Opinion
No. 159381/2021
12-15-2022
YUSUF IBRAHIM, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATIONS, STEVEN DUBNER LANDSCAPING INC, ANCHORMEN CONSTRUCTION LLC, LIRO PROGRAM AND CONSTRUCTION MANAGEMENT PE P.C. D/B/A THE LIRO GROUP, ABC CORPORATION 1-10, JOHN DOE 1-19 Defendant.
Unpublished Opinion
MOTION DATE 05/13/2022
PRESENT: HON. LESLIE A. STROTH, Justice
AMENDED DECISION + ORDER ON MOTION
The following amended decision and order supersedes the decision and order dated December 8, 2022, to reflect the withdrawal of the City of New York and New York City Department of Parks and Recreation's cross-motion. See NYSCEF doc. no. 82.
Leslie A. Stroth, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 2.0, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54,55, 56,-57, 58, 59, 82,83 were read on this motion to/for DISMISSAL.
This action seeks to recover damages for alleged injuries sustained by plaintiff Yusuf Ibrahim (plaintiff) on July 16, 2020, when he allegedly tripped and fell on debris while working at a construction site located at 2 Edgar Street, New York, N.Y.
In its answer, defendant Liro Program and Construction Management PE P.C. d/b/a The Liro Group (Liro) alleges that plaintiff filed a workers' compensation claim, received medical care and benefits from a policy issued to Liro, and was an employee of Liro on the date of the alleged accident. Liro now moves for an order pursuant to CPLR 3211(a) (1) and (7) dismissing plaintiffs- amended complaint and any cross-ciaims and counterclaims against it. As per its attorney's affirmation, the cross-motion of City of New York and New York City Department of Parks and Recreation (together, the City) is withdrawn. See NYSCEF doc. no. 82.
Pursuant to CPLR 3211 (a) (7), a party may move to dismiss a claim on the ground that the pleading fails to state a cause of action. Upon such a motion, the Court must accept the facts alleged as true and determine simply whether plaintiffs facts fit within any cognizable legal theory. See CPLR 3026; Morone v Morone, 50 N.Y.2d 481 (1980). The complaint shall be liberally construed, and the allegations are given the benefit of every possible favorable inference. See Leon v Martinez, 84 N.Y.2d 83, 87 (1994).
Liro argues that because plaintiff was an employee of Liro, which exclusively directed and supervised his work, plaintiffs claims are barred by Workers' Compensation Law (WCL) §§11 and 29 (6), and all cross-claims and counterclaims against Liro must be dismissed.
Plaintiff opposes Liro's motion in its entirety. Plaintiff argues that pursuant to WCL § 11, he must include Liro, his employer, in the action in order to receive contribution from Liro, should the Court find that he has sustained a "grave injury" and is entitled to monetary compensation. Plaintiff maintains that he has been incapacitated since the accident and that whether such incapacity resulted from the brain injury is an issue of fact to be determined during discovery. Therefore, plaintiff claims that Liro's motion to dismiss must be denied, because the complaint is not barred by WCL § 11.
Defendant Anchormen Construction LLC (Anchormen) does not oppose dismissal of plaintiffs direct claims as against Liro. However, Anchormen does oppose Liro's motion to the extent that it seeks dismissal of Anchormen's cross-claims asserted as against Liro. Anchormen argues that if its direct claims against Liro are dismissed its cross-claims should be converted to third-party claims, reiterating that Liro may be found liable for contribution and indemnity if it is determined that plaintiff suffered a "grave injury" pursuant to WCL §11. Anchormen asserts that plaintiffs alleged brain injury qualifies as a "grave injury" under this statute, for which it is entitled to contribution and indemnity. Anchormen adds that plaintiffs bill of particulars alleges he suffered a brain injury and has been incapacitated since the subject accident. According to Anchormen, whether the brain injury is the cause of the plaintiffs inability to work and whether he is rendered unable to work in any capacity are issues that must be borne out in discovery.
In the alternative, if the plaintiffs direct claims are dismissed as against Liro, Anchormen seeks to have the cross-claims converted to third-party claims. Liro's affirmation in support seems to consent to such alternative relief. See Defendant Liro's Affirmation in Support, NYSCEF doc. no. 17 at 6.
Plaintiff correctly argues that if his brain injury constitutes a "grave injury" under WCL § 11, and said injury caused "permanent total disability" under same, Liro may be held liable for contribution or indemnity to, third parties pursuant to WCL §11. Liberally construing the allegations and affording them the benefit of every possible favorable inference, the complaint sets forth a cognizable legal theory. Therefore, Liro's motion for an order dismissing plaintiffs amended complaint, as well as any cross-claims and counterclaims against it, is denied. As the Court declines to dismiss plaintiffs claims against Anchormen, Anchormen's cross-claims and counterclaims need not be converted to third party claims.
Accordingly, it is hereby
ORDERED that defendant Liro Program and Construction Management PE P.C. d/b/a The Liro Group's motion for an Order pursuant to CPLR 3211(a) (1) and (7) dismissing plaintiffs amended complaint and any cross-claims and counterclaims against it is denied; and it is further
ORDERED that the decision and order dated December 8, 2022 is vacated and superseded by this amended decision and order; and it is further
ORDERED that counsel for the moving parties shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.