Ortega v. 669 Meeker Ave., LLC

• Decision Date: 03 February 2021
• Docket Number: 2019–06529,Index No. 2114/14
• Citation: 140 N.Y.S.3d 271,191 A.D.3d 686
• Parties: Luis ORTEGA, et al., respondents-appellants, v. 669 MEEKER AVENUE, LLC, appellant-Respondent, et al., defendant.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 686
140 N.Y.S.3d 271

Luis ORTEGA, et al., respondents-appellants,
v.
669 MEEKER AVENUE, LLC, appellant-Respondent, et al., defendant.

2019–06529
Index No. 2114/14

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

Submitted—November 17, 2020
February 3, 2021

140 N.Y.S.3d 272

Litchfield Cavo LLP, New York, NY (Robert G. Macchia and Michael K. Dvorkin of counsel), for appellant-respondent.

Gorayeb & Associates, P.C., New York, NY (John M. Shaw of counsel), for respondents-appellants.

WILLIAM F. MASTRO, A.P.J., LEONARD B. AUSTIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

140 N.Y.S.3d 273

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant 669 Meeker Avenue, LLC, appeals, and the plaintiffs cross-appeal, from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated May 1, 2019. The order, insofar as appealed from, denied the motion of the defendant 669 Meeker Avenue, LLC, for summary judgment dismissing the amended complaint insofar as asserted against it. The order, insofar as cross-appealed from, denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On January 20, 2014, the plaintiff Luis Ortega (hereinafter the injured plaintiff) allegedly was injured when he fell from a ladder while working in a building owned by the defendant 669 Meeker Avenue, LLC (hereinafter 669 Meeker). The injured plaintiff alleged that at the time of the accident he was employed by nonparty JSB Re Holdings Corp. (hereinafter JSB). JSB was a real estate management company that managed the subject building, as well as other buildings. Nonparty Sylvester Smolarczyk (hereinafter Sylvester) was one of the members of 669 Meeker and the president and sole officer of JSB. Radek Smolarczyk (hereinafter Radek), who was Sylvester's cousin, was the superintendent of the subject building.

The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages against 669 Meeker, among others, alleging, inter alia, a violation of Labor Law § 240(1). After the completion of discovery, 669 Meeker moved for summary judgment dismissing the amended complaint insofar as asserted against it, contending that the plaintiffs’ claims against it were barred by the exclusivity provisions of the Workers’ Compensation Law. In support of its motion, 669 Meeker submitted, among other things, the transcript of the injured plaintiff's deposition, Sylvester's affidavit, and the transcript of Sylvester's deposition.

Simultaneously, the plaintiffs moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). In support of their motion, the plaintiffs submitted, among other things, the transcript of the injured plaintiff's deposition and the transcript of Sylvester's deposition. Thereafter, the injured plaintiff submitted an affidavit in opposition to 669 Meeker's motion and in further support of the plaintiffs’ motion.

The Supreme Court denied both motions. 669 Meeker appeals from so much of the order as denied its motion for summary judgment dismissing the amended complaint insofar as asserted against it. The plaintiffs cross-appeal from so much of the order as denied that branch of their motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

The Supreme Court properly denied 669 Meeker's motion for summary judgment dismissing the amended complaint insofar as asserted against it. " ‘[T]he receipt of workers’ compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment’ " ( Alfonso v. Pacific Classon Realty, LLC, 101 A.D.3d 768, 769, 956 N.Y.S.2d 111, quoting Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 150, 908 N.Y.S.2d 117 ; see Workers Compensation Law §§ 10, 11,

140 N.Y.S.3d 274

29[6] ). "A person may be deemed to have more than one employer for purposes of the Workers’ Compensation Law, a general employer and a special employer" ( Schramm v. Cold Spring Harbor Lab., 17 A.D.3d 661, 662, 793 N.Y.S.2d 530 ; see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 ).

"A special employee is ‘one who is transferred for a limited time of whatever duration to the service of another,’ and limited liability inures to the benefit of both the general and special employer" ( Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 359, 850 N.Y.S.2d 359, 880 N.E.2d 845, quoting Thompson v. Grumman...