Duchenne v 774 Dev., LLC
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Duchenne v 774 Dev., LLC 2012 NY Slip Op 33318(U) January 5, 2012 Supreme Court, Bronx County Docket Number: 21612/01 Judge: Wilma Guzman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED, 'B\ 17 2012 Bronx County ~lerk ·;,0~ '--- \\~~ v . .\ .'V NEW YORK SUPREME COURT - COUNTY OF BJ~ONK ¥ .~ ·~ . PART *,:.\\ ~ .::;- 0 a SUPREME COUR.T OF THE STATE OF NEW YORK COUNTY OF BR.ONX: ~~----.,...,....--------~~----~x /Q ~~ (AA Id /] (,\ c.h ~~ fl ....t 7 '7 Li OJ.Jv{/d ,,::i~ 1,i,e, .-+-- ~~Hon .. ~~- (OIA.(~WY/ X The following papen nambenid 1 t o _ ltecd on tbil motion.. and du1IV submitted Ill No. Noticed an Oil tbe Motion Calendar of lA;PWJM<''YR . NOlice oCMocion - Older to Show Cause- Exhl11it1 wt Affidaviil A"A"n Alllwaiaa Aftidavit IDd Exhibi1' Rcpl)'iD3 MidlYit aid Exhibits Afliltmls mid BUibiU PbediD.':Js -Exla'bit Stijlulation(s) - Refi:Re's 1lcport - Millufes Filed Papers Mcmormla oft.aw / J/1\N .5 10\1. r ated: I Hon.·--~-----~--------~ . /\,J.s.c. Luu.xYB Gw~ () [* 2] FILED Jan 17 2012 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX Part 7 Date: REGINALD DUCHENNE, Plaintiff, -against- 774 DEVELOPMENT, LLC and GOTHAM CONSTRUCTION, CO., LLC, DECISION I ORDER Present: Hon. Wilma Guzman Justice Supreme Court Defendants. Recitation. as required by Rule 22 I 9(n) or the C.I'. LR . or the papers considered in the review or this motion Numbered ·Papers Nofrce of Motion and Affidavits Annexed ........................ . Exhibits .................................................................. .. Other ..........................·........................................... . Upon thefi;regoing papers, the Decision/order on this Motion is as follows.· Plaintiff Reginald Duchenne moves to dismiss defendant 774 Development. LLC's (774) Worker's Compensation defense-which was added to 774's Answer by leave of this Court's Order dated May 23, 20 I I-pursuant to CPLR § 3211 (b) on the ground that the defense has no merit. Defendant Gotham Construction, Co . ¢ LLC (Gotham) moves to renew its Motion fm Summary Judgment, alleging that plaintiff was its employee within the meaning of the Worker's Compensation Law and thus CPLR § 3212 warrants summary judgment in its favor. Pursuant to CPLR § 2221, plaintifTcross-moves to renew and reargue its opposition to this Court's May 23. 2011 decision granting Gotham leave to amend its Answer to include a Workers' Compensation anirmative defense thus vitiating the Court's need to resolve Gotham's claim for summary judgment. All parties submitted written opposition to the respective motions. For purposes of disposition, the Motions to Dismiss, for Summary Judgment and to Renew and Reargue are consolidated and decided as follows: Page l of 7 [* 3] FILED Jan 17 2012 Bronx County Clerk The factual background of this case is as follows: On May 9, 2000 plaintiff was injured while 111 working at a construction site located on 6111 Avenue between 26 111 and 27 Streets in Manhattan. 774 owned the site in question, with Gotharn working as a general contractor on the property. Plaintiff was hired by Millennium Mason, Inc. (Millennium), which is not a party to this case. On July 30, 2001 plaintiff instituted suit against 774 and Gotham and on July 14, 2009 he was granted partial summary judgment on the issue of defendants' liability on his Labor Law § 240( 1) claim. Plaintiff was permitted to remove his action from civil court to the Bronx Supreme Court on January 26, 2010 and was allowed to amend the ad dannum clause in his papers to reflect a current assessment of his damages. Meanwhile, plaintiff lodged a clairn with the State of New York's Workers' Compensation Board (Board). In the course or2 l separate decisions spanning from December 27, 2000 to May 23, 2006, the Board listed Millennium as plaintiffs employer. However, there was confusion as to what insurer was implicated before the Board settled on Kemper Security Insurance Co. (Kemper) as the liable entity. However, defendants provided documentary evidence showing that 774 acquired the ' Kemper policy on behalf of Gotham. not Millennium. The matter was further complicated when three checks totaling $77, 124 were issued pursuant to the Board's order listing Gotham as plaintiffs employer. On May 23, 2011, this Court permitted both defendants to amend their answers to include an aflirmative defense of Workers' Compensation, and gave Gotham the opportunity to reargue its motion for summary judgment on said ground. See Caceras v. Zorbas, 74 N.Y.2d 884, 885 ( 1989)(trial court has discretion to allow a defendant to amend its answer to include a Workers' Compensation affirmative defense in the absence of prejudice to defendant); see also Murray v. City of New York, 4 3 N. Y .2d 400, 405 ( 1977)( no claim of surprise or prejudice where variance develops between a pleading 8nd proof admitted at the instance or with the acquiescence of the party, even where Workers' Compensation dclense raised late, or even after, trial). This Court found that because plaintilT availed himself to Workers' Compensation, he could hard!.y be surprised that del"endants would try to assert it as a defense. Furthermore, the coverage checks received and cashed by plaintiff listed Gothai11, not Millennium, as his employer; putting plaintiff on notice that something was amiss. . Page 2 of 7 [* 4] FILED Jan 17 2012 Bronx County Clerk In sum, 774 argued that because it purchased the Workers' Compensation insurance policy that uIt irnately covered some of plainti fl' s injuries-the Kemper policy'-it was immune from further recourse by plaintiff. (]otham argued similar imnrnnity on the grounds that the Kemper policy was purchased by 774 for Gotham to cover Gotham's employees. Further, Gotham alleged that [Vlillennium relinquished control over plaintiff so that plaintiff became a "special employee" of Cotham. Were the Court to find that no triable issue of fact existed as to whether defendants wen.; plainti!Ts employers, plaintilTwould be precluded from recovering beyond what he was awarded by the Board. SL'e Workers' Compensation Law § 11 (Workers' Compensation is the exclusive remedy for an injured employee with respect to his employer absent certain conditions not present here). In the instant motion, plaintiff asks this Court to reconsider its decision to allovv 774 and Cotham to amend their Answers to include the affirmative defense of Workers' Compensation and to deny (; o th am· s req ucst for sum 1rniry j udgmcnt. The Court wi 11 address each c lai man!' s arguments in turn. Plai nti ff argues that 77 4' s Worker's Compensation defense is meritless and should be stricken under CPLR § 3211 (b ). Plainti IT relics on Vaughn v. City of New York for the proposition that merely procuring Workers' Compensation coverage is insufficient to establish the employerernployce relationship necessary for refuge under the Workers' Compensation Law. 108 Misc. 2d l)l)4 (New York Co, 1980) ujf'd 89 ;\.D.2cl 944 (I st Dep't. 1982). In Voughn, plainti fl sued the City of New York (City) as owner of her employer's property. The /luughn defendant waited until the eve of' trial to argue that it was plaintiffs employer by virtue ~ . ol'Jrnving acquired the insurance policy through which plaintiff recovered Workers' Compensation. The Vaughn court astutely recognized that while defendant City denied having control of the prope1·ty in its response to plainti!Ts verified complaint (to evade liability), it was seeking to establish said control to reap the benelits or Workers' Compensation immunity. Herc. 77,4 simil~1rly denied that it controlled the property where the incident occurred or that (lotha111 was co11trncted by 774 to perform work on the property. As in Vaughn, the implicit contention here is that 774 considered Gotho111 a separate entity, and considered Gotham to be in c:;clusive control 0 f'the property. See Id. at 997. Furthermore, Gotham alleges that it gave plaintiff Page 3 of 7 [* 5] FILED Jan 17 2012 Bronx County Clerk its work assignment, directed him where to go, provided him with materials and controlled the ultimate result oi'his wodc S'ee hi. <ll 998. No mention is made of774 enjoying a similar degree of contrul over plainti!T. 1\t ma\ argument, 774 claimed for the lirst time that the decision in /llloroto-Rodrigue::: v. Him Con.1/r. Gro11;1, Inc. provides a basis for linding that Gotham and 774 are alter egos of each other and thus the clel'enses 01· one imbue on the other. 88 A.D.3cl, 549 (1st Dep't. 2011 ). This Court linds this new defense untimely and prejudicial. See Henry v. Peguero, 72 A.D.3d 600, 602 (1st Dep 't. 2010)( de lie iency in proof in !llovi ng papers not cured by submitting evidentiary !llaterial in reply. the i'unclillll oi'which is lo <lcldrcss argu!llcnts made in opposition and not to introduce new <1rgumcnts) 1\\Lcrn<1tivcly. this C'umt lincls that the argu!llent fails on the merits. In MororoHodrig11<'c:. the court listed a number of factors critical in its conclusion that the defendant companies 1\;ere alter egos of one another-sharing a president, chief executive, office manager and office address-in addition to being insured by the sa!lle liability and Workers' Compensation policies. Id. No proof or such a relationship has ever been submitted by either 774 or Gothain. Furthen'nore. neither 774 nor Cotham exists solely to provide an auxiliary administrative function for the other. <h ll'<IS the case in '1\Iornlo-Nodrig11(':::. i\s noted in this Court's May 23. 2011 c\c.cision, there is absolutely no basis to believe that <I special c·mployrncnt 1·clationship existed between plaintiff and 774. Further, the Vaughn court was c Icar that a th irel parties <1cq u is it ion or Worker's Corn pensation insurance is insufficient to establish an employer-employee relationship. Accordingly, because there was no actual or de facto c1nployn1ent relationship between 774 <ind pl<1inti!Tas matter of law. 774's affirmative defense of Workers' Curnpens<1tiu11 is without merit. and thus stricken pursuant to CPLR § 3211 (b). With respect tu ()oth<1lll. pl<1i11tillasks the Court to reargue its opposition to the May 23, 2011 decision under CPLR ~ 2221 (d)(2). which provides that leave for such a motion be granted where the court overlooked or misapprehended matters of fact or law in the prior motion. Alternatively. plaintilTasks the Court to renew under§ 2221 (c)(2), a motion that should be granted where there are. new facts or law that would change the prior determination. For reasons explained below. both of these !llotions are denied. Page 4 or 7 [* 6] FILED Jan 17 2012 Bronx County Clerk l'l<1i11tiff claims that this Court ovcr\u(iked the established rule that in determining whether l1l grant a 11iotion to amend an Answer. the new defense need have merit. See Norwood v. City of Ne11' York, 203 A.D.2d 147, 148 (\st Dep't. 1994). However, plaintiff overlooks the fact that there were several key eornponents that led the Court to believe that Gotham, more so than 774, could possibly avail itself to a Worke1·s' Cornpc11sation defense. lmlced, tilL' 21 l3u<1rd decisions <iii listed Millennium as plaintiffs employer. However, those s<1rnc decisions l~1il to explain why the Kemper policy purchased by 774 for Gotham came to be rL·sponsiblc 1·or plaintilrs 'vVorkers' Co111pcns<1tion payrnents. Nor do they explain why the checks th<1t were issunl to pl<1inti\T listccl Gotham as plaintiff's employer-checks that Gotham has authenticated as gen ui nc. This Cou1·t dee Ii nes to agree with defendants' argument that the imp! ication ol' the Kemper policv somehow co11stituted an express finding by the Board that 774 and Gotharn 11erc pl<1i11tilrs crnplowrs. thus boilin!,'. clmv11 this entire exercise to resjudicula. But this Court c11111ol disrq!_md th.c <1rnhigui1y this unresolved issue l'.reates to Gotham's potential liability. Plaintiff claims th'1t it WC\s Milk11nium's insurer that provided him with Workers' Compensation insurance. hut he docs not deny dcl'cnclants' repeated assertions that 774 ptirchased the Kemper policy or that the pol icy was purchased on (jotham 's behal L not Mi \lennium' s. Then thc1·e is the issue ol'whethcr m not a special employment relationship existed between pl<iintilL1nd Gotham. ;\ speci<il employee is 01ie who is transferred to the service of' another for a Ii mi tcd liIlle. T/1m11p.1·011 v. Grn n 1177(111 A e rn.1/HICI' Corp., 78 N. Y .2d.5 5 3, 5 5 7. Defendants do not deny th'1t rvlilknniu111 was plaintilrs actual employer. but that is no bar to the creation or a special employee status "upon clear dernonstrntion of surrender of control by the general employer and assumption of control by the spt'cial employer ... Id Though no single factor is dispositive. payment 01· wages. right to hire <111d lire. ri!,'.ht lo direct where and how work will be done and supplying tools/Jrn1tcr1<ils for work arc <ii I ind ie<1t iw that a special employment relationship was forged. Broxton 1·. M<!nde/11111, 233 N. Y. 122. 124 (I 922) ucrnnl !;ung v Ju pan A irl in es Co .. Lid. 9 N. Y .3d 3 51. 3 59 1:10(J7). Severn! statclllenls peppered thrnu!lhout plaintiffs deposition could be interpretc:cl in ways that suggc:st that there was indeed a special employee relationship in existence. Jn his deposition, plaintifTstatecl that a Gotham superviso1· "instrncted me to go on the scaffold and start patching up [* 7] FILED Jan 17 2012 Bronx County Clerk lrn lcs" and that <1 (jotha111 supervisor provided hi 111 with cement (which was prepared by Mi\ lenni um) <1ml other supplies. This cvidrnce is not irrelevant, as it indic'1tes that plaintiff was working on ( il1th:1rn · s project and th<1t ( iuth:1111 e\ercisecl 'ome cle'11 of control over him. Whether or not the ckgrce or Clrntrul was suC!icient to l(mn a spt~cialemployment relationship is outside the purview c1l. this Coun. ;\!so. thnc is the issue ol'who employed the supervisor that directed plaintiff to work at the Ciotham site. Plaintiff now asserts that the supervisor who originally directed him to work at the Ciotham si le, Joe Austin~ was :1 Mi I Jenni um employee-Gotham says there is no proof to support that statement. l\athcr tlwn engage in spccu\:1tion on issues of credibility, this Court feels that testimony lrnm l\ilr. /\ustin or his employer would best 1·csolve the issue in a manner that provides finality to :ii I sides. Ir Clotlrnm wt· re fVI r. ;\ ustin 's employer. it would compound the statements made in the p\:1intilfs dcpositio11 hinting that Cioth:11n controlled plaintilTs employment and a Worker's Compensation dclcnse may be :1pplicablc. l·\11 Gotham. this also rnc:1ns tlrnt despite its Motion to Rcncvv being granted based on ( ioth<rn1 's curing ur the dckct origin<li ly detected by this court-the authentication of the Kemper elwck;;-for too 1rnllly issues or L1ct h:1vc gone unresolved tu \Varrant summary judgment on its ht·1i,i1 r. v\iith respect to plaintilfs ~ 2221 (e)(:'.) motion to renew. plaintilThas directed this Coun to 110 new facts or law. Accordingly. th<1t motion is also denied. 1\ccordingly. it is 01\l)Ll\U) th<ll plaintiff \{cgin:ild Duchenne's Motion to Dismiss defendant 774 lk1-cloprncnt. 1.1.C·s Worker's Compensation affimrntive defense is hereby granted. It is i°mllit·1· ORDERFD th<1l dc!Cndant Uotlwrn Construction. Co .. LLC's Cross Motion to Renew its i'llotion for Summary Judgment is hereby g1«111tcd. It IS runhe1· ORDl~lU'.!) that upon rc,1rgu11ll'l1l. del'cndant Cotham Construction, Co. LLC's Cross Motion 1':1gc 6 or 7 [* 8] FILED Jan 17 2012 Bronx County Clerk !\ir Su1rnrn11)' Judg1rn:11t is hereby denied. 11 is l'urthcr ()RD ERED th<tl pJ,1i nti IT Regi 1rnld ])uchenne' s Motion to Renew and Reargue his opposition tu de!l:rnl<1111 Cotham Construction. Co" LLC"s Workers' Compensation affirmative defense is l1c1cby lki1icd. 11 is Curthc1· ()IZDFRF]) th<tt pl<tintill Rc'gin<tldDuchenne's serve a copy of this Order upon <ill parties, II ith lllllil'L' ur entry. within thiny (30) days o!' this Order. This comtilutc-; the lkcision u!'thc Court. JAN 5 2012 HON. WILMA GUZMAN, JSC U/\11 !'age 7 of 7
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