McCormick v. Our Lady of Mercy Medical Center

—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about September 15, 1998, which granted defendant’s motion to renew and/or reargue a prior order, same court and Justice, entered April 1, 1998, denying defendant’s motion for summary judgment to dismiss the complaint, and, upon renewal and/or reargument, adhered to its prior order, unanimously affirmed, without costs. Appeal from the prior order unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.

The court erred to the extent that it interpreted the April 15, 1997 order of Justice Luis Gonzalez as granting defendant leave to renew its original summary judgment motion upon taking the deposition of a witness with personal knowledge of the accident, since that prior order indicated that renewal was premised on defendant’s production of a witness with knowledge of plaintiff’s alleged status as a special employee. Nevertheless, summary judgment was properly denied. There remain triable issues of fact as to whether or not plaintiff, a temporary employee placed at defendant hospital by an agency, was defendant’s special employee, whose remedy would be limited to workers’ compensation. There was evidence that defendant was somewhat restricted in the degree and manner in which it could alter plaintiffs assignment or terminate her employment, that defendant apparently had to notify the agency every two weeks of the amount of time it needed plaintiff, and that plaintiff reported to the agency to the extent she submitted her time sheets and received her paychecks and other benefits directly from the agency (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553; Sanfilippo v City of New York, 239 AD2d 296). Concur — Nardelli, J. P., Tom, Mazzarelli and Buckley, JJ.