Emilo Nunez,,
Plaintiff,
against
Park Plus, Inc. and DESOTO PARKING LLC,
Defendants.
|
301814/2010
Attorney for Plaintiff
Carly M. Jannetty, Esq.
Subin Associates, LLP
150 Broadway, 23rd Floor
New York, New York 10038
Attorney for Defendant/Third-Party Defendant
John F. Janowski, Esq.
Chesney And Nicholas, LLP
2405 Grand Avenue
Baldwin, New York 11510
Attorney for Third Party Plaintiff
Kenneth R. Ross, Esq.
McGivney And Kluger, P.C.
80 Broad Street, 23rd Floor
New York, New York 10004
Attorney for Third-Party Defendant
Sim Shapiro, Esq.
Baxter Smith & Shapiro, P.C.
200 Mamaroneck Avenue
White Plains, New York 10601
Kenneth L. Thompson Jr., J.
The Decision/Order on this motion is as follows:
Defendant, Desoto Parking, LLC, (Desoto), moves pursuant to CPLR 3212
for summary
judgment dismissing the complaint, third-party complaint and all
cross-claims as against it on
grounds that plaintiff is a special employee of Desoto and on grounds that
Desoto is the alter ego
of co-third-party defendant, Little Man Parking LLC, (Little Man), and
therefore is not liable for
plaintiff's injuries under Workers' Compensation Law 11. Little Man moves
pursuant to CPLR
3212 for summary judgment dismissing the third-party complaint and all
cross-claims as against
it also on grounds provided by Workers' Compensation Law 11. This action
arose as a result of
personal injuries sustained by plaintiff as an employee in a parking garage.
Plaintiff's foot was
crushed when a vehicular parking lift lowered onto his foot.
Workers' Compensation Law 11 provides as follows:
An employer shall not be liable for contribution or indemnity to any third
person based upon liability for injuries sustained by an employee acting within the scope
of his or her employment for such employer unless such third person proves through
competent medical evidence that such employee has sustained a "grave injury" which
shall mean only one or more of the following: death, permanent and total loss of use or
amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple
toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent
deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an
index finger or an acquired injury to the brain caused by an external physical force
resulting in permanent total disability. (Emphasis added).
With respect to whether plaintiff has suffered a grave injury as defined by
Workers'
Compensation Law 11, plaintiff himself testified that he lost only his fourth
toe, and plaintiff
agreed at his deposition that his "fifth toe continues to be attached to [his]
foot." (Transcript p.
279). The medical evidence relates that plaintiff lost one toe, the fourth toe
with no mention of
any loss of the fifth toe. Dr. Ali Guy's notation of a partial amputation of the
fifth toe is not
dispositive, since partial amputations are not a loss under Worker's
Compensation Law 11.
(Castro v United Container Mach. Group, 96 NY2d 398 [2001].
Since plaintiff lost one toe,
and not "multiple toes," WCL 11 mandates that his employer(s) not be held
liable for plaintiff's
on the job injuries.
LITTLE MAN PARKING, LLC'S CROSS-MOTION FOR SUMMARY
JUDGMENT
Plaintiff testified that he worked for Little Man. (Transcript p. 30). In the incident
report
plaintiff was identified as an employee of Little Man. The Workers'
Compensation Board
"Notice of Decision" identified Little Man as the plaintiff's employer.
Therefore, Little Man,
established that it was plaintiffs'' employer at the time of plaintiffs' injury.
There is no evidence
indicating that Little Man was not plaintiff's employer. Therefore, WCL 11
bars Park Plus Inc.'s
third-party action against Little Man, unless there is a contract providing
indemnification from
Little Man for Park Plus, Inc. However, there is no contract between Little
Man and Park Plus
Inc. (Eric Webb for Park Plus, Inc. transcript, p. 247-248].
Accordingly, the cross-motion of Little Man Parking, LLC, for summary
judgment
dismissing the third-party complaint and any cross-claims is granted.
DESOTO PARKING, LLC'S MOTION FOR SUMMARY
JUDGMENT
Desoto argues that it is the alter ego of Little Man and
therefore cannot be held liable for
plaintiff's injuries under Workers' Compensation Law 11. However, Desoto,
in its answer to the
third-party complaint asserts a cross-claim against Little Man for
"contribution, apportionment
and indemnification." The First Department has held that the "pendency of a
claim asserted in
litigation by one corporation against the other suggests, on its face, that the
entities have at least
some adverse interests and, in the absence of any explanation, it is
impossible to conclude as a
matter of law that [the pertinent corporations], however they may be related,
"function[ ] as one
company" and "share ... a common purpose" (Carty v. East 175th St. Hous.
Dev. Fund Corp., 83
AD3d 529, 921 N.Y.S.2d 237 [1st Dept.2011]) to such an extent that they
should be considered
alter egos." (Mendoza v. Velastate Corp.,99 AD3d 401, 401-402 [1st
Dept 2012]).
With respect to Desoto's argument that plaintiff was a special employee of Desoto,
the
First Department held as follows:
A finding of special employment is justified only where the special employer
exerts complete and exclusive control over the purported special employee, as to whom
the general employer has relinquished all control. (Thompson v Grumman Aerospace
Corp., 78 NY2d 553, 557; Wawrzonek v Central Hudson Gas & Elec.
Corp., 276 NY 412, 419.) Here, there are questions of fact as to, inter alia,
who—Gotham Building Maintenance, plaintiff's general employer, or the City, the
purported special employer—supervised and controlled plaintiff's work and set the
qualifications and conditions of employment.
(Sanfilippo v City of New York, 239 AD2d 296 [1st Dept 1997]).
There is no evidence submitted on this motion that Little Man relinquished all
control of
plaintiff and Desoto had exclusive control of plaintiff. In fact, in support of
Desoto's alter ego
argument, Desoto argues that plaintiff was controlled by both Desoto and
Little Man.
Accordingly, Desoto's motion is denied.
CONCLUSION
Desoto Parking LLC's motion is
denied. The cross-motion of Little Man Parking, LLC, for summary judgment dismissing
the third-party complaint and any cross-claims is granted.
The foregoing shall constitute the decision and order of the Court.
Dated: July 24,
2015_________________________________KENNETH L. THOMPSON JR.
J.S.C.