Ifafore v Lebron

Ifafore v Lebron 2013 NY Slip Op 07850 Decided on November 26, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 26, 2013
Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels, Gische, JJ.
11171 17962/07

[*1]Taofik Ifafore, Plaintiff-Respondent-Appellant,

v

Chris Lebron, Defendant-Appellant-Respondent, Jetro Cash and Carry Enterprises, LLC, Defendant.




Law Office of Karen L. Lawrence, Tarrytown (David Holmes of
counsel), for appellant-respondent.
Spiegel & Barbato, LLP, Bronx (Brian C. Mardon of counsel),
for respondent-appellant.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 12, 2012, which granted so much of defendant Chris Lebron's motion as sought to amend his answer to include an affirmative defense based on Worker's Compensation Law §§ 11 and 29(6), and denied so much of the motion as sought to dismiss the complaint, unanimously affirmed, without costs.

The record establishes that defendant Lebron's vehicle struck plaintiff, a fellow employee of Coca-Cola Company, as Lebron arrived for work, at a predawn hour, pulled into a parking facility owned by a third party, and turned left towards an area used by Coca-Cola employees. Plaintiff was walking inside the lot, 15 or 20 feet from the entrance, having exited one building in which Coca-Cola had offices and heading east across the parking lot to reach another building in which Coca-Cola had offices. The record also indicates that the area of the parking lot in question lacked artificial illumination and was dark at the time of the accident.

Whether Lebron was acting within the scope of his employment at the time of the accident cannot be determined on this record. Issues of fact exist whether the area of the parking lot where the accident took place constitutes plaintiff's sole route from the building at the east side of the lot to the building at the west side of the lot, whether that area constitutes Lebron's sole route to reach his designated parking area, and whether the lack of lighting in that area creates a special hazard for Coca-Cola employees, as distinguished from the general public, since the parking lot separates the buildings in which they regularly work, and during certain times of the year, employees working certain shifts are required to arrive before dawn (see Ortiz v Lynch, [*2]105 AD3d 584 [1st Dept 2013]).

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2013

CLERK