Derosas v. Rosmarins Land Holdings, LLC, 2015-02838, Index No. 285/13.

• Decision Date: 22 March 2017
• Docket Number: 2015-02838, Index No. 285/13.
• Citation: 50 N.Y.S.3d 124,148 A.D.3d 988
• Parties: Eduardo DEROSAS, appellant, v. ROSMARINS LAND HOLDINGS, LLC, formerly known as R.R.E., LLC, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 988

50 N.Y.S.3d 124

Eduardo DEROSAS, appellant,

v.ROSMARINS LAND HOLDINGS, LLC, formerly known as R.R.E., LLC, et al., respondents, et al., defendant.

2015-02838, Index No. 285/13.

Supreme Court, Appellate Division, Second Department, New York.

March 22, 2017.

Michael Fuller Sirignano, Cross River, NY, for appellant.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Jerri A. DeCamp of counsel), for respondents.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated October 14, 2014, which granted the motion of the defendants Rosmarins Land Holdings, LLC, formerly known as R.R.E., LLC, and Scott L. Rosmarin for summary judgment dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In 2005, the defendant Scott L. Rosmarin, the president of the defendant Camp Rosmarin, Inc. (hereinafter the camp), hired the plaintiff to serve as a maintenance worker at the camp. In 2012, the plaintiff was seriously injured while cutting and clearing a downed tree at the camp. The tree had fallen across a mound of old tennis court clay and construction debris that had been discarded in the camp's parking lot at Rosmarin's direction. The plaintiff was standing on the mound and cutting the trunk of the tree when another part of the tree broke and hit his head.

In January 2013, the plaintiff commenced this action to recover damages, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6) against, among others, Rosmarin and the camp. In May 2014, the plaintiff amended the complaint, adding the defendant Rosmarins Land Holdings, LLC, formerly known as R.R.E., LLC (hereinafter the LLC), which owned and leased the summer camp property to the camp, and removing other parties. The action also was later discontinued as against the camp.

In November 2013, the Workers' Compensation Board (hereinafter the Board) awarded the plaintiff compensation for the injuries he sustained as a result of the subject accident and directed that payment be made by the camp or its insurance carrier. The plaintiff testified at a deposition that he has since received the workers' compensation benefits. Rosmarin and the LLC (hereinafter together the respondents) subsequently moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion. The plaintiff appeals.

The Supreme Court properly granted that branch of the respondents' motion which was for summary judgment dismissing the amended complaint insofar as asserted against Rosmarin as barred by the exclusivity provision of the Workers' Compensation Law. In general, workers' compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment (see Workers' Compensation Law §§ 11, 29[6] ; Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 544, 429 N.Y.S.2d 622, 407 N.E.2d 466 ; De Los Santos v. Butkovich, 126 A.D.3d 845, 846, 6 N.Y.S.3d 261 ). " ‘[C]ontroversies regarding the applicability of the Workers' Compensation Law rest within the primary jurisdiction of the Workers' Compensation Board, including issues as to the existence of an employer-employee relationship’ " (Maropakis v. Stillwell Materials Corp., 38 A.D.3d 623, 623, 833 N.Y.S.2d 122, quoting Santiago v. Dedvukaj, 167 A.D.2d 529, 529, 562 N.Y.S.2d 200 ). "The determination of the Workers' Compensation Board is final and binding, and a plaintiff may not maintain an action against a defendant from whom he or she has accepted workers' compensation benefits by arguing that he or she was actually employed by a different entity" (Maropakis v. Stillwell Materials Corp.,

38 A.D.3d at 623, 833 N.Y.S.2d 122 ; see Decavallas v. Pappantoniou, 300 A.D.2d 617, 619, 752 N.Y.S.2d 712 ). If a worker believes that the Board's decision has been made in error, he or she may petition the Board for reconsideration of its determination (see Cunningham v. State of New York, 60 N.Y.2d 248, 253, 469 N.Y.S.2d 588, 457 N.E.2d 693 ).

Here, the respondents established, prima facie, that the causes of action asserted against Rosmarin were barred by the exclusivity provision of the Workers' Compensation Law. They presented the Board's decision as well as deposition testimony of the plaintiff and Rosmarin, which established that the Board awarded the plaintiff workers' compensation benefits for the injuries he sustained in the subject accident through his employment with the camp and that the plaintiff had received the benefits (see Maropakis v. Stillwell Materials Corp., 38 A.D.3d at 623, 833 N.Y.S.2d 122 ). In addition, the deposition testimony established that, at the time of the accident, Rosmarin was the president of the camp and the plaintiff's direct supervisor. Therefore, workers' compensation was the plaintiff's exclusive remedy regardless of Rosmarin's status as president of the camp, since Rosmarin and the plaintiff were coemployees (see Heritage v. Van Patten, 59 N.Y.2d 1017, 1019, 466 N.Y.S.2d 958, 453 N.E.2d 1247 ; Flood v. Berk, 301 A.D.2d 361, 362, 753 N.Y.S.2d 70 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).

The Supreme Court also properly granted that branch of the respondents' motion which was for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the LLC, as tree cutting and removal are not activities covered by those statutory provisions (see Moreira v. Ponzo, 131 A.D.3d 1025, 1026, 16 N.Y.S.3d 813 ; Enos v. Werlatone, Inc., 68 A.D.3d 713, 890 N.Y.S.2d 109 ), and the evidence established, as a matter of law, that the mound of old tennis court clay, sand, rocks, and other construction debris was not a "structure" under the Labor Law (see Caddy v. Interborough R.T. Co., 195 N.Y. 415, 420, 88 N.E. 747 ; see generally Kretzschmar v. New York State Urban Dev. Corp., 13 A.D.3d 270, 270–271, 785 N.Y.S.2d 923 ; cf. Kharie v. South Shore Record Mgt., Inc., 118 A.D.3d 955, 956, 988 N.Y.S.2d 654 ). Moreover, the respondents established, prima facie, that the tree cutting and removal was " ‘routine maintenance outside of a construction or renovation context’ " (Radoncic v. Independence Garden Owners Corp., 67 A.D.3d 981, 982, 890 N.Y.S.2d 555, quoting Morales v. Westchester Stone Co., Inc., 63 A.D.3d 805, 806, 881 N.Y.S.2d 456 ). In...