Blazynski v A. Gareleck & Sons, Inc.

[*1] Blazynski v A. Gareleck & Sons, Inc. 2004 NY Slip Op 51944(U) [21 Misc 3d 1138(A)] Decided on February 17, 2004 Supreme Court, Erie County NeMoyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 26, 2008; it will not be published in the printed Official Reports.

Decided on February 17, 2004
Supreme Court, Erie County

Sally Ann Blazynski and Walter A. Blazynski, Plaintiffs,

against

A. Gareleck & Sons, Inc., et al, Defendants.



2003/8559



APPEARANCES:JAMES I. MYERS, ESQ., Attorney for Plaintiffs

BRIAN R. HENZEL, ESQ., Attorney for Defendant

Patrick H. NeMoyer, J.

This action by the plaintiff, Sally Ann Blazynski, arose from a personal injury she suffered in an accident on January 31, 2001 at Wegmans grocery store on Transit Road in Amherst, New York. At the time of the accident the plaintiff was an employee of Wegmans Food Markets, Inc., engaged in the course of her employment. Apparently, the plaintiff worked in the "Create-A-Cake" department of Wegmans. She alleges she slipped and fell on ice that had formed on the floor of the bakery freezer in the store. The plaintiff has brought this action against the defendant, Robert J. Salvaggio (Salvaggio), in his capacity as an architect in the preparation and/or review of plans and specifications for the construction of the Transit Road Wegmans store. The plaintiff maintains the defendant was negligent in performing these tasks, because the bakery freezer area of the store was improperly designed and/or constructed, in that such design and/or construction permitted ice to form on the floor. Consequently, a dangerous condition was created.

Salvaggio, has moved for summary judgment dismissing the complaint against him, pursuant to New York Workers' Compensation Law Section 29(6), alleging he was a fellow employee of the plaintiff at the time of the accident. Under these circumstances, if the plaintiff's injury arose out of and in the course of employment of both employees, Section 29(6) of Workers' Compensation Law prohibits an action against this defendant, because Workers' Compensation is the exclusive remedy of the plaintiff.

Salvaggio has submitted his affidavit in support of this motion. He states he is a full-time employee of Wegmans Food Markets, Inc., which pays his salary and provides him with a paid [*2]vacation, retirement benefits, and healthcare benefits. Salvaggio is employed by Wegmans as a New York State licensed architect. Since 1996 he has been the Manager of Architecture and Engineering for Wegman's, and prior thereto, from October, 1988 he was the Senior Architect for Wegmans. Salvaggio states that his duties include designing and preparing architectural drawings for Wegmans' construction projects, preparing and "stamping" architectural drawings of his work that are filed with various municipal departments for building permits, and coordinating engineers and designers involved in the construction and renovation of Wegmans' buildings. According to Salvaggio, the Transit Road Wegmans grocery store was constructed in 1996. He maintains he was not responsible for designing or building the bakery freezer, but was responsible for coordinating the consultants, who provided engineering design for the store. However, his attorney has alleged, in an affidavit in support of this motion, that Salvaggio was "one of the architects responsible for the design and construction of the Transit Road store."

In opposition, the plaintiff has alleged that this summary judgment motion is premature in that no post-action commencement discovery as taken place. The plaintiff points out there have been no depositions yet of any of the parties, especially Salvaggio, and potential non-party witnesses. Because of this, the plaintiff maintains she has not had the opportunity to determine the exact relationship of Salvaggio to Wegmans, and in what capacity he was acting when he signed the architectural drawings for Wegmans' stores. The plaintiff's attorney states by affidavit that he has examined various architectural drawings filed by Wegmans for its building in the Town of Amherst. Many of the drawings bear Salvaggio's architect stamp, without any indication of his affiliation with Wegmans. Plaintiff's attorney further points out that there are other Wegmans corporations on file with the New York State Department of State Division of Corporations. In addition to Wegmans Food Markets, Inc., there is Wegmans Enterprises, Inc., and Wegmans Properties, Inc.

Based upon the state of the current record, the Court believes the plaintiff's position has merit, and this motion is premature. The Court cannot determine at this juncture, as a matter of law, that, as to Salvaggio, the plaintiff's exclusive remedy is Workers' Compensation. The defendant argues that the plaintiff has had an opportunity to engage in pre-action discovery. While this may be true, the Court does not believe such discovery would have focused on the issue now being raised by the defendant. The plaintiff should have the opportunity to conduct depositions and obtain paper discovery to determine the specific status of Salvaggio. Although Salvaggio has alleged in an affidavit that he is employed by Wegmans Food Markets, Inc., there has been no documentary proof to support this assertion. The Court believes that this could be critical to Salvaggio's position in light of the fact there are other separate Wegmans entities incorporated in New York State. The Court is also concerned as to the capacity in which Salvaggio acts as an architect, when he "stamps" and files his architectural plans for Wegmans stores.

For the reasons stated herein, the defendant's, Salvaggio's, motion for summary judgment is denied without prejudice, with leave to renew after further discovery. All counsel should report for a status conference on May 20, 2004, at 9:30 a.m., in Part 37 at 50 Delaware Avenue.

February 17, 2004

SO ORDERED:

[*3]

HON. PATRICK H. NeMOYER, J.S.C.