Ott v Steingart Woodcrafters, Inc.

[*1] Ott v Steingart Woodcrafters, Inc. 2012 NY Slip Op 51538(U) Decided on August 7, 2012 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2012
Supreme Court, Kings County

Mika Ott, Plaintiff,

against

Steingart Woodcrafters, Inc., CONSUMER PROMOTIONS INTERNATIONAL, INC., SHISEIDO COSMETICS (AMERICA) LTD., SHISEIDO AMERICA, INC., INSTALLATIONS OF AMERICA, INC., INSTALLATIONS OF AMERICA II, INC., VINCENT A. PLERSCH d/b/a A-RIG TRUCKING, JOHN DOE No.1, as further described in the annexed complaint, and JOHN DOE #2, as further described in the annexed complaint, and JOHN DOE #3, as further described in annexed complaint, Defendants.



26897/2003



Plaintiff attorney: Emily Mann, Esq., Antin,Ehrlich & Epstein, LLP, 49 W. 37th Street, 7th Floor, New York, NY 10018

Defendant attorney: Vincent P. Crisci, Esq., 17 State Street, 8th Floor, New York, NY 10004

David Schmidt, J.

Defendants/third-party defendants Shiseido Cosmetics (America) Ltd. and Shiseido America, Inc. (together, Shiseido) cross-move to: (i) dismiss the complaint as asserted against them, pursuant to CPLR 3212, and (ii) to amend their answer to plaintiff's complaint and the third-party complaint, to add an additional affirmative defense based on the exclusivity of the workers' compensation remedy.[FN1]

Plaintiff Mika Ott commenced this action to recover damages for personal injuries she sustained on July 26, 2000, when the glass door of a display case fell on her while she was working at a Shiseido cosmetic's counter in at Macy's Herald Square department store.

Shiseido's basic argument in support of its cross motion is that plaintiff is a special employee of Shiseido and, under the so-called "exclusive remedy" doctrine, workers' compensation benefits plaintiff previously received from defendants Macy's and Federated Department Stores bars this tort action against Shiseido. Plaintiff, as well as defendant/third-party plaintiff Steingart Woodcrafters, Inc. (Steingart) and defendant/third-party defendant Installations of America (Installations), oppose.

For the following reasons, Shiseido's cross motion is granted.

I.Relevant Testimony

Mika Ott, the plaintiff in this action, testified at her deposition that she worked for Shiseidoas a beauty advisor at the Shiseido counter in Macy's where she sold Shiseido products. She interviewed for the position and was hiredby Ms. Kitty Chan who also acted as plaintiff's immediate supervisor. As part of her job, plaintiff attended training classes on a regular basis at Shiseido's school. The subjects covered included how to apply make up, sales techniques and how to speak to and treat customers. Plaintiff testified that she received her paycheck from Macy's, but it was Shiseido who determined whether she would receive any raises and the total number of vacation days she was entitled to. Plaintiff also acknowledged that Shiseido directed her work as a beauty advisor.

Ms. Linda Ten Eyck, the Senior Vice President of Shiseido, testified by affidavit that, at the time of the accident, she was Shiseido's Executive Director for the Northeast, and was personally knowledgeable about Shiseido's sales operations at Macy's Herald Square store. She averred that plaintiff was hired by Kitty Chan, a Shiseido employee and manager, and was trained by and worked solely for Shiseido. She also attested that, notwithstanding the fact that plaintiff was carried on Macy's books as its employee, her salary, paid by Macy's, was fully reimbursed to Macy's by Shiseido. Ms. Ten Eyck confirmed plaintiff's testimony that plaintiff received instructional courses administered by Shiseido as well as literature relating to the work she performed. During her deposition, Ms. Ten Eyck testified that the training covered such topics as product knowledge, sales techniques and comportment. She additionally testified that personnel employed at Macy's Shiseido counter worked exclusively for Shiseido and were under [*2]Shiseido's control.

Ms. Jill Barr, Macy's Vice President of Business Operations for Cosmetics and Fragrances, testified at her deposition that beauty advisors, like plaintiff, are employees of the cosmetics counter to which they are assigned. She also testified that Macy's determined the level of compensation for such employees and retained the authority to fire them. She acknowledged that Shiseido reimbursed Macy's for any salary that was paid by Macy's to Shiseido beauty advisors at the Herald Square location.[FN2]

II.Discussion

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).

Sections 11 and 29 (6) of the Workers' Compensation Law provide that workers' compensation benefits shall be an employee's exclusive remedy for injuries arising out of and in the course of employment. As such, an employee who has received workers' compensation benefits is precluded from suing his or her employer for damages. In addition, this doctrine has been extended to preclude an employee from recovering damages from a "special employer," i.e., a second employer connected with but independent of the primary employer. See Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 358-59 (2007).

The determination of whether or not a special employee relationship exists involves consideration of many factors. Braxton v Mendelson, 233 NY 122, 124 (1922). Although no single factor is dispositive, a key to the determination is "who controls and directs the manner, details and ultimate result of the employee's work." Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558 (1991); Martin v Baldwin Union Free School Dist., 271 AD2d 579, 580 (2d Dept 2000).

Here, the evidence submitted by Shiseido establishes that it controlled and directed the manner, details, and ultimate result of plaintiff's work on the date of the her accident. Besides hiring plaintiff, Shiseido supervised plaintiff on a daily basis in the performance of her work through its manager, Ms. Chan. Plaintiff was exclusively assigned to a Shiseido counter and could not be reassigned to work at any other cosmetics counter in Macy's. Shiseido reimbursed Macy's for any salary Macy's paid to plaintiff. At regular intervals, Shiseido provided plaintiff with instruction and training on how to apply and sell its products, as well as how to interact with customers. Thus, as a matter of law, plaintiff was a special employee of Shiseido.

Contrary to the arguments raised in the opposition papers, neither Macy's authority to [*3]terminate plaintiff's employment, nor Macy's furnishment of plaintiff's paychecks, nor the fact that plaintiff received workers' compensation benefits from Macy's, hinders this court from concluding that Shiseido qualifies as plaintiff's special employer:

"It is well settled that one who is in the general employ of one party may be in the special employ of another despite the fact that the general employer is responsible for the payment of wages, has the power to hire and fire, has an interest in the work performed by the employee, maintains workers' compensation for the employee, and provides some, if not all, of the employee's equipment."

Cameli v Pace University, 131 AD2d 419, 420 (2d Dept 1987); see also Matter of Johnson v. New York City Health & Hosps. Corp., 214 AD2d 895, 896 (3d Dept 1995) ("one who is in the general employ of one party may be in the special employ of another even where the former is responsible for the employee's salary and other employee benefits and has the power to hire and fire."). As such, there no facts are in evidence that, as a matter of law, contradict Shiseido's showing of its special employment relationship with plaintiff.[FN3]

The cases relied on by the opposition do not require a different result. In Ozzimo v H.E.S., Inc., 249 AD2d 912 (4th Dept 1998), summary judgment was denied because the plaintiff submitted proof that the general employer had two of its own supervisors on site, directing and supervising the employee as he worked. Id. at 913. In Durez Division-Hookers Chemicals & Plastic Corp., 280 AD2d 972 (4th Dept 2001), plaintiff introduced evidence showing that the general employer had the authority to redirect the employee to another location and that he was unaware of and never consented to a special employment relationship. Id. As distinguished from the instant action, the control that the general employers exercised over the plaintiffs in these cases, raised a triable issue of fact as to the putative special employer's ability to control and direct the employees' work.

Finally, Steingart and Installations claim that Shiseido cannot move for summary judgment based upon the exclusivity of the workers' compensation remedy because Shiseido failed to interpose it as an affirmative defense in its answer to plaintiff's complaint. In response, Shiseido seeks leave, pursuant to CPLR 3025 (b), to amend its answer to plaintiff's complaint and the third-party complaint, to add an affirmative defense based on plaintiff's status as its special employee.[FN4]

"Motions for leave to amend pleadings are liberally granted in the absence of prejudice or [*4]surprise. Leave will be denied where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit." Breco Envtl. Contrs. v Town of Smithtown, 307 AD2d 330, 332 (2d Dept 2003) (internal citations omitted). Here, as the court has just concluded, Shiseido's proposed amendment cannot be characterized as devoid of merit or insufficient as a matter of law. Further, there is clearly no prejudice or surprise to plaintiff or any other party in granting Shiseido's motion for such an amendment. In addition, based on the strength of the sworn proof, the court deems the pleadings amended to reflect the addition. See Deborah Intern. Beauty, Ltd. v. Quality King Distributors, Inc., 175 AD2d 791, 793 (2d Dept 1991).

In short, the proof submitted by Shiseido establishes that it controlled and directed "the manner, details and ultimate result of [plaintiff's] work." Thompson, 78 NY2d at 558. None of the proof submitted in opposition is sufficient to raise a triable issue of fact to counter Shiseido's showing that it had a special employment relationship with plaintiff. Therefore, because plaintiff received workers' compensation benefits, she is barred from maintaining an action at law against Shiseido, her special employer.

Accordingly, it is

ORDERED that defendants/third-party defendants Shiseido Cosmetics (America) Ltd.'s and Shiseido America, Inc.'s cross-motion for summary judgment to dismiss the complaint as asserted against them, is granted; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated:August 7, 2012

ENTER:

_______________________

J.S.C. Footnotes

Footnote 1: The two forms of relief were initially sought by Shiseido in separate cross motions. Because they are related, the court will treat the two cross motions, and the opposition thereto, as a single motion.

Footnote 2: At her deposition, Ms. Barr acknowledged that she had no connection with the operations of the Herald Square store at the time of the accident and was unfamiliar with the nature of the relationship between Macy's and Shiseido at that time.

Footnote 3: The proof that plaintiff attaches to her opposition, namely, advertisements on the internet, posted in March and April 2012 by both Macy's and Shiseido, for positions as Shiseido beauty advisors at Macy's locations other than its Herald Square store, is not evidence of what the nature of the relationship between plaintiff and Shiseido was in July 2000, the time of plaintiff's accident. In any event, since the ability to hire (and presumably, to advertise for such position) by a general employer does not preclude a finding of a special employment relationship, plaintiff's argument is without merit, as a matter of law.

Footnote 4: See Shiseido's proposed amended answer to plaintiff's complaint, ¶¶ III-IV; and Shiseido's proposed amended answer to third party plaintiff's complaint, ¶¶ X-XI.