SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------- --------------x , Plaintiff, Index No.: AFFIRMATION IN OPPOSITION Defendants. ---------------------------------------------------------------------- --------x , an attorney duly licensed to practice law in the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: 1. I am a partner of the law firm of , attorney for the plaintiff in the within matter. 2. I am fully familiar with the facts and circumstances of , the source of my knowledge and information being the file maintained by my office. 3. This affirmation is submitted in opposition to the within motion for summary judgment of defendants , and .
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Affirmation in Opposition to motion for summary judgment
Affirmation drafted and filed in a labor law matter, involving issues, matters of law relating to "premises," out-of-possession leasehold, constructive/actual notice, Heritage v. Van Patten, etc.
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK-------------------------------------------------------------------------------x,
, an attorney duly licensed to practice law in the Courts of the State of
New York, hereby affirms the truth of the following under the penalties of perjury:
1. I am a partner of the law firm of , attorney for the plaintiff in the within
matter.
2. I am fully familiar with the facts and circumstances of , the source of my
knowledge and information being the file maintained by my office.
3. This affirmation is submitted in opposition to the within motion for summary
judgment of defendants , and .
4. The within matter is an action for injuries which plaintiff sustained on June 21,
2003 during the course of her employment at New York, New York, at
Inc.
5.
6. This within action was commenced by service of a Summons and Complaint by
plaintiff ___________on June 21, 2006. On ___________,
2006 plaintiff served an Amended Summons and Verified Complaint. (Attached to Defendants’
Motion as Exhibit “B). Issue was joined on or about _____ (Verified Answer annexed to
defendants’ motion as Exhibit “C).
7. In their summary judgment motion returnable on July 20, 2007, defendants
_________________ ASSOCIATES and _________________________ contend, regarding the
action against defendants, that it “is well settled that a worker injured during the course of a
worker’s employment cannot maintain an action to recover for personal injuries against the owner
or tenant of the premises upon which an accident occurred when the owner or tenant of the
premises upon which an accident occurred is also the entity which employed the worker.” (Page 4,
page 8 of the Affirmation_______________________ Esq. attached hereto as Exhibit “B”). As to
defenda__________________________., it is claimed that, pursuant to the terms of their lease that
they are an out of possession landlord, and that as such, liability does not attach to them. The facts
presented and purported by the defendants as evidentiary proof, can not be imputed to fully
support their argument. It is plaintiff’s contention that summary judgment as to them must be
denied.
8. By it’s own admission defendant , as affirmed by
, Senior General Partner, is not the employer of the defendant, nor is it “in the same employ, of the
employer’s insurer or such other collective bargaining agent of the employer’s insurer.” See
Workers Compensation §29(6). Defendant, is not by their own definition,
an “employer” of Plaintiff or “co-employee” within the exclusive definition of Worker’s Comp,
wherein liability as to them would be barred by the statute. Further, as to the claim of defendant,
________________________in their motion seeking summary judgment, that “at no time
did____________________________ maintain, control or have management over the employees
at the premises.” (see paragraph 7, page 2 of Affidavit of Edwin A. Goodman dated December 22,
2006 annexed as Exhibit “C”) plaintiff avers that they did have control over the premises, such that
they do not fall within the exclusive definition, and as such that the statute as to such defendant
does not apply.
10. In the affirmation _______________________, Esq., attorney for defendants,
_________________________________L.P., and , in citing the Worker’s Comp Law: ‘“Under
Worker’s Compensation Law section 11, the liability of an employer… shall be exclusive and in
place of any other liability whatsoever, to such employee…on account of such injury or death or
liability arising there from. In other words it is well settled law that a worker injured during the
course of his employment cannot maintain an action to recover damages for personal injuries
against the owner or tenant of the premises upon which an accident occurred when the owner or
tenant is also the entity which employed the worker.”’ (page 4, paragraph 8 of the Affirmation of
. annexed as Exhibit “B”). Plaintiff was employed by Inc., she was not
employed _______________________.
11. It is respectfully submitted that defendants’ motion should be denied on various
grounds. Firstly, discovery has not even commenced, let alone completed as to any defendant
and therefore plaintiff should be permitted to investigate material facts as to each moving
defendant. See Integrated Logistic Consultants v. Fidata Corp. et al, 131 AD2d 338; 517
N.Y.S.2d 135 N.Y. App. Div. “…Summary judgment relief should not be granted where there is
any doubt as to the existence of a triable issue (Moskovitz v. Garlock , 23 AD2d 943, 944 ), or
where the issue is even arguable (Barrett v. Jacobs, 225 NY 520, 522 ) , since it serves t deprive a
party of his day in court….This is especially so where, as here, there are salient facts within the
knowledge and control of the movant which may be revealed through pretrial disclosure
proceedings (see, CPLR 3212 [f]; Terranova v. Emil, 20 NY2d 493, 497 ; Simpson v. Term
Indus.,126 AD2d 484; Mack v. Gregory Mem. Hosp., 90AD2d 969; Bank Leumi Trust Co. v.
Felner , 70 AD2d 869) . In….this case, there has been no discovery since the motion for
summary judgment was made.”
12. Plaintiff submits that the defendants’ contention
_________________________________. that the exception enumerated by Worker’s
Compensation §§11 and 29(6) is not applicable to this defendant:
Worker’s Compensation section 29 (1), provides:
“remedies of employees” such that “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 in the same employ…
13. As defendants state “In the case at bar, it is undisputed that plaintiff was an
employee of____________________________________ working in the course of her
employment at the time of the subject incident.” (Page 5, paragraph 9 of the Affirmation of
, Esq.. attached hereto as Exhibit “D”). Defendant ASSOCIATES, is not the
employer of, nor in the same employ as Plaintiff. By it’s own admission, defendant
L.P, as affirmed by , Senior General Partner, “________________ had no involvement
with the daily operation of the premises, nor did it maintain control or management over the
employees at the premises.” (Paragraph 6, page 2 of the Affidavit of _________________ dated
December 22, 2006 annexed hereto as Exhibit “E” is not the employer of the defendant, nor is it
“in the same employ, of the employer’s insurer or such other collective bargaining agent of the
employer’s insurer.” See Workers Compensation §29(6). Defendant ____________________,
is not by their own definition, the “employer” of Plaintiff or “co-employee” within the exclusive
definition of Worker’s Comp, wherein no liability could be found for such entity, and therefore
liability is not barred by the statute. Specifically, defendant ________ ASSOCIATES claims in
their motion seeking summary judgment, that “at no time did ________________ASSOCIATES
maintain, control or have management over the employees at the premises.” (see paragraph 15,
page 6 of Affidavit of the __________________, Esq. annexed as Exhibit “D”). Although the
remedy of exclusivity under Section 11 of Worker’s Compensation Law, is clear by the manner
in which the defendants apply the Statute their arguments are not supported. The exclusivity
provision provided for under §11 of the Workers Compensation Act, as aforementioned by the
defendant ______________________ASSOCIATES, insofar as defendant states that
_________________ is an “out of possession landowner that retained no control of the
premises” is not a proper application the Workers Comp law. As can be seen by the Affidavit of
., Senior General Partner submitted in support of the defendant
ASSOCIATES’ motion to dismiss, it is affirmed that as an out of possession landowner “For at
least ten years _____________ Associates has not had any office, or any other facilities, and has
neither occupied nor used any space, at ________Avenue, New York, New York.:
(paragraph 3 at page 1 of Affidavit of dated June 21, 2007 annexed hereto as Exhibit “E”).
Defendant in stating that they are an “absentee landlord” (paragraph 5 at page 2 the Affidavit of
dated December 22, 2006 annexed hereto as Exhibit “F”) is underlining the issue of fact, and
maintains that they are not the employer of the plaintiff, herein but rather the “owner”, albeit,
“out of possession landowner” and as to them there remain triable issues of fact. Their
application of the exclusivity remedy under Worker’s Comp has no relevance to defendants
including , the basis by which defendants INC. and
conclude that their are no triable issues, such that summary judgment may be granted. The
exclusive remedy afforded under §11 of the Workers Compensation Law, as defined therein does
not provide for, in the context of an employee who sustains grave injury in bringing his action
against the landowner, as in the case of defendant herein , wherein liability may
not attach, and therefore the plaintiff should not be precluded, nor should same represent a bar to
liability against _______________________ which is not plaintiff’s employer.
14. Although the defendant ASSOCIATES, L.P., in their
own assertion, in stating that they are an entity distinct from plaintiff’s employer, presents a
circular argument, and therefore, can be said to be pointing to the very reason for and issues by
which liability can attach. Defendants including , however, make no
showing of their claimed protection under §§11 and 29(6) under the Worker’s Compensation
Act – defendant in no way are they causally linked to the exclusions enumerated under §11.
Defendant , in asserting that they, had no control over the premises located
at 754 Fifth Avenue, which is the location of plaintiff’s employer at the time of the accident
and plaintiff avers that defendant’s argument that there are entitled to summary judgment by a
showing of their lease which they attach to their moving papers, as 1) the lease attachment
shows that they a) retained a portion of the premises and b) did enter into an agreement with
Bergdorf Goodman, Inc. wherein they did have the right of reentry. , Senior
General Partner, states in his biography on-line at the website of his venture capital
firm________________________, that “…the Goodman family retains ownership of the land
and building.” (see Biography of at s website attached as Exhibit
“G”).
15. The granting of summary judgment must be decided in the light most favorable to
plaintiff. St. Paul Industrial Park, Inc. v. New York State Urban Development Corporation, 63
A.D.2d 822; 406 N.Y.S.2d 178 (1978): “Since it deprives the litigant of his day in court it is
considered a drastic remedy which should only be employed when there is no doubt as to the
absence of triable issues.” Defendant ASSOCIATES, L.P., by their own
admission is a landlord “out of possession” and therefore, a distinct entity, separate and
distinguished by their own characterization, which is not plaintiff’s employer. Further, plaintiff
herein asserts that facts and circumstances concerning defendant ASSOCIATES
with regard to whether or not they had control over the premises, located at 754 Fifth Avenue for
which they have submitted no evidentiary proof. This is particularly illustrated by the fact that
although it is this defendants contention that they have no involvement with inspection, repair or
maintenance of the premises, applications for Work Permits filed with the New York City
Department of Buildings, have listed as the landowner, contact, and applicant for each Work
Permit, ASSOCIATES, L.P., on whose behalf such applications for Work Permits
were filed with and accepted by the New York City Department of Buildings, for the premises
located at (Permits at Department of Buildings at Exhibit “H”).
16. Clearly, there remain issues of fact, and which may be more definitively
determined following discovery, including depositions of the parties herein. The arguments of
the defendants herein with respect to their falling within the exclusivity under Worker’s
Compensation §11 and 29(6) appear on their face as only being supported by conclusory
statements -- the determination of which, as relates to the granting of summary judgment, in the
absence of evidentiary proof, should not be granted. Assertions made that defendant " is an
out-of-possession landlord that retained no control over the premises” and that as such, claims
that that they had no right of reentry is in controversy.
17. The lease which defendants purport the operation by which they are out-of-
possession (pages 4 and 86 of ASSOCIATES, L.P.’s lease attached hereto as
exhibit “I”) ASSOCIATES, L.P. by it’s own presentation provides evidentiary proof in its
exhibits submitted in support of their reply to the prior motion of _______ and
____CONSTRUCTION, that they held and retained the 9th floor of the premises located at
, INC. (see page _____of the lease attached to the Affirmation Yasmin Soto attached herein as
Exhibit “J”). The ninth floor retention by defendant presents just one of the issues regarding the
demised premises as it relates to the condition which resulted in plaintiff ’s injuries. Plaintiff
contends that there are discoverable issues of fact concerning the ninth floor retention by
employer and the owner of the premises where a plaintiff is injured are distinct legal entities,
there is no basis to dismiss an action against the landowner based on the exclusivity provisions of
the Workers' Compensation Law.” Defendants argue in their motion that “ is an out-of-
possession” landowner that retained no control of the premises.” (Paragraph 13 of Page 6 of the
Affirmation of , Esq. annexed as Exhibit “O”). That defendant/landlord herein
L.P., leased the premises to plaintiff’s employer , INC. is not disputed. That , L.P.,
did not “maintain control or management over the employees at the premises” (Page 6,
paragraph 13 of the Affidavit of annexed as Exhibit “P”). Plaintiff contends that the
defendant did and does, at all times prior to, up to and including the date of the accident
to present retain the ninth floor of the premises, the floor from which the water was leaking onto
the ceiling and floors of the eighth floor, for which the defendant was contractually and
statutorily obligated to repair, and for which they had at all times the right to inspect, at the
premises known as , INC., as referred to in Article XIV. 14.1 of the lease. (Lease of ,
L.P. lease entitled Landlord’s Right of Access annexed hereto as exhibit “Q”). In the case at bar
as in Sostre v. Jaeger, et al. 38 A.D.3d 234, 832 N.Y.S.2d 150 the Court held as follows: “…
The landlord could be held liable for the explosion that allegedly caused the employee’s injuries
because it expressly reserved a right under the lease to enter the premises for the purpose of
inspection, maintenance and repair.”
19. In Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69
N.Y.S2d 559; 50-9 N.E.2d 51 N.Y.S.2d 451 (1987) the Court held that:
…under the terms of the lease, Village East, as owner-lessor, could enter the premises at “all times” to inspect and, in addition had the right to make repairs if the tenant failed to make them…Although there is no evidence that Village East had actual notice of the claimed dangerous condition, its right to reenter the premises is sufficient to charge it with constructive notice. Its failure to act to remedy the defect as it could have done under the lease is the basis for its liability under the various provisions of the Administrative Code.
20. “Furthermore defendants claim that as an out of possession landlord (not yet
proven) that they are not liable for statutory violations or structural defects. Plaintiff submits
that discovery may show that the continued accumulations of water on the eighth floor locker
room of INC. was coming from the 9th floor and which, may have been the result
of a structural defect and/or statutory violations. See Ponce v. St. John’s Cemetry, et al., 222
Absolute liability is imposed upon owners and contractors pursuant to Labor Law § 240 (1) upon proof of a violation thereof and that such violation was the proximate cause of the injuries sustained (Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). However, as almost no pretrial discovery has been conducted herein, the court properly denied summary judgment against the owner defendants pursuant to CPLR [**29] 3212 (f) . In these circumstances, discovery may yield information allowing
defendants-respondents to raise issues of facts as to whether, inter alia, a statutory violation was the proximate cause of the accident (see, Avner v 93rd St. Assn., 147 A.D.2d 414 .
21. Plaintiff contends that defendant , L.P., has “exclusive control of
facts concerning its alleged status” and the circumstances concerning the eighth floor leak and
the contract and/or lease in existence which provided that , L.P. had the right to
reenter the premises at any time to make repairs as necessary. Further, the fact that the
defendant _____ retained the 9th floor of the premises, pursuant to the terms of that lease, it is
submitted herein that there remain discoverable issues concerning these facts surrounding these
issues and the existence of a structural defect, which raises issues of fact as relating to the
source and cause of the leak on the eighth floor and which resulted in plaintiff’s accident. In
the matter of Donatin v. Sea Crest Trading Co., Inc., 181 A.D.2d 654; 580 N.Y.S.2d 461
(1992) the court stated: “We agree with the plaintiff's argument that the court erred in granting
summary judgment to the defendant. The cases relied upon by the court, i.e., Heritage v Van
Patten (90 AD2d 936 , affd 59 NY2d 1017), and St. Andrews v Lucarelli (115 AD2d 155 ), are
distinguishable from the instant case and inapplicable. Moreover, it has been stated that…The
proponent of a motion for summary judgment is required to make a prima facie showing of
entitlement to judgment, as a matter of law, offering sufficient evidence to eliminate any
material issues of fact from the case.
22. See Crucetta v. Funnel Equities, Inc., 286 AD2d 747, 730 NYS2d 531.
Notwithstanding, this “exclusive control of facts” maintained by defendants, INC. and
ASSOCIATES, L.P, there remain discoverable and triable issues of fact concerning the mutual
agreement, indemnity, assignment, and/or other instrumentality by which the movants, and
defendant ASSOCIATES, L.P. and move for summary judgment herein can be properly said
to fall within the gambit of the Worker’s Comp clause which affords the exclusory exemption
under which defendants claim right to summary judgment and by which defendants assert that
there are no triable issues of fact.
23. In its opinion regarding the liability of a commercial landlord and its tenants, see
Putnam v. Stout, Jr. et al., 381 N.Y.S.2d 848 (1976) stated that: “…Recognizing that this rule is
an exception to the general rule that a landlord is not liable for conditions upon the land after the
transfer of possession (see Campbell v. Elsie S. Holding Co., 251 NY 445; Restatement, Torts
2d §§355, 356), the Restatement (Second) of Torts has formulated the following rule:
…a Lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with he consent of the lessee or his sublesee by a condition of disrepair existing before or arising after the lessee has taken possession if (a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and (b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and (c) the lessor fails to exercise reasonable care to perform his contract.” (Restatement, Torts 2d §357.)
24. In the instant matter in which the defendant ASSOCIATES, LLP,
retained both the 9th floor and the right of reentry to the premises, as in the matter of Guzman v.
Haven Plaza Housing Development Fund Company, Inc.,et al., 516 N.Y.S.2d 451 (1987) which
the Court held that that: “…The owner of a leased commercial building covered by the New
York City Administrative Code which has no obligation for repairing the premises but retains the
right to reenter and inspect and to make needed repairs at tenant’s expense may be held
responsible for injuries due to a defect in the premises...Also under the terms of the lease, Village
East, as owner-lessor, could enter the premises “at all times” to inspect and, in addition, had the
right to make repairs if the tenant failed to make them…”
25. Further, the defendants, ASSOCIATES, L.P., and , INC. are not
entitled to summary judgment on the ground that the within action is barred by the exclusivity of
Worker’s Compensation, as cited by New York Worker’s Compensation Law §29(6): O’Connor v.
to the Court and prevailed on a showing that the “ownership of the premises in Heritage v Van
Patten (59 NY2d 1017) dissimilarly from the case before the Court in their matter, differed in
that that the ownership of the premises which rested with the employer’s principal, in his
individual capacity, but that in their matter at bar, the ownership “resides in a partnership…”
similarly from the instant matter in which the defendant ASSOCIATES, L.P and
________________________INC. are not nor have they ever been the Plaintiff ’s employer.
The matter of George Lindner et al, Kew Realty Co., 113 A.D.2d 26, 494 N.Y.S. 2d 870; 1985
N.Y. App. Div further held:
…Heritage decision was not controlling in that (1) the defendant in Heritage (supra) had specifically pleaded the affirmative defense, while, at bar, the defendants denied the existence of any employment relationship with the plaintiff, and (2) the ownership of the premises in Heritage lay solely with the employer's principal, in his individual capacity, while, at bar, the ownership resides in a partnership...
27. The court held in. Rice v City of Cortland (1999, 3d Dept) 262 App Div 2d 770,
691 NYS2d 616, “…the Court “erred [emphasis added] in dismissing action on ground that
Labor Law 241(6) applied only to employers.” Plaintiff concedes that , is not
the employer for purposes of applying the exclusion remedy under Worker’s Compensation,
plaintiff, but an owner of the land and premises on which plaintiff was employed by plaintiff’s
employer, defendant INC. the premises on which she sustained a grave injury. Plaintiff
while lawfully on the premises was to be afforded the protections under 200 and 241of the Labor
Law, which defendant ASSOCIATES, as owner had a duty to provide. “…The
rational in Allen “owners regardless of their status and regardless of their lack of direction and
control, are strictly liable—in this case under section 240..” Rice v. City of Cortland, 262 App
Div 2d 770, 691 NYS2d 616.
28. In the case at bar, defendants make reference to defendants
ASSOCIATES, L.P. and as asserted in the
affirmation of , Esq. as if they existed in relation to and
were the same as Plaintiff’s employer. In
relating Plaintiff to defendants_____________ and ASSOCIATES, L.P. and in this
manner, they seem to overlook the fact that those defendants do not stand in any relation to
plaintiff’s employment. Defendants in this regard provide no evidentiary proof of the so called
lack of control over the premises by the defendants and,
L.P. who are very clearly not plaintiff’s employer, and insofar as plaintiff was not employed by
them cannot be barred from liability under Workers’ Compensation Law.
29. Defendant ASSOCIATES, INC., as the landowner is a completely
distinct entity from plaintiff ’s employer See Richardson v. Benoit’s Electric, Inc. , N.Y.S.2d
855; 1998 N.Y. App. Div.
When an employer and the owner of the premises where a plaintiff is injured are distinct legal entities, there is no basis to dismiss an action against the landowner based on the exclusivity provisions of the Workers' Compensation Law (see, e.g., Rosenburg v. Anguili Buick, 220 AD2d 653, 655; Casas v 559 Warren St. Realty Corp., 211 AD2d 742, 743) . Here, as in Buchner v Pines Hotel (87 AD2d 691, 692, affd 58 NY2d 1019), [t]he individual principals in this business enterprise, for their own business and legal advantage, elected to operate that enterprise through separate corporate entities. The structure they created should not lightly be ignored at their behest, in order to shield one of the entities they created from ... common-law tort liability
Neither, defendants , L.P. nor INC. are plaintiff’s
employer. Nor, do the facts do not bear out the assertion of defendant Associates, that
they did not have the right of reentry to the premises located at ______________________’s at
30. ____________, and have submitted in support of their motion for summary
judgment an lease which reflects ___________________________’s right of reentry to the
premises ( ’s Lease entitled Landlord’s Right of Access Exhibit “R”).
31. , Esq. asserts in her affirmation: “In the case at bar, it is clear that is not
obligated contractually to perform any maintenance or repairs on the premises as such is within
the exclusive domain of . and , Inc. as tenants.” (see paragraph 16 at
page 7 of the Affirmation of (, Esq. at Exhibit “M”). In Billy v Consolidated Mach. Tool
Corp ., 71 AD2d 796 , the Court held as in affirming the holding of the lower Court in favor of the
plaintiff that the prior order was to be “...modified, affirmed, holding, in an opinion by Judge
Gabrielli, that the exclusivity provisions of the Workers' Compensation Law do not bar a
entities in order to protect its assets from third parties, the presumption is that the worker's
compensation law will not protect the owner from a common-law suit.
36. At most defendants appear to provide conclusions, however, unsubstantiated as to
what operations of law apply to the instant matter, particularly as to the application of which one
could conclude, they are not and cannot be found liable and for which reasons they are entitled to
summary judgment. Plaintiff has no relationship defendants make a showing of that which is in
direct contradiction to their arguments. Plaintiffs claim that they improperly invoke an exclusion
afforded under Worker’s Compensation, §§11 and 29(6). The plaintiff further asserts, as in
Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798, a matter in which plaintiff is similarly
situated:
….reliance on Heritage v Van Patten (59 NY2d 1017) is misplaced; here, the owner of the real estate is a corporation and not a coemployee of plaintiff (see, Workers' Compensation Law § 29 [6]; see also, Thomas v Maigo Corp ., 37 AD2d 754). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J.--Summary Judgment.)” See Kevin Sergeant, v Murphy Family Trust, et al., 739 N.Y.S.2d 790; 2002 N.Y. App. Div.: wherein the Court determined that to deciding a summary judgment motion is issue finding rather than issue determination, the submissions should be scrutinized carefully in the light most favorable to the party opposing the motion.
37. Defendants do not claim plaintiff is the employee of , L.P., and
, INC., in so identifying these defendants has shown that, _________________________, INC.
and___________________________although, as , states in his affidavit, that is
“out-of-possession,” do not show themselves as being “out-of-possession” as they claim therein.
Although Mr. , the Senior General Partner of defendant ASSOCIATES, L.P.
does not affirm in his affidavit that has no right of reentry, in the (Affidavits of , Jr.
annexed to defendants motion as Exhibits G and I) in her affirmation, , Esq. asserts that said
defendant has no right of reentry.
38. Defendants by their own contradictory contentions raise several issues of fact,
including issues relating to whether there is evidentiary material to support defendants argument
that “clearly ______ASSOCIATES…did not have any notice nor was it responsible for
inspecting, repairing, or maintaining same.” This appears to plaintiff herein, to be contradicted
by other evidence. ASSOCIATES is listed as being the entity on whose behalf work to be
performed at _____________New York, New York were made. (see Applications for Permits
from New York City Department of Buildings at Exhibit “G”).
39. Plaintiff submits that the argument defendants put forth that Plaintiff’s claim against
these defendants is barred by Worker’s Compensation §11 and 29(6) represents a clear
misapplication of the Statute. Defendant ______ASSOCIATES, is not plaintiff’s employer. The
same is true of , INC. As can be seen by (paragraph 8, page 4 of the Affirmation of
, Esq. at Exhibit “F”) defendant , INC., “…it is an undisputed fact that plaintiff ,
was an employee of______________________ working in the course of her employment.”
Plaintiff of course, admits to the premise underlying the exclusive remedy afforded under
Worker’s Compensation. See Roy Russell v. Renee Gaines, 209 A.D.2d 939; 619 N.Y.S.2d 420;