‘Special’ employee’s claims barred by exclusive remedy
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A “special” employee of a subcontractor cannot pursue liability claims against that company but can proceed under New York Labor Law against the general contractor and owner of the building site.
In O’Donovan v. New York and Presbyterian Hospital, the New York County Supreme Court on Friday held that the worker failed to show that he was not employed by the subcontractor and that his claims were not subject to the exclusive remedy of the New York Workers Compensation Act.
Jeremiah O’Donovan, a union steamfitter employed by M&L Mechanical Inc. in Smithtown, New York, was loaned out by his employer to Shadow Transport Inc. to perform work on New York and Presbyterian Hospital — an arrangement that was a common custom between the two companies.
In November 2016, he was working as a special employee of Shadow, which had been hired by Trystate Mechanical Inc. to remove and dispose of cooling towers on the top of the hospital. Trystate had been hired by the hospital as the general contractor on the project.
While workers from Shadow were lifting a pipe on to a flatbed truck, the pipe came loose and hit Mr. O’Donovan, causing injuries to his head, back and left leg, according to court documents.
He filed a lawsuit against the hospital, Trystate and Shadow, and the companies moved for dismissal of his claims.
Shadow argued it was undisputed that Mr. O’Donovan was a special employee of the company at the time of the accident, and that as a result, he was the equivalent of a general employee for limited liability purposes under the worker compensation law. The court agreed and dismissed the claim.
The court also dismissed Mr. O’Donovan’s common law negligence claims against the hospital and Trystate, but ruled that he could proceed with his claim against them under New York Labor Law, which requires construction contractors to take reasonable steps to protect workers from falls and struck-by injuries.
