Walker v. GlaxoSmithKline, LLC

• Decision Date: 27 January 2022
• Docket Number: 531793
• Citation: 201 A.D.3d 1272,163 N.Y.S.3d 260
• Parties: William WALKER, Appellant, v. GLAXOSMITHKLINE, LLC, et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 1272
163 N.Y.S.3d 260

William WALKER, Appellant,
v.
GLAXOSMITHKLINE, LLC, et al., Respondents, et al., Defendants.

531793

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

Calendar Date: November 17, 2021
Decided and Entered: January 27, 2022

163 N.Y.S.3d 261

Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for appellant.

Hannigan Law Firm PLLC, Delmar (Timothy C. Hannigan of counsel), for respondents.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Aarons, J.

201 A.D.3d 1272

Appeal from an order and judgment of the Supreme Court (O'Connor, J.), entered July 20, 2020 in Albany County, which, among other things, denied plaintiff's motion to dismiss the ninth affirmative defense in the answer of defendants GlaxoSmithKline, LLC, GlaxoSmithKline, PLC, GSK USA and Stiefel Laboratories, Inc. to the fourth amended complaint.

In 2011, plaintiff was allegedly injured while working at a pharmaceutical plant owned and operated by defendants GlaxoSmithKline, LLC and Stiefel Laboratories, Inc. Plaintiff

201 A.D.3d 1273

filed a claim for workers’ compensation benefits, wherein he listed Manpower, Inc. as his employer. A C–2 form was filed by "GlaxoSmithKline [doing business as] GlaxoSmithKline" reporting plaintiff's injury and naming Old Republic Insurance Company in care of Broadspire (hereinafter Old Republic) as its workers’ compensation carrier. Manpower likewise filed a C–2 form and named New Hampshire Insurance Company as its workers’ compensation carrier. Old Republic controverted the claim on the basis that plaintiff was an employee of Manpower and advised the Workers’ Compensation Board that Sedgwick CMS, New Hampshire Insurance Company's claim servicer, had already paid benefits to plaintiff. Following a hearing in 2012, a Workers’ Compensation

163 N.Y.S.3d 262

Law Judge (hereinafter WCLJ) decided, among other things, that Old Republic be discharged and removed from notice of the proceeding.

Plaintiff thereafter commenced this action in 2014. In December 2015, a fourth amended complaint was filed. GlaxoSmithKline, LLC, Stiefel Laboratories, Inc., defendant GlaxoSmithKline, PLC, and defendant GSK USA (hereinafter collectively referred to as defendants) served an answer in July 2019 to the fourth amended complaint, raising, as relevant here, Workers’ Compensation Law §§ 11 and 29(6) as their ninth affirmative defense. Plaintiff rejected this answer as untimely. Plaintiff subsequently moved for partial summary judgment. Defendants cross-moved for, among other things, an order compelling plaintiff to accept their answer to the fourth amended complaint and, in a September 2019 order, Supreme Court, as relevant here, granted defendants’ cross motion to this extent. Plaintiff thereafter moved for dismissal of defendants’ Workers’ Compensation Law affirmative defense. Defendants moved for summary judgment dismissing the fourth amended complaint based upon this defense. In a July 2020 order and judgment, the court granted defendants’ motion and denied plaintiff's motion. Plaintiff appeals.

Plaintiff first argues that Supreme Court erred in compelling him to accept defendants’ answer to the fourth amended complaint.¹ A court may "compel the acceptance of a pleading untimely served[ ] upon such terms as may be just and upon a showing of a reasonable excuse for delay or default" ( CPLR 3012[d] ). Whether a reasonable excuse exists is a determination to be made based on various factors, including the extent

201 A.D.3d 1274

of the delay, the prejudice to the opposing party, whether there has been any willfulness and whether, as relevant here, the untimely answer sets forth a meritorious defense (see Dinstber v. Allstate Ins. Co., 75 A.D.3d 957, 958, 906 N.Y.S.2d 636 [2010] ; Watson v. Pollacchi, 32 A.D.3d 565, 565, 819 N.Y.S.2d 612 [2006] ). A court may also consider whether a defendant intended to abandon its affirmative defense (see Rickert v. Chestara, 56 A.D.3d 941, 942, 867 N.Y.S.2d 262 [2008] ).

The record reflects that defendants’ delay of approximately 3½ years before serving an answer to the fourth amended complaint was substantial. Supreme Court considered this delay but noted that there was no indication that the delay was willful. In this regard, defendants’ counsel, who was substituted in 2017 to represent defendants, had believed that prior counsel had served an answer in 2015 to plaintiff's third amended complaint with the Workers’ Compensation Law affirmative defense raised therein. Although an answer to the third amended complaint was not actually served, the parties still proceeded with discovery as though it had been, and plaintiff served the note of issue in February 2019 certifying that all pleadings had been served. Defendants’ counsel first learned in May 2019, when plaintiff moved for partial summary judgment, that an answer had not been interposed and then immediately investigated this error. Once an investigation confirmed the error, defendants served the answer at issue and asked the court for a conference to address the lack of a timely answer to the fourth amended complaint. As such,

163 N.Y.S.3d 263

the court did not err in finding that any delay was not willful.

Supreme Court also considered plaintiff's claim of prejudice – i.e., that he prepared for trial under the impression that defendants were not relying on the Workers’ Compensation Law affirmative defense. The court nonetheless adjourned the trial date, permitted discovery on this issue and allowed plaintiff to make an application for costs and expenses incurred in connection with his trial preparation. The record likewise supports the court's finding that defendants did not intend to abandon the Workers’ Compensation Law affirmative defense. Based on the foregoing² and taking into account the strong public policy of adjudicating disputes on the merits (see Dawson v. Suburban Sales & Serv., Inc., 267 A.D.2d 733, 734, 700 N.Y.S.2d 263 [1999] ), the court providently exercised its discretion in granting that part of defendants’ cross motion compelling plaintiff to accept defendants’ answer to the fourth amended complaint (see Puchner v. Nastke, 91 A.D.3d 1261, 1262–1263, 936 N.Y.S.2d 792 [2012] ;

201 A.D.3d 1275

Dinstber v. Allstate Ins. Co., 75 A.D.3d at 958–959, 906 N.Y.S.2d 636 ; Rickert v. Chestara, 56 A.D.3d at 942–943, 867 N.Y.S.2d 262 ; Watson v. Pollacchi, 32 A.D.3d at 565–566, 819 N.Y.S.2d 612 ).

Turning to plaintiff's motion to dismiss defendants’ Workers’ Compensation Law affirmative defense, plaintiff argues that defendants should be barred from relying on it based upon judicial estoppel.³ This is an equitable doctrine, also known as estoppel against inconsistent positions, and provides that "where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, ... [it] may not thereafter, simply because [its] interests have changed, assume a contrary position" ( Shapiro v. Butler, 273 A.D.2d 657, 659, 709 N.Y.S.2d 687 [2000] [internal quotation marks and citations omitted]; see 12 New St., LLC v. National Wine & Spirits, Inc., 196 A.D.3d 883, 884, 151 N.Y.S.3d 515 [2021] ; Maas v. Cornell Univ., 253 A.D.2d 1, 5, 683 N.Y.S.2d 634 [1999], affd 94 N.Y.2d 87, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999] ; Shepardson v. Town of Schodack, 195 A.D.2d 630, 632, 599 N.Y.S.2d 700 [1993], affd 83 N.Y.2d 894, 613 N.Y.S.2d 850, 636 N.E.2d 1383 [1994] ).

Defendants, in the course of plaintiff's Workers’ Compensation Law proceeding, took the position in a C–7 form controverting plaintiff's claim that plaintiff "was a temporary employee through Manpower." The C–7 form also provided that Old Republic reserved the right to develop the issue of employer-employee relationship. In a prehearing conference statement form, defendants asserted that plaintiff "was an employee of Manpower," that the claim should be the responsibility of Sedgwick, Manpower's workers’ compensation carrier, that "there [was] no employer/employee relationship between [plaintiff] and [them]" and, "[a]s such, [Old Republic was] not the proper carrier." The prehearing conference statement form also noted that Sedgwick was the proper carrier responsible for payment because it was the carrier for plaintiff's employer. In a subsequent letter to the Workers’ Compensation

163 N.Y.S.3d 264

Board, counsel for Old Republic reiterated that plaintiff was an employee of Manpower and not an employee of defendants and that Sedgwick, as the proper carrier, already paid benefits to plaintiff.

In view of the foregoing, the record makes clear that defendants, through Old Republic, consistently advanced in the Workers’ Compensation Law proceeding the theory that plaintiff was not its employee. Old Republic, as the workers’ compensation carrier for defendants, was subsequently discharged from

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