Paguay v. Cup of Tea, LLC

• Citation: 86 N.Y.S.3d 584,165 A.D.3d 964
• Decision Date: 17 October 2018
• Docket Number: Index No. 696/14,2016–10510
• Parties: Edisson PAGUAY, respondent-appellant, v. CUP OF TEA, LLC, respondent, Atweek, Inc., doing business as Yankels Demolition, appellant-Respondent (and a third-Party action).
• Court: New York Supreme Court Appellate Division

165 A.D.3d 964

86 N.Y.S.3d 584

Edisson PAGUAY, respondent-appellant,

v. CUP OF TEA, LLC, respondent,Atweek, Inc., doing business as Yankels Demolition, appellant-Respondent (and a third-Party action).

2016–10510

Index No. 696/14

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

Submitted - May 11, 2018

October 17, 2018

Law Office of Steven G. Fauth, LLC, New York, N.Y. (Scott S. Levinson of counsel), for appellant-respondent.

Pontisakos & Brandman, P.C., Garden City, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent-appellant.

Lawrence N. Rogak, LLC, Oceanside, N.Y. (Renee A. Breitner of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Atweek, Inc., doing business as Yankels Demolition, appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated August 22, 2016. The order, insofar as appealed from, denied the motion of the defendant Atweek, Inc., doing business as Yankels Demolition, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The order, insofar as cross-appealed from, denied the plaintiff's motion 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 reversed insofar as appealed from, on the law, and the motion of the defendant Atweek, Inc., doing business as Yankels Demolition, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further;

ORDERED that one bill of costs is awarded to the defendant Atweek, Inc., doing business as Yankels Demolition, payable by the plaintiff and the defendant Cup of Tea, LLC, and one bill of costs is awarded to the defendant Cup of Tea, LLC, payable by the plaintiff.

The plaintiff allegedly was injured when, while renovating the third floor of a three-story apartment building, he fell through the roof of the building to the floor below. The plaintiff commenced this action against the general contractor at the renovation site, the defendant Atweek, Inc., doing business as Yankels Demolition (hereinafter Atweek), as well as the owner of the apartment building, the defendant Cup of Tea, LLC (hereinafter Cup of Tea), asserting causes of action to recover damages for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). Cup of Tea asserted cross claims against Atweek for indemnification and contribution.

In January 2015, 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 Atweek or its insurance carrier. The plaintiff testified at a deposition that he has since received the workers' compensation benefits. Thereafter, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). Atweek moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it based on the exclusivity provisions of the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29[6] ). The Supreme Court, inter alia, denied the plaintiff's motion for summary judgment as well as Atweek's motion for summary judgment. Atweek appeals, and the plaintiff cross-appeals.

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] ; Weiner v. City of New York, 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 970 N.E.2d 427 ; Gonzales v. Armac Indus., 81 N.Y.2d 1, 8, 595 N.Y.S.2d 360, 611 N.E.2d 261 ; Derosas v. Rosmarins Land Holdings, LLC , 148 A.D.3d 988, 989, 50 N.Y.S.3d 124 ; 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 ... Board, including issues as to the existence of an employer-employee relationship" ( Santiago v. Dedvukaj, 167 A.D.2d 529, 529, 562 N.Y.S.2d 200 ; see Derosas v. Rosmarins Land Holdings, LLC, 148 A.D.3d at 989, 50 N.Y.S.3d 124 ; Maropakis v. Stillwell Materials Corp., 38 A.D.3d 623, 623, 833 N.Y.S.2d 122 ). "The determination of the ... 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 Derosas v. Rosmarins Land Holdings, LLC, 148 A.D.3d at 989, 50 N.Y.S.3d 124 ; Decavallas v. Pappantoniou, 300 A.D.2d 617, 619, 752 N.Y.S.2d 712 ).

Here, Atweek established, prima facie, that the causes of action and cross claims asserted against it were barred by the exclusivity provisions of the Workers' Compensation Law by submitting, inter alia, the Board's decision rendered in January 2015 and the plaintiff's deposition testimony (see Aprile–Sci v. St. Raymond of Penyafort R.C. Church, 151 A.D.3d 671, 673, 55 N.Y.S.3d 421 ; Derosas v. Rosmarins Land Holdings, LLC, 148 A.D.3d at 990, 50 N.Y.S.3d 124 ; Maropakis v. Stillwell Materials Corp., 38 A.D.3d at 623, 833 N.Y.S.2d 122 ; Decavallas v. Pappantoniou, 300 A.D.2d at 619, 752 N.Y.S.2d 712 ; Santiago v. Dedvukaj, 167 A.D.2d at 529, 562 N.Y.S.2d 200 ). Contrary to the contentions of the plaintiff and Cup of Tea, in the January 2015 decision, the Board determined that Atweek was the plaintiff's employer, and the Board did not indicate that it was directing Atweek or its insurance carrier to make payments to the plaintiff pursuant to Workers' Compensation Law § 25(1)(f), or that the issue of coverage remained open. Under the circumstances, the deposition testimony of Atweek's president, which was submitted in...