Pacheco v. RCPI Landmark Props.

• Decision Date: 22 November 2022
• Docket Number: Index No. 157657/2019,MOTION SEQ. No. 001
• Citation: 2022 NY Slip Op 33962 (U)
• Parties: ANDRE PACHECO, Plaintiff, v. RCPI LANDMARK PROPERTIES, LLC, TISHMAN SPEYER PROPERTIES, L.P., and JULIUS ROEHRS COMPANY, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 33962(U)

ANDRE PACHECO, Plaintiff,
v.
RCPI LANDMARK PROPERTIES, LLC, TISHMAN SPEYER PROPERTIES, L.P., and JULIUS ROEHRS COMPANY, Defendants.

Index No. 157657/2019, MOTION SEQ. No. 001

Supreme Court, New York County

November 22, 2022

Unpublished Opinion

PRESENT: HON. JOHN J. KELLEY Justice.

DECISION + ORDER ON MOTION

JOHN J. KELLEY JUDGE.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for AMEND CAPTION/PLEADINGS/DISMISS

In this action to recover damages for personal injuries, arising from a slip and fall accident, the defendants RCPI Landmark Properties, LLC (Landmark), and Tishman Speyer Properties, L.P. (Tishman) (together the Landmark defendants), move (a) pursuant to CPLR 3025(b) for leave to amend their answer so as to assert, as an affirmative defense, that the action is barred insofar as asserted against them by virtue of the exclusivity provisions of Workers' Compensation Law §§11 and 29(6), and thereupon (b) pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them on that ground. Their co-defendant, Julius Roehrs Company (JRC), opposes the motion. The plaintiff also opposes the motion, and cross-moves to compel the Landmark defendants to preserve all items of discovery that have been ascertained and exchanged, and for the imposition of sanctions upon them in the amount of $10,000.00. The Landmark defendants' motion is granted to the extent that they are granted leave amend their answer to assert the affirmative defense of Workers' Compensation Law exclusivity on behalf of Tishman only and, upon amendment, summary judgment is awarded to Tishman dismissing the complaint and

1

cross-claims insofar as asserted against it. The motion is otherwise denied. The plaintiffs cross motion is denied.

The plaintiff commenced this action on August 6, 2019. On September 5, 2019, the Landmark defendants served and filed their answer. On January 6, 2020, JRC served and filed its answer. The parties appeared for a preliminary conference on February 4, 2020, and thereafter conducted discovery until the plaintiff filed the note of issue on February 10, 2022. On March 2, 2022, the Landmark defendants filed the instant motion. On May 24, 2022, the cross motion and opposition were filed by the plaintiff and JRC, respectively.

In his complaint, the plaintiff alleged that, on December 18, 2018, the Landmark defendants owned, operated, maintained, and controlled the premises located at 30 Rockefeller Plaza, New York, New York (the premises). The plaintiff also alleged that, prior to and including that date, JRC had been retained by the Landmark defendants and given permission to deliver plants and flowers to the premises. The plaintiff alleged that, since 2001, he was employed by Tishman as a private patrol officer for the premises. He further alleged that, on December 18, 2018, JRC delivered plants and/or flowers to the sub-basement of the premises, that, in the course of the delivery, water spilled from the plants and/or flowers onto the floor, and that he later slipped and fell on that water. The plaintiff asserted that the Landmark defendants had actual and constructive notice of the spill, but failed to remedy it. Finally, the plaintiff alleged that the Landmark defendants failed to display any warning signs referable the dangerous condition, and to place barricades around the spill.

In support of their motion, the Landmark defendants submitted the pleadings and the affidavit of Michael B. Benner, who served as vice president and secretary for Landmark, Tishman, and a related company known as RCPI Holdco, LLC (Holdco). They also submitted Landmark's Limited Liability and Management and Leasing agreements and Tishman's general insurance and workers' compensation policies, as well as the plaintiff's employment forms and paystubs, an incident report, the plaintiff's Workers' Compensation Board records, the

2

deposition transcripts of the plaintiff and Tishman's security manager, John Tuohy, the note of issue, and a proposed amended answer. The Landmark defendants contended that Tishman was the plaintiff's special employer, and that the exclusivity provisions of the Workers' Compensation Law thus barred his action against Tishman. They further argued that, while Holdco was the plaintiff's general employer, Landmark was the alter ego of both Tishman and Holdco, and, thus, the Workers' Compensation Law barred the plaintiff's claims against Landmark as well. In opposition, the plaintiff submitted the New York State Department of State corporate filings for Landmark, Tishman, and Holdco, his employee identification cards, his own affidavit, and a 2012 affidavit from Benner in another person's prior action against Landmark and Tishman. In its opposition, JRC submitted a copy of the plaintiff's affidavit of service of the summons and complaint referable to service upon Tishman and Landmark, the request for judicial intervention, and a copy of this court's January 26, 2022 status conference order.

Leave to amend a pleading is to be freely given absent prejudice or surprise resulting from the amendment, provided that the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]; McCaskey, Davies and Assocs., Inc v. New York City Health & Hospitals Corp., 59 N.Y.2d 755, 757 [1983]; 360 West 11th LLC v. ACG Credit Co. II, LLC, 90 A.D.3d 552, 553 [1st Dept 2011]; Smith-Hoy v. AMC Prop. Evaluations, Inc., 52 A.D.3d 809, 811 [1st Dept 2008]). The court must examine the sufficiency of the proposed amendment only to determine whether the proposed amended pleading is "palpably insufficient or clearly devoid of merit" (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500 [1st Dept 2010]; see Hill v. 2016 Realty Assoc, 42 A.D.3d 432, 433 [2d Dept 2007]).

Here, the court concludes that no prejudice or surprise would arise from permitting the Landmark defendants to amend their answer so as to assert the Workers' Compensation Law exclusivity bar on behalf of Tishman. Both the plaintiff and JRC were aware that the plaintiff received workers' compensation benefits (see Caceras v. Zorbas, 74 N.Y.2d 884, 885 [1989]

3

[plaintiff failed to make a showing of surprise or prejudice, and could not even claim such surprise since he was aware of his own employment status and received workers' compensation benefits]). "While the exclusivity of workers' compensation as a remedy may be waived, such waiver is accomplished only by a defendant ignoring the issue to the point of final disposition itself" (Burgos v. City of NY, 98 A.D.2d 788, 788 [2d Dept 1983] [internal quotation marks omitted]), a situation that is not present here. Moreover, the evidence submitted in conjunction with the Landmark defendants' motion demonstrated the potential merit of the amendment with respect to Tishman, as discussed below.

Additionally, while the Landmark defendants sought leave to amend the answer after the note of issue was filed, that fact is not dispositive (see Chen v. 111 Mott LLC, 200 A.D.3d 594, 595 [1st Dept 2021]; Torres v. New York City Jr. Auth., 78 A.D.3d 419 [1st Dept 2010]; Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 210-211 [1st Dept 1997]). Thus, the Landmark defendants are granted leave to amend their answer so as to assert the Workers' Compensation bar on behalf of Tishman.

As discussed below, however, there is no merit to the Landmark defendants' contention that Landmark also is immunized from suit by the Workers' Compensation Law. Hence, their answer may not be amended to permit Landmark to assert the affirmative defense of Workers' Compensation Law exclusivity.

The court now turns to the Landmark defendants' request to award them summary judgment. It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law,...