Defendants' second summary judgment motion, based upon new evidence gained by discovery during the five years subsequent to the first motion, was not precluded by the law of the case doctrine ( Beagan v. Manhattanville Nursing Care Ctr., 176 A.D.2d 633, 635, lv denied 79 N.Y.2d 753; Holloway v. Cha Cha Laundry, 97 A.D.2d 385, 386; Chiarello v. Sylvan, 161 A.D.2d 948, 949), and should have been granted, since no triable issues of fact exist.
In order to come within the ambit of FELA, plaintiff must demonstrate that he was a railroad employee at the time of his injury, i.e., that at such time, the railroad had significant supervisory control or the right to such control over the performance of his duties ( Lindsey v. Louisville Nashville R.R. Co., 775 F.2d 1322, 1324; Kelley v. Southern Pac. Co., 419 U.S. 318, 327; Bailey v. Missouri-Kansas-Texas R.R., 732 S.W.2d 248, 250 [Mo Ct App]). A review of the factors to be considered in making this determination ( see, e.g., Shenker v. Baltimore Ohio R.R. Co., 374 U.S. 1, 6; Melancon v. Amoco Prod., 834 F.2d 1238, 1244; Ancelet v. National R.R. Passenger Corp., 913 F. Supp. 968; Stiltner v. Norfolk W. Ry. Co., 1994 WL 901187 [WD Va, May 16, 1994, Turk, J.]) clearly indicates that plaintiff was not an employee of defendant Metro-North at the time of the accident, and that Metro-North's role relative to the work performed by plaintiff was merely to coordinate plaintiff's herbicide spraying with the operation of the railroad such that both were accomplished safely and efficiently.
Specifically, Asplundh, not Metro-North, was plaintiff's employer; Asplundh was an independent contractor retained to perform weed killing services; Asplundh supervised and directed its employees in the performance of the contract; Asplundh hired plaintiff and had the right to fire or discipline him; Asplundh furnished all the equipment and supplies used by plaintiff to perform his duties; plaintiff was trained by Asplundh; Asplundh paid plaintiff's wages; plaintiff's work on Metro-North property was seasonal and non-continuous and he only worked there briefly; Asplundh, not Metro-North, was in the business of weed and brush spraying; and plaintiff worked for a number of different railroads in the course of his employment with Asplundh.
A railroad's efforts to coordinate an independent contractor's work with its own ongoing operations have been found insufficient to bring a plaintiff within the ambit of FELA ( Kelley v. Southern Pac. Co., supra, at 329; Stiltner v. Norfolk W. Ry. Co., supra; Ancelet v. National R.R. Passenger Corp., supra), and plaintiff's attempts to characterize such efforts as "control" here are to no avail. On the other hand, plaintiff significantly downplays the facts in the cases cited in support of his position, such as Buccieri v. Illinois Cent. R.R. ( 235 Ill. App.3d 191, 601 N.E.2d 840, lv denied 148 Ill.2d 640, 610 N.E.2d 1260) and Vinyard v. Missouri Pac. R.R. ( 632 S.W.2d 272 [Mo Ct App]), where the circumstances unquestionably indicate control on the part of the railroad and are readily distinguishable from this case.
Accordingly, we find, as a matter of law, that in all material respects, plaintiff's employer, Asplundh, not Metro-North, exercised authority and control over his work at the time of his injury, and as a consequence, defendant's motion for summary judgment is granted.
Concur — Sullivan, J.P., Rosenberger, Nardelli, Williams and Tom, JJ.