant and
Mr. Kuhlman to the State Park, and left them at the park as he had to transport
other workers to other worksites. According to Mr. Cafaro, he left claimant and
Mr. Kuhlman under the direction of the Worksite Supervisor, and this supervisor
at Cayuga Lake State Park was John Shaffer, the Park Superintendent. Mr.
Cafaro, therefore, was not present at the State Park at the time that claimant
was injured. Mr. Cafaro testified that although he was not present at that
particular time, he often worked with W.E.P. workers 40 to 50 percent of the
time. He did this as a means of checking on their work progress and habits, and
this allowed him to provide the workers with instructions and
“coaching” to help them do a better job. Mr. Cafaro also confirmed
that he picked claimant up when he was notified of his injuries, and transported
claimant to the hospital, and thereafter to his home.
John Shaffer, the
Park Superintendent, was not called at trial, but a transcript of his deposition
testimony was received into evidence and has been reviewed by the Court (see
Exhibit 5). At his deposition, Mr. Shaffer confirmed that although Mr.
Cafaro was not present on the day of the accident, he was often present at the
park while his program participants were working, and when there, would provide
instructions to his workers as to the type of work involved and how best to
perform that work.
Mr. Shaffer also testified that when Mr. Cafaro was
present at the worksite, he (Mr. Shaffer) would leave supervision of those
workers to Mr. Cafaro, and only in Mr. Cafaro’s absence did
Mr. Shaffer assume supervision of those workers.
Dale Wagner, the
Employment and Training Coordinator at the Seneca County Department of Social
Services, also testified at trial and provided background information as to the
operation of the Seneca County W.E.P. He explained that each participating
agency designated one of its employees as the “Worksite Supervisor”,
and that this individual was responsible for supervision of the program
participants. This supervisor had control over members of the work crew, and
determined the type of work that the crew members would do. He also
acknowledged that one of Mr. Cafaro’s duties, as the work crew monitor,
was to “coach” his workers during their work experience so that the
County would ultimately be in a better position to recommend these workers to
potential employers, and therefore eventually remove them from public
assistance. He also acknowledged that Mr. Cafaro often worked alongside these
workers so that Mr. Cafaro would be in a better position to monitor the workers
and provide this “coaching”.
A special employee is “one who is transferred for a limited time of
whatever duration to the service of another” (Thompson v Grumman
Aerospace Corp., 78 NY2d 553, at 557). A person may be found to be a
special employee even though the general employer is responsible for the payment
of wages and other benefits, and has the power to hire and fire the worker
(Thompson v Grumman Aerospace Corp, supra; Adams v North-Star
Const. Co., Inc., 249 AD2d 1001). Factors to be considered in deciding
whether a special employment relationship exists include the right to control
the employee’s work, the method of payment, the furnishing of equipment,
the right to discharge the employee, and the nature of the work involved
(Matter of Abramsom v Long Beach Mem. Hosp., 103 AD2d 866).
Although no single factor is alone determinative of this issue, “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., supra at
558; see also Majewicz v Malecki, 9 AD3d 860).
Furthermore, it must
be noted that there is a presumption that general employment continues, and this
presumption is overcome only when it is demonstrated that the general employer
has surrendered control, and that such control has been assumed by the special
employer (Thompson v Grumman Aerospace Corp., supra; Goss v
State University Const. Fund, 261 AD2d 860).
In this claim, testimony
clearly established that claimant was required to participate in the W.E.P. in
order to qualify for public assistance benefits paid by Seneca County. The
State (through Cayuga Lake State Park) did not pay any wages nor was it
responsible for any benefits due to claimant, and was essentially the recipient
of free labor through its agreement with Seneca County. There was no indication
in any of the testimony that the State had any right to engage or terminate the
The central issue over which
the parties disagree pertains to the amount of direct supervision and control
exercised over claimant by the two entities: Seneca County through its W.E.P.
program, and the State through its employees at the State Park. As stated
above, although it is not determinative, the right to control or supervise the
worker is a significant factor in determining whether a special employment
The State relies upon the fact, as testified to by
Mr. Wagner, that an employee of the State Park, John Shaffer, had previously
been designated as the “Worksite Supervisor” as evidence that the
State had assumed direction and control over the workers from the W.E.P.
Combined with the fact that Mr. Cafaro simply dropped claimant (and Mr. Kuhlman)
at the park on the morning of the accident and was therefore not present when
the accident occurred, it is the State’s position that the State had
necessarily assumed direct supervision and control over the workers.
Testimony also established, however, that not only did Mr. Cafaro drop
workers in this program at various worksites, he also picked them up after
working hours and delivered them to their respective homes. Additionally, Mr.
Cafaro also often worked alongside the workers, giving them instructions and
“coaching”. The County certainly had a vested interest in providing
these workers with the opportunity to acquire job skills, which hopefully would
allow them to secure paid employment and eventually leave the public assistance
rolls of Seneca County. Not only did Mr. Cafaro often work alongside these
workers for this purpose, he was also the person who in fact determined the
worksites where the workers were assigned. According to claimant, although he
participated in the W.E.P. for approximately one year, and worked at several
different locations during that time, he only spent a total of two days assigned
to work at the State Park (the day of his accident, and the day before).
Furthermore, testimony established that Mr. Cafaro provided instructions to
claimant and Mr. Kuhlman on the day of the accident, and determined that they
would be splitting wood at the State Park that day.
It is also evident
that claimant viewed Mr. Cafaro as his work supervisor, rather than any
representative from the State Park. He testified that if he was unable to work
due to illness, he notified Mr. Cafaro, or a county representative, rather than
a representative from the particular worksite to which he was assigned.
Additionally, when claimant was injured, claimant’s coworker contacted the
county, and it was Mr. Cafaro who transported claimant first to the hospital,
then to pick up his medication, and finally to his home, following the accident.
All in all, the supervision and control exercised by the Park employees on
the day of the accident was minimal. Such supervision consisted merely of
instructions to claimant and his coworker to assemble a scaffold and clean the
ceiling of a garage, and was exercised only after claimant and his coworker were
unable to complete their previously assigned duties which had been given to them
by Mr. Cafaro. Although these actions may certainly be viewed as evidence of
some direction and control, it falls far short of establishing that
claimant’s general employer (the county) had relinquished all direction
The Court finds that the facts of this case are most akin to
Sweet v Board of Educ. (290 NY 73), where a high school student was
participating in the National Youth Administration program under the Works
Progress Administration, and was injured while assigned to work at the
defendant’s school building. Under facts similar to this claim, the Court
of Appeals found that plaintiff was not a special employee, even though the
school district in that case even contributed a portion of the funds for wages,
and exercised some authority and control.
Although employees of the State
Park did exercise some direction and supervision over claimant on the day of the
accident, Seneca County nevertheless retained a significant amount of control
and direction with regard to claimant’s participation in the W.E.P.
program. From the testimony presented, there is no indication that the County
ever intended to surrender, or actually surrendered, such control, but rather
maintained a continuing interest in the day-to-day activities of the workers
participating in this program.
Upon finding that Seneca County did not
relinquish its control and supervision over claimant, and after considering the
other factors relevant to a determination of special employment as set forth
herein, it is this Court’s decision that claimant was not a special
employee of the State on the day of his accident.
Accordingly, since this
Court previously determined that claimant was an employee of Seneca County (a
determination which was affirmed by the Appellate Division, Fourth Department),
and having found herein that claimant may not be considered a special employee
of the defendant, claimant is not precluded from maintaining and pursuing the
instant claim even though he has received benefits provided by the
Workers’ Compensation Law as an employee of Seneca County. Since a
judgment was previously entered pursuant to a Decision and Order in which the
State was found liable for the injuries suffered by claimant pursuant to Labor
Law § 240(1), and since that judgment, as modified, was affirmed by the
Appellate Division, Fourth Department, this Court will now schedule a trial as
soon as practicable on the issue of damages.
March 6, 2007
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. Bounds v State of New York
, Ct Cl,
March 30, 2004, Midey, J., Claim No. 106890, Motion Nos. M-67413 and M-67661,
[UID #2004-009-18]) Unpublished decisions and selected orders of the Court of
Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.