Opinion
2020–01768 Index No. 5279/15
06-01-2022
Ron EVERETT, respondent, v. CMI SERVICES CORP., defendant third-party plaintiff, Omni New York, LLC, et al., defendants third-party defendants-appellants; Plaza Residences, LLP, third-party defendant-appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York, NY (William C. Lawlor of counsel), for defendants third-party defendants-appellants and third-party defendant-appellant. Liakas Law, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul H. Seidenstock ], of counsel), for respondent.
Hannum Feretic Prendergast & Merlino, LLC, New York, NY (William C. Lawlor of counsel), for defendants third-party defendants-appellants and third-party defendant-appellant.
Liakas Law, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul H. Seidenstock ], of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, LARA J. GENOVESI, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants third-party defendants and the third-party defendant Plaza Residences, LLP, appeal from an order of the Supreme Court, Kings County (Lisa Ottley, J.), dated November 28, 2019. The order, insofar as appealed from, denied that branch of their motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendants third-party defendants.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff was injured when he slipped and fell at his place of employment, a complex of buildings allegedly owned and managed by the defendants third-party defendants, Omni New York, LLC, Plaza Housing Development Fund Company, Inc., and Reliant Realty Services, Inc. (hereinafter collectively the Omni defendants), and the third-party defendant Plaza Residences, LLP (hereinafter Plaza, and collectively with the Omni defendants, the appellants), the plaintiff's employer. The plaintiff was employed as a porter at the complex of buildings. The accident occurred in an employee break room located in a different building from where the plaintiff performed his work duties. Prior to the plaintiff's accident, a pipe had backed up, causing water and feces to accumulate on the floor of the break room. According to the plaintiff, he entered the break room at the end of the day to clock out. After he changed out of his work clothes, he slipped and fell due to the feces on the floor of the break room. The Omni defendants moved jointly with Plaza, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against the Omni defendants. By order dated November 28, 2019, the Supreme Court, among other things, denied that branch of the appellants’ motion. This appeal ensued.
The appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that the condition which led to the plaintiff's fall was an inherent job hazard. "A plaintiff cannot recover against a defendant for common-law negligence if he or she was injured by the dangerous condition which he or she had been hired to remedy" ( Torres v. Board of Educ. of the City of N.Y., 175 A.D.3d 1584, 1586, 109 N.Y.S.3d 346, citing Kowalsky v. Conreco Co., 264 N.Y. 125, 128, 190 N.E. 206 ; see Reaves v. Novartis Pharms. Corp., 167 A.D.3d 669, 671, 88 N.Y.S.3d 231 ; Arcabascio v. Bentivegna, 142 A.D.3d 1120, 1121, 38 N.Y.S.3d 72 ; Bedneau v. New York Hosp. Med. Ctr. of Queens, 43 A.D.3d 845, 845–846, 841 N.Y.S.2d 689 ).
Here, while the evidence submitted by the appellants established that porters are generally responsible for mopping, including the flood water that occasionally accumulated in the basement of the premises from backed-up pipes, at the time of the accident, the plaintiff was not engaged in cleaning duties. The evidence established that the plaintiff was in the employee break room, located in a different building from the building in which he performed his work duties. After changing his clothes at the end of his work shift, the plaintiff slipped and fell. Accordingly, as the plaintiff was not engaged in cleaning activity in the building where the accident occurred at the time that it occurred, his duty had not yet arisen, and the Supreme Court properly determined that the appellants were not entitled to summary judgment dismissing the amended complaint insofar as asserted against the Omni defendants on this ground (see Torres v. Board of Educ. of the City of N.Y., 175 A.D.3d at 1586, 109 N.Y.S.3d 346 ).
The appellants’ contention that the Supreme Court erred in denying summary judgment because they had no duty to warn the plaintiff of the open and obvious condition of the accumulated water on the break room floor or that they sufficiently warned him of that condition is without merit. The principle that there is no duty to warn of an open and obvious condition does not absolve a landowner of the duty to maintain the property in a reasonably safe condition (see Valentin v. New Docs, LLC, 186 A.D.3d 1570, 131 N.Y.S.3d 68 ; Fornuto v. County of Nassau, 149 A.D.3d 910, 911, 52 N.Y.S.3d 435 ; Mooney v. Petro Inc., 51 A.D.3d 746, 747, 858 N.Y.S.2d 689 ). " ‘[P]roof that a dangerous condition is open and obvious does not preclude a finding of liability,’ but instead speaks to " ‘the issue of the plaintiff's comparative negligence’ " ( Karpel v. National Grid Generation, LLC, 174 A.D.3d 695, 696, 106 N.Y.S.3d 99, quoting Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40 ). " ‘Thus, to obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous’ " ( Karpel v. National Grid Generation, LLC, 174 A.D.3d at 696–697, 106 N.Y.S.3d 99, quoting Crosby v. Southport, LLC, 169 A.D.3d 637, 640, 94 N.Y.S.3d 109 ; see MacDonald v. City of Schenectady, 308 A.D.2d 125, 128–129, 761 N.Y.S.2d 752 ). Here, the appellants failed to demonstrate, prima facie, that the alleged condition was both open and obvious and not inherently dangerous as a matter of law. Although the plaintiff was aware of the flooding, he testified that the condition alleged to have caused his accident was not the accumulated water, but the feces located below the water line.
Contrary to the appellants’ contention, the Supreme Court properly determined that they failed to establish, prima facie, that the Omni defendants were entitled to the protections of Workers’ Compensation Law § 11. "The protection against lawsuits brought by injured workers which is afforded to employers by Workers’ Compensation Law §§ 11 and 29(6) also extends to entities which are alter egos of the entity which employs the plaintiff" ( Salinas v. 64 Jefferson Apts., LLC, 170 A.D.3d 1216, 1218, 97 N.Y.S.3d 136 [internal quotation marks omitted]; see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 358–359, 850 N.Y.S.2d 359, 880 N.E.2d 845 ; Zhang v. ABC Corp., 194 A.D.3d 990, 149 N.Y.S.3d 156 ; Gerardi v. I.J. Litwak Realty Ltd. Partnership, 177 A.D.3d 679, 680, 113 N.Y.S.3d 254 ; Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d 871, 872, 12 N.Y.S.3d 906 ).
"A defendant moving for summary judgment under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer" ( Zhang v. ABC Corp., 194 A.D.3d at 993, 149 N.Y.S.3d 156 ; see Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d at 872, 12 N.Y.S.3d 906 ). "A defendant may establish itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity" ( Quizhpe v. Luvin Constr. Corp., 103 A.D.3d 618, 619, 960 N.Y.S.2d 130 ; see Zhang v. ABC Corp., 194 A.D.3d 990, 149 N.Y.S.3d 156 ; Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d at 872, 12 N.Y.S.3d 906 ). "[A] mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other" ( Batts v. Ibex Constr., LLC, 112 A.D.3d 765, 767, 977 N.Y.S.2d 282 ; see Zhang v. ABC Corp., 194 A.D.3d 990, 149 N.Y.S.3d 156 ). Here, the appellants’ submissions merely demonstrated that the Omni defendants were related to the plaintiff's employer, Plaza. Accordingly, they failed to demonstrate, prima facie, that those entities were alter egos of Plaza.
Contrary to the appellants’ contention, they further failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against Reliant Realty Services, Inc. (hereinafter Reliant), on the ground that it was the plaintiff's special employer. "The receipt of workers’ compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer" ( Hofweber v. Soros, 57 A.D.3d 848, 849, 870 N.Y.S.2d 98 ; see Berry v. Viad Corp., 199 A.D.3d 632, 155 N.Y.S.3d 437 ). A "special employee" is "one who is transferred for a limited time of whatever duration to the service of another" ( Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 ). "In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee's work, the method of payment, the furnishing of equipment, and the right to discharge" ( Wilson v. A.H. Harris & Sons, Inc., 131 A.D.3d 1050, 1051, 16 N.Y.S.3d 589 ; see Chiloyan v. Chiloyan, 197 A.D.3d 612, 614–615, 149 N.Y.S.3d 896 ).
"The determination of special employment status is usually a question of fact and may only be made as a ‘matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact’ " ( Abreu v. Wel–Made Enters., Inc., 105 A.D.3d 878, 879, 964 N.Y.S.2d 198, quoting Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355 ). Here, the appellants failed to demonstrate, prima facie, that Reliant was the plaintiff's special employer at the time of the accident.
The appellants’ remaining contentions are without merit.
CONNOLLY, J.P., CHAMBERS, ROMAN and GENOVESI, JJ., concur.