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No Summary Judgment For Special Employee

 No Summary Judgment on Issue of Special Employment Relationship:


A divided New York appellate court ruled that summary judgment was inappropriate in a question of whether a company that contracted for a professional delivery driver through a temporary staffing agency was that driver's special employer.


Case: Holmes v. Business Relocation Services, No. 12040 307726/11 83912/12, 05/08/2014, published.


Facts: Keith Holmes worked as a truck driver for United Staffing Systems, a temporary staffing company.


United sent him on a two-day assignment for Business Relocation Services.


Holmes used a BRS truck, and BRS instructed him where and when to make deliveries of voting machines. A BRS supervisor also accompanied him on his route, although the supervisor later testified that his job was not to oversee drivers.


Procedural History: Holmes suffered an injury while on the BRS assignment and he filed a civil suit against the company. BRS moved for summary judgment, asserting his claim was barred by workers' compensation exclusivity since Holmes was its "special employee."


Bronx County Supreme Court Justice Alison Tuitt denied BRS's motion.


Analysis: The Appellate Division's 1st Department agreed that summary judgment was inappropriate. The court reasoned that Holmes' use of a BRS truck and the extent of BRS's oversight over him did not establish that BRS had "complete and exclusive control" over him, as a matter of law.


Dissent: Justice David Friedman argued that the record established that Holmes was a special employee of BRS as a matter of law.


He pointed out that constant direct supervision is typically absent in the case of a professional driver, and is not necessary for the employee to be deemed to be working under an employer's control and direction.


Disposition: Affirmed.


To read the decision, click here.


Source: WorkCompCentral

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