MONTALBANO v. KURT WEISS FLORIST, INC

ORDERED that the order is affirmed, with costs.

The plaintiff, an employee of K-Mart Stores, Inc. (hereinafter K-Mart), was injured when a co-worker drove a forklift over his right foot. At the time, the plaintiff and his co-worker were trying to hoist a pallet jack onto a forklift owned by K-Mart and operated by the co-worker, and then onto a delivery truck owned by the defendant. The driver of the defendant's delivery truck had not brought a pallet jack with him and instead requested the plaintiff to obtain one from K-Mart so that the truck could be unloaded.

Relying on the commercial relationship between the defendant and K-Mart, the plaintiff contends that the defendant is liable to him for failing to perform its commercial obligations in a non-negligent fashion. The plaintiff also contends that the defendant is vicariously liable for the acts of his co-worker because the latter became a special employee of the defendant during the course of the task.

Although a person's status as a special employee is generally a question of fact, it may be determined as a matter of law "where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact" ( Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 558; Small v. Winter Bros., 302 A.D.2d 445; DeRubeis v. D F Wastepaper Co., 273 A.D.2d 434, 435; Levine v. Lee's Pontiac, 203 A.D.2d 259, 260).

The plaintiff adduced no evidence that K-Mart surrendered control over the manner, details, and ultimate result of his co-worker's activities, or that the defendant assumed any control over those details and results ( see Vanderwerff v. Victoria Home, 299 A.D.2d 345; Carino v. Kemare Remodeling, 292 A.D.2d 555, 556; Martin v. Baldwin Union Free School Dist., 271 A.D.2d 579, 580). The fact that the plaintiff's co-worker performed a task at the request of the defendant, without more, does not create an employer-employee relationship between the defendant and the plaintiff's co-worker ( see Eddy v. White, 304 A.D.2d 959; Sherman v. Reynolds Metals Co., 295 A.D.2d 843, 845; cf. Konstantinovksy v. Golden Chocolate, 210 A.D.2d 299; Richiusa v. Kahn Lbr. Millwork Co., 148 A.D.2d 690, 692).

Contrary to the plaintiff's argument, the defendant did not assume a duty of care toward the plaintiff by virtue of its commercial relationship with the plaintiff's employer ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141-142).

SANTUCCI, J.P., LUCIANO, SCHMIDT and ADAMS, JJ., concur.