Keith Holmes v. Business Relocation Services, Inc.

================================================================= This memorandum is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 99 SSM 9 Keith Holmes,

Respondent, v.

Business Relocation Services, Inc.,

Third-Party Plaintiff-Appellant,

United Staffing Systems, Inc.,

Third-Party Defendant-Respondent.

Submitted by Daniel S. Kotler, for third-party plaintiff-appellant.

Submitted by Blake G. Goldfarb, for respondent. MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. As a matter of law, it cannot be said that Business Relocation Services, Inc., the alleged special employer, overcame

- 2 - SSM No. 9 the presumption of continuing general employment by "clear[ly] demonstrati[ng] . . . surrender of control by the general employer and assumption of control by the special employer" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). The Appellate Division correctly determined that issues of fact remained as to the alleged special employment relationship. * * * * * * * * * * * * * * * * * On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question answered in the affirmative, in a memorandum. Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur. Decided March 26, 2015