Opinion
Index No. 510498/2016
05-23-2024
ELAINE JORDAN. Plaintiff, v. QUEENS BOULEVARD EXTENDED CARE FACILITY CORP., AKA QUEENS BOULEVARD EXTENDED CARE FACILITY MANAGEMENT, LLC, Defendant.
Unpublished Opinion
PRESENT: HON. WAVNY TOUSSAINT Justice
DECISION AND ORDER
Wavny Toussaint, Judge
The following papers numbered 1 to read herein Papers Numbered
Notice of Motion/Order to Show Cause/and Affidavits (Affirmations) Annexed 190-210
Cross Motion and Affidavits (Affirmation) Annexed Answers/Opposing Affidavits (Affirmations) 214-218
Reply Affidavits (Affirmation) Affidavit (Affirmation) 220
Other Papers
Upon the foregoing papers. Queens Boulevard Extended Care Facility Corp, a/k/a Queens Boulevard Extended Care Facility Mgmt. LLC (defendant) moves (Seq. 11) for an order: (1) pursuant to CPLR §2221, for leave to renew its prior motion (Seq. 10), and upon such renewal, granting it summary judgment dismissing plaintiffs complaint in its entirety on the grounds that the plaintiff was its "special employee" and, based on the exclusive remedy under the Workers' Compensation Law, is barred from recovering against it for 3 any alleged injuries and. (2) pursuant CPLR §3025[b], permitting it to amend its answer to assert that plaintiff is barred from recovery as a "special Employee" Plaintiff opposes.
Background
This is a personal injury action arising from plaintiff's fall on 10/16/14 at the premises located at 61-11 Queens Blvd., Woodside (Queens). NY, owned by defendant and operated as a nursing facility. It is alleged that plaintiff, a certified nurse's assistant (CNA), was referred to defendant by staffing agency, non-party The Bachrach Group, LTD (Bachrach), pursuant to a consulting agreement and ultimately hired by defendant as a temporary CNA. On the date of the accident, plaintiff alleges she was walking from the ambulette arrival area back into the facility when she slipped and fell on tile near the entrance, causing her to sustain serious personal injuries. Plaintiff alleges it was raining that morning.
A third-party action commenced by defendant against Bachrach was discontinued by stipulation filed on 1/23/19 (NYSCEF Doc No. 43).
Discussion
Application for Leave to Renew
Defendant has moved to renew is prior summary judgment motion (Seq, 10). The Court had denied Motion Seq. h 0, without prejudice (NYSCEF Doc. No. 188), and permitted defendant to renew the motion on proper papers, as incomplete Workers' Compensation records had been submitted (see NYSCEF Doc. No. 171). Defendant now submits supplemental Workers!' Compensation records. Plaintiff's opposition to the renewal application is not persuasive. Accordingly, defendant's motion to renew is granted (Fulcher v Empire State Grand Council Ancient A Accepted Scottish Rite Masons, Inc., 222 A.D.3d 721, 723 [2d Dep't 2003], Esa v. New York Property Ins. Underwriting Ass'n, 89 A.D.2d 865, 866 [2d Dep't. 1982]).
Application for Dismissal
Defendant argues the plaintiff was its "special employee", having been hired pursuant to a consulting agreement with Bachrach. the] staffing agency which allegedly placed plaintiff with defendant. Defendant alleges plaintiff received Workers' Compensation benefits through it as plaintiff s direct employer and thus, is barred under Workers' Compensation Law! §11 from pursuing this action. Defendant relies on the supplemental Workers' Compensation records, which defendant argues establishes that it was plaintiffs direct employer based on plaintiffs "special employee" status, as derived from Bachrach. Plaintiff contends she was not a "special employee" of defendant, and instead was an employee of Bachrach. the consulting company which placed her with defendant.
However, the proof submitted fails to establish defendant was plaintiffs direct employer or that Bachrach is the entity from which plaintiff s "special employee" status purportedly was derived. The Workers' Compensation records, comprised of, among other things, the Workers' Compensation Board Settlement Agreement (NYSCEF Doc. No. 194) and the Notice of Approval (NYSEF Doc. No, 195), both reference plaintiffs employer as Strategic Outsourcing Inc., not defendant or Bachrach. Based on this proof, defendant has not sustained its burden on summary judgment (Velazquez-Guadalupe v Idea Bldrs. & Constr. Sercs., Inc., 216 A.D.3d 63, 71 [2d Dep't 2023]; Alyarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). A triable issue of fact is raised regarding whether defendant was plaintiff's direct employer and whether plaintiff status as a "special employee" was indeed derived from Bachrach as opposed to Strategic Outsourcing Inc. Accordingly, that part of Motion Seq. 11, seeking to dismiss plaintiffs complaint! on the grounds that the plaintiff was a "special employee" of defendant, plaintiffs alleged direct employer, is denied.
Application for Leave to Amend
Defendant asserts that based on its status as plaintiff s direct employer, it is entitled to amend its answer pursuant to CPLR §3025 [b] to include the affirmative defense that the plaintiff s lawsuit is barred by die Workers' Compensation Law. Defendant further argues plaintiff cannot allege surprise at the proposed amendment given plaintiffs established Work relationship with defendant.
Plaintiff contends leave to amend should be denied, as defendant has not presented proof that Bachrach relinquished complete control of her employment to defendant, thereby making defendant her direct employer. Plaintiff further contends she would be prejudiced by the amendment in that if she is ultimately precluded from pursuing this action, she would be unable to recapture any lost wages or medical costs as a form of compensation, In reply, defendant argues plaintiff has flatly contradicted herself with respect to whether she was supervised by Ms. Ward, her direct supervisor at defendant's facility where she regularly worked based on her supporting affidavit (NYSCEF Doc No. 218 at par. 3) seeking to recast her prior deposition testimony to the contrary (see NYSCEF Doc. No. 202 at ps.44-45).
While the Court has ruled there are issues of fact surrounding the parties' contentions to the foregoing, if is well settled that leave to amend a pleading rests within the court's discretion and should be freely granted provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (CPLR 3025 [b]: Melendez v Bernstein, 29 A.D.3d 872, 872 [2d Dep't 2006]; Krakovski v Stavros Assocs., LLC, 173 A.D.3d 1146, 1147 [2nd Dep't 2019]; Gallagher v 109-02 Development, LLC, 137 A.D.3d 1073, 1073 [2nd Dep't 2016]). "Mere lateness is not a basis for denying the amendment'' (Krakovski, 173 A.D.3d at 1147), A court shall not examine the legal sufficiency or merits of a pleading unless the insufficiency or lack of merit is clear and free from doubt (Krakovski, 173 A.D.3d at 1148). "No evidentiary showing of merit Is required under CPLR 3025(b)" (id.). The burden of establishing prejudice of surprise precluding the amendment of the pleading is on the party opposing the amendment (id.).
Plaintiff has not sufficiently alleged prejudice or surprise, given the well-developed factual record in this matter. Further, the proposed affirmative defense is not palpably insufficient or patently devoid of merit, since it merely adds a new defense and does not allege any new or different facts (Gallagher, 137 A.D.3d at 1073). Accordingly, that part of defendant's motion for leave to amend the complaint is granted (Deutsche Bank Natl. Trust Co. v Grader, 218 A.D.3d 542, 544-545 [2d Dep't 2023]; Lennon v 56th & Park (NY) Owner, LLC, 199 A.D.3d 64, 70-71 [2d Dep't 2021]).
Conclusion
All arguments raised on the motion and evidence submitted by the parties in connection thereto have been considered by this Court, regardless of whether they are specifically discussed herein.
Accordingly, it is hereby
ORDERED, that defendant's application to renew its prior motion for summary judgment (Seq. 10) is granted and. upon renewal, that part of motion Seq. 11 seeking dismissal of the complaint is denied; and it is further
ORDERED, that defendant's application for leave to file an amended answer is granted; and it is further
ORDERED, that defendant must serve the Proposed Amended Answer (NYSCEF Doc. No. 205) and the instant decision and order on plaintiff, with notice of entry, within twenty days of the e-filing of this decision and order. Plaintiff has thirty (30) days from the date of service of the amended answer to interpose a response.
This constitutes the decision and order of the Court.