Flagler v Gruber

[*1] Flagler v Gruber 2006 NY Slip Op 50042(U) [10 Misc 3d 1071(A)] Decided on January 10, 2006 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2006
Supreme Court, Kings County

EMILY FLAGLER, Plaintiff,

against

KAREN GRUBER AND MATTHEW GRUBER, 222 EAST 83RD STREET, L.L.C., IN HOUSE CONSTRUCTION SERVICE, INC., SUED HEREIN AS IN-HOUSE CONSTRUCTION, INC., Defendants.



24401/02



plaintiff,

Bailley & McMillan

White Plains NY

Defendant and Third party Plaintiff

Newman Fitch Altheim & Myers

Ny NY

Arthur M. Schack, J.

Defendant/third-party plaintiffs, Karen Gruber, Matthew Gruber, and Karen Gruber as authorized agent for 222 East 83rd Street, L.L.C., move, pursuant to CPLR § 3212, for summary judgment and dismissal of plaintiff's complaint and any cross-claims against them.

Defendant In-House Construction Inc. and third-party defendants, Adam Kushner, In- House Construction Inc., and Adam Kushner Studios, cross-move for five types of relief. In the first, second, and fourth branches of the cross-motion, defendant In-House and third-party defendants move for summary judgment, pursuant to CPLR § 3212, on the grounds that plaintiff Flagler is barred from bringing an action against third-party defendants and defendant In-House by Workers' Compensation Law § 11, which bars employees from suing employers and "special employers" for damages sustained from personal injury or death resulting from one's employment. In the third branch of the cross-motion, defendant In-House moves to amend its "amended verified answer," dated May 17, 2004, nunc pro tunc, to assert a workers' compensation defense, on the grounds that plaintiff was a "special employee" of In-House. In the fifth branch of the cross-motion, defendant In-House moves, pursuant to CPLR § 3212, for summary judgment and dismissal of the supplemental summons and amended complaint against it, and all cross-claims asserted against it, on the grounds that Labor Law § § 240 (1) and 241 (6) do not apply against it because it was not the owner or general contractor of the subject project.

Plaintiff Emily Flagler seeks to recover money damages for alleged injuries sustained on January 28, 2002, when she was struck by a falling beam in a one-family home undergoing renovations, at 222 East 83rd Street, New York New York. The premises were owned by defendant/third-party plaintiffs Karen and Matthew Gruber, wife and husband, through a limited liability corporation, 222 East 83rd Street [exhibit E of motion - EBT of Karen Gruber, p. 6]. In-[*2]House, owned by Mr. Kushner, a licensed architect, was hired by Mrs. Gruber in October 2001 to perform various demolition work at the premises [exhibit K of motion - agreement between In-House and Karen Gruber]. There was a triable issue of fact as to whether Mrs. Gruber or Mr. Kushner acted as the general contractor. As will be explained below, this issue is now moot.

It is undisputed that plaintiff was an architectural intern, employed by Kushner Studios [exhibit H of cross-motion - affidavit of Adam Kushner; exhibit D of motion - EBT of Emily Flagler, p. 7; exhibit K of cross-motion - payroll records of Kushner Studios], an architectural firm owned by Mr. Kushner. Mr. Kushner had workers' compensation insurance in effect at the time of the accident with State Farm Insurance [exhibit K of cross-motion]. On the day of the alleged accident, in his capacity as President and owner of In-House (Mr. Kushner's construction firm that worked with his architectural firm, Kushner Studios, and also shared common offices with Kushner Studios), Mr. Kushner had Ms. Flagler meet him at 222 East 83rd Street, to assist him while he repaired a skylight at the subject property [exhibit H of cross-motion - affidavit of Adam Kushner; Exhibit D of motion - EBT of Emily Flagler, pp. 13-15]. While assisting Mr. Kushner, Ms. Flagler was allegedly struck by a falling wooden beam [exhibit H of cross-motion - affidavit of Adam Kushner; Exhibit D of motion - EBT of Emily Flagler, pp. 17-26]. Mr. Kushner claims that the Gruber renovation project was a joint venture of his two companies, and that he simultaneously coordinated the work of both companies as project manager [exhibit H of cross-motion - affidavit of Adam Kushner]

Ms. Flagler, in her EBT, p, 52, states that after her accident her work for Kushner Studios was sporadic, and, at p. 53, line 2, that she subsequently left the employ of Kushner Studios "primarily due to my pregnancy." According to plaintiff's bill of particulars [exhibit C of motion], she alleged injures from the accident, including soft tissue and related complaints with respect to the skeletal system. They include: C4-C5 posterior disc herniation; a C6-C7 posterior disc bulge; cervical spine derangement; L4-L5 posterior disc herniation; thoracolumbar spine derangement; loss or range of motion; radiculopathy; and assorted pains and stiffness.

Ms. Flagler retained counsel for her workers' compensation claim, filed a claim, attended a Workers' Compensation Board hearing, and received workers' compensation benefits [exhibit D of motion - EBT of Emily Flagler, pp. 45-49]. According to Ms. Flagler's verified bill of particulars [exhibit C of motion], State Farm Insurance, the worker's compensation carrier, paid part of her medical expenses as a collateral source payment.

On July 14, 2005, plaintiff's counsel and counsel for defendant/third-party plaintiffs Karen Gruber, Matthew Gruber, and 222 East 83rd Street, L.L.C. stipulated and agreed that the action is discontinued by plaintiff against Mr. and Mrs. Gruber and their limited liability corporation. This stipulation of discontinuance was filed with the Kings County Clerk on September 2, 2005. Therefore, the motion by defendant/third-party plaintiffs, Karen Gruber, Matthew Gruber, and Karen Gruber as authorized agent for 222 East 83rd Street, L.L.C., pursuant to CPLR § 3212, for summary judgment and dismissal of plaintiff's complaint and any cross-claims against them, is discontinued as moot. Further, the third-party action of Mr. and Mrs. Gruber and 222 East 83rd Street, L.L.C., Index Number 75253/04, against Mr. Kushner and his related business entities is therefore now moot and dismissed as a matter of law.

With respect to the cross-motion of Mr. Kushner and his related business entities, as will be explained below, this Court will grant: the third branch of the cross-motion to permit In-[*3]House to amend its answer nunc pro tunc to assert a workers' compensation defense; and, the second and fourth branches of the cross-motion to grant summary judgment to defendant In-House. The first and fifth branches of the cross-motion have been rendered moot by the dismissal of the third-party action.

CPLR § 3025 (b) amending of answer

CPLR § 3025 (b) allows a party at any time to amend its pleadings by leave of the Court, which "shall be freely given upon such terms as may be just." See Murray v City of New York, 43 NY2 400, 404-405 (1977); Shine v Duncan Petroleum Transport, Inc., 60 NY2d 22, 27 (1983); Aronov v Regency Gardens Apartment Corp., 15 AD3d 513 (2d Dept 2005). Plaintiff, in her opposition papers, has not opposed this relief. Therefore, since plaintiff does not object to defendant In-House Construction amending its answer nunc pro tunc to assert a workers' compensation defense, this relief is granted.

Summary judgment standard

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).

Discussion

In the instant case no triable issues of fact remain when examining the evidence in the light most favorable to non-movant plaintiff. Plaintiff, as described above, filed for workers' compensation benefits and has been paid by State Farm Insurance for part of her medical expenses. Pursuant to Workers' Compensation Law § 11, when an employee incurs an injury which arises out of or in the course of his or her employment, the worker's exclusive remedy is a workers' compensation claim. Plaintiff alleges that at the time of the accident she was an employee of Kushner Studios and not employed by In-House Construction. However, from the evidence before this Court, it is clear that Ms. Flagler, at the time of the accident, was working as a "special employee" of In-House Construction and thus cannot go forward with a personal injury action against In-House Construction.

In Thompson v Grumman Aerospace Corporation, 78 NY2d 553, 557 (1991), the Court of Appeals, instructed that: [*4]

We have consistently found as a general proposition that a general

employee of one employer may also be in the special employ of another,

notwithstanding the general employer's responsibility for payment of wages

and for maintaining workers' compensation and other employee benefits

(Stone v Bigley Bros., 309 NY 132; Irwin v Klein, 271 NY 477, Murray v

Union Ry. Co., 229 NY 110, 112-113; Matter of Schweitzer v Thompson &

Norris Co., 229 NY 97, 99; see also, Cameli v Pace Univ., 131 AD2d 419,

420). A special employee is described as one who is transferred for a limited

time of whatever duration to the service of another (Brooks v Chemical

Leaman Tank Lines, 71 AD2d 405, 407). General employment is presumed

to continue, but this presumption is overcome upon clear demonstration of

surrender of control by the general employer and assumption of control by

the special employer (Stone v Bigley Bros., supra, at 140-143 [and cases

cited therein]; Sweet v Board of Educ., 290 NY 73, 76-77; Irwin v Klein,

supra, at 484-485; Ramsey v New York Cent. R.R. Co., 269 NY 219, 224).

Further, at 557-558, the Court held, that while the categorization of a worker as a "special employee" is usually a question of fact, "we have held that the determination of special employment status

may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact." See Hintze v Brookhaven National Laboratory, 278 AD2d 456 (2d Dept 2000); Montalbano v Kurt Weiss Florist, Inc., 1 AD3d 414 (2d Dept 2003).

In the instant case, plaintiff went to the construction site to assist Mr. Kushner, in his capacity as President of In-House Construction. In Rothenberg v Erie Metal Stamping Co., Inc., 204 AD2d 249, 250 (1st Dept 1994), the Court stated that while a number of factors are weighed to determine if someone is a "special employee," they include:

[but] not limited to, the right to and degree of supervision and control by

the alleged employer over the manner, details and ultimate result of the

work of the special employee (Thompson v Grumman Aerospace Corp.,

78 NY2d 553, 558; Lesanti v Harmac Indus., 175 AD2d 664; Cameli v

Pace Univ., 131 AD2d 419), the method of payment, the right to discharge,

the furnishing of equipment, and the nature and purpose of the work (Matter of Vinciguerra v Carvel Corp., 127 AD2d 915).

Mr. Kushner, as President of In-House, had control on the day of the accident over the manner and details of Ms. Flagler's work on the date of the accident. Mr. Kushner paid Ms. Flagler through his related business, Kushner Studios. As President of both Kushner Studios and In-House Construction, Mr. Kushner had the right to discharge Ms. Flagler, an at-will employee. Mr. Kushner, as President of In-House Construction, furnished equipment to Ms. Flagler. The nature and purpose of the work on the day of the accident were to repair a skylight previously [*5]installed by In-House Construction. Therefore, as a matter of law, Ms. Flagler was a "special employee" of In-House Construction at the time of the accident.

Workers' Compensation Law § 29 (6) shields a "special employer" from an action at law by a "special employee" if the "special employee" has elected to receive workers' compensation benefits from the general employer. Thompson v Grumman Aerospace Corporation, supra, at 560; Hintze v Brookhaven National Laboratory supra; Richiusa v Kahn Lumber & Millwork Co., Inc., 148 AD2d 690 (2d Dept 1989); Smith v Kingsbrook Jewish Medical Center, 5 AD3d 586 (2d Dept 2004); Schramm v Cold Spring Harbor Laboratory, 17 AD3d 661 (2d Dept 2005); Alvarez v Cunningham Associates, L.P., 21 AD3d 517 (2d Dept 2005). Plaintiff's verified bill of particulars admitted that State Farm Insurance, Kushner Studio's workers' compensation

carrier, made collateral source payments to plaintiff for medical expenses as workers' compensation benefits. Plaintiff, as explained above, in her EBT admitted retaining counsel for her workers' compensation claim, filing for workers' compensation benefits, and appearing at a Workers' Compensation Board hearing. Therefore, she cannot proceed in her personal injury action against her "special employer," In-House Construction.

Conclusion

Accordingly, it is,

ORDERED, that the motion of defendant/third-party plaintiffs, Karen Gruber, Matthew Gruber, and Karen Gruber as authorized agent for 222 East 83rd Street, L.L.C., pursuant to CPLR § 3212, for summary judgment and dismissal of plaintiff's complaint and any cross-claims against them, is moot and discontinued; and it is further

ORDERED, that the third-party action of Karen Gruber, Matthew Gruber, and Karen Gruber as authorized agent for 222 East 83rd Street, L.L.C., Index Number 75253/04 is dismissed; and it is further

ORDERED, that the third branch of the cross-motion by defendant In-House Construction Service, Inc., is granted, pursuant to CPLR § 3025 (b), and defendant In-House Construction Service Inc. is deemed to have amended its May 17, 2004 "amended verified answer" nunc pro tunc, to assert a workers' compensation defense, pursuant to Workers' Compensation Law § 11; and it is further

ORDERED that the second and fourth branches of the cross-motion by defendant In-House Construction Service, Inc., for summary judgment, pursuant to CPLR § 3212, are granted and the instant action, Index Number 24401/02, is dismissed.

This constitutes the Decision and Order of the Court.

___________________________________

HON. ARTHUR M. SCHACK

J. S. C.