Berhe v. Trustees of Columbia Univ. in the City of N.Y. , 146 A.D.3d 697 ( 2017 )

Berhe v Trustees of Columbia Univ. in the City of N.Y. (2017 NY Slip Op 00567)

Berhe v Trustees of Columbia Univ. in the City of N.Y.

2017 NY Slip Op 00567

Decided on January 26, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 26, 2017
Friedman, J.P., Richter, Saxe, Moskowitz, Kapnick, JJ.

2895 151508/13

[*1]Yonas Berhe, Plaintiff-Appellant,

v

The Trustees of Columbia University in the City of New York, et al., Defendants-Respondents.

Michelstein & Associates, PLLC, New York (Stephen J. Riegel of counsel), for appellant.

Rivkin Radler, LLP, Uniondale (Merril S. Biscone of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 20, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants made a prima facie showing that plaintiff was in their special employ by demonstrating that they "control[led] and direct[ed] the manner, details and ultimate result of [his] work" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558 [1991]; see Warner v Continuum Health Care Partners, Inc., 99 AD3d 636 [1st Dept 2012]). The general manager of defendants' catering facility, Faculty House, requested plaintiff, a server, by name from the temporary employment agency through which plaintiff was assigned to Faculty House, retained the right to discharge him from Faculty House, and provided his uniform jacket. The general manager planned each event according to a particular schedule, menu, and sequence, with specific tables and tasks assigned to different servers, including plaintiff; the employment agency had no involvement in or knowledge of these details. The general manager arranged the schedules of the workers, including plaintiff, and their hours, and either he or a banquet manager dictated their break and meal times. The general manager was also present at each event to ensure proper service, including by plaintiff, and that the event proceeded according to plan.

That plaintiff may not have required instruction to serve or clear a particular course because he was experienced is insufficient to raise an issue of fact as to defendants' control over his work (see Warner, 99 AD3d at 637).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2017

CLERK