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The Rogak Report: 07 Nov 2006 ** Premises Liability - Workers Comp Defense **

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  • Lawrence Rogak
    SUPERINTENDENT, EMPLOYEE OF MANAGING AGENT, MAY SUE LANDLORD FOR INJURIES SUSTAINED ON PREMISES Cruz v Regent Leasing Ltd. Partnership, 2006 NY Slip Op 26446
    Message 1 of 1 , Nov 7, 2006
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      SUPERINTENDENT, EMPLOYEE OF MANAGING AGENT, MAY SUE LANDLORD FOR
      INJURIES SUSTAINED ON PREMISES

      Cruz v Regent Leasing Ltd. Partnership, 2006 NY Slip Op 26446
      (Supreme Court, Bronx County) (Renwick, J.) Index no. 15876/2005

      Plaintiff Roberto Cruz commenced this personal injury action for
      injuries sustained during a slip and fall on the stairs of a building
      located at 1035 Clarkson Avenue, Bronx, New York. At the time of the
      accident, plaintiff was a superintendent of the premises and an
      employee of Mid-State Management Corp, which was hired by defendant
      owner, Regent Leasing Limited Partnership, to manage the subject
      property. Defendant Regent Leasing Limited Partnership moved for
      summary judgment dismissing the action on the ground that the
      exclusivity of the remedy afforded by the award of Workers'
      Compensation benefits applies to insulate defendant from liability.

      "In this action, as noted above, defendant Regent Leasing Limited
      Partnership moves for summary judgment on the ground that the action
      is precluded by Workers' Compensation Law §11. Where an employee is
      injured in the course of employment, his exclusive remedy against his
      employer is ordinarily a claim for Workers' Compensation benefits.
      Here, plaintiff is not suing his employer. Nevertheless, defendant
      argues the action is precluded by Workers' Compensation Law §11
      because plaintiff should be deemed an employer of defendant Regent
      Leasing Limited Partnership for purpose of Workers' Compensation Law
      given that plaintiff is the employee of the managing agent for
      defendant with regard to the property in question."

      "While the Court has found no case directly on point, this Court
      finds that defendant's position is untenable as a matter of law. It
      is a bedrock principle of Workers' Compensation Law that recovery
      from a landowner is not precluded by the Workers' Compensation Law in
      the absence of an employer/employee or co-employer/co-employee
      relationship. See eg. Russo v. Hilman, 146 AD2d 690 (2nd Dept. 1989)
      (Recovery from a landowner based on the provisions of the Labor Law
      is not precluded by the Workers' Compensation Law in the absence of
      an employer/employee or co-employer/co-employee relationship);
      Iannielli v. Serota, 169 AD2d 704 (2nd Dept.1991) (An employee's
      right of recovery against a general contractor predicated on the
      liability imposed by Labor Law §240 is in no way affected by the
      Workers' Compensation Law, absent an employer/employee or co-
      employee/employee relationship)."

      "In certain circumstances, different entities may be consider co-
      employers of an injured party. For instance, generally, the
      exclusivity rule of the Workers' Compensation Law §11 applies to
      insulate a person or entity from liability to a worker for tortious
      conduct where the person or entity is the alter ego of the worker's
      direct employer or exercises such control over that employer as to
      retain ultimate decision-making authority and financial
      responsibility over it. See e.g., Kudelski v. 450 Lexington Venture,
      198 AD2d 157 (1st Dept. 1993); Smith v. Roman Catholic Diocese, 252
      AD2d 805 (3d Dept. 1998). Likewise, where there is more than one
      employer in a joint venture, an employee working for one such
      employer is considered an employee of the other employers in the
      joint venture, and thus the employee's exclusive remedy against the
      entities forming the joint venture is Workers' Compensation. Mitchell
      v. A.F. Roosevelt Ave. Corp., 207 AD2d 388 (2nd Dept. 1994)."

      "Similarly, separate corporations may be considered a single employer
      entitled to invoke the exclusivity rule where they comprise a single
      integrated entity. Kudelski v. 450 Lexington Venture, 198 AD2d 157
      (1st Dept. 1993); see also, Ramnarine v. Memorial Center for Cancer
      and Allied Diseases, 281 AD2d 218 (1st Dept. 2001). The same is true
      where corporations have lost their separate corporate status due to
      having become divisions of the same corporation by virtue of a
      merger. Levensen v. Berkey Professional Processing, Inc., 122 AD2d
      867 (2nd Dept. 1986) An employer may also be regarded as insulated
      from liability by virtue of the exclusivity provision where the
      employee was injured while working for the employer's wholly owned
      subsidiary. Sanna v. Rim, Inc., 8 AD3d 649 (2nd Dept. 2004)."

      "Conversely, a corporation may be refused the protection of the
      exclusivity provision where it is neither the alter ego of, nor
      engaged in, a joint venture with another corporation which employed
      the injured employee, even if the corporations may have the same
      officers and directors. Longshore v. Paul Davis Systems of Capital
      Dist., 304 AD2d 964 (3rd Dept. 2003); Casas v. 559 Warren Street
      Realty Corp., 211 AD2d 742 (2nd Dept. 1995). Similarly, common
      ownership of two business entities by the same corporation or person
      will not shield one of them from tort liability for the acts of the
      other, even if they are financially interrelated, where they are
      separate and distinct legal entities, as evidenced, for example, by
      the fact that they file separate income tax returns and have separate
      budgets. See, O'Connor v. Spencer, 2 AD3d 513 ( 2nd Dept. 2003);
      Kaplan v. Bayley Seton Hosp., 201 AD2d 461 (2d Dept. 1994)."

      "In this action, defendant Regent Leasing Limited Partnership has
      failed to establish that it must be deemed the co- employer of
      plaintiff for Workers' Compensation purposes. Unlike the situations
      outlined above, the record in this case establishes that plaintiff
      was employed solely by Mid-State Management Corp. to act as the
      superintendent for the premises owned by defendant, and that
      defendant Regent Leasing Limited Partnership was a separate legal
      entity from Mid-State Management Corp. In addition, there is
      absolutely nothing in the record before this Court to suggest that
      the activities of plaintiff as a superintendent were controlled by
      any person or entity other than Mid-State Management Corp. Under the
      circumstances, there is no basis to establish that Regent Leasing
      Limited partnership was co-employer of plaintiff."

      "Defendant's reliance on Gonzalez v. RHQ Associates, 263 AD2d 413
      (1st Dept. 1999) is misplaced. In Gonzalez, plaintiff, an employee of
      third-party defendant Kingsbridge Mechanical Corp., was injured in a
      fall from a ladder while working at an apartment building owned by
      defendant RHQ Associates. Plaintiff sued RHQ alleging negligence and
      violations of the Labor Law. RHQ was a partnership of three brothers,
      Reed, Hale and Quinn Rickman. Hale Rickman was the president of third-
      party defendant Kingsbridge and Quinn Rickman was an officer of the
      corporation. The Appellate Division held that the complaint should be
      dismissed, as barred by the exclusivity of the remedy afforded by the
      award of Workers' Compensation benefits. As the Court
      explained, 'Hale Rickman, who supervised and directed the work
      performed by plaintiff and testified that he is listed as the
      Building Manager, was a co-employee of third-party defendant
      Kingsbridge, irrespective of his status as an owner of the premises
      where the injury was sustained.' Gonzalez v. RHQ, supra, citing
      Heritage v. Van Patten, 59 NY2d 1017, 1019 (1983); Concepcion v.
      Diamond, 224 AD2d 189 (1st Dept. 1996). Under the circumstances, the
      Court found, the plaintiff was a special employee of defendant RHQ
      Associates."

      "In contrast, in this case, the only link between defendant Regent
      Leasing Limited Partnership and plaintiff's employer was the fact
      that defendant owner hired plaintiff's employer to manage its
      premises, which, contrary to defendant's allegations, by itself does
      not establish an employer/employee relation within the ambit of
      Workers' Compensation Law. Accordingly, plaintiff's receipt of
      Workers' Compensation benefits does not shield defendant Regent
      Leasing Limited Partnership from potential tort liability, solely on
      the fact that it hired plaintiff's employer to manage its premises,
      inasmuch as it is a distinct corporate entity unrelated to
      plaintiff's employer."

      "In sum, the motion of defendant Regent Leasing Limited Partnership,
      for summary judgment dismissing the complaint, on the ground that the
      action is barred by the exclusivity of the remedy afforded by the
      award of Workers' Compensation benefits, is denied. This constitutes
      the Decision and Order of the Court."

      Larry Rogak
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