Rainey v. Jefferson Village Condo No. 11 Associates

• Decision Date: 25 April 1994
• Citation: 611 N.Y.S.2d 207,203 A.D.2d 544
• Parties: Thomas E. RAINEY, et al., Appellants, v. JEFFERSON VILLAGE CONDO NO. 11 ASSOCIATES, Defendant, Third-Party Plaintiff, Second Third-Party Plaintiff-Respondent, Montrose Construction Corp., Third-Party Defendant, Fourth-Party Plaintiff-Respondent, Albert Marrello, et al., Second Third-Party Defendants, Fourth-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 207

611 N.Y.S.2d 207

203 A.D.2d 544

Thomas E. RAINEY, et al., Appellants, v. JEFFERSON VILLAGE CONDO NO. 11 ASSOCIATES, Defendant Third-Party Plaintiff, Second Third-Party Plaintiff-Respondent Montrose Construction Corp., Third-Party Defendant Fourth-Party Plaintiff-Respondent Albert Marrello, et al., Second Third-Party Defendants, Fourth-Party Defendants-Respondents.

Supreme Court, Appellate Division, Second Department.

April 25, 1994.

Hoberman & Sussman, P.C., Brooklyn (Spencer H. Herman and Norman S. Goldsmith, of counsel), for appellants.

Rende, Ryan & Downes, White Plains (Wayne M. Rubin, of counsel), for defendant, third-party plaintiff, second third-party plaintiff-respondent Jefferson Village Condo # 11 Associates.

Quirk & Bakalor, P.C., New York City (Alice J. Jaffe, of counsel), for third-party defendant, fourth-party plaintiff-respondent Montrose Const. Co. Donohue & Locker, White Plains (Harold Merran and Kingdon P. Locker, of counsel), for second third-party defendant, fourth-party defendant-respondent Albert Marrello.

Vincent P. Crisci, New York City (James G. Kelly, of counsel), for second third-party defendant, fourth-party defendant-respondent Dana Const., Inc.

Before MILLER, J.P., and LAWRENCE, ALTMAN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Coppola, J.), dated November 25, 1991, which, inter alia, denied their motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint, (2) a judgment of the same court, entered December 9, 1991, which, inter alia, dismissed the complaint, and (3) an order of the same court, dated June 23, 1992, which denied the plaintiffs' motion for leave to serve an amended complaint adding the second third-party and fourth-party defendants as direct party defendants.

ORDERED that the appeal from the order dated November 25, 1991, is dismissed; and it is further,

ORDERED that the judgment dated December 9, 1991, and the order dated June 23, 1992, are affirmed; and it is further,

ORDERED that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].

On the morning of November 20, 1987, the plaintiff Thomas E. Rainey was assisting in the construction of a condominium unit when he slipped and fell from the roof of the premises, sustaining injuries. On the date of the accident, the condominium was owned by the defendant, Jefferson Village Condo # 11 Associates, a limited partnership of which the injured plaintiff's employer, Montrose Construction, Inc. (hereinafter Montrose), was the sole general partner. After the accident, the injured plaintiff applied for and received worker's compensation benefits as an employee of Montrose. The plaintiffs subsequently commenced this action alleging violations of Labor Law §§ 200, 240, and 241(6), and thereafter moved for summary judgment, contending that they were entitled to judgment as a matter of law because the defendant had failed to furnish or install any protective devices to prevent a worker from falling from the roof of the condominium unit. The defendant cross-moved for summary judgment, alleging that the plaintiffs' action was barred by the Workers' Compensation Law because the injured plaintiff was employed by Montrose, the general partner of the defendant partnership. The Supreme Court granted the defendant's cross motion for summary judgment, dismissed the complaint, and discontinued the third and fourth-party actions as moot. We affirm.

As a general rule, Workers' Compensation Law §§ 11 and 29 bar a plaintiff from bringing an action against his employer in its capacity as a property owner (see, Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 432 N.Y.S.2d 879, 412 N.E.2d 934; Clark v. LeCroy Research Systems, Inc., 202 A.D.2d 620, 609 N.Y.S.2d 648; Jackson v. Tivoli Towers Hous. Co., 176 A.D.2d 918, 575 N.Y.S.2d 370). For purposes of Workers' Compensation Law §§ 11 and 29, a partnership and its partners are considered one entity when acting in furtherance of partnership business (see, Jackson v. Tivoli Towers Hous. Co., supra; Cipriano v. FYM Assoc., 117 A.D.2d 770, 499 N.Y.S.2d 101), and a plaintiff is barred from bringing an action against a partnership where the partnership is the plaintiff's employer (see, Cipriano v. FYM Assoc., supra; Claudio v. Lefrak, 100 A.D.2d 837, 473 N.Y.S.2d 833). Here, we find that Montrose, the general partner, was acting in furtherance of the partnership business in employing the plaintiff. Indeed, the express purpose of the limited partnership was to purchase and develop the premises where the accident occurred, and the partnership agreement provided that Montrose would manage the development of the property. The agreement also...