Opinion
511452/16
11-30-2020
Darnell ANDERSON, Plaintiff, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND PHOENIX BEVERAGES, INC., Defendants.
The following e-filed papers read herein: NYSCEF Doc. Nos.
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 75-96, 101-105
Opposing Affidavits (Affirmations)
Reply Affidavits (Affirmations) 107
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, defendant Phoenix Beverages, Inc., (PBI) moves (in motion sequence no. 6) for an order, pursuant to CPLR 3212, seeking summary judgment dismissing plaintiff Darnell Anderson's complaint. Plaintiff cross-moves (in motion sequence no. 7), for an order, (1) pursuant to CPLR 305 ( c ), granting him leave to amend the complaint to correctly name Windmill Distributing Company L.P. (Windmill) d/b/a Phoenix Beverages as a defendant; and (2) pursuant to CPLR 203 ( c ), amending the caption to add Phoenix Beverage MTO, LLC (Phoenix MTO) and R. Mack Estates, LLC (RME) as additional defendants.
Factual and Procedural Background
Plaintiff was employed by Noor Staffing (Noor), a temporary staffing agency, since 2009. The agency historically sent plaintiff to different companies where he would work on temporary assignments. During his deposition, plaintiff testified that he attended a ten-hour OSHA safety course in 2014 related to glass crushing machines. Later that year, he was directed by Noor to report to a recycling facility located at 75 Bowne Street (also referred to as Pier 11) in Brooklyn. Plaintiff was told to speak with the supervisor, "Conrad," and give him a document listing the names of plaintiff and two other workers provided by Noor. Conroy McNab, who was known to the workers as Conrad, was the recycling and redemption manager at the recycling plant from 2007 through 2015. Plaintiff testified that McNab gave him coveralls and a hardhat, but that he purchased his own steel-toed boots and protective eye goggles. He further testified that he was responsible for aluminum, glass and plastic, and that his job entailed emptying a hopper of glass before the end of each day. Plaintiff stated that McNab instructed him with regard to working safely on the glass recycling machine and specifically told him never to be around the machine without protective eye gear since the glass may pop in your eye. Plaintiff testified that he always worked with "Brian" when performing this work. On May 19, 2015, as plaintiff was attempting to remove cardboard that had been stuck in a conveyor belt for glass recyclables, Brian turned the machine on, and plaintiff's arm became trapped in the conveyor of the recycling machine. Plaintiff sustained various injuries to his left arm.
The record indicates that Noor was previously known as Impact Staffing.
The record indicates that Brian's legal name is Hugh Watson.
On or about July 6, 2016, plaintiff commenced the instant action by filing a summons and complaint alleging negligence as against the Port Authority of New York and New Jersey (Port Authority) and PBI. On or about September 2, 2016, PBI served an answer with cross claims as against the Port Authority, and on or about September 22, 2016, PBI served an amended answer without cross claims. On or about November 4, 2016, plaintiff served a Bill of Particulars in response to PBI's demand. Plaintiff filed a note of issue on August 16, 2019.
On February 15, 2017, plaintiff stipulated to discontinue the action as against the Port Authority with prejudice.
PBI's Motion
PBI moves for summary judgment dismissing plaintiff's complaint which alleges that PBI was negligent in the ownership, maintenance, management, operation and control of the premises in failing to provide a reasonably safe place to work (motion seq. no. 6). PBI argues that the action should be dismissed as against it as it did not own, occupy, maintain or control the premises where the accident occurred, and did not have any employees working at the recycling plant. Specifically, PBI contends that from August 5, 2005 on, it was no longer involved in the business of distributing or importing beer. Further, PBI states that on the date of plaintiff's accident, it was not involved in the leasing or maintenance of the property or the running of the recycling plant where the accident occurred. With regard to the entities involved in the operation of the recycling plant, PBI sets forth the following: PBI was a limited partner of Windmill, which essentially ran the recycling plant with its related companies, RME and Phoenix MTO. Conroy McNab, the plant manager, was an employee of Windmill who supervised plaintiff in the performance of his work at the recycling plant. Phoenix MTO, a separate corporation, leased the property from the New York City Economic Development Corporation ("NYCEDC"). David Jagernauth, an employee of Phoenix MTO, also supervised plaintiff. RME employed Hugh Watson, known as Brian, the individual who is alleged to have turned on the machine while plaintiff was retrieving cardboard from it. RME also retained the employment agency, Noor, that assigned plaintiff to the recycling plant.
PBI asserts that it was a limited partner in Windmill, which was a limited liability corporation at the time of plaintiff's accident. Thus, PBI argues that, pursuant to Article 8-A, § 121-303 of the Revised Limited Partnership Act, and section 96 of Article 8 of the Limited Partnership Law, a limited partner such as PBI cannot be held liable for the obligations of a limited liability company as it did not take part in the control of the business.
In support of its motion, PBI submits an affidavit from Rodney Brayman, President and Chief Executive Officer of Windmill. He affirms that on the date of plaintiff's accident he was the sole director, Vice President and Secretary of PBI, and that he was one of the owners of the company. He avers that PBI was formed approximately 35 years ago for the purpose of wholesale distribution of beer and other beverages. However, on March 31, 2002, Windmill took over the distribution and importation business. Mr. Brayman states that on the date of plaintiff's accident, PBI's sole business was as a limited partner of Windmill and the ownership of certain real estate that was not used in the beverage distribution, importation or the recycling business. Mr. Brayman further affirms that PBI was not involved in the leasing of property or the maintenance or operation of the recycling plant where plaintiff's accident occurred. He states that Windmill continued to do business under the name of "Phoenix Beverages" for distribution of beer and other beverages in certain parts of the Greater New York City Metropolitan Area.
In support of this assertion, attached to Mr. Brayman's affidavit is the Second Amended and Restated Agreement of Limited Partnership of Windmill Distributing Company, L.P. which, in its definition section states that " ‘Brayman Limited Partners’ means Phoenix [PBI] and any Permitted Transferee admitted as a Limited Partner pursuant to Section 8.02." In addition, §§ 5.14 and 5.15 state in pertinent part as follows:
5.14 Restrictions on Limited Partners. The Limited Partners shall not (a) subject in each case to Section 5.12 hereof, participate in the operations or management of the Partnership or have the power to exercise any decision making authority which would interfere with the General Partner's ability independently to manage the business and affairs of the Partnership; (b) have the right to vote on or consent to any matters other than the matters specifically set forth in this Agreement; or ( c) have the authority or power in his, her or its capacity as a Limited Partner to act as agent for or on behalf of the Partnership or any other Partner ,to do any act which would be binding on the Partnership or any other Partner, or to incur any expenditures on behalf of, or with respect to, the Partnership, except as expressly provided herein . . .
5.15 Liability of the Limited Partners. So long as a Limited Partner complies with the provisions of the first sentence of Section 5.14 and is not a general partner of the Partnership, and except as otherwise provided by law, such Limited Partner shall not be personally liable for liabilities of the Partnership.
Mr. Brayman affirms that Phoenix MTO, Windmill and RME were each formed to play a specific integral role in the operation of the beverage distribution and importation business, and that each entity was controlled by the Brayman family. He notes that Phoenix MTO was formed as a limited liability company on January 14, 2009, for the purpose of leasing warehousing and offices to be used in the operations of Windmill's business. Mr. Brayman's son, Gregory Brayman, at all times since the company was formed, has owned at least 95% of the equity and all of the voting interests of Phoenix MTO. On the date of plaintiff's accident, the same individuals who were officers of PBI were officers of Phoenix MTO, specifically: Gregory Brayman, President; Rodney Brayman, Vice President and Secretary; and Laura Brito, Vice President, Assistant Secretary and Treasurer. In support of this, Mr. Brayman submits a copy of Phoenix MTO's amended operating agreement.
Mr. Brayman affirms that RME was formed on August 5, 2005, and that its primary business was to import and sell wine, beer, malt beverages and other beverages to wholesalers in the United States. On the date of the accident, the same individuals that were officers of PBI and Phoenix MTO were also officers of RME, specifically: Gregory Brayman, President; Rodney Brayman was Vice President and Secretary; and Laura Brito, Vice President, Assistant Secretary and Treasurer. Mr. Brayman submits a copy of RME's operating agreement to his affidavit.
Mr. Brayman states that each of the Phoenix MTO, Windmill and RME companies were all interrelated in running the recycling plant and that there was no distinction between these entities. As of the date of the accident, the offices of all of the companies were located at 2 Atlantic Avenue, in Brooklyn. He notes that management employees of Windmill had the right to hire or terminate the employees of Phoenix MTO and RME. Mr. Brayman affirms that, except for a sublease between Phoenix MTO and Windmill relating to the premises located at 2 Atlantic Avenue, which premises were separate and apart from Pier 11, there was no written lease between Windmill, Phoenix MTO, PBI or RME. The premises, known as Pier 11, was subleased by Phoenix MTO from NYCEDC pursuant to a lease agreement, a copy of which he attached to his affidavit.
Finally, PBI submits an affidavit from Laura Brito, in which she avers that on the date of plaintiff's accident, she was Vice President, Assistant Secretary and Treasurer of RME and has personal knowledge that RME hired many employees, including plaintiff, for the recycling plant at Pier 11. She attaches a copy of an invoice from Noor for the week ending May 17, 2015 for plaintiff. In addition, Ms. Brito attaches copies of the W-2s for Conroy McNab, David Jagernauth and Hugh Watson showing that, at the time of the accident, McNab, was an employee of Windmill, Jagernauth was an employee of Phoenix MTO, and Watson was employed by RME.
In opposition, plaintiff does not specifically address PBI's argument that the complaint should be dismissed as against it based on its status as a limited partner in Windmill at the time of plaintiff's accident, and the fact that it [PBI] did not take part in the control of the business. Rather, plaintiff merely argues that PBI's motion for summary judgment should be denied because plaintiff was not a special employee of PBI.
Pursuant to Article 8-A, § 121-303 of the Revised Limited Partnership Act
a limited partner is not liable for the contractual obligations and other liabilities of a limited partnership unless he is also a general partner or, in addition to the exercise of his rights and powers as a limited partner, he participates in the control of the business. However, if the limited partner does participate in the control of the business, he is liable only to persons who transact business with the limited partnership reasonably believing, based upon the limited partner's conduct, that the limited partner is a general partner.
In addition, pursuant to section 96 of Article 8 of the Limited Partnership Law:
A limited partner shall not become liable as a general partner unless, in addition to the exercise of his rights and powers as a limited partner, he takes part in the control of the business; and the exercise of the rights and powers granted by subdivision three of section ninety-nine of this chapter shall not constitute taking part in the control of the business. The commencement of or other participation by a limited partner in an action brought pursuant to section one hundred fifteen-a of this article shall not be deemed to be a taking part in the control of the business within the meaning of this section.
Here, the court finds that based upon the documentary evidence submitted by PBI, liability for plaintiff's accident cannot be imposed upon it as it did not own, operate, maintain or manage the premises on which plaintiff's accident occurred. Moreover, as the agreement between PBI and Windmill states that PBI, as a limited partner, could not participate in the operation or management of the partnership, and specifically provides that PBI shall not be personally liable for the partnership's liabilities, there can be no liability imposed upon PBI related to plaintiff's accident (see generally A & F Hamilton Hgts. Cluster, Inc. v. Urban Green Mgt., Inc. , 186 AD3d 409, 414[1st Dept 2020 [noting that "[t] he Revised Limited Partnership Act (RLPA) is in many respects a "default statute" that allows limited partnerships to chart their own course of governance, but imposes rules if the partnership does not explicitly opt out of specific provisions"]; Schaufler v. Mengel, Metzger, Barr & Co., LLP , 296 AD2d 742, 744 [3d Dept 2002] [noting that section 121-303 (a) of the Revised Limited Partnership Act (Partnership Law art 8-A) imposes traditional joint and several liability on a general partner and on a limited partner who also participates in the control of the business] ). Moreover, as discussed in detail below in relation to plaintiff's cross motion, liability cannot be imposed upon PBI due to plaintiff's status as a special employee.
Plaintiff's Cross Motion
Plaintiff cross-moves for an order: (1) pursuant to CPLR 305 ( c ) granting leave to amend the complaint to correctly name Windmill d/b/a Phoenix Beverages as a defendant, and (2) pursuant to CPLR 203 ( c ), amending the caption to add Phoenix MTO and RME as additional defendants (motion seq. no. 7). Plaintiff argues that the branch of his cross motion seeking to amend the caption to correctly name Windmill as a defendant should be granted because he is merely seeking to cure a misnomer in the description of the entity he seeks to hold accountable for his injuries. He further argues that Windmill would not be prejudiced because service of the summons and complaint was made on PBI at a location at which PBI shared offices with Windmill, and that both entities are owned and controlled by the Brayman family. Specifically, plaintiff asserts that Windmill will have full access to all the pleadings and discovery previously had in this matter, as well as access to PBI's legal resources.
Plaintiff further argues that the branch of his cross motion, pursuant to CPLR 203 ( c ), should be granted because the claims against each of the parties arose out of the same incident and Phoenix MTO and RME are united in interest with PBI, by virtue of their shared ownership and control by the Brayman family. He also contends that Phoenix MTO and RME are also united in interest with proposed defendant Windmill in that all three companies were interrelated in the running of a beverage distribution and recycling business. Thus, plaintiff contends that these entities will not be prejudiced by the delay in bringing them into this action.
In opposition, PBI argues that plaintiff's cross motion to amend the complaint to add non-parties is an attempt to get around the statute of limitations by showing that they are, in effect, alter ego corporations of PBI and each other. PBI argues that the cross motion should be denied as these entities are not united in interest inasmuch as they do not share the same defenses to plaintiff's claims. Moreover, PBI contends that even if plaintiff is successful in demonstrating that these non-parties are all interrelated and alter ego corporations of PBI, plaintiff's claims would be barred by the exclusivity provisions of the Workers' Compensation Law. In this regard, PBI maintains that plaintiff's cross motion to add Windmill, Phoenix MTO and RME should be denied as plaintiff was the special employee of each of these interrelated companies, and since he has already collected workers' compensation benefits from his general employer Noor, he is barred from seeking damages from his special employers.
CPLR 305 ( c ) authorizes the court, in its discretion, to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced." "Where the motion is to cure ‘a misnomer in the description of a party defendant,’ it should be granted even after the statute of limitations has run where ‘(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought’ " ( Chambers v. Prug , 162 AD3d 974, 974-975 [2d Dept 2018], quoting Ober v. Rye Town Hilton , 159 AD2d 16, 19-20 [2d Dept 1990] ; [citations omitted] ). "Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue" ( Duncan v. Emerald Expositions, LLC , 186 AD3d 1321 [2d Dept 2020], quoting Chambers , 162 AD3d at 974-975 ).
CPLR 203 ( c ) provides that "[i]n an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced." Moreover, the relation-back doctrine "allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are ‘united in interest’ " ( Buran v. Coupal , 87 NY2d 173, 177 [1995], quoting CPLR 203 [b] ). "In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well" ( Mileski v. MSC Indus. Direct Co., Inc. , 138 AD3d 797, 799-800 [2d Dept 2016] ; see Buran , 87 NY2d at 178 ; Mondello v. New York Blood Ctr.—Greater NY Blood Program , 80 NY2d 219, 226 [1992] ). However, "[d]efendants are not united in interest if there is a possibility that the new party could have a different defense than the original party" ( Montalvo v. Madjek, Inc. , 131 AD3d 678, 680 [2d Dept 2015] ). "In a negligence action, 'the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other" ( Mileski , 138 AD3d at 799-800, quoting Xavier v. RY Mgt. Co., Inc. , 45 AD3d 677, 679 [2d Dept 2007] ; see LeBlanc v. Skinner , 103 AD3d 202, 210 [2d Dept 2012] ; Connell v. Hayden , 83 AD2d 30, 45 [2d Dept 1981] ).
Here, plaintiff is seeking to add Windmill, Phoenix MTO and RME as defendants, however these entities do not share the same defense to plaintiff's claims as that asserted by PBI. Unlike the defendants that the plaintiff is seeking to add, PBI did not own or lease the premises where the accident occurred and did not manage or maintain the recycling operation. Thus, PBI's defense to plaintiff's claims differs from the defenses of Windmill, Phoenix MTO and RME to said claims. Accordingly, plaintiff's cross motion is denied in its entirety as he cannot rely on the relation-back doctrine to save his untimely claims against Windmill, Phoenix MTO and RME (see Xavier , 45 AD3d at 679 [holding that "[t]he fact that two defendants may share resources such as office space and employees is not dispositive. They must also share exactly the same jural relationship in the subject action"]; Berkeley v. 89th Jamaica Realty Co., L.P. , 138 AD3d 656, 659 [2d Dept 2016] [court held that "[i]f the relationship between the parties is such that one may have a defense not available to the other, they are not united in interest"]; LeBlanc , 103 AD3d at 210 ).
Moreover, even if the court were to find that these defendants were united in interest with PBI, any claims asserted by plaintiff against these defendants would be barred under the exclusivity provisions of the Workers' Compensation Law as the court finds that plaintiff was a special employee of these entities.
"An employee who is entitled to receive workers' compensation benefits may not sue his or her general employer or special employer for injuries occurring during the course of employment" ( Dube v. County of Rockland , 160 AD3d 807, 808 [2d Dept 2018] ; Workers' Compensation Law §§ 11, 29 [6] ). In this regard, "[a] special employee is ‘one who is transferred for a limited time of whatever duration to the service of another’ " (id. , quoting Thompson v. Grumman Aerospace Corp. , 78 NY2d 553, 557 [1991] ). Moreover, "[g]eneral employment is presumed to continue, and the presumption can only be rebutted by a clear demonstration of surrender of control by the general employer and assumption of control by the special employer" (id. , quoting Thompson , 78 NY2d at 557 ). The exclusivity of the Workers' Compensation Law applies to both a general employer and a special employer ( Fung v. Japan Airlines Co., Ltd. , 9 NY3d 351, 358-359 [2007] ). "The receipt of Workers' Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer" ( Pena v. Automatic Data Processing, Inc. , 105 AD3d 924, 924 [2d Dept 2015] ). "[A] person's categorization as a special employee is usually a question of fact" ( James v. Crystal Springs Water , 164 AD3d 660, 661 [2d Dept 2018], lv denied 32 NY3d 911 [2018] [internal citations and quotation marks omitted] ). "Although no one factor is determinative, a significant and weighty feature in deciding whether a special employment relationship exists is who controls and directs the manner, details and ultimate result of the employee's work—in other words, who determines all essential, locational and commonly recognizable components of the [employee's] work relationship" ( Fung v. Japan Airlines Co., Ltd. , 9 NY3d at 359 [citations and internal quotation marks omitted]; Salinas v. 64 Jefferson Apts., LLC , 170 AD3d 1216, 1221 [2d Dept 2019] ). "Other factors include who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business" ( Franco v. Kaled Mgt. Corp. , 74 AD3d 1142, 1142-1143 [2d Dept 2010] [internal quotation marks omitted] ).
The record reveals that Noor did not provide plaintiff with any equipment, supervision or training at the recycling plant (Anderson tr at 94, lines 19-25; at 95, lines 2-10; at 175, lines 5-9). Plaintiff's own testimony reveals that he was told by Noor that this would be a permanent position (id. at 75, lines 7-8) and that he had worked at the recycling plant for approximately one year prior to his accident (id. at 78 lines 6-7). Specifically, plaintiff testified that he was trained and supervised by McNab (id. at 84 lines 8-25; at 86, lines 9-13; at 92, lines 7-12), and that he reported each day to McNab and/or Jagernauth, who were employed by Windmill, Phoenix MTO and RME (id. at 90, lines 19-25; at 91, lines 2-8; at 190, lines 21-23; at 191, lines 2-8). McNab testified that he had the authority to decide whether plaintiff was to remain working at the plant (McNab tr at 34, lines 18-25; at 35, lines 2-5), and plaintiff testified that McNab could fire him if he didn't follow McNab's direction and instruction (Anderson tr at 85, lines 13-23).
Additionally, all the equipment plaintiff used was furnished by these entities (Windmill, Phoenix MTO and RME), with the exception of his boots and goggles which he purchased himself. Plaintiff specifically testified that McNab gave him coveralls and a hardhat to wear while he worked at the recycling plant (Anderson tr at 173, lines 13-17; at 174, line 25; at 175, line 2) . Plaintiff was required to clock in and out at the recycling plant under McNab's supervision (id. at 94, lines 2-18). McNab was responsible for preparing the payroll (McNab tr at 43, lines 10-15). Although plaintiff testified that his paycheck was provided by Noor (Anderson tr at 175, lines 16-19), he did not have to go to Noor to pick it up, rather the paychecks were sent over to be distributed at the recycling plant (McNab tr at 52, lines 8-16). Importantly, the record indicates that all of the work plaintiff performed at the recycling plant was solely in furtherance of Windmill, Phoenix MTO or RME's business.
Accordingly, the court notes that, in the event plaintiff were permitted to amend his pleadings to add Windmill, Phoenix MTO and RME as defendants, his claims would be barred by the exclusivity provisions of the Workers' Compensation Law. The evidence submitted demonstrates that the manner, details, and ultimate result of the plaintiff's work were controlled and directed by the proposed additional defendants Windmill, Phoenix MTO and RME and, thus, these entities were the special employer of plaintiff (see Wilson v. A.H. Harris & Sons, Inc. , 131 AD3d 1050, 1051 [2d Dept 2015] [court found that plaintiff, the general employee of a temporary staffing service, was also the special employee of the defendant company at which he had been placed as defendant controlled and directed the manner, details, and ultimate result of the plaintiff's work, as he had applied for and received workers' compensation benefits from his general employers's insurance carrier, his claims against his special employer were barred]; Munion v. Trustees of Columbia Univ. in City of NY , 120 AD3d 779, 780-781 [2d Dept 2014] [court found that plaintiff who had been placed by a temp agency that told her where and to whom to report was the special employee of defendant inasmuch as the defendant's supervisors instructed her on actual work duties]; see also Spasic v. Cammeby's Mgt. Co. , 164 AD3d 537, 538 [2d Dept 2018] ; Alfonso v. Pacific Classon Realty, LLC , 101 AD3d 768, 769 [2d Dept 2012] [holding that "where facts demonstrate the plaintiff's dual employment status, whether the relationship between two corporate entities is that of joint venture[r]s, parent and subsidiary, corporate affiliates, or general and special employers, immunity will be extended to all the plaintiff's employers"]; Navallo v. R.P. Brennan Gen. Contrs. , 87 AD3d 683 [2d Dept 2011] ; Ugijanin v. 2 W. 45th St. Joint Venture , 43 AD3d 911, 913 [2d Dept 2007] ; Gubitosi v. National Realty Co. , 247 AD2d 512 [2d Dept 1998] ). Based upon the foregoing, plaintiff's cross motion is denied in its entirety.
Conclusion
Accordingly, it is hereby
ORDERED that PBI's motion (motion seq. no. 6) for summary judgment dismissing plaintiff's complaint as against it is hereby granted; and it is further
ORDERED that plaintiff's cross motion (motion seq. no. 7) is hereby denied.
The foregoing constitutes the decision, order and judgment of the court.