Supreme Court, Kings County

Decided on April 1, 2026

Index No. 533197/2022

Devin P. Cohen, J.

[*1]

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion, by reference to the New York State Courts Electronic Filing System docket numbers: 46—53, 57—61.

Upon review of the foregoing papers, defendant Brookstone Developers LLC (Brookstone)'s motion to amend (Seq. 001) is decided as follows:

Plaintiff commenced this action to recover for damages he claims to have sustained on September 28, 2022, while performing work at 2266 Cropsey Avenue, Brooklyn, NY. It is [*2]undisputed that Brookstone was the general contractor for the work being performed at the premises. Brookstone sub-contracted with third-party defendant SKM Carpentry & Remodeling LLC (SKM). The Workers' Compensation Board found that SKM employed the plaintiff. Under Workers Compensation Law § 11 (2) (JIWA), the determination of the Board has an estoppel effect on the existence of an employer-employee relationship (see e.g. Velazquez-Guadalupe v Ideal Builders and Construction Services, Inc., 216 AD3d 63 [2d Dept 2023]). However, SKM was found to have failed to procure insurance, as required by WCL § 10. Accordingly, as the general contractor, Brookstone was directed to pay Workers Compensation benefits to the plaintiff pursuant to WCL § 56, and its carrier has done so. Brookstone now seeks to amend its answer, arguing that it was plaintiff's special employer and that it should be permitted to assert an affirmative defense to plaintiff's claim under WCL § 11.

Although leave to amend pleadings is generally given pursuant to CPLR 3025 (b), that general rule is limited by certain circumstances. Permission to amend is "committed to the broad discretion of the trial court," and should be denied where a proposed amendment is "patently devoid of merit" (Vorobichik v Greenpoint Goldman SM, LLC, 164 AD3d 866, 866 [2d Dept 2018]).

Here, Brookstone's affirmative defense is without merit. The protections of WCL § 11 (1) are specifically limited to the class of employers identified "in the last preceding section"—that is, employers obligated by WCL § 10 to procure insurance. Unlike an employer,

the contractor is conditionally liable, as a guarantor is conditionally liable. [It] is not bound to secure compensation as an employer. [It] is liable to pay compensation if the subcontractor does not secure it. Nor need this liability be based on a fictional relationship between him and the injured [worker]. It may be said more reasonably, in the light of the spirit of the act, to be based upon the contractor's relationship to the subcontractor. [It] is in a better position than the [worker] to select a responsible subcontractor, and to see to it that the subcontractor secures compensation. [It] need not select a subcontractor who will refuse to obey the law requiring him to obtain [workers'] compensation insurance. . . . Section 56 is merely a device to secure enforcement of the act with relation to the real employer[:] the subcontractor" (Sweezey v Arc Elec. Const. Co., 295 NY 306, 312 [1946]; see also Clark v Monarch Eng'g Co., 248 NY 107 [1928]).

Despite their age, Clark and Sweezey remain binding precedent on this issue, and none of the amendments to the Workers' Compensation Law in the years since they were decided would upset their rationale (see Joyce v McKenna Associates Inc., 2 AD3d 592 [2d Dept 2003] [superseded by Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008] on other grounds]).

Furthermore, Brookstone's belated argument that it was the plaintiff's special employer is unavailing. The fact that Brookstone was conditionally obliged to pay the plaintiff's benefits in the absence of the employer's coverage is not a factor to be considered when assessing whether a special employer/employee relationship exists (see Ortega v 669 Meeker Avenue, LLC, 191 AD3d 686, 688 [2d Dept 2021]). Additionally, the facts necessary to establish that plaintiff was a special employee of Brookstone, if they existed, would have been in Brookstone's possession since the inception of this lawsuit. There is, therefore, no reasonable basis for Brookstone's delay in advancing these arguments.

Finally, unlike employers protected by WCL § 11, Brookstone's potential liability to the plaintiff stems not merely from its alleged negligence, but from its statutory duty under the Labor Law. Accepting Brookstone's arguments would allow contractors to contravene the [*3]intention of the legislature to "[protect] workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs" whenever their sub-contractors failed to purchase the appropriate insurance (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 520 [1985]). Such a result would undermine the purpose of the Labor Law and run afoul of the legislature's clear intent (see e.g. Balbuena v IDR Realty LLC, 6 NY3d 338, 358—360 [2006]).

Therefore, Brookstone's motion to amend (Seq. 001) is denied.

This constitutes the decision of the court.

DATE April 1, 2026

DEVIN P. COHEN

Justice of the Supreme Court