Ragusin v. Gabrielli

• Decision Date: 20 September 2018
• Docket Number: Index 600425/17
• Citation: 2018 NY Slip Op 34067 (U)
• Parties: JENNIFER A. RAGUSIN, Plaintiff, v. ROBERT GABRIELLI and BLANCA NAVARRO, Defendants. Motion Seq. Nos. 01, 02
• Court: New York Supreme Court

2018 NY Slip Op 34067(U)

JENNIFER A. RAGUSIN, Plaintiff,
v.
ROBERT GABRIELLI and BLANCA NAVARRO, Defendants.

Motion Seq. Nos. 01, 02

Index No. 600425/17

Supreme Court, New York County

September 20, 2018

Unpublished Opinion

Motion Dates: 05/09/18

Motion Dates: 06/22/18

Denise L. Sher Judge

The following papers have been read on these motions:

Papers Numbered
Notice of Motion (Seq. No. 01) Affirmation. Affidavit and Exhibits and Memorandum of Law	1
Notice of Cross-Motion (Seq. No. 02). Affirmation and Exhibit	2
Reply Affirmation in Support of Motion (Seq. No. 01) and in Opposition to Cross-Motion (Seq. No. 02) and Exhibit	3

Upon the foregoing papers, it is ordered that the motions are decided as follows:

Defendants move (Seq. No. 01), pursuant to CPLR § 3211(a)(1), (3), (7) and (8), for an order dismissing plaintiffs Verified Complaint based on lack of personal jurisdiction; and move, pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs Verified Complaint.

Plaintiff opposes the motion and cross-moves (Seq. No. 02), pursuant to CPLR § 306-b, for an order granting her an extension of time to serve the Summons and Verified Complaint upon defendants. Defendants oppose the cross-motion.

1

In support of the defendants' motion (Seq. No. 01), their counsel submits, in pertinent part, that, "[t]he instant motion should be granted, and the Complaint dismissed, because Plaintiffs claims are barred pursuant to Workers (sic) Compensation Law §29(6). In addition, Plaintiff never executed proper service on the Defendants pursuant to CPLR §308(2). As such, the Complaint must be dismissed in its entirety with prejudice. This matter arises from an alleged trip and fall in the parking area of a dental practice located at 200 Old Field Road. Centerport, New York 11721 and operated by 'Robert Gabrielli, DDS and Blanca Navarro, DDS, PC (hereinafter the 'PC'). Plaintiff was an employee of the PC and was in the course of her employment when the accident occurred.... The PC, which employed the Plaintiff, leased the subject premises from the Defendants ROBERT GABRIELLI and BLANCA NAVARRO (as individuals). The Defendants are also officers and 100% shareholders of the PC... As a matter of law, a worker who is injured during the course of her employment cannot maintain an action to recover damages for personal injuries against the owner of the property where the accident occurred when the owner is also an officer of the corporation that employed the worker, [citations omitted]. Notably, a Workers (sic) Compensation action was fully adjudicated and Plaintiff received a monetary award in the Workers (sic) Compensation Court.... Plaintiff' now brings an action against the Defendants seeking the proverbial 'second bite at the apple,' i.e., further compensation for the same accident. Lastly, Plaintiff never executed proper service on the Defendants. The Affidavit of Service by the Plaintiffs process server demonstrates that the Defendants were purportedly served by delivery to a person of suitable age and discretion, however, said delivery was not at the Defendants' 'current place of business, dwelling place or abode' as required by the CPLR." See Defendants' Memorandum of Law Exhibits A and D.

Counsel for defendants further asserts that, "[p]laintiff alleges that on January 28, 2014 at approximately 8:40 a.m., she slipped and fell on ice on (sic) premises located at 200 Old Field

2

Road, Centerport, New York, 11721.... The premises at 200 Old Field Road are (sic) owned by defendants ROBERT GABR1ELLI and BLANCA NAVARRO and leased to a professional corporation named, 'Robert Gabrielli, DDS and Blanca Navarro, DDS, PC (the 'PC').... It is undisputed that on January 28, 2014, Plaintiff was employed by the PC... Plaintiff alleges that on that date, she was caused to fall on ice on the premises and injure her right knee.... Following the accident, Plaintiff commenced a Workers (sic) Compensation action, where she alleged that she sustained an injury to her right knee in a work-related accident on January 28, 2014. The Workers (sic) Compensation Board concluded that Plaintiff indeed sustained a work-related injury on January 28, 2014 and directed the PCs workers compensation insurance carrier to pay a sum of $14, 286.53 to cover the disability over a period of January 28, 2014 to March 7, 2015 (57.6 weeks) at a rate of $248.03 per week.... Plaintiff then commenced the instant action in Nassau County Supreme Court by filing he (sic) Summons and Verified Complaint on January 17, 2017.... In the instant action, Plaintiff again alleges that she sustained injuries to her right knee while in the course of her employment on January 28, 2014.... The injury and date of accident are identical to those at issue in the Workers (sic) Compensation action.... Plaintiff purportedly served the Defendants the Summons and Verified Complaint by delivery to a person of suitable age and discretion at 66 Femwood Lane, Roslyn, New York 11576.... However, neither Defendant has ever worked or resided at that address.... Additionally, although the Affidavit of Service states that the papers were left with a 'relative', Defendant Gabrielli attests that the physical description contained in the Affidavit of Service matches neither of his relatives that live at that address. While Defendant Gabrielli's mother resides at that address, she does not fit the description of a woman of apparent age of 40 years old that is 5'4" tall and 120 lbs." See Defendants' Memorandum of Law Exhibits A, C and D.

3

Counsel for defendants argues that, "[i]t is well settled that pursuant to Workers (sic) Compensation (sic) §29(6), workers (sic) compensation is the exclusive remedy for work related injuries. More specifically, Workers (sic) Compensation (sic) §29(6) states, 'the right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee...' Further Workers (sic) Compensation (sic) § 11 states, 'The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee...' Here, Plaintiff has already recovered compensation for her injury via Workers (sic) Compensation. That claim is concluded and Plaintiff received a monetary award.... Plaintiff is now seeking additional recovery for the same injury against her employers. This attempt to circumvent the Workers (sic) Compensation exclusive remedy doctrine must be denied by this Court. We anticipate that in opposition, Plaintiff may attempt to argue that the Defendants in this matter are being sued as owners in their individual capacity and not in the capacity as the PC/employers. That argument is absolutely unavailing as a matter of law. It is well settled that a worker who is injured during the course of her employment cannot maintain an action to recover damages for personal injuries against the owner of the property where the accident occurred when the owner is also an officer of the corporation that employed the worker, [citations omitted]. Here, as noted above, the Defendants are indeed officers of and 100% shareholders of the corporation that employed the worker.... As such, Plaintiff simply cannot sue the Defendants.... To the extent that Plaintiff intends to argue that she can maintain this action notwithstanding the case law cited above, because the Defendants are being sued as owners of the premises, and not as the Plaintiffs employer, that argument has been expressly, categorically and unequivocally denounced by the Court of Appeals. Plaintiff simply cannot be heard to argue that the Defendants have a 'dual capacity' as employer and owner of the premises separately."

Counsel for defendants further contends that, "CPLR §3211(a)(1) provides statutory grounds for dismissal because documentary evidence provides a complete defense to Plaintiffs

4

claims, [citations omitted]. Here, the documentary evidence, i.e., the decisions (sic) of the Workers Compensation Board ... demonstrate (sic) that Plaintiffs accident was already deemed 'work related' by a tribunal. As such, her exclusive remedy is Workers (sic) Compensation and this action must be denied. Judicial records, like the Workers (sic) Compensation decisions, have been deemed 'documentary evidence for the purposes of CPLR § 3211(a)(1).... Moreover, this action is subject to dismissal pursuant to CPLR §3211(a)(3), because Plaintiff lacks capacity/standing to sue the Defendants in light of Workers (sic) Compensation being her sole remedy as a matter of law.... The matter is also subject to dismissal pursuant to CPLR §3211(a)(7) because Plaintiff has not pleaded a legally cognizable cause of action against the Defendants. For the reasons stated above, Plaintiff simply has no cause of action against the Defendants because, again, her exclusive remedy is Workers (sic) Compensation. Lastly, should this Court entertain the instant motion as one for summary judgment pursuant to CPLR § 3212, as opposed to a motion to dismiss pursuant to CPLR § 3211, the motion must still be dismissed because there can be no material issues of fact here. The facts are undisputed."

Defendant Robert Gabrielli ("Gabrielli") submits his own Affidavit in support of the motion. See Defendants' Gabrielli Affidavit in Support.

In opposition to the motion (Seq. No. 01) and in support of the cross-motion (Seq. No. 02), counsel for plaintiff submits, in pertinent part, that, "[i]n the interest of justice, Ragusin's time to serve the Defendants should be extended.... Here, it is undisputed that the Summons and Complaint was (sic) served within 120 days of the filing. But the service was found to be...