Nunez v Park Plus, Inc.

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[*1] Nunez v Park Plus, Inc. 2015 NY Slip Op 51108(U) Decided on July 24, 2015 Supreme Court, Bronx County Thompson Jr., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 24, 2015
Supreme Court, Bronx County

Emilo Nunez,, Plaintiff,

against

Park Plus, Inc. and DESOTO PARKING LLC, Defendants.



301814/2010



Attorney for Plaintiff

Carly M. Jannetty, Esq.

Subin Associates, LLP

150 Broadway, 23rd Floor

New York, New York 10038

Attorney for Defendant/Third-Party Defendant

John F. Janowski, Esq.

Chesney And Nicholas, LLP

2405 Grand Avenue

Baldwin, New York 11510

Attorney for Third Party Plaintiff

Kenneth R. Ross, Esq.

McGivney And Kluger, P.C.

80 Broad Street, 23rd Floor

New York, New York 10004

Attorney for Third-Party Defendant

Sim Shapiro, Esq.

Baxter Smith & Shapiro, P.C.

200 Mamaroneck Avenue

White Plains, New York 10601
Kenneth L. Thompson Jr., J.

The Decision/Order on this motion is as follows:



Defendant, Desoto Parking, LLC, (Desoto), moves pursuant to CPLR 3212 for summary

judgment dismissing the complaint, third-party complaint and all cross-claims as against it on

grounds that plaintiff is a special employee of Desoto and on grounds that Desoto is the alter ego

of co-third-party defendant, Little Man Parking LLC, (Little Man), and therefore is not liable for

plaintiff's injuries under Workers' Compensation Law 11. Little Man moves pursuant to CPLR

3212 for summary judgment dismissing the third-party complaint and all cross-claims as against

it also on grounds provided by Workers' Compensation Law 11. This action arose as a result of

personal injuries sustained by plaintiff as an employee in a parking garage. Plaintiff's foot was

crushed when a vehicular parking lift lowered onto his foot.

Workers' Compensation Law 11 provides as follows:



An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability. (Emphasis added).

With respect to whether plaintiff has suffered a grave injury as defined by Workers'



Compensation Law 11, plaintiff himself testified that he lost only his fourth toe, and plaintiff

agreed at his deposition that his "fifth toe continues to be attached to [his] foot." (Transcript p.

279). The medical evidence relates that plaintiff lost one toe, the fourth toe with no mention of

any loss of the fifth toe. Dr. Ali Guy's notation of a partial amputation of the fifth toe is not

dispositive, since partial amputations are not a loss under Worker's Compensation Law 11.

(Castro v United Container Mach. Group, 96 NY2d 398 [2001]. Since plaintiff lost one toe,

and not "multiple toes," WCL 11 mandates that his employer(s) not be held liable for plaintiff's

on the job injuries.

LITTLE MAN PARKING, LLC'S CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff testified that he worked for Little Man. (Transcript p. 30). In the incident report



plaintiff was identified as an employee of Little Man. The Workers' Compensation Board

"Notice of Decision" identified Little Man as the plaintiff's employer. Therefore, Little Man,

established that it was plaintiffs'' employer at the time of plaintiffs' injury. There is no evidence

indicating that Little Man was not plaintiff's employer. Therefore, WCL 11 bars Park Plus Inc.'s

third-party action against Little Man, unless there is a contract providing indemnification from

Little Man for Park Plus, Inc. However, there is no contract between Little Man and Park Plus

Inc. (Eric Webb for Park Plus, Inc. transcript, p. 247-248].

Accordingly, the cross-motion of Little Man Parking, LLC, for summary judgment



dismissing the third-party complaint and any cross-claims is granted.

DESOTO PARKING, LLC'S MOTION FOR SUMMARY JUDGMENT

Desoto argues that it is the alter ego of Little Man and therefore cannot be held liable for



plaintiff's injuries under Workers' Compensation Law 11. However, Desoto, in its answer to the

third-party complaint asserts a cross-claim against Little Man for "contribution, apportionment

and indemnification." The First Department has held that the "pendency of a claim asserted in

litigation by one corporation against the other suggests, on its face, that the entities have at least

some adverse interests and, in the absence of any explanation, it is impossible to conclude as a

matter of law that [the pertinent corporations], however they may be related, "function[ ] as one

company" and "share ... a common purpose" (Carty v. East 175th St. Hous. Dev. Fund Corp., 83

AD3d 529, 921 N.Y.S.2d 237 [1st Dept.2011]) to such an extent that they should be considered

alter egos." (Mendoza v. Velastate Corp.,99 AD3d 401, 401-402 [1st Dept 2012]).

With respect to Desoto's argument that plaintiff was a special employee of Desoto, the



First Department held as follows:

A finding of special employment is justified only where the special employer exerts complete and exclusive control over the purported special employee, as to whom the general employer has relinquished all control. (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557; Wawrzonek v Central Hudson Gas & Elec. Corp., 276 NY 412, 419.) Here, there are questions of fact as to, inter alia, who—Gotham Building Maintenance, plaintiff's general employer, or the City, the purported special employer—supervised and controlled plaintiff's work and set the qualifications and conditions of employment.

(Sanfilippo v City of New York, 239 AD2d 296 [1st Dept 1997]).

There is no evidence submitted on this motion that Little Man relinquished all control of



plaintiff and Desoto had exclusive control of plaintiff. In fact, in support of Desoto's alter ego

argument, Desoto argues that plaintiff was controlled by both Desoto and Little Man.

Accordingly, Desoto's motion is denied.

CONCLUSION

Desoto Parking LLC's motion is denied. The cross-motion of Little Man Parking, LLC, for summary judgment dismissing the third-party complaint and any cross-claims is granted.



The foregoing shall constitute the decision and order of the Court.

Dated: July 24, 2015_________________________________KENNETH L. THOMPSON JR. J.S.C.

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