Ordered that the cross appeal is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court ( see, 22 NYCRR 670.8 [c], [e]); and it is further,
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The evidentiary material submitted by the parties in connection with their respective motions raises issues of fact concerning whether the plaintiff Lawrence Fitzgerald was a special employee of the defendant at the time that he was injured by the forklift operated by the defendant's employee. Under the circumstances of this case, the issue of special employment for purposes of the Workers' Compensation Law is a factual one ( see, Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553; Konstantinovsky v. Golden Chocolate, 210 A.D.2d 299; Winther v. Railroad Maintenance Corp., 169 A.D.2d 591; Brooks v. Chemical Leaman Tank Lines, 71 A.D.2d 405).
Miller, J.P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.