================================================================= 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 - 1 - - 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

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