Page v Big Sol Mfg. Co., Inc.

[*1] Page v Big Sol Mfg. Co., Inc. 2006 NY Slip Op 51690(U) [13 Misc 3d 1205(A)] Decided on September 8, 2006 Supreme Court, Richmond County Gigante, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2006
Supreme Court, Richmond County

Thomas Page, Plaintiff,

against

Big Sol Manufacturing Company, Inc., Jenel Management and 601 8TH Avenue Associates, Defendant(s).



10954/99

Robert Gigante, J.

Third-party defendants YOUNGWORLD OF EIGHTH AVENUE, INC. and YOUNGWORLD STORES GROUP, INC. (hereafter collectively YOUNGWORLD) move by notice of motion for summary judgment and dismissal of the third-party complaint or, in the alternative, an order severing the third-party action pursuant to CPLR 603. Defendant/Third-party plaintiff JENEL MANAGEMENT (hereafter Jenel) opposes the application. Plaintiff Thomas Page opposes the motion, in part, and concurs with the balance of the motion.

This litigation revolves around a trip and fall suffered by plaintiff on May 3, 1996 while employed as a plainclothes security guard in a commercial building owned by defendant Big Sol Manufacturing Co. Inc. (hereafter Big Sol) and managed by defendant/third-party plaintiff Jenel. It is alleged that plaintiff in the course of his duties, was descending an internal stairway to open a security gate purportedly installed by third-party defendant YOUNGWORLD when he slipped and fell over a protruding piece of rubber that had separated and was hanging from the seam of a stair tread. As a result, plaintiff fell, allegedly causing injury to his lower back. Third-Party defendant YOUNGWORLD is a children's retail clothing store and the assignee of a lease from non-party Versace Realty Corp. (hereafter Versace). At issue on this motion is whether the fall occurred within the space leased by YOUNGWORLD or in the common area of the building owned, controlled and maintained by Big Sol and managed by Jenel [FN1]. Plaintiff commenced this action by the filing and service of a summons and complaint on or about March 26, 1999. Defendants impleaded YOUNGWORLD by the service of a third-party summons and complaint dated April 17, 2003. Issue was joined in the third-party action by the service of answer by YOUNGWORLD on or about June 4, 2003 [FN2]. A note of issue was filed on February 10, 2006.

As is relevant, the third-party complaint alleges two causes of action against YOUNGWORLD. The first is based on contractual indemnification and/or breach of a covenant to procure insurance for Jenel's benefit. The second sounds in common-law negligence. YOUNGWORLD alleges that each is fatally flawed because the accident did not occur on the premises leased by them. In support of this position, YOUNGWORLD relies upon the deposition testimony of Michael Hirshorn, an executive vice president of Jenel, and a schematic diagram of the 1st and 2nd floor as referenced in the lease (Movants' Exhibits "F" and "G") [FN3]. It is alleged by YOUNGWORLD that it leased only the "shaded areas" depicted on the aforesaid diagrams created by Mr. Hirschorn. Thus, with respect to both causes of action, YOUNGWORLD alleges that it bears no liability since the accident did not occur in or upon any of the shaded areas constituting the demised premises. Additionally, YOUNGWORLD claims that the common-law negligence claim is barred under the 1996 amendment to section 11 of the Workers' Compensation Law since plaintiff, an employee of YOUNGWORLD, did not sustain a [*2]"grave" injury as therein defined. In the alternative, YOUNGWORLD requests that the third-party action be severed.

In opposition, Jenel alleges that material issues of fact exist which preclude the granting of summary judgment. First, Jenel claims that the issue of whether the subject stairway was part of the area leased to YOUNGWORLD cannot be determined as a matter of law based on the referenced diagrams. In support of this position, Jenel points out that the third-party defendant was not a party to the lease when it was negotiated and signed. In fact, it is undisputed that YOUNGWORLD was the assignee of a lease negotiated by Versace with Jack Dushey, as President of both 601 and Jenel, and Michael Hirschorn (Dushey E/B/T pp 23-29). It was Hirschorn's testimony that Versace leased both the first and second floors, as well as the connecting staircases (Hirschorn E/B/T pp 129, 131). Jenel also points out that the above portion of Hirschorn's deposition testimony has been omitted from YOUNGWORLD's motion papers. Finally, Jenel claims that even if the subject stairs were not part of the demised premises, the lease in question contractually required YOUNGWORLD to maintain not only the demised premises but also the appurtenances attached thereto (Dusley E/B/T p 31). Thus, Jenel alleges that the status of the staircase as an "appurtenance" constitutes a material issue of fact which precludes summary judgment on its third-party cause of action for contractual indemnification.

With respect to the Workers' Compensation Law, Jenel alleges that YOUNGWORLD has failed to adduce any competent evidence demonstrating that it was plaintiff's employer on the date of the accident. In support of this position, Jenel submits (as Exhibit "B") documentation from the New York Department of State indicating that "YOUNGWORLD of Eighth Avenue, Inc." and "YOUNGWORLD Stores Group, Inc." are separate and distinct corporate entities, and that plaintiff has yet to identify which one was his employer. In this regard, Jenel agrees with the like arguments offered by plaintiff in opposition to the motion. However, plaintiff maintains that YOUNGWORLD is correct in claiming that the accident occurred in a common stairwell managed by Jenel that was not part of the demised premises.

Summary judgment is a drastic remedy that should be granted only is no triable issue of fact exists and the movant is entitled to judgment as a matter of law (see Robuba Extruders v Ceppos, 46 NY2d 223; Herrin v Airborne Freight Corp., 301 AD2d 500 [2nd Dept 2003]). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v Mayo, 148 AD2d 580 [2nd Dept 1989]).

With this criteria in mind, the Court concludes that triable issues of fact exist, e.g., as to the status of the staircase as part of the area leased by Versace. Thus, YOUNGWORLD's contentions notwithstanding, it is the opinion of this Court that the deposition testimony of both Dushey and Hirschorn raise triable issues as to the identity of the entity responsible for the staircase. As to the cause of action sounding in common-law negligence, however, it is clear that plaintiff has not suffered a "grave" injury under Workers' Compensation Law §11, and that YOUNGWORLD has made a prima facie showing that it was plaintiff's employer on the date of the accident.

It is well established that the defendant bears the burden of establishing a workers' compensation defense by a preponderance of the credible evidence (Williams v Forbes, 175 [*3]AD2d 125, 126 [2d Dept 1991]). Here, it is undisputed that YOUNGWORLD of Eighth Avenue Inc. executed the assignment of lease, and that an affiliated close corporation, YOUNGWORLD Stores Group, Inc. signed as guarantor. Further, a review of the deposition testimony reveals that plaintiff admitted to have worked for YOUNGWORLD at several of its stores, including the one where the accident occurred. As is relevant, the deposition testimony of a former vice president of both companies indicates that they were family-owned and functioned more-or-less interchangeably. In the view of this Court these indisputable facts are sufficient to establish prima facie that the YOUNGWORLD defendants constitute a single integrated enterprise by which plaintiff was employed (see Buchner v Pines Hotel, 87 AD2d 691, 692 [3rd Dept 1983] affd 58 NY2d 1019; cf. Donatin v Sea Crest Trading Co., 181 AD2d 654, 655 [2d Dept 1992]). See also Allen v Oberdorfer Foundries, 192 AD2d 1077 [4th Dept 1993]). As neither opposing party has adduced sufficient competent evidence to raise a triable issue of fact on this aspect of the case, the third-party cause of action sounding in common-law negligence as against either or both of the YOUNGWORLD defendants must be dismissed.

Finally, the application for a severance is denied.

Accordingly, it is

ORDERED that so much of the motion as seeks dismissal of the second cause of action in the third-party complaint is hereby granted, and said cause of action is severed and dismissed; and is further

ORDERED that the balance of the motion is denied; and it is further

ORDERED that the Clerk enter judgment accordingly.

ENTER,

DATED: September 8, 2006_s/___________________________ Robert J. Gigante, J.S.C.

bh/RD Footnotes

Footnote 1:Jenel was the managing agent for defendant 601 8th Avenue Associates, Inc. s/h/a 8th Avenue Associates (hereafter 601). 601 was formed in order to enter into a net lease for the premises known as 601 8th Avenue, New York, New York prior to the happening of plaintiff's accident.

Footnote 2:On or about May 11, 2005, plaintiff filed and served a supplemental summons and complaint which added 601 8th Avenue Associates as a defendant in the main action.

Footnote 3:The lease was originally entered into between "601 Eighth Avenue Associates c/o Jenel Management" as net leasee and Versace Realty Corp. on February 27, 1995. A subsequent assignment and assumption of the Versace lease by YOUNGWORLD occurred on May 11, 1995.