Opinion
10-19-2017
Luis CORTES, Plaintiff–Appellant, v. SKANSKA USA CIVIL NORTHEAST, INC., Defendant–Respondent, Silverstein Properties, Inc., Defendant.
Sobo & Sobo, LLP, Middletown (Gregory M. Sobo of Counsel), for appellant. Segal McCambridge Singer & Mahoney, Ltd., New York (Robert R. Rigolosi of Counsel), for respondent.
Sobo & Sobo, LLP, Middletown (Gregory M. Sobo of Counsel), for appellant.
Segal McCambridge Singer & Mahoney, Ltd., New York (Robert R. Rigolosi of Counsel), for respondent.
As it is undisputed that plaintiff's fall off a stair tower occurred during the scope of his employment with Phoenix Constructors, a joint venture, and that defendant Skanska is a member of the joint venture, plaintiff's exclusive remedy against Skanska is workers' compensation (see Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 416, 482 N.Y.S.2d 720, 472 N.E.2d 682 [1984] ; Felder v. Old Falls Sanitation Co., 39 N.Y.2d 855, 386 N.Y.S.2d 214, 352 N.E.2d 131 [1976] ).
Plaintiff's reliance upon Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d 594, 906 N.Y.S.2d 67 (2d Dept.2010) and Mournet v Educational and Cultural Trust Fund of Elec. Indus. , 303 A.D.2d 474, 756 N.Y.S.2d 433 (2d Dept 2003) is misplaced, since these cases turned on whether the defendant was an alter ego of the employer so as to be entitled to invoke the exclusivity provisions of the Workers' Compensation Law. To the extent plaintiff argues that the exclusivity provisions do not apply here because Skanska purportedly owed him a duty independent of its capacity as a member of the joint venture, the Court of Appeals has rejected this argument as "fundamentally unsound" (see Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 159, 432 N.Y.S.2d 879, 412 N.E.2d 934 [1980] ). "[A]n employer remains an employer in his relations with his employees as to all matters arising from and connected with their employment. He may not be treated as a dual legal personality, ‘a sort of Dr. Jekyll and Mr. Hyde’ " ( id. at 160, 432 N.Y.S.2d 879, 412 N.E.2d 934 ).
ACOSTA, P.J., FRIEDMAN, WEBBER, OING, and MOULTON, JJ., concur.