Opinion
INDEX NO. 158511/2016
07-02-2019
ELBERT FULLER and LYDIA SEALES, Plaintiffs, v. KFG LAND I, LLC, Defendant.
NYSCEF DOC. NO. 107 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 003
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 003) 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 95, 96, 98, 99, 100, 101, 102, 103, 104 were read on this motion to/for SUMMARY JUDGMENT.
In this personal injury action, defendant KFG Land I, LLC ("KFG Land" or "defendant") moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiffs Elbert Fuller ("plaintiff") and Lydia Seales ("Seales") (collectively "plaintiffs") oppose the motion and cross-move, pursuant to CPLR 3212, for summary judgment on plaintiff's claim pursuant to Labor Law § 240(1) and to strike defendant's answer due to its failure to provide discovery regarding its workers' compensation defense. After oral argument, and after a review of the motion papers and the relevant statutes and case law, the motions are decided as follows.
FACTUAL AND PROCEDURAL BACKGROUND:
This action was commenced by the filing of a summons and verified complaint on October 11, 2016. Docs. 1 and 64. In the complaint, plaintiffs alleged that, on September 12, 2016, plaintiff, an employee of the Hopkins Center for Rehabilitation ("Hopkins"), located at 155 Dean Street, Brooklyn, New York ("the premises" or "the building"), which was owned, operated, controlled and maintained by defendant, was injured when he fell from an elevated worksite. Docs. 1 and 64 at pars. 4, 14. Plaintiff claims that the accident occurred while he was engaged in construction, demolition, repairing, altering, painting, cleaning or pointing. Docs. 1 and 64 at pars. 5, 18. Plaintiff claims that defendant failed to provide him with proper protection for his job and that, by doing so, it was negligent and committed violations of Labor Law sections 200, 240, 241, and 241(a). Docs. 1 and 64 at pars. 26-27. Seales also sets forth a loss of consortium claim. Docs. 1 and 64 at pars. 31-34.
In its answer, filed December 9, 2016, KFG Land denied all substantive allegations of wrongdoing and asserted several affirmative defenses. Docs. 5 and 65.
On or about January 24, 2017, plaintiff served a verified bill of particulars in which he alleged, inter alia, that his accident occurred on the roof of the premises on September 12, 2016. Doc. 66 at pars. 4-5. He claimed that the work site was dangerous and that defendant failed to provide him with proper safety devices and equipment. Doc. 66 at par. 6. Plaintiff further claims that, as a result of its acts or omissions, defendant violated Labor Law sections 200(1), 240(1-3), 241(1-6), and 241-a; multiple sections of the New York State Industrial Code; section C26-1907.1-9 of the New York City Charter and Administrative Code; 29 CFR section 1910; and OSHA rules pertaining to construction and demolition. Doc. 66 at pars. 6, 9.
Plaintiff appeared for a deposition in this matter on October 31, 2017. Doc. 73. He testified that, on September 12, 2016, he was employed as a maintenance worker by Hopkins, a nursing home and rehabilitation facility where he had worked for over twenty years. Doc. 73 at 10-11. His work entailed "light plumbing, electrical, minor repairs of . . . doors, beds and telephone systems, TV reprogram, stuff like that." Doc. 73 at 11. His supervisor was a man named Darwin, who oversaw the maintenance and housekeeping staff and gave him his assignments each day. Doc. 73 at 12, 15.
On the day of the alleged accident, Darwin instructed plaintiff and another maintenance worker, Heicules Medalla (whom plaintiff believed was named Hercules Medina), to replace soundproofing panels on the air conditioning system on the roof of the building. Doc. 73 at 16-17. The panels were already on the roof at the time plaintiff and Medalla were given this assignment. Doc. 73 at 20.
Plaintiff, who was wearing clogs, went to the roof with Medalla. Doc. 73 at 18-19. The air conditioning system they were to work on was on a platform located six feet above the surface of the roof. Doc. 73 at 20. Plaintiff visited the platform at least once every week to ensure that the air conditioner was working properly and he never encountered any problems with the platform or made any complaints about the same to anyone. Doc. 73 at 26. There was no railing surrounding any part of the platform. Doc. 73 at 25.
Plaintiff and Medalla were to remove soundproofing panels from the left side of the air conditioner so that they could be relocated to the right side of the machine. Doc. 73 at 21. As plaintiff handed a 5 to 10 pound panel to Medalla, he (plaintiff) lost his balance and fell approximately 6 feet to the roof below. Doc. 73 at 23-24. He did not feel the platform move or shake before he fell. Doc. 73 at 24.
KFG Land produced Charles Edouard Gross for a deposition on November 5, 2018. Doc. 76. He testified that Hopkins Ventures, LLC ("Hopkins Ventures") was the parent company of KFG Land and that he was managing member of that entity. Doc. 76 at 9-11, 63. The business of KFG Land was the ownership of the premises, 155 Dean Street in Brooklyn. Doc. 76 at 12, 34. Hopkins Ventures owned 100 percent of KFG Land and another company named KFG Operating I, LLC ("KFG Operating"). Doc. 76 at 14-16. KFG Land was a wholly-owned subsidiary of Hopkins Ventures. Doc. 76 at 32. The only member of KFG Land was Hopkins Ventures. Doc. 76 at 33.
At the time the premises were purchased, which was prior to 2016, they were being operated as a nursing home. Doc. 76 at 18, 22. After the premises were purchased, Hopkins Operating I or KFG Operating began running the facility. Doc. 76 at 23. KFG Land leased the premises to KFG Operating. Doc. 76 at 74. Gross did not personally oversee the daily operation of the premises after they were acquired by KFG Land. Doc. 76 at 26. He did not believe that he was a member of KFG Operating. Doc. 76 at 72.
KFG Operating maintained a bank account to pay Hopkins' employees but KFG Land did not. Doc. 76 at 30-31, 90. Gross was not certain whether Hopkins Ventures maintained a bank account to pay Hopkins employees. Doc. 76 at 30-31.
KFG Land also produced Medalla for a deposition. Doc. 75. Like plaintiff, Medalla also testified that he was employed as a maintenance worker for Hopkins. Doc. 75 at 7. On the day of the alleged incident, Darwin instructed plaintiff and Medalla to reinstall soundproofing panels on the air conditioner on top of the building because Hopkins had received noise complaints about the unit. Doc. 75 at 30-35. Specifically, he told the men to "put back the five panels on the Hoyt Street" side, which had been removed by someone else. Doc. 75 at 35.
The soundproofing panels were held in place by runners, which were already installed on the roof. Doc. 75 at 45, 50. The panels to be installed were already on the roof. Doc. 75 at 51. The longest panel was 8 feet long but only one foot high. Doc. 75 at 46. The men brought with them to the roof a "grinder", which was to be used to shorten some of the 8-foot panels to 6 feet. Doc. 75 at 54. They would cut a panel on the roof and then slide it into a runner. Doc. 75 at 65-71. It took only 5 minutes to cut and install a panel. Doc. 75 at 72.
The men had installed 4 of the 5 panels they needed to when plaintiff's accident occurred. Doc. 75 at 72-73. They cut the fifth panel and then climbed onto the platform on the roof. Doc. 75 at 73. As they raised the panel to slide it into the runners, plaintiff suddenly dropped the panel. Doc. 75 at 73. Medalla did not know why plaintiff fell. Doc. 75 at 90.
On March 27, 2018, defendant moved to amend its answer (motion sequence 001) to add certain affirmative defenses, including, inter alia, that plaintiff's action was barred by Workers' Compensation Law ("WCL") § 11. Docs. 20-21. The motion was granted by order entered September 6, 2018. Doc. 57.
Plaintiffs initially filed the note of issue on July 19, 2018. Doc. 38. Defendant then sought to strike the same and, by so-ordered stipulated dated August 8, 2018, the parties agreed to vacate the note of issue. Docs. 55, 58-59, and 71.
On January 4, 2019, KFG Land filed the instant motion seeking summary judgment dismissing the complaint. Doc. 62. In support of the motion, KFG Land argues that the complaint must be dismissed against pursuant to WCL § 11 because plaintiff received workers' compensation benefits from his employer, KFG Operating, which is an alter ego of KFG Land. KFG Land also asserts that plaintiff's claims pursuant to Labor Law §§ 240 and 241(6) must be dismissed since he was not engaged in work protected by those statutes. Further, KFG Land maintains that the claim of common-law negligence/violation of Labor Law § 200 must be dismissed since plaintiff was unable to identify the cause of his accident.
In support of the motion, KFG Land submits an affidavit by Gross attesting to the fact that KFG Land and KFG Operating are alter egos because, among other things, they have no natural persons as members and because Hopkins ventures is the sole member of both entities. Doc. 77.
Plaintiff opposes the motion and cross-moves, pursuant to CPLR 3212, for summary judgment on his claim pursuant to Labor Law § 240. Doc. 87. In opposition to the motion, plaintiff argues that his claims are not barred by WCL § 11 because KFG Land and KFG Operating are not alter egos of one another. Doc. 86. Plaintiff further argues that his claim pursuant to Labor Law § 240 is not subject to dismissal because he was engaged in activity protected by that statute. Doc. 86. In support of this contention, plaintiff submits the affidavit of Stanley H. Fein, a Professional Engineer, who opines that plaintiff was not engaged in routine maintenance and that he should have been provided with "special tools and special equipment" for the job he was performing at the time of his injury. Doc. 86 at par. 7.
In support of the cross motion, plaintiff argues that he is entitled to summary judgment as a matter of law on his claim pursuant to Labor Law § 240 because he was working on an elevated catwalk with no safety devices. Doc. 88. He argues, inter alia, that he "is a maintenance worker" and "not an air conditioning repairman" and that "[his] job [was] to do the work inside of the nursing home as directed by his supervisor." Doc. 88 at par. 9. He emphasizes that outside contractors had been hired on all prior occasions on which soundproofing work had been performed on the air conditioner. Doc. 88 at par. 11.
In an affidavit in support of the cross motion, plaintiff states, inter alia, that he had never done soundproofing work on the air conditioner before the date of his accident. Doc. 89 at par. 12. Plaintiff further asserts that defendant's answer must be stricken since defendant has failed to provide responses to discovery demands relating to its defense that plaintiff's claims are barred by WCL § 11. Plaintiff also submit Fein's affidavit, which he had submitted in opposition to defendant's motion for summary judgment. Doc. 90.
Defendant argues that plaintiff's cross motion must be denied because plaintiff was engaged in routine maintenance and Fein's affidavit stating otherwise is conclusory. Doc. 95. Defendant also asserts that the branch of plaintiff's cross motion seeking discovery sanctions must be denied since it has provided plaintiff with the discovery demanded. Doc. 95.
In a reply affirmation, defendant's counsel argues that plaintiff's sole remedy is workers' compensation. Doc. 96. Alternatively, counsel maintains that plaintiff was not engaged in an activity protected by the Labor Law and that Fein's affidavit is conclusory. Doc. 96.
Plaintiff's counsel, in his reply affirmation, argues that KFG Land and KFG Operating were not alter ego entities. Doc. 98. He further maintains that the activity in which plaintiff was engaged was protected by Labor Law § 240 and was not routine maintenance. Doc. 98.
In a sur-reply affirmation, defendant argues that it is entitled to the protection of WCL § 11 since Hopkins, KFG Land and KFG Operating operated as a "single integrated entity." Doc. 103.
LEGAL CONCLUSIONS:
A. Defendant's Motion for Summary Judgment
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law on the undisputed facts. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) The movant must produce sufficient evidence to eliminate any issues of material fact. (Id.) If the moving party makes a prima facie showing of entitlement to judgment as a matter of law, the burden then shifts to the party opposing the motion to present evidentiary facts in admissible form which raise a genuine, triable issue of fact. (See Mazurek v Metro. Museum of Art, 27 AD3d 227, 228 [1st Dept 2006].)
1) Workers' Compensation Defense
An injured employee's sole remedy against his or her employer is recovery under the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29[6]; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 156). "The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) also extends to entities which are alter egos of the entity which employs the plaintiff" (Moses v B & E Lorge Family Trust, 147 AD3d 1045, 1046 [internal quotation marks omitted]; see Haines v Verazzano of Dutchess, LLC, 130 AD3d 871, 872; McDonald v Winter Bros. Transfer Sta. Corp., 120 AD3d 1315; Batts v IBEX Constr., LLC, 112 AD3d 765, 766; Quizhpe v Luvin Constr. Corp., 103 AD3d 618, 618-619). "A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer" (Haines v Verazzano of Dutchess, LLC, 130 AD3d at 872 [internal quotation marks omitted]; see Batts v IBEX Constr., LLC, 112 AD3d at 766; Quizhpe v Luvin Constr. Corp., 103 AD3d at 619). "A defendant may establish itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity" (Quizhpe v Luvin Constr. Corp., 103 AD3d at 619; see Batts v IBEX Constr., LLC, 112 AD3d at 766; Samuel v Fourth Ave. Assoc., LLC, 75 AD3d 594, 595). "[A] mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other" (Samuel v Fourth Ave. Assoc., LLC, 75 AD3d at 595; see Batts v IBEX Constr., LLC, 112 AD3d at 767; Longshore v Davis Sys. of Capital Dist., 304 AD2d 964, 965; Constantine v Premier Cab Corp., 295 AD2d 303, 304).Salinas v 64 Jefferson Apts., LLC, 170 AD3d 1216, 1218-1219 (2d Dept 2019).
Under the test above, KFG Land has failed to establish its prima facie entitlement to summary judgment dismissing the case pursuant to WCL § 11. Although it has shown that KFG Land and KFG Operating are related, it has not demonstrated that one of the entities controls the day-to-day operations of the other. Nor has it shown that KFG Land and KFG Operating operate as a single integrated entity. Despite being questioned at length regarding the relationship of these entities, Gross' deposition testimony did not establish the criteria set forth above but rather confused the issue to the extent that this Court could not conclusively determine that the entities were alter egos.
2) Routine Maintenance Defense
Defendant is, however, entitled to the dismissal of the Labor Law claims asserted against it, since he was involved in routine maintenance at the time his accident occurred. See Cullen v Uptown Storage Co., 268 AD2d 327 (1st Dept 2000) (replacement of ceiling tiles in a school building was routine maintenance and not part of renovation). Plaintiff clearly was not engaged in erection, demolition, repairing, altering, painting, cleaning or pointing at the time of the incident and thus Labor Law § 240(1) does not apply herein. Nor does Labor Law § 241(6) apply to plaintiff, since he was not engaged in construction, demolition or excavation. Further, Labor Law § 200 does not apply herein since it is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" Licata v AB Green Gansevoort, LLC, 158 AD3d 487, 489 (1st Dept 2018) (citation omitted).
Although plaintiff also alleges violations of Labor Law §§ 240 (2) and (3), 241(1-5), and 241-a, those statutes are clearly inapplicable to the facts of this case.
Fein's affidavit does not change this result. As defendant asserts, the affidavit is conclusory and thus lacks probative force. See Robinson v NAB Constr. Corp., 210 AD2d 86 (1st Dept 1994). For example, in addressing the work performed by plaintiff, Fein stated "[t]his is not routine maintenance, this is something that construction workers do." Doc. 86 at par. 5.
However, this Court declines to dismiss plaintiff's common-law negligence claim, since KFG Land failed to establish that it neither created, nor had actual or constructive notice of, the allegedly dangerous condition posed by the platform. See Rodriguez v Heritage Hills Society, Ltd., 141 AD3d 482 (1st Dept 2016). Although defendant argues that the negligence claim must be dismissed because plaintiff endangered himself by wearing clogs (Doc. 63 at par. 83), this contention is utterly conclusory.
B. Plaintiff's Cross Motion for Summary Judgment
As noted above, KFG Land established that plaintiff was engaged in routine maintenance at the time of his accident. Thus, that branch of plaintiff's cross motion seeking summary judgment on his claim pursuant to Labor Law § 240(1) is denied. In reaching this conclusion, this Court notes that, in support of the cross motion, plaintiff asserts, inter alia, that he "is a maintenance worker" and "not an air conditioning repairman" and that "[his] job [was] to do the work inside of the nursing home as directed by his supervisor." Doc. 88 at par. 9. This contention is clearly disingenuous since he was not repairing an air conditioner when he was injured and because he admitted that he had gone to the roof of the building, i.e., outside of the nursing home, on a routine basis to check the air conditioning unit.
2. Discovery Sanctions
That branch of plaintiff's cross motion seeking discovery sanctions must be denied as well. Although not raised by defendant, this Court notes that plaintiff failed to submit an affirmation of good faith in support of the motion as required by 22 NYCRR 202.7. See Vaca v Village View Hous. Corp., 145 AD3d 504 (1st Dept 2016). Additionally, although plaintiff annexes as an exhibit to the cross motion a compliance conference order dated October 16, 2018 (Doc. 92) which directs plaintiff to send defendant a discovery deficiency letter, and which directs defendant to respond to the deficiency letter, neither the letter nor any response thereto is annexed to the motion and there is thus no way for this Court to determine what discovery was demanded or what was provided.
Therefore, in light of the foregoing, it is hereby:
ORDERED that the branch of defendant's motion seeking dismissal of plaintiff's claims pursuant to Labor Law §§ 200(1), 240(1-3), 241(1-6), and 241-a is granted, those claims are severed and dismissed, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the branch of defendant's motion seeking dismissal of plaintiff's common-law negligence claim is denied, and the negligence cause of action shall continue; and it is further
ORDERED that plaintiff's cross motion is denied in its entirety; and it is further
ORDERED that counsel for defendant shall serve a copy of this order with notice of entry upon plaintiff's counsel, upon the County Clerk, and upon the Clerk of the general Clerk's Office within 20 days after entry of this order; and it is further
ORDERED that service upon the County Clerk 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)]; and it is further
ORDERED that the parties are to appear for a previously scheduled compliance conference on September 17, 2019 at 80 Centre Street, Room 280, at 2:15 p.m.; and it is further
ORDERED that this constitutes the decision and order of the court. 7/2/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.