Defendant in this negligence and Labor Law action, HRCF-LDR Lexington LLC (HRCF-LDR), brings a motion for summary judgment against plaintiff, Carlos Silva, on the ground that plaintiff's exclusive remedy is the right to collect workers' compensation benefits under Section 29(6) of the New York State Workers' Compensation Law. Plaintiff opposes and brings a cross-motion for partial summary judgment on his claim under Labor Law § 240(1)..

I.Factual Summary

A.Defendant's Submissions

In support of its motion, HRCF-LDR submits an attorney's affirmation, the pleadings, decisions of the Workers' Compensation Board, excerpts of EBTs of plaintiff, Donald LaRosa (LaRosa) and Diana M. Cretella (Cretella), and various documents. Plaintiff testified at his EBT that on November 3, 2006, he was working as a mason for his employer Bayside Builders, Inc. at 105-111 Lexington Avenue, Brooklyn, New York. He was using a scaffold erected by Bayside employees while he lay cinder block to build exterior walls. As the wall was being erected, the scaffold had grown in height to three stories and approximately eighteen feet. The scaffold floor was made from wood planks and held by metal brackets on each side. Just before the accident, plaintiff had climbed down to the first level to lift cinder blocks up to the second level. There were approximately ten cinder blocks on each end of the wooden plank flooring. Plaintiff was standing in the middle of the flooring lifting a cinder block overhead to a co-worker, when the flooring broke. He fell ten feet to the roof below and broke an ankle.

HRCF-LDR owns 105-111 Lexington Avenue, the premises where the construction and the accident occurred. HRCF-LDR is an LLC owned by LDR Lexington LLC and HRCF-Lexington LLC. HRCF-LDR was created to own 105-111 Lexington Avenue, which is comprised of two warehouse buildings standing side by side. HRCF-LDR has no employees. Bayside Builders, Inc. (Bayside), plaintiff's employer, was hired by HRCF-LDR as a general contractor to renovate the buildings. The two entities entered into a standard American Institute of Architects contract (Contract) that required Bayside to procure insurance and held Bayside responsible for supervision and construction procedures at the work site and for all labor, equipment and materials.

The Contract was signed by Donald LaRosa, one man representing both entities. He [*2]signed as both the Managing Member of HRCF-LDR and as Vice President of Bayside. He also was a member of LDR Lexington LLC, one of the two LLCs that own HRCF-LDR. LaRosa testified at his EBT that HRCF-LDR and Bayside maintain their principal places of business at 79 Worth Street, New York, New York. However, the address for Bayside listed on the Contract is 79 Worth Street, and the address listed for HRCF-LDR is 211-25 34th Road, Bayside, New York.

Diana M. Cretella testified that she is the President of Bayside and was the project manager on the job where plaintiff was injured. She described LaRosa as the Secretary of Bayside and his duties as the day-to-day running of the company and consultation on the construction site. She further testified she was plaintiff's only supervisor at the site.

Plaintiff testified at his deposition that either Cretella or another employee named Jimmy gave him instructions on what work to perform and that Cretella was the supervisor at the job site for Bayside employees. Plaintiff also testified that LaRosa was Cretella's supervisor and plaintiff would see LaRosa at the job site once a week reviewing the progress of the work. LaRosa testified that he would inspect and direct the work of the Bayside employees.

B.Plaintiff's Submissions

In support of his opposition to the motion and in support of his cross-motion, plaintiff submits an attorney's affirmation, the pleadings, his own affidavit, and an excerpt of LaRosa's EBT. HRCF-LDR takes the position that it was the owner/general contractor on the project. In his EBT, LaRosa testifies that he owned Bayside and that HRCF-LDR and Bayside each hired subcontractors, which were paid by HRCF-LDR. Bayside had four or five employees and kept its own employment and tax records. Plaintiff swears in an affidavit submitted herewith that "[a]t no time did Mr. LaRosa, who I believed was the owner of the building, ever instruct me or supervise me as to my work at the construction site."

II.Discussion and Rulings

The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 (2d Dept 2008); CPLR 3212(b). It must do so by tender of evidentiary proof in admissible form. Zuckerman v. New York, 49 NY2d 557, 562-563 (1980). The admissibility of evidence is left to the discretion of the trial court and, if the evidence submitted by the movant is not in admissible form, the motion must be denied regardless of the sufficiency of the opposing papers. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986).

Once a movant has met the initial burden, the burden shifts to the party opposing the motion to establish, through admissible evidence, that judgment requires a trial of disputed material issues of fact. CPLR. 3212 (b); see GTF Marketing Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985) (complaint properly dismissed on summary judgment where affidavit of opposing counsel was insufficient to rebut moving papers showing case has no merit). The adequacy or sufficiency of the opposing party's proof is not an issue until the moving party sustains its burden. Bray v. Rosas, 29 AD3d 422 (1st Dept. 2006). Moreover, the parties' competing contentions must be viewed "in a light most favorable to the party opposing the motion". Lakeside Constr. v Depew & Schetter Agency, 154 AD2d 513, 515-515 (2d Dept. 1989). [*3]

A.HRCF-LDR's Motion for Summary Judgment

HRCF-LDR contends, in keeping with its affirmative defenses, that because plaintiff was its "special employee," his receipt of workers' compensation benefits is his exclusive remedy [Workers' Compensation Law (WCL) §§11 and 29(6)], barring him from maintaining this action. See Thompson v. Grumman Aerospace Corporation, 78 NY2d 553 (1991) (extending exclusive remedy provision to persons and individuals other than direct employer). Section 11 of the WCL limits liability of an injured plaintiff's employers to Workers' Compensation Law benefits. Section 29(6) extends that protection to co-employees (and others not relevant here) who caused the injury. HRCF-LDR has not supported its argument with undisputed facts as a matter of law.

In support of its claim under WCL § 11, HRCF-LDR relies on LaRosa's dual status as a principal of both Bayside and HRCF-LDR, and indicia of the entities' close affiliation. The underlying key to the analysis is an actual working relationship between the defendant and the employee-plaintiff sufficient to deem the defendant an employer of plaintiff. Fung v. Japan Airlines Company, 9 NY3d 351, 360 (2007). The Court of Appeals in Fung discusses situations where cases have extended the exclusive remedy doctrine to persons or entities other than the injured plaintiff's direct employer. Those relevant to this case include special employers and employers in the alter ego context. Id.

HRCF-LDR has not established that the "special employee" doctrine applies. In Thompson v. Grumman Aerospace Corporation, 78 NY2d 553 (1991), the Court of Appeals analyzed the various factors involved in determining whether special employment status exists, as well as guidance provided by case law on the subject. The Court explained that

A special employee is described as one who is transferred for a limited time of whatever duration to the service of another ... [citation omitted]. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer ... While not determinative, a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee's work.

Id. at 557. (Emphasis added.)

There is no allegation and no evidence that control over plaintiff's work was transferred from Bayside, and assumed by HRCF-LDR. See Gonzalez v. Lovett Assoc., 228 AD2d 342 (1st Dept. 1996) (summary judgment properly denied where defendant not establish employer surrendered control of employee). The Contract is the best evidence of the parties' agreed-upon contours of their relationship on the work site. See Graev v. Graev, 46 AD3d 445, 450 (1st Dept 2007). Under the Contract, Bayside was responsible for supervision and procedures at the site.

HRCF-LDR argues that plaintiff was its special employee because LaRosa had supervisory authority over the work site. First, this is a disputed issue of fact. Bayside's President, Diana Cretella, testified that she was the project manager and plaintiff's only supervisor. LaRosa's testimony establishes that he had some control and input at the work site. Plaintiff testified at his deposition that LaRosa supervised Cretella, but then he swears to the contrary in an affidavit. The court will disregard plaintiff's affidavit to the extent it is inconsistent with his prior sworn testimony. Amaya v. Denihan Ownership Co., LLC., 30 AD3d 327, 328 (1st Dept. [*4]2006) ("A party's affidavit that contradicts [his] prior sworn testimony creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment."). Regardless, HRCF-LDR has not argued that it and LaRosa are indistinguishable under the law or that LaRosa could not operate in a dual capacity.

HRCF-LDR next argues that LaRosa's status as a principal of both Bayside and HRCF-LDR and the entities' close relationship, entitle it to protection under the WCL. In New York, "an employer's organization into separate legal entities does not preclude a finding that an employee is limited to benefits under the Workers' Compensation Law." Lopez v. Mount Kisco Country Club Realty Corporation, 10 Misc 3d 1079A (NY Sup. Ct. 2006), citing Ramnarine v. Memorial Ctr. For Cancer & Allied Diseases, 281 AD2d 218 (1st Dept. 2001). Although HRCF-LDR does not claim that Bayside organized into separate entities, the analysis used by the court in Lopez, based on principals determinative of finding that one organization is an "alter ego" of another, apply here. As the Lopez court explained, "closely associated corporations, even ones that share directors and officers, will not be considered alter egos of each other if they were formed for different purposes, neither is a subsidiary of the other, their finances are not integrated, assets are not commingled, and the principals treat the two entities as separate and distinct."' Id., quoting, Longshore v. Davis Sys. of Capital Dist., 304 AD2d 964, 965 (3d Dept. 2003).

Here, HRCF-LDR and Bayside share LaRosa as a principal, but, based upon the submitted evidence, that is where the relationship ends. The evidence submitted establishes that Bayside and HRCF-LDR were formed for different purposes. HRCF-LDR was formed solely to own the two buildings being renovated. LaRosa EBT, pp. 5-6. Bayside is a construction company that contracted with HRCF-LDR to renovate the buildings, but also has additional projects. Cretella EBT. The evidence also shows that Bayside is not a subsidiary of HRCF-LDR, the entities have different legal structures (one is an LLC and the other is a corporation) and the principals treat the two entities as separate and distinct. Moreover, the Contract delineates the entities' separate obligations and duties in detail.

Cases where the WCL exclusion has been applied to an entity other than the employer involve entities more intimately affiliated. For example, in Negron v. Rodriguez & Rodriguez Storage & Warehouse, Inc., 23 AD3d 159, 160 (1st Dept. 2005), which HRCF-LDR cites, the First Department affirmed the lower court's grant of summary judgment to a defendant where its sole shareholder and principal was also the sole shareholder and principal of the plaintiff's employer. In Kramps v. Goldbetter, 292 AD2d 571 (2d Dept. 2002), a case cited by the Court of Appeals in Fung (supra, 9 NY3d at 359), the defendant was a subsidiary of the employer company.

Nor does WCL § 29(6) excuse HRCF-LDR from liability. That section provides, in pertinent part,

The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee ... when such employee is injured or killed by the negligence or wrong of another in the same employ ....

The cases cited by HRCF-LDR are inapposite because they address actions in which individuals have been sued who caused the plaintiffs' injuries or where the defendant was a special employer. See Heritage v. Van Patten, 90 AD2d 936 (3d Dept.), aff'd, 58 NY2d 1019 (1983) (co-employee sued); Concepcion v. Diamond, 224 AD2d 189 (1st Dept. 1996 (co-employee's duty to plaintiff indistinguishable from duty as president of company that managed property and employed plaintiff); Medrano v. Pritchard Industries, 298 AD2d 271 (1st Dept. 2002) (moving defendant was co-employee individual under duty to plaintiff to provide a safe place to work); Gonzalez v. RHQ Associates, 263 AD2d 413 (1st Dept. 1993) (plaintiff was special employee of defendant). In sum, defendant HRCF-LDR has not sustained its burden warranting summary judgment.

B.Plaintiff's Cross-Motion for Partial Summary Judgment

Plaintiff moves for partial summary judgment under Labor Law § 240(1), which creates a nondelegable duty of owners and general contractors, whether or not they actively exercise supervision or control over the work. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). Labor Law § 240 (1), known as the "Scaffold Law," was enacted to provide absolute liability for construction activities involving a significant risk due to elevation. It provides in relevant part:

All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

The Scaffold Law was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. Labor Law § 240(1), (emphasis added.) As the owner of the property, Bayside is subject to absolute liability under the Scaffold Law. Coleman v City of New York, 91 NY2d 821, 822-823 (1997).

It is undisputed that plaintiff fell when the scaffolding floor he was standing on broke and that he was injured as a result of his fall. He, thus, has established a prima facie case of liability under § 240(1). Lopez v. Melidis, 31 AD3d 351 (1st Dept. 2006). HRCF-LDR has failed to raise any issues of fact to counter liability as a matter of law. Instead, HRCF-LDR relies on inapposite First Department case law involving falls from permanent structures. See Jones v. 414 Equities, 57 AD3d 65 (1st Dept. 2008) (discussing element of foreseeability where elevation risk of injury at issue).

Accordingly, it is

ORDERED that defendant HRCF-LDR's motion for summary judgment is denied; and it is further

ORDERED that plaintiff's cross-motion for partial summary judgment as to HRCF-LDR's liability for Labor Law § 240(1) is granted. [*6]

ENTER:

Date: April20, 2009_______________________________

New York, NYJ.S.C.