Dillon, P. J., and Lawton, J. (dissenting). We respectfully dissent in part. Although we agree with the majority’s conclusion that the trial court erred in finding as a matter of law that plaintiffs decedent was not a special employee of defendant Newco Waste Systems (Newco), we cannot agree with the majority’s conclusion that plaintiff’s decedent was, as a matter of law, a special employee of Newco. Whether an employee of one party is a special employee of another party is generally a question of fact for the jury (see, Stone v Bigley Bros., 309 NY 132; Matter of Abramson v Long Beach Mem. Hosp., 103 AD2d 866). Here, decedent was hired, paid and furnished with health insurance and other benefits by American Stevedoring. In addition, the contract between Newco and American Stevedoring provided that American Stevedoring would be responsible for hiring, firing and disciplining the drivers it provided to Newco. Further, the contract specifically stated that the drivers would be "solely” the employees of American Stevedoring. Unlike the majority, we believe that Newco’s control over decedent was limited. Newco did not control decedent’s actual driving of the vehicle. When the accident occurred decedent was driving alone and unsupervised over an unfamiliar route. At that time decedent was following a truck driven by Thomas Barger, another American Stevedoring driver transporting garbage for Newco, who testified that Newco did not provide any directions concerning the route to be taken or instructions regarding the difficult curves on Beechwood Road, where the accident occurred. Decedent’s driving habits could only be controlled through disciplinary action and the right to discipline was retained under the contract exclusively by American Stevedoring. Newco could tell decedent only when and where to drive. Such evidence is insufficient to hold that a special employment was created as a matter of law because, as stated in Bartolomeo v Bennett Contr. Co. (245 NY 66, 70), "[t]he party possessing the power to exercise such control, rather than the party having authority to designate the place and time for the performance of the work, is the master who must respond for the negligence of the servants”. Whether decedent was a special employee of Newco presents a question of fact for the jury. We would, therefore, reverse and grant a new trial as against defendant Newco.
We agree with the majority’s holding reversing the jury *892verdict and dismissing plaintiffs complaint against defendant Browning-Ferris Industries. (Appeals from judgment of Supreme Court, Niagara County, Koshian, J. — negligence.) Present — Dillon, P. J., Boomer, Pine, Lawton and Lowery, JJ. [See, 143 Misc 2d 188.]