By notice of motion dated July 13, 2006, defendant Prudential Securities seeks to amend its' complaint pursuant to CPLR § 3025(b) to include an affirmative defense pursuant to § 11 and § 29(6) of the Worker's Compensation Law, and based upon such defense, to obtain summary judgment pursuant to CPLR §3212(a).^[FN1] Plaintiff opposes the motion on laches, untimeliness of the summary judgment motion, and issues of fact concerning plaintiff's employment. [*2]

The parties appeared in Part 6 of this Court for oral argument on the motion and cross motion on June 13, 2007 and decision was reserved.

FACTS AND PROCEDURAL BACKGROUND

On March 21, 2002, plaintiff Basilio Torres was allegedly injured when he fell from a defective step ladder while working at 199 Water Street, New York, New York. At his deposition, plaintiff testified that he had been employed by Options Specialty Staffing (hereinafter "OSS") a job placement agency for two years. During such employment, he worked exclusively for Prudential Securities, Inc. (hereinafter "Prudential") at one of two locations, photocopying documents for Prudential's law department. He had a "supervisor" at OSS whom he only met on three occasions although he called her often and a "supervisor" (Kevin Jones) at Prudential whom he reported to on a daily basis. After the accident, plaintiff received workers' compensation benefits under a policy issued to OSS.

Thereafter, plaintiff commenced this negligence action against Prudential as the alleged owner of the premises where the accident occurred.

Prudential notes that on March 21, 2006 three weeks after the deadline set by the compliance conference order herein plaintiff appeared for an examination before trial, and filed his note of issue on April 13, 2006. A copy of plaintiff's deposition was mailed to plaintiff's counsel on May 5, 2006 for execution by plaintiff but never returned within the sixty day period provided by CPLR § 3116(a). Thus, plaintiff's deposition testimony was unavailable for use until 88 days after the filing of the note of issue.

LAW AND APPLICATION

Prudential seeks to amend its answer to assert as an affirmative defense that plaintiff's sole and exclusive remedy is provided by Workers' Compensation Law § § 11 and 29(6). Defendant asserts that plaintiff was its "special employee" and that plaintiff will not be prejudiced if defendant is permitted to amend its answer to include such a defense, as plaintiff was aware of his special employment status. Defendant relies upon the facts that: 1) plaintiff reported to work each day at defendant's premises; 2) he was supervised by defendant's "manager" (Kevin Jones); 3) the work was performed for the benefit of Prudential and 4) his general employer (OSS) was neither present at the work site, nor did it control his day to day work at the copy center.

In opposition, plaintiff claims defendant is barred by laches from seeking the relief as it waited more than three years to make this application, although aware of plaintiff's employment status. Plaintiff faults defendant for failing to move to strike the note of issue, rather than waiting to move for summary judgment beyond the 60-day time limitation. With respect to his employment status, plaintiff asserts that he was interviewed for his position by someone at OSS, that he called his supervisor at OSS every two weeks to report on his assignment and that any requests for overtime employment at Prudential would be made to someone at OSS. As such, plaintiff maintains that a triable issue of fact exists as to whether or not plaintiff may be deemed to have more than one employer in this case.

In reply, defendant avers that plaintiff has failed to set forth proof demonstrating "any conceivable prejudice" if defendant is allowed to amend its answer. Defendant further contends that the key factor in determining whether a special employment relationship exists is who controls and directs the manner and details of the employee's work, whether or not the general employer is responsible for the payment of wages and who has the power to hire and fire the [*3]employee. According to defendant, "there can be no question that Prudential exercised exclusive control over the manner, details and ultimate result of plaintiff's work."

CPLR § 3212(a) provides that a motion for summary judgment shall be made no later than 120 days after the filing of the note of issue unless the court sets an earlier date. Local Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, reduces that time frame to no more than 60 days after plaintiff files a note of issue. See, e.g., Bevilacqua v City of New York, 21 AD3d 340, 798 NYS2d 909 (2nd Dept. 2005). Thus, Prudential has the burden of establishing "good cause" for the delay. See Brill v City of New York, 2 NY3d 648, 652, 781 NYS2d 261, 814 NE2d 431(2004); CPLR 3212(a). In this case, Prudential was unable to file a timely motion because it was required pursuant to CPLR 3116(a) to wait at least sixty days for the deposition transcript upon which it intended to rely to be available as useable evidence. See Fainberg v Dalton Kent Securities, Group, 268 AD2d 247, 701 NYS2d 41 (1st Dept. 2000). Moreover the delay beyond the filing of the note of issue was minimal, within the 120 days afforded by CPLR § 3212(a), and plaintiff has failed to demonstrate any prejudice as a result thereof. See Burnell v Huneau, 1 AD3d 758, 767 NYS2d 163 (3rd Dept. 2003). Accordingly, the motion by Prudential for leave to amend its answer and for summary judgment will be considered on its merits.

Leave to amend should be freely given where as here "the opponent is not surprised or prejudiced by the proposed amendment and the proposed amendment appears to be meritorious." Paolano v Southside Hosp., 3 AD3d 524, 771 NYS2d 152 (2nd Dept. 2004). Since plaintiff was at all times aware of the nature and extent of Prudential's role, that branch of the motion by Prudential which seeks leave to amend its answer is granted. See Murray v City of New York, 43 NY2d 400, 401 NYS2d 773, 372 NE2d 560 (1977); Brunetti v City of New York, 286 AD2d 253, 728 NYS2d 665 (1st Dept. 2001).

Prudential moves for summary judgment on the ground that plaintiff's claims are barred by Workers' Compensation Law § 11 and 29(6) because plaintiff was Prudential's special employee at the time of the accident. A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. See Brooks v Chem Tank Lines, 71 AD2d 405, 407, 422 NYS2d 695 (1st Dept. 1979). A general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for the payment of wages and for maintaining workers' compensation and other employee benefits. See Thompson v Grumman Corp., 78 NY2d 553, 557, 578 NYS2d 106, 585 NE2d 355 (1991). General employment is presumed to continue, but this presumption is overcome upon a clear demonstration of surrender of control by the general employer and assumption of control by special employer. See Spencer v Crothall Healthcare, 38 AD3d 527, 834 NYS2d 194 (2nd Dept. 2007). Thus, although a person's categorization as a special employee is usually a question of fact, summary judgment may be granted where the relevant facts establish that the special employer controlled and directed the manner, details and ultimate result of the employee's work. See Armstrong v Foxcroft Nurseries Inc., 283 AD2d 814, 724 NYS2d 551 (3rd Dept. 2001).

Here, it is clear that Prudential did exactly that. According to the deposition testimony of plaintiff, he 1) received the particulars of his work from a Prudential employee and no representative of OSS instructed him with respect thereto; 2) no other OSS personnel were on the job site; 3) the work performed by plaintiff was for the benefit of Prudential which assigned him at defendant's sole discretion to one of two work locations. Defendant also had the [*4]ability to send plaintiff back to OSS for assignment to another company the ability, in essence, to hire and fire the plaintiff. See Suarez v The Food Emporium, Inc., 16 AD3d 152, 792 NYS2d 384 (1st Dept. 2005); Williams v General Electric Company, 8 AD3d 866, 779 NYS2d 155 (3rd Dept. 2004); Niranjan v Airweld, Inc., 302 AD2d 572, 755 NYS2d 640 (2nd Dept. 2003); Zylinski v Garito Contracting, 268 AD2d 427, 702 NYS2d 86 (2nd Dept. 2000).^[FN2]

CONCLUSION

In light of the above, Defendant's motion is granted in all respects, and the action dismissed. This constitutes the decision and order of the court.

Defendant is directed to serve an order in accordance with this decision with notice of settlement.

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J. S. C.