help health care so that a jury can decide issues concerning her accident and whether or not she's entitled to recover for her personal injuries from  the evidence that was presented to the district court on the motion for summary judgment demonstrated that crowe through all was and remains the special employer of the housekeeper's at  me let me as you take a step back though my question to you is if in fact your client and the allegedly negligent housekeeper were both general employees of the chichi regardless of whether or not quote home as a person is a cohen pull you with your client and the exclusive remedy is worker's comp right except in the circumstance where the employee is under the becomes a special employee of crow thrall in which case crowe thall would have direction and control of what that employee does on a day to day basis and that's really the question that was before i think that's court think if they're general employees then there call them both general please of each ac i think the special employee issue in this particular case would be irrelevant to the workers compensation issue or my my wrong about that your honor i believe that under new york would make it a non exclusive remedy what you're suggesting that if if it's a general if you're both people are generally poisoned one company if one of the if there's also a special employee relationship then it's a non exclusive remedy  it would be it would not be the exclusive remedy in the circumstance where the employee who's the housekeeper working under the direction and control where you overcome the presumption of general find it well i think that there are cases in particular it least in the eighty's likely is really opposite effect isabella three how it they sent a whole bunch of cases that say that even rd parties in that vehicle traffic wall and in that case the court of appeals on a certification from the nd circuit said that there would be no right to claim over about how fans of the pacific appellate division two thousand and twelve says workers compensation extends to do in point situations even where there is a way should be general and special employer without that case i'm candidly i'm not familiar with that case your honor did not come up in my research and how about all the cases this goes to the issue that you were you were going to discuss which is whether or not credit was a special employer but every new york or new york state court at least i know there's one case in a rally but on a new of special employment lots could make claim for the injuries that were that were suffered as a result of negligence of the housekeeper working under the direction and control of ara clear that what new york views with respect to this particular company is that they're not a special employer well for example in the perkins cases i remember it and in all these other cases these are very fact intensive cases as to exactly what the relationship is now twenty two and i quoted the they this is what they pointed we can only go by what they said was the dispositive facts and they said that they paid the staff some wages and they had a final decision making power to hire discipline or fire any of its members and that's by health and hospitals which was pointed out in that case in this case also involve unionized employees but i think the point that i want to make church is that when you look at the cases in new york the very fact intensive need don't necessarily start at who pays wages or who hires and fires instead they really look at the direction and troll that concern the day to day activities of the employees under question in the point that we're making is that when all the facts are considered there were issues of fact which should have led to this record to at least annoy the motion for summary judgment so that there could be a trial on these issues and i think that there is really the substance of the appeal the urn to really whether or not the district court  issues as opposed to finding disputed issues and my time is about to expire and unless there are further questions also save for a bottle ok thank you thank you mr evelyn evelyn your honor please the core were one co employee injures another that injured employees exclusive remedy is workers compensation and judge bianco hit the nail on the head special employment in this case has really always been a red herring because it is undisputed that the two employees here were still general employees of a church that funnels the exclusive remedies through the statute and as has been made abundantly clear for at least seventy years now to include more recent isabella case exclusive means exclusive and that means that you can't bring a derivative action as isabella and some of the other cases noted they start on the negligence of the cohen ploy and that is what the plaintiffs are trying to do in this action special employment i think what the court may have noted as well what's also interesting about this case is in the work comp setting special employment has always been used by employers as additional protection to extend to the borrowing employer beyond just the general employer it's never been used as a means to circumvent work comp there there is not any case law that has ever expressly endorsed doing that and while it's not necessary for the court to evaluate whether as a doctrine in employee and the special employee that the nature of the lease it was such that they were that the allegedly negligent housekeeper was known or a general employee of h h see that would be the only way they could prevail in this case right if the allegedly negligent housekeeper was not a cohen ploy the right of the plaintiff has the right because they were general employees of your company your client or act correct and that's clearly not the facts here there's never been any there's never even been an argument advanced to suggest as much we would analysis in applying the facts to special employment was correct that analyzing special employment here in this context wasn't necessary as this court has observed once we established that two general employees injured one injured the other that funnels everything through the exclusive remedy provisions of the statute you think the center really case is just wrong it is your understand which i'm really it's really just it's incorrect from the standpoint that it did not go through the appropriate general employee analysis to put things into workers compensation it jumped immediately to evaluating special employment and whether there were issues of fact when on the record before it the facts before it were indistinguishable from the thompson cases far as what's necessary for general employment to exist you just i'm not familiar with this that was mentioned that in you can you address that case i can your honor the lats case wasn't a worker's compensation statute case at all so the workers compensation statute as a defense to bar the negligence claim wasn't even asserted in that case so it's plainly distinguishable on that ground and unless unless the panel has further questions i think i've adequately addressed the issues we would ask that this court affirm the summary judgment order of the tr here we think that the issue is where there is general employment if the vendor in this case crowe through all comes in and takes direction and control over the work that is being done and it results in the injury to an employee of the of the owner in this case of health and hospitals m then miss ray as has the right to claim for her injuries against and we think that new york war provides for that but if there's any doubt as to whether or not that is the  standard new york law especially in the economy that we have right now then we respectfully request as we did in our brief asked the court to certify the question to the new york court of appeals and lets the panel has submissions so we'll reserve on that as well so that concludes our argument for this morning thanks very much the