Matter of Meehan v Camps Mogen, Avraham, Heller, Sternberg, Inc.
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Matter of Meehan v Camps Mogen, Avraham, Heller, Sternberg, Inc. 2007 NY Slip Op 34607(U) October 22, 2007 Supreme Court, New York County Docket Number: 113342/04 Judge: Barbara R. Kapnick Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NET YORK COUNTY OF NEW YORK: PART 12 ---------------------------------------x PAUL MEEHAN, DECISION/ORDER Index No. 113342/04 Motion Seq. No. 002 Plaintiff, -againstCAMPS MOGEN, AVRAHAM, HELLER, STERNBERG, INC. d/b/a CAMP STERNBERG, ASSOCIATION OF JEWISH SPONSORED CAMPS, INC. and UJA, INC., Defendants. ---------------------------------------x CAMPS MOGEN, AVRAHAM, HELLER, STERNBERG, INC., d/b/a CAMP STERNBERG, Third-Party Index No. 590341/05 Third-Party Plaintiff, -against- Fit co SEVEN SONS CONSTRUCTION COMPANY and JAMES L. ZACCARI, OCT 25 2007 Third-Party Defendants. ---------------------------------------x BARBARA R. KAPNICK, J.: N l°'.'{)LJNryg~YORI( £R,~s 0FAf't:> This action pursuant to Labor Law§§ 240(1), 241(6) and 200 and for occurred common law negligence arises on August 3, 2004, while out of plaintiff an accident Paul Meehan that was erecting a metal hangar at "Camp Sternberg" in Narrowsburg, New York. Defendant Camps Megen, Avraham, Heller, Sternberg, Inc. d/b/a Camp Sternberg commenced a third-party action against Seven Sons Construction Company and James L. Zaccari alleging that said entity and individual were plaintiff's indemnification and contribution. "employer" and seeking [* 2] However, the Workers' Compe· 3tion Board thereafter issued a ... "Reserved Decision No Insurance Case", filed on May 2, 2006, which (after an extensive hearing) found, inter alia, that third-party defendant James L. Zaccari and plaintiff "(having been hired for the project by Mr. Zaccari acting as foreman for the camp) were employees of Camps Mogen Avraham Heller Sternberg, Inc. on the date of accident." Defendant Camps Mogen, Avraham, Heller, Sternberg, Inc. d/b/a Camp Sternberg now move for an order: amend its Answer pursuant to CPLR (i) § granting it leave to 3025 (b) to include the affirmative defense that plaintiff's claims against it are barred by the judgment Workers' Compensation Law; dismissing plaintiff's and Complaint {ii} granting and all summary cross-claims against it on the grounds that plaintiff's claims are barred by the exclusive remedy of Workers' Compensation. See, Samba v. Delligard, 116 A.D.2d 563 (2nd Dep't 1986}. That portion of the motion seeking leave to amend the Answer is granted without opposition. Plaintiff opposes that portion of the motion seeking summary judgment, based on his contention that the Workers' Compensation Board's decision was premised on fraudulent testimony regarding plaintiff's status as an employee of the defendant. Thus, plaintiff 2 [* 3] argues that the Board's decisio·· phould not be given collateral estoppel/res judicata effect in this case. Plaintiff has also cross-moved for further discovery as to the Internal to W-2 1 s, Revenue 1099' s filings for the moving defendant "pertaining and other required employee filings for the individuals claimed to be employees, inclusive of the Plaintiff, on the date of the occurrence." By Interim Order dated April 20, 2007, this Court granted the cross-motion to the extent of "directing defendants and third-party defendants to produce within 30 days any Internal Revenue Service filings, including W-2 's and 1099 1 s, and any other employment records relating to plaintiff for the time period from February 1, 2004 through August 31, 2004." Moshe Wein, the Executive Director of Camps Mogen, Avraham, Heller, Sternberg, Inc., thereafter submitted an Affidavit affirmed to on July 27, 2007, stating as follows: I have conducted a search for employment records for Paul Meehan for the period of February 1, 2004 through August 31, 2004. I have no IRS W-2 1 s, 1099 wage reports or other records related to Paul Meehan. However, notwithstanding the absence of any documentation in support of defendant's claim that it employed plaintiff on the date of the accident, this Court finds,based on the papers submitted and the oral argument held on the record on April 3 18, 2007 and [* 4] September 5, 2007, that the deci· appealed, must be Compensation Law § given res 1n of the Board, which was never judicata effect, since Workers' 23 provides, in relevant part, that An award or decision of the board shall be final and conclusive upon all questions within its jurisdiction, as against the state fund or between the parties, unless reversed or modified on appeal therefrom as hereinafter provided. See, Werner v. State of New York, 53 N.Y.2d 346 (1981). Accordingly, this Court is constrained to grant the motion and to dismiss Heller, this action against defendant Camps Mogen, Sternberg, Inc. d/b/a Camp Sternberg with prejudice and without costs or disbursements. dismissed as moot. The Avraham, Clerk The third-party action is thus may enter judgment accordingly. This constitutes the decision and order of this Court. Date: October ~ Bfiiikpnick , 2007 J.S.C. 4
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