SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK-------------------------------------------------------------------------------x,
Plaintiff, Index No.:
AFFIRMATION IN OPPOSITION
Defendants. ------------------------------------------------------------------------------x
, an attorney duly licensed to practice law in the Courts of the State of
New York, hereby affirms the truth of the following under the penalties of perjury:
1. I am a partner of the law firm of , attorney for the plaintiff in the within
matter.
2. I am fully familiar with the facts and circumstances of , the source of my
knowledge and information being the file maintained by my office.
3. This affirmation is submitted in opposition to the within motion for summary
judgment of defendants , and .
4. The within matter is an action for injuries which plaintiff sustained on June 21,
2003 during the course of her employment at New York, New York, at
Inc.
5.
6. This within action was commenced by service of a Summons and Complaint by
plaintiff ___________on June 21, 2006. On ___________,
2006 plaintiff served an Amended Summons and Verified Complaint. (Attached to Defendants’
Motion as Exhibit “B). Issue was joined on or about _____ (Verified Answer annexed to
defendants’ motion as Exhibit “C).
7. In their summary judgment motion returnable on July 20, 2007, defendants
_________________ ASSOCIATES and _________________________ contend, regarding the
action against defendants, that it “is well settled that a worker injured during the course of a
worker’s employment cannot maintain an action to recover for personal injuries against the owner
or tenant of the premises upon which an accident occurred when the owner or tenant of the
premises upon which an accident occurred is also the entity which employed the worker.” (Page 4,
page 8 of the Affirmation_______________________ Esq. attached hereto as Exhibit “B”). As to
defenda__________________________., it is claimed that, pursuant to the terms of their lease that
they are an out of possession landlord, and that as such, liability does not attach to them. The facts
presented and purported by the defendants as evidentiary proof, can not be imputed to fully
support their argument. It is plaintiff’s contention that summary judgment as to them must be
denied.
8. By it’s own admission defendant , as affirmed by
, Senior General Partner, is not the employer of the defendant, nor is it “in the same employ, of the
employer’s insurer or such other collective bargaining agent of the employer’s insurer.” See
Workers Compensation §29(6). Defendant, is not by their own definition,
an “employer” of Plaintiff or “co-employee” within the exclusive definition of Worker’s Comp,
wherein liability as to them would be barred by the statute. Further, as to the claim of defendant,
________________________in their motion seeking summary judgment, that “at no time
did____________________________ maintain, control or have management over the employees
at the premises.” (see paragraph 7, page 2 of Affidavit of Edwin A. Goodman dated December 22,
2006 annexed as Exhibit “C”) plaintiff avers that they did have control over the premises, such that
they do not fall within the exclusive definition, and as such that the statute as to such defendant
does not apply.
10. In the affirmation _______________________, Esq., attorney for defendants,
_________________________________L.P., and , in citing the Worker’s Comp Law: ‘“Under
Worker’s Compensation Law section 11, the liability of an employer… shall be exclusive and in
place of any other liability whatsoever, to such employee…on account of such injury or death or
liability arising there from. In other words it is well settled law that a worker injured during the
course of his employment cannot maintain an action to recover damages for personal injuries
against the owner or tenant of the premises upon which an accident occurred when the owner or
tenant is also the entity which employed the worker.”’ (page 4, paragraph 8 of the Affirmation of
. annexed as Exhibit “B”). Plaintiff was employed by Inc., she was not
employed _______________________.
11. It is respectfully submitted that defendants’ motion should be denied on various
grounds. Firstly, discovery has not even commenced, let alone completed as to any defendant
and therefore plaintiff should be permitted to investigate material facts as to each moving
defendant. See Integrated Logistic Consultants v. Fidata Corp. et al, 131 AD2d 338; 517
N.Y.S.2d 135 N.Y. App. Div. “…Summary judgment relief should not be granted where there is
any doubt as to the existence of a triable issue (Moskovitz v. Garlock , 23 AD2d 943, 944 ), or
where the issue is even arguable (Barrett v. Jacobs, 225 NY 520, 522 ) , since it serves t deprive a
party of his day in court….This is especially so where, as here, there are salient facts within the
knowledge and control of the movant which may be revealed through pretrial disclosure
proceedings (see, CPLR 3212 [f]; Terranova v. Emil, 20 NY2d 493, 497 ; Simpson v. Term
Indus.,126 AD2d 484; Mack v. Gregory Mem. Hosp., 90AD2d 969; Bank Leumi Trust Co. v.
Felner , 70 AD2d 869) . In….this case, there has been no discovery since the motion for
summary judgment was made.”
12. Plaintiff submits that the defendants’ contention
_________________________________. that the exception enumerated by Worker’s
Compensation §§11 and 29(6) is not applicable to this defendant:
Worker’s Compensation section 29 (1), provides:
“remedies of employees” such that “the right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, ….when such employee is injured or killed by the negligence or wrong in the same employ…
13. As defendants state “In the case at bar, it is undisputed that plaintiff was an
employee of____________________________________ working in the course of her
employment at the time of the subject incident.” (Page 5, paragraph 9 of the Affirmation of
, Esq.. attached hereto as Exhibit “D”). Defendant ASSOCIATES, is not the
employer of, nor in the same employ as Plaintiff. By it’s own admission, defendant
L.P, as affirmed by , Senior General Partner, “________________ had no involvement
with the daily operation of the premises, nor did it maintain control or management over the
employees at the premises.” (Paragraph 6, page 2 of the Affidavit of _________________ dated
December 22, 2006 annexed hereto as Exhibit “E” is not the employer of the defendant, nor is it
“in the same employ, of the employer’s insurer or such other collective bargaining agent of the
employer’s insurer.” See Workers Compensation §29(6). Defendant ____________________,
is not by their own definition, the “employer” of Plaintiff or “co-employee” within the exclusive
definition of Worker’s Comp, wherein no liability could be found for such entity, and therefore
liability is not barred by the statute. Specifically, defendant ________ ASSOCIATES claims in
their motion seeking summary judgment, that “at no time did ________________ASSOCIATES
maintain, control or have management over the employees at the premises.” (see paragraph 15,
page 6 of Affidavit of the __________________, Esq. annexed as Exhibit “D”). Although the
remedy of exclusivity under Section 11 of Worker’s Compensation Law, is clear by the manner
in which the defendants apply the Statute their arguments are not supported. The exclusivity
provision provided for under §11 of the Workers Compensation Act, as aforementioned by the
defendant ______________________ASSOCIATES, insofar as defendant states that
_________________ is an “out of possession landowner that retained no control of the
premises” is not a proper application the Workers Comp law. As can be seen by the Affidavit of
., Senior General Partner submitted in support of the defendant
ASSOCIATES’ motion to dismiss, it is affirmed that as an out of possession landowner “For at
least ten years _____________ Associates has not had any office, or any other facilities, and has
neither occupied nor used any space, at ________Avenue, New York, New York.:
(paragraph 3 at page 1 of Affidavit of dated June 21, 2007 annexed hereto as Exhibit “E”).
Defendant in stating that they are an “absentee landlord” (paragraph 5 at page 2 the Affidavit of
dated December 22, 2006 annexed hereto as Exhibit “F”) is underlining the issue of fact, and
maintains that they are not the employer of the plaintiff, herein but rather the “owner”, albeit,
“out of possession landowner” and as to them there remain triable issues of fact. Their
application of the exclusivity remedy under Worker’s Comp has no relevance to defendants
including , the basis by which defendants INC. and
conclude that their are no triable issues, such that summary judgment may be granted. The
exclusive remedy afforded under §11 of the Workers Compensation Law, as defined therein does
not provide for, in the context of an employee who sustains grave injury in bringing his action
against the landowner, as in the case of defendant herein , wherein liability may
not attach, and therefore the plaintiff should not be precluded, nor should same represent a bar to
liability against _______________________ which is not plaintiff’s employer.
14. Although the defendant ASSOCIATES, L.P., in their
own assertion, in stating that they are an entity distinct from plaintiff’s employer, presents a
circular argument, and therefore, can be said to be pointing to the very reason for and issues by
which liability can attach. Defendants including , however, make no
showing of their claimed protection under §§11 and 29(6) under the Worker’s Compensation
Act – defendant in no way are they causally linked to the exclusions enumerated under §11.
Defendant , in asserting that they, had no control over the premises located
at 754 Fifth Avenue, which is the location of plaintiff’s employer at the time of the accident
and plaintiff avers that defendant’s argument that there are entitled to summary judgment by a
showing of their lease which they attach to their moving papers, as 1) the lease attachment
shows that they a) retained a portion of the premises and b) did enter into an agreement with
Bergdorf Goodman, Inc. wherein they did have the right of reentry. , Senior
General Partner, states in his biography on-line at the website of his venture capital
firm________________________, that “…the Goodman family retains ownership of the land
and building.” (see Biography of at s website attached as Exhibit
“G”).
15. The granting of summary judgment must be decided in the light most favorable to
plaintiff. St. Paul Industrial Park, Inc. v. New York State Urban Development Corporation, 63
A.D.2d 822; 406 N.Y.S.2d 178 (1978): “Since it deprives the litigant of his day in court it is
considered a drastic remedy which should only be employed when there is no doubt as to the
absence of triable issues.” Defendant ASSOCIATES, L.P., by their own
admission is a landlord “out of possession” and therefore, a distinct entity, separate and
distinguished by their own characterization, which is not plaintiff’s employer. Further, plaintiff
herein asserts that facts and circumstances concerning defendant ASSOCIATES
with regard to whether or not they had control over the premises, located at 754 Fifth Avenue for
which they have submitted no evidentiary proof. This is particularly illustrated by the fact that
although it is this defendants contention that they have no involvement with inspection, repair or
maintenance of the premises, applications for Work Permits filed with the New York City
Department of Buildings, have listed as the landowner, contact, and applicant for each Work
Permit, ASSOCIATES, L.P., on whose behalf such applications for Work Permits
were filed with and accepted by the New York City Department of Buildings, for the premises
located at (Permits at Department of Buildings at Exhibit “H”).
16. Clearly, there remain issues of fact, and which may be more definitively
determined following discovery, including depositions of the parties herein. The arguments of
the defendants herein with respect to their falling within the exclusivity under Worker’s
Compensation §11 and 29(6) appear on their face as only being supported by conclusory
statements -- the determination of which, as relates to the granting of summary judgment, in the
absence of evidentiary proof, should not be granted. Assertions made that defendant " is an
out-of-possession landlord that retained no control over the premises” and that as such, claims
that that they had no right of reentry is in controversy.
17. The lease which defendants purport the operation by which they are out-of-
possession (pages 4 and 86 of ASSOCIATES, L.P.’s lease attached hereto as
exhibit “I”) ASSOCIATES, L.P. by it’s own presentation provides evidentiary proof in its
exhibits submitted in support of their reply to the prior motion of _______ and
____CONSTRUCTION, that they held and retained the 9th floor of the premises located at
, INC. (see page _____of the lease attached to the Affirmation Yasmin Soto attached herein as
Exhibit “J”). The ninth floor retention by defendant presents just one of the issues regarding the
demised premises as it relates to the condition which resulted in plaintiff ’s injuries. Plaintiff
contends that there are discoverable issues of fact concerning the ninth floor retention by
defendant ASSOCIATES, L.P. (Affirmation of_____________ attached
hereto as Exhibit K). The water on which Plaintiff slipped and fell in the 8 th floor locker room
while in her employ at was coming from the ceiling of the 8 th floor, which
water and leaks Plaintiff contends were coming from the 9th floor which was retained by the
____________________’s and for which _________________________, L.P. had full access
and control, and to which defendant INC. would not have had access and control.
Although defendants herein in setting forth that “As is clear by page 66, Section 9.1., entitled
Repairs by Tenants, the tenant is responsible to make all repairs, both interior and exterior as
well as structural and non-structural. (referred to by defendant as Exhibit “A”, pg. 90 and
annexed hereto as Exhibit “L”), and that “ did not have a physical presence
on the building nor is it responsible to maintain the premises.” (Page 8, paragraph 19 of
Affirmation of Esq. annexed hereto as Exhibit “M”). This statement which
was submitted by defendant , in reply papers to s prior motion,
overlooks that portion of the lease which had been attached, which shows retention of the 9 th
floor of the premises, and the Right of Reentry by . There evidentiary
proof of other facts which defendant has overlooked which are evidenced by their lease
attachment ( ’s lease attached as exhibit “I”). Although the defendants state
that they are not responsible for repairs to, and deny that they had control over the premises in
direct contradiction of this so called fact, there exists a portion of the lease previously presented
by defendants to the court, which as can be seen,________________ has retention of the 9 th
floor, and that pursuant to the terms of the lease,____________________________, had the right
to inspect, and make repairs, Plaintiff asserts that there are factual issues which remain and it is
submitted that as to them summary judgment should not be granted.
18. Defendants only conclusory and evidentiary proof in the statement in the
Affirmation of Edwin A. Goodman, that “…At no time did maintain control or
management over the employees at the premises.” (see paragraph 13, page 6 of Affidavit of
, Esq. at Exhibit N”). See Deborah A. Richardson et al., v. Benoit's Electric, Inc., et al. and
Woodstream Holding Corp.,677 N.Y.S.2d 855, 1998 N.Y. App. Div. 254 A.D.2d 798; “When an
employer and the owner of the premises where a plaintiff is injured are distinct legal entities,
there is no basis to dismiss an action against the landowner based on the exclusivity provisions of
the Workers' Compensation Law.” Defendants argue in their motion that “ is an out-of-
possession” landowner that retained no control of the premises.” (Paragraph 13 of Page 6 of the
Affirmation of , Esq. annexed as Exhibit “O”). That defendant/landlord herein
L.P., leased the premises to plaintiff’s employer , INC. is not disputed. That , L.P.,
did not “maintain control or management over the employees at the premises” (Page 6,
paragraph 13 of the Affidavit of annexed as Exhibit “P”). Plaintiff contends that the
defendant did and does, at all times prior to, up to and including the date of the accident
to present retain the ninth floor of the premises, the floor from which the water was leaking onto
the ceiling and floors of the eighth floor, for which the defendant was contractually and
statutorily obligated to repair, and for which they had at all times the right to inspect, at the
premises known as , INC., as referred to in Article XIV. 14.1 of the lease. (Lease of ,
L.P. lease entitled Landlord’s Right of Access annexed hereto as exhibit “Q”). In the case at bar
as in Sostre v. Jaeger, et al. 38 A.D.3d 234, 832 N.Y.S.2d 150 the Court held as follows: “…
The landlord could be held liable for the explosion that allegedly caused the employee’s injuries
because it expressly reserved a right under the lease to enter the premises for the purpose of
inspection, maintenance and repair.”
19. In Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69
N.Y.S2d 559; 50-9 N.E.2d 51 N.Y.S.2d 451 (1987) the Court held that:
…under the terms of the lease, Village East, as owner-lessor, could enter the premises at “all times” to inspect and, in addition had the right to make repairs if the tenant failed to make them…Although there is no evidence that Village East had actual notice of the claimed dangerous condition, its right to reenter the premises is sufficient to charge it with constructive notice. Its failure to act to remedy the defect as it could have done under the lease is the basis for its liability under the various provisions of the Administrative Code.
20. “Furthermore defendants claim that as an out of possession landlord (not yet
proven) that they are not liable for statutory violations or structural defects. Plaintiff submits
that discovery may show that the continued accumulations of water on the eighth floor locker
room of INC. was coming from the 9th floor and which, may have been the result
of a structural defect and/or statutory violations. See Ponce v. St. John’s Cemetry, et al., 222
A.D.2d 361, 636 N.Y.S.2d 28 (1995) N.Y. App. Div.:
Absolute liability is imposed upon owners and contractors pursuant to Labor Law § 240 (1) upon proof of a violation thereof and that such violation was the proximate cause of the injuries sustained (Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). However, as almost no pretrial discovery has been conducted herein, the court properly denied summary judgment against the owner defendants pursuant to CPLR [**29] 3212 (f) . In these circumstances, discovery may yield information allowing
defendants-respondents to raise issues of facts as to whether, inter alia, a statutory violation was the proximate cause of the accident (see, Avner v 93rd St. Assn., 147 A.D.2d 414 .
21. Plaintiff contends that defendant , L.P., has “exclusive control of
facts concerning its alleged status” and the circumstances concerning the eighth floor leak and
the contract and/or lease in existence which provided that , L.P. had the right to
reenter the premises at any time to make repairs as necessary. Further, the fact that the
defendant _____ retained the 9th floor of the premises, pursuant to the terms of that lease, it is
submitted herein that there remain discoverable issues concerning these facts surrounding these
issues and the existence of a structural defect, which raises issues of fact as relating to the
source and cause of the leak on the eighth floor and which resulted in plaintiff’s accident. In
the matter of Donatin v. Sea Crest Trading Co., Inc., 181 A.D.2d 654; 580 N.Y.S.2d 461
(1992) the court stated: “We agree with the plaintiff's argument that the court erred in granting
summary judgment to the defendant. The cases relied upon by the court, i.e., Heritage v Van
Patten (90 AD2d 936 , affd 59 NY2d 1017), and St. Andrews v Lucarelli (115 AD2d 155 ), are
distinguishable from the instant case and inapplicable. Moreover, it has been stated that…The
proponent of a motion for summary judgment is required to make a prima facie showing of
entitlement to judgment, as a matter of law, offering sufficient evidence to eliminate any
material issues of fact from the case.
22. See Crucetta v. Funnel Equities, Inc., 286 AD2d 747, 730 NYS2d 531.
Notwithstanding, this “exclusive control of facts” maintained by defendants, INC. and
ASSOCIATES, L.P, there remain discoverable and triable issues of fact concerning the mutual
and/or non-exclusive responsibility, overlapping responsibility, title, ownership, contractual
agreement, indemnity, assignment, and/or other instrumentality by which the movants, and
defendant ASSOCIATES, L.P. and move for summary judgment herein can be properly said
to fall within the gambit of the Worker’s Comp clause which affords the exclusory exemption
under which defendants claim right to summary judgment and by which defendants assert that
there are no triable issues of fact.
23. In its opinion regarding the liability of a commercial landlord and its tenants, see
Putnam v. Stout, Jr. et al., 381 N.Y.S.2d 848 (1976) stated that: “…Recognizing that this rule is
an exception to the general rule that a landlord is not liable for conditions upon the land after the
transfer of possession (see Campbell v. Elsie S. Holding Co., 251 NY 445; Restatement, Torts
2d §§355, 356), the Restatement (Second) of Torts has formulated the following rule:
…a Lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with he consent of the lessee or his sublesee by a condition of disrepair existing before or arising after the lessee has taken possession if (a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and (b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and (c) the lessor fails to exercise reasonable care to perform his contract.” (Restatement, Torts 2d §357.)
24. In the instant matter in which the defendant ASSOCIATES, LLP,
retained both the 9th floor and the right of reentry to the premises, as in the matter of Guzman v.
Haven Plaza Housing Development Fund Company, Inc.,et al., 516 N.Y.S.2d 451 (1987) which
the Court held that that: “…The owner of a leased commercial building covered by the New
York City Administrative Code which has no obligation for repairing the premises but retains the
right to reenter and inspect and to make needed repairs at tenant’s expense may be held
responsible for injuries due to a defect in the premises...Also under the terms of the lease, Village
East, as owner-lessor, could enter the premises “at all times” to inspect and, in addition, had the
right to make repairs if the tenant failed to make them…”
25. Further, the defendants, ASSOCIATES, L.P., and , INC. are not
entitled to summary judgment on the ground that the within action is barred by the exclusivity of
Worker’s Compensation, as cited by New York Worker’s Compensation Law §29(6): O’Connor v.
Spencer (1977)., Ltd. P’ship (2003, App Div, 2d Dept. 769 NYS2d 276: Worker’s Compensation
exclusivity provisions did not bar an injured worker’s action against a partnership that owned the
premises where the worker was injured because none of the property owner’s partners were officers of
the worker’s corporate employer, and the partnership and the employer were distinct legal entities.
26. , L.P., is the owner of the premises and land, albeit, “out of
possession” which is located at 754 Fifth Avenue, the site of defendant BERGDORF
GOODMAN, INC., plaintiff’s employer. Similarly, in the matter of George Lindner et al. v.
Kew Realty Co., 113 A.D.2d 36; 494 N.Y.S.2d 870; 1985 N.Y. App. Div., the plaintiff presented
to the Court and prevailed on a showing that the “ownership of the premises in Heritage v Van
Patten (59 NY2d 1017) dissimilarly from the case before the Court in their matter, differed in
that that the ownership of the premises which rested with the employer’s principal, in his
individual capacity, but that in their matter at bar, the ownership “resides in a partnership…”
similarly from the instant matter in which the defendant ASSOCIATES, L.P and
________________________INC. are not nor have they ever been the Plaintiff ’s employer.
The matter of George Lindner et al, Kew Realty Co., 113 A.D.2d 26, 494 N.Y.S. 2d 870; 1985
N.Y. App. Div further held:
…Heritage decision was not controlling in that (1) the defendant in Heritage (supra) had specifically pleaded the affirmative defense, while, at bar, the defendants denied the existence of any employment relationship with the plaintiff, and (2) the ownership of the premises in Heritage lay solely with the employer's principal, in his individual capacity, while, at bar, the ownership resides in a partnership...
27. The court held in. Rice v City of Cortland (1999, 3d Dept) 262 App Div 2d 770,
691 NYS2d 616, “…the Court “erred [emphasis added] in dismissing action on ground that
Labor Law 241(6) applied only to employers.” Plaintiff concedes that , is not
the employer for purposes of applying the exclusion remedy under Worker’s Compensation,
plaintiff, but an owner of the land and premises on which plaintiff was employed by plaintiff’s
employer, defendant INC. the premises on which she sustained a grave injury. Plaintiff
while lawfully on the premises was to be afforded the protections under 200 and 241of the Labor
Law, which defendant ASSOCIATES, as owner had a duty to provide. “…The
rational in Allen “owners regardless of their status and regardless of their lack of direction and
control, are strictly liable—in this case under section 240..” Rice v. City of Cortland, 262 App
Div 2d 770, 691 NYS2d 616.
28. In the case at bar, defendants make reference to defendants
ASSOCIATES, L.P. and as asserted in the
affirmation of , Esq. as if they existed in relation to and
were the same as Plaintiff’s employer. In
relating Plaintiff to defendants_____________ and ASSOCIATES, L.P. and in this
manner, they seem to overlook the fact that those defendants do not stand in any relation to
plaintiff’s employment. Defendants in this regard provide no evidentiary proof of the so called
lack of control over the premises by the defendants and,
L.P. who are very clearly not plaintiff’s employer, and insofar as plaintiff was not employed by
them cannot be barred from liability under Workers’ Compensation Law.
29. Defendant ASSOCIATES, INC., as the landowner is a completely
distinct entity from plaintiff ’s employer See Richardson v. Benoit’s Electric, Inc. , N.Y.S.2d
855; 1998 N.Y. App. Div.
When an employer and the owner of the premises where a plaintiff is injured are distinct legal entities, there is no basis to dismiss an action against the landowner based on the exclusivity provisions of the Workers' Compensation Law (see, e.g., Rosenburg v. Anguili Buick, 220 AD2d 653, 655; Casas v 559 Warren St. Realty Corp., 211 AD2d 742, 743) . Here, as in Buchner v Pines Hotel (87 AD2d 691, 692, affd 58 NY2d 1019), [t]he individual principals in this business enterprise, for their own business and legal advantage, elected to operate that enterprise through separate corporate entities. The structure they created should not lightly be ignored at their behest, in order to shield one of the entities they created from ... common-law tort liability
Neither, defendants , L.P. nor INC. are plaintiff’s
employer. Nor, do the facts do not bear out the assertion of defendant Associates, that
they did not have the right of reentry to the premises located at ______________________’s at
30. ____________, and have submitted in support of their motion for summary
judgment an lease which reflects ___________________________’s right of reentry to the
premises ( ’s Lease entitled Landlord’s Right of Access Exhibit “R”).
31. , Esq. asserts in her affirmation: “In the case at bar, it is clear that is not
obligated contractually to perform any maintenance or repairs on the premises as such is within
the exclusive domain of . and , Inc. as tenants.” (see paragraph 16 at
page 7 of the Affirmation of (, Esq. at Exhibit “M”). In Billy v Consolidated Mach. Tool
Corp ., 71 AD2d 796 , the Court held as in affirming the holding of the lower Court in favor of the
plaintiff that the prior order was to be “...modified, affirmed, holding, in an opinion by Judge
Gabrielli, that the exclusivity provisions of the Workers' Compensation Law do not bar a
common-law action against an employer for injuries sustained by an employee in the course of
his employment where the employer's liability is alleged to have arisen solely from its
independent assumption, by contract or operation of law, of the obligations and liabilities of a
third-party tort-feasor.”
32. Defendants herein have provided mere conclusory statements as to their claim that “
is not obligated contractually to perform any maintenance or repairs on the premises as such is
within the exclusive domain of Inc. and , Inc” (see paragraph 16,
page 7 of Affidavit of at Exhibit “M”). Further as they contend that
ASSOCIATES was not on “notice” of such condition…“nor was it responsible for inspecting,
maintaining or repairing same,” as set forth in ‘s Affirmation, (see page 7, paragraph 15 of
Affirmation of , Esq. at Exhibit “M”). There is no evidentiary material
provided in support their own claim, make no reference to or inclusion of any contracts, and/or
agreements showing the claimed obligations of , INC. or , INC.
wherein they agreed to indemnify, or assumed the obligations of, or of the “notice” requisite by
agreement, which defendants claim was due to [one] defendant by the[other]. In Billy v
Cosolidated Mach. Tool Corp ., 71 AD2d 796. Billy v Consolidated Mach. Tool Corp., 51 NY2d
in discussing the issue of “notice” as provided by defendants: “Conversely, there generally is no
duty to warn of conditions that can be easily recognized or discovered by the normal use of one's
senses (see, De Rossi v Golub Corp., 209 AD2d 911, 912, lv denied 85 NY2d 804; Tarricone v
State of New York, 175 AD2d 308, 310, denied 78 NY2d 862).” Since the evidence in the record
establishes that plaintiff was fully aware of the stairs' defective condition, defendants urge us to
apply the latter holdings here. However, they overlook the rule that landowners, who have or
should have reason to expect that persons will find it necessary to encounter the obvious danger,
owe a duty of reasonable care to either warn such persons of the danger or to take other
reasonable steps to protect them from it …”
33. Although it was affirmed by , Senior General Partner of
ASSOCIATES that: “It did not maintain an office on the premises.” (see Affirmation of Mr.
dated December 22, 2006 at paragraph 8, page 2 at Exhibit “N”), it makes no reference their
right of reentry as landowner and title holder of the premises. See Lopez v. 1372 Shakespeare
Ave. Hous. Dev. Fund Corp., 299 A.D.2d: 750 N.Y.S2d 44 (2002): “Generally, an out-of-
possession landlord may not be held liable for a third-party's injury on his or her premises unless
the landlord has notice of the defect and has consented to be responsible for maintenance or
repair. Constructive notice may be found, however, where, as here, the landlord expressly
reserves a right under the terms of the lease to enter the premises for the purpose of inspection,
maintenance and repair, and there is a specific statutory violation.”
34. Plaintiff contends that as , L.P., nor , INC. are not the
plaintiff’s employer. Although stated in they stated in defendants affidavits, as well as the
Affirmation of defendants’ attorney, that “At no time did 754 maintain control or management
over the employees of the premises.” (see paragraph 16, page 7of the Affirmation of
______________, Esq, at Exhibit “M”.) they present no evidentiary proof, such that plaintiff’s
case should be dismissed and base their arguments solely on the non-conclusory and non-
applicable restatement of the law referable to the exclusivity clause under Workers’
Compensation. Plaintiff is well aware of whom her employer is, namely
_________________ and sets forth that the restatement of the Workers’ Compensation
exclusivity is totally irrelevant, and further not the operation of law by which defendants can be
said to properly have rested their argument for summary judgment as to those defendants. See
Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798: “... reliance on Heritage v Van Patten (59
NY2d 1017) is misplaced; here, the owner of the real estate is a corporation and not a
coemployee of plaintiff (see, Workers' Compensation Law § 29 [6]; see also, Thomas v Maigo
Corp., 37 AD2d 754). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J.--
Summary Judgment.).”
35. Particularly with respect to the defendants ASSOCIATES,
L.P., ,____________________., and ______________________, INC. wherein said defendants
herein claim that they have no knowledge as to the notice of the condition, or of the existence of
any conditions of which they were aware due to either as they claim a lack of control, right of
reentry, lack of obligation or otherwise, with respect to the within matter an equivalent to the
within matter is cited in: Richardson v. Benoit's Elec., Inc . : 677 N.Y.S.2d 855.Here, as in
Buchner v Pines Hotel (87 AD2d 691, 692, affd 58 NY2d 1019), "[t]he individual principals in
this business enterprise, for their own business and legal advantage, elected to operate that
enterprise through separate corporate entities. The structure they created should not lightly be
ignored at their behest, in order to shield one of the entities they created from common-law tort
liability.” See Lopez v. Gem Gravure Corp., 798 N.Y.S.2d 345; (2004) N.Y. However, a
separate line of cases holds that "the individual principals in this business enterprise, for their
own business and legal advantage, elected to operate that enterprise through separate corporate
entities…Moreover, where as here, the parties operated two corporations, one being the
landowner and the other operating the business, Courts have held that the workers compensation
law does not bar a common-law suit against the landowner (Richardson v. Benoit's Elec. , Inc. ,
254 A.D.2d 798, 677 N.Y.S.2d 855)…where a single business is structured as separate legal
entities in order to protect its assets from third parties, the presumption is that the worker's
compensation law will not protect the owner from a common-law suit.
36. At most defendants appear to provide conclusions, however, unsubstantiated as to
what operations of law apply to the instant matter, particularly as to the application of which one
could conclude, they are not and cannot be found liable and for which reasons they are entitled to
summary judgment. Plaintiff has no relationship defendants make a showing of that which is in
direct contradiction to their arguments. Plaintiffs claim that they improperly invoke an exclusion
afforded under Worker’s Compensation, §§11 and 29(6). The plaintiff further asserts, as in
Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798, a matter in which plaintiff is similarly
situated:
….reliance on Heritage v Van Patten (59 NY2d 1017) is misplaced; here, the owner of the real estate is a corporation and not a coemployee of plaintiff (see, Workers' Compensation Law § 29 [6]; see also, Thomas v Maigo Corp ., 37 AD2d 754). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J.--Summary Judgment.)” See Kevin Sergeant, v Murphy Family Trust, et al., 739 N.Y.S.2d 790; 2002 N.Y. App. Div.: wherein the Court determined that to deciding a summary judgment motion is issue finding rather than issue determination, the submissions should be scrutinized carefully in the light most favorable to the party opposing the motion.
37. Defendants do not claim plaintiff is the employee of , L.P., and
, INC., in so identifying these defendants has shown that, _________________________, INC.
and___________________________although, as , states in his affidavit, that is
“out-of-possession,” do not show themselves as being “out-of-possession” as they claim therein.
Although Mr. , the Senior General Partner of defendant ASSOCIATES, L.P.
does not affirm in his affidavit that has no right of reentry, in the (Affidavits of , Jr.
annexed to defendants motion as Exhibits G and I) in her affirmation, , Esq. asserts that said
defendant has no right of reentry.
38. Defendants by their own contradictory contentions raise several issues of fact,
including issues relating to whether there is evidentiary material to support defendants argument
that “clearly ______ASSOCIATES…did not have any notice nor was it responsible for
inspecting, repairing, or maintaining same.” This appears to plaintiff herein, to be contradicted
by other evidence. ASSOCIATES is listed as being the entity on whose behalf work to be
performed at _____________New York, New York were made. (see Applications for Permits
from New York City Department of Buildings at Exhibit “G”).
39. Plaintiff submits that the argument defendants put forth that Plaintiff’s claim against
these defendants is barred by Worker’s Compensation §11 and 29(6) represents a clear
misapplication of the Statute. Defendant ______ASSOCIATES, is not plaintiff’s employer. The
same is true of , INC. As can be seen by (paragraph 8, page 4 of the Affirmation of
, Esq. at Exhibit “F”) defendant , INC., “…it is an undisputed fact that plaintiff ,
was an employee of______________________ working in the course of her employment.”
Plaintiff of course, admits to the premise underlying the exclusive remedy afforded under
Worker’s Compensation. See Roy Russell v. Renee Gaines, 209 A.D.2d 939; 619 N.Y.S.2d 420;
1994 N.Y. App. Div: “Workers' Compensation Law, N.Y. Work. Comp. Law § 29 (6) provides
that its provisions are the exclusive remedy to an employee when such employee is injured or
killed by the negligence or wrong of another in the same employ…a defendant must himself
have been in the course of his employment at the time of the injury. See Casas v. 559 Warren
St. Realty Corp., 211 A.D.2d 742: “Unlike the situations presented in Coppola v Singer (211
AD2d 744 [decided herewith]) and Lapinski v Gusmar Realty (211 AD2d 764 [decided
herewith]), the record in this case establishes that the plaintiff was employed solely by Lone Star
and that the corporate defendants were separate legal entities from Lone Star and could not be
considered the co-employees of the plaintiff. Accordingly, the plaintiff's receipt of Workers'
Compensation benefits does not shield the corporate defendants from potential tort liability (see,
Bernardo v Melville Indus. Assocs., 148 AD2d 486; Bruno v Dynamic Enters., 132 AD2d 964),
inasmuch as they are distinct corporate entities unrelated to the plaintiff's employer.”
40. However, defendants by their own arguments which purport that there are no issues
of fact, raise several issues, disprove their own claim in stating they are “equal” in remedy as to
the exclusivity of Worker’s Compensation §§11 and 29(6). Defendants’ assertions and attempt
to distinguish each defendant from the other, are presenting a case where as they clearly identify
said defendants as not being the employer of the plaintiff, and further are establishing that the
defendants are each separate and disparate in interest and distinct, (and separate from plaintiff’s
employer) show that plaintiff is not barred by the exclusivity afforded under Worker’s
Compensation Law from brining a matter in tort law. Further, defendants present no evidentiary
material supporting their argument of the distinct lack of common interest and separate
responsibility which they claim each defendant had with respect to the premises. See Stephen J.
Bernardo v. Melville Industrial Associates, 538 N.Y.S.2d 833; 1989 N.Y. App. Div.: “The
record, including the documentary evidence submitted, clearly established that, at the time of the
accident, the injured plaintiff was employed solely by Dachlar Management Corporation a
separate legal entity from Melville. Although Melville was instrumental in forming Dachlar
Management and is the sole shareholder thereof, these facts are insufficient to shield Melville
from tort liability…reliance on Heritage v Van Patten (59 NY2d 1017) is misplaced; here, the
owner of the real estate is a corporation and not a coemployee of plaintiff (see, Workers'
Compensation Law § 29 [6]; see also, Thomas v Maigo Corp., 37 AD2d 754). (Appeal from
Order of Supreme Court, Oneida County, Shaheen, J.--Summary Judgment.).”
41. A question of fact remains as to what extent moving defendants had control over the
premises, regardless of whether or not they were the Plaintiff’s employer. Whether or not the
defendants ASSOCIATES, L.P. and INC. are Plaintiff’s employer, each defendant
has “exclusive control of facts concerning its alleged status.” Summary Judgment cannot be granted as
to these defendants based upon their lease, which was not attached in its entirety to the motion which
Plaintiff opposes herein; b) based upon the fact that the defendant retained the 9 th floor of
the premises; and (c) the fact that defendant had entered into an contractually agreement to both retain
the right of reentry and the right to inspect, and perform repairs. (see page 4 and pg 8 of defendant
________’s lease annexed hereto as Exhibit “O”) The contractual obligations of the
defendants/movants for summary judgment and , INC., and the particulars
surrounding their retention of the 9th floor as indicated by the lease annexed hereto as (Exhibit See
Crucetta v. Funnel Equities, Inc., (2001, 2d Dept) 286 AD2d 747, 730 NYS2d 531.
43. In her affirmation of _________________, Esq. asserts that “Pursuant to the
terms of the Lease Agreement ____________________ as tenant was and is responsible for all
maintenance, repairs, construction, renovation, installations, and work performed on the
premises… ____________________ ASSOCIATES is an out-of-possession landowner that
had retained no control of the premises.” These attestations are not supported by any parole
evidence. Surely, the agreements by and between these defendants, including leases and any
other agreements, entered into by these defendants are the only means by which one can
ascertain whether or not defendants had “no control of the premises.” There remain triable
issues of fact, namely whether the defendants had the right of reentry to the premises, as
determined by a showing of the leases entered into by and between_________________ and
_____________________. No such leases, agreements, in their entirety or other evidentiary
materials to support the assertions of defendants that they should be dismissed from the within
action, have been attached to the motion papers. Certainly, a landowner, even an “out-of-
possession” landowner, retains some rights by its own choosing, in an effort to protect that
which it owns. Plaintiff submits to this Honorable Court that there are issues of triable fact,
such that the defendants herein, certainly have had the right of reentry to the premises, located
at Avenue, and retained the 9th floor of the premises. Further, plaintiff submits that parole
evidence, in the form of defendant ’s lease that they retained control over the 9 th
floor of the premises, and that as such their claim of being “out-of-possession” is
unsubstantiated.
44. Plaintiff further asserts that defendants in arguing their position as to the bases for
a finding of summary judgment as to the defendants herein, seem to present an argument more
akin to arguing the validity of contractual agreements by and between the defendants herein
____________________, INC., , and , INC..
45. In the Affirmation of , Esq. (paragraph 10, page 5) that as to the
defendant INC. the “entity known as INC. was changed
, INC., the surviving corporation, through a reverse merger and that “the entity known as
INC., became , INC. a subsidiary of , INC. Although INC. is purported to
have been an alter ego of , INC. plaintiff submits that there remain severable
issues of fact in this regard. Although defendants contend that the merger and corporate name
change from “__________________________ACQUISTION, INC. was changed
to_________________________, INC…on October 6, 2005 plaintiff submits that the lease
which is attached to defendants moving papers has
____________________________________________ INC., states that GROUP,
INC. not _________________________ INC.) is the leaseholder. Not dissimilar to the instant
matter is Mournet, v. Educational and Cultural Trust Fund of the Electrical Industry,
Appellant, et al., 303 A.D.2d 474; 756 N.Y.S.2d 433 (2003) wherein the Court held that : “…
Although a representative of ECT submitted an affidavit which established that it and JIB were
related entities, this evidence failed to demonstrate JIB's control, if any, over the day-to-day
operations of ECT. Therefore, ECT failed to establish the applicability of the exclusivity
provisions of the Workers' Compensation Law (see Cruceta v Funnel Equities , 286 A.D.2d
747, 730 N.Y.S.2d 531 [2001 ] ; … Dennihy v Episcopal Health Servs. , 283 A.D.2d 542, 543,
724 N.Y.S.2d 768 [2001]; Constantine v Premier Cab Corp. , 295 A.D.2d 303, 304, 743
N.Y.S.2d 516 [2002]). Summary judgment was also properly denied on the ground that ECT
had exclusive knowledge of some of the facts regarding its alleged status as an alter ego of JIB
(see Cruceta v Funnel Equities, supra; Ellis v Allstate Ins.”
46. In the assertions of , Esq. herein, her arguments are purported to
provide a showing that there are no triable issues of fact, seem more to raise questions of the
triable issues, such that there is allusion to some unforeseen force majeure clause in operation,
by and/or between the very defendants that are being defended and for whom arguments are
being provided for jointly, such as a lease, a showing of which , L.P., as
landowner, [did] or [did not] have the right of reentry to the premises, and the agreement by
which NEIMAN MARCUS GROUP, INC., [did] or did not] by its agreement with the
defendants, L.P., , and , INC. have responsibility for
maintenance, repairs, renovation and/or alterations at the premises, located at Avenue.
48. Defendants’ motion for summary judgment should be denied for the foregoing
reasons: (1) lack of Plaintiff’s being able to conduct any discovery, including the cause of the
constant water hazard in the locker room; (2) the contradiction which exists to defendant
ASSOCIATES, L.P.’s claim that it is an “out-of-possession” landlord (despite the attachment
of the lease which shows that a) ___________________ASSOCIATES, L.P. had retention of
the 9th floor of the premises, and b) their showing by the attachment of the lease that they have
the right of reentry to the premises, to inspect, and/or repair same, shows that save the
Affidavit of claiming that they are “out-of-possession” and that all responsibility for
the premises lies with (3) and unresolved questions of fact as to the actual
relationship between the parties, INC. who it is now claimed “became
___________________________, INC., and which defendant has there been evidentiary proof
of same; and (4) and given that Plaintiff claims a “grave injury”, co-defendants cross claims
against Plaintiff’s employer should not be dismissed.
WHEREFORE, Plaintiff seeks an order denying the motion of the defendants
, , INC. and ASSOCIATES, L.P., in all respects and
for such other and further relief as to this Court may seem just and proper.
Dated: New York, New York
_____________________________ , ESQ