Carvajal v. M. MADISON LLC

• Decision Date: 19 September 2002
• Citation: 747 N.Y.S.2d 93,297 A.D.2d 550
• Court: New York Supreme Court — Appellate Division
• Parties: AMPARO CARVAJAL, Appellant,<BR>v.<BR>M. MADISON LLC, et al., Respondents.

297 A.D.2d 550

747 N.Y.S.2d 93

AMPARO CARVAJAL, Appellant,

v.M. MADISON LLC, et al., Respondents.

Decided September 19, 2002.

Concur — Saxe, J.P., Sullivan, Lerner, Rubin and Friedman, JJ.

In April 1997, plaintiff sustained personal injuries as a result of a trip and fall in an internal stairway at premises owned by defendant M. Madison LLC (Madison) in the course of her employment as part of the building's maintenance staff. Plaintiff subsequently commenced a personal injury action against defendants Madison and Joseph Moinian (Moinian), a principal of Madison. Defendants interposed an answer which included the exclusivity provision of the Workers' Compensation Law as an affirmative defense. In particular, defendants asserted, inter alia, that plaintiff was an employee of its managing agent, Newmark & Company Real Estate, Inc. (Newmark).

In a related proceeding before the Workers' Compensation Board wherein the defendants were not parties, plaintiff was deemed to be an employee of Newmark by the Board and was awarded workers' compensation benefits from Newmark's insurer from April 1997 through November 1999 in the amount of $49,476.

Approximately 16 months after all pretrial discovery was deemed completed and the note of issue was filed, defendants moved to amend their affirmative defense to reflect Madison as plaintiff's actual employer at the time of the incident and to dismiss the complaint against the defendants. Defendants contend that this error was realized during pretrial discovery and submitted copies of plaintiff's W-2 tax forms for 1996 and 1997, certain payroll checks from 1997 and a Service agreement between Newmark and Pritchard Industries, who supervised the cleaning staff, all of which identify plaintiff's employer as Madison. Plaintiff opposed the motion, contending, inter alia, that she would be prejudiced by this belated amendment since any claim against Newmark would be barred by the applicable three-year statute of limitations. In addition, plaintiff submitted certain payroll records indicating that New-mark was plaintiff's employer.

By order dated January 29, 2001, the IAS court granted defendants' motion to amend their answer to modify their affirmative defense to reflect that Madison was in fact plaintiff's actual employer and, based upon such a defense, granted summary judgment to defendants and dismissed the complaint against them. A resulting judgment was entered in favor of the defendants on June 14, 2001 and plaintiff...