In a decision dated February 11, 2011, Justice Herbert Kramer granted defendant Joint Venture’s motion for summary  judgment  dismissing  plaintiff’s  causes  of action for common law negligence and pursuant to Labor  Law  §§200,  240(1) & 241(6).  The plaintiff alleged that while in the course of his employment with a member of the Joint Venture, he suffered an injury to his right thumb, which required partial amputation.  The Joint Venture moved for summary judgment arguing that an employee of a member of a joint venture is a “special employee” of the joint venture and each of its members.  As such, the suit should be barred by Workers’ Compensation Law §11.  In support of the motion, the Joint Venture provided evidence that at the time of his accident, the plaintiff was working at the behest of the Joint Venture’s contract with the NYCDEP, that the Joint Venture purchased worker’s compensation coverage from which the plaintiff was drawing benefits and that the Court was bound by the Workers’ Compensation Board’s finding that the Joint Venture was the plaintiff’s employer.  In opposition, the plaintiff argued that the language of the agreement between the Joint Venture and the NYCDEP provided that the plaintiff was not an employee of the Joint Venture and that the motion was premature in that additional discovery, including depositions, were required to settle the issue of direction and control over the means and methods of the plaintiff’s work.  The Court held that sufficient evidence to grant the motion was found among the undisputed facts and that no further discovery was required.  The Court determined that the Joint Venture was a “special employer” within the meaning of Workers’ Compensation Law §11 and issued an order dismissing the action against the Joint Venture with prejudice.

Valencia v. SPMP Joint Venture et al., Index No.: 15355/09 (Kings Co. Sup. Ct., February 11, 2011)