SUPREME COURT OF THE STATE OF NEW YORKCOUNTY 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 .

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

defendant ASSOCIATES, L.P. (Affirmation of_____________ attached

hereto as Exhibit K). The water on which Plaintiff slipped and fell in the 8 th floor locker room

while in her employ at was coming from the ceiling of the 8 th floor, which

water and leaks Plaintiff contends were coming from the 9th floor which was retained by the

____________________’s and for which _________________________, L.P. had full access

and control, and to which defendant INC. would not have had access and control.

Although defendants herein in setting forth that “As is clear by page 66, Section 9.1., entitled

Repairs by Tenants, the tenant is responsible to make all repairs, both interior and exterior as

well as structural and non-structural. (referred to by defendant as Exhibit “A”, pg. 90 and

annexed hereto as Exhibit “L”), and that “ did not have a physical presence

on the building nor is it responsible to maintain the premises.” (Page 8, paragraph 19 of

Affirmation of Esq. annexed hereto as Exhibit “M”). This statement which

was submitted by defendant , in reply papers to s prior motion,

overlooks that portion of the lease which had been attached, which shows retention of the 9 th

floor of the premises, and the Right of Reentry by . There evidentiary

proof of other facts which defendant has overlooked which are evidenced by their lease

attachment ( ’s lease attached as exhibit “I”). Although the defendants state

that they are not responsible for repairs to, and deny that they had control over the premises in

direct contradiction of this so called fact, there exists a portion of the lease previously presented

by defendants to the court, which as can be seen,________________ has retention of the 9 th

floor, and that pursuant to the terms of the lease,____________________________, had the right

to inspect, and make repairs, Plaintiff asserts that there are factual issues which remain and it is

submitted that as to them summary judgment should not be granted.

18. Defendants only conclusory and evidentiary proof in the statement in the

Affirmation of Edwin A. Goodman, that “…At no time did maintain control or

management over the employees at the premises.” (see paragraph 13, page 6 of Affidavit of

, Esq. at Exhibit N”). See Deborah A. Richardson et al., v. Benoit's Electric, Inc., et al. and

Woodstream Holding Corp.,677 N.Y.S.2d 855, 1998 N.Y. App. Div. 254 A.D.2d 798; “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.” 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

A.D.2d 361, 636 N.Y.S.2d 28 (1995) N.Y. App. Div.:

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

and/or non-exclusive responsibility, overlapping responsibility, title, ownership, contractual

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.

Spencer (1977)., Ltd. P’ship (2003, App Div, 2d Dept. 769 NYS2d 276: Worker’s Compensation

exclusivity provisions did not bar an injured worker’s action against a partnership that owned the

premises where the worker was injured because none of the property owner’s partners were officers of

the worker’s corporate employer, and the partnership and the employer were distinct legal entities.

26. , L.P., is the owner of the premises and land, albeit, “out of

possession” which is located at 754 Fifth Avenue, the site of defendant BERGDORF

GOODMAN, INC., plaintiff’s employer. Similarly, in the matter of George Lindner et al. v.

Kew Realty Co., 113 A.D.2d 36; 494 N.Y.S.2d 870; 1985 N.Y. App. Div., the plaintiff presented

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

common-law action against an employer for injuries sustained by an employee in the course of

his employment where the employer's liability is alleged to have arisen solely from its

independent assumption, by contract or operation of law, of the obligations and liabilities of a

third-party tort-feasor.”

32. Defendants herein have provided mere conclusory statements as to their claim that “

is not obligated contractually to perform any maintenance or repairs on the premises as such is

within the exclusive domain of Inc. and , Inc” (see paragraph 16,

page 7 of Affidavit of at Exhibit “M”). Further as they contend that

ASSOCIATES was not on “notice” of such condition…“nor was it responsible for inspecting,

maintaining or repairing same,” as set forth in ‘s Affirmation, (see page 7, paragraph 15 of

Affirmation of , Esq. at Exhibit “M”). There is no evidentiary material

provided in support their own claim, make no reference to or inclusion of any contracts, and/or

agreements showing the claimed obligations of , INC. or , INC.

wherein they agreed to indemnify, or assumed the obligations of, or of the “notice” requisite by

agreement, which defendants claim was due to [one] defendant by the[other]. In Billy v

Cosolidated Mach. Tool Corp ., 71 AD2d 796. Billy v Consolidated Mach. Tool Corp., 51 NY2d

in discussing the issue of “notice” as provided by defendants: “Conversely, there generally is no

duty to warn of conditions that can be easily recognized or discovered by the normal use of one's

senses (see, De Rossi v Golub Corp., 209 AD2d 911, 912, lv denied 85 NY2d 804; Tarricone v

State of New York, 175 AD2d 308, 310, denied 78 NY2d 862).” Since the evidence in the record

establishes that plaintiff was fully aware of the stairs' defective condition, defendants urge us to

apply the latter holdings here. However, they overlook the rule that landowners, who have or

should have reason to expect that persons will find it necessary to encounter the obvious danger,

owe a duty of reasonable care to either warn such persons of the danger or to take other

reasonable steps to protect them from it …”

33. Although it was affirmed by , Senior General Partner of

ASSOCIATES that: “It did not maintain an office on the premises.” (see Affirmation of Mr.

dated December 22, 2006 at paragraph 8, page 2 at Exhibit “N”), it makes no reference their

right of reentry as landowner and title holder of the premises. See Lopez v. 1372 Shakespeare

Ave. Hous. Dev. Fund Corp., 299 A.D.2d: 750 N.Y.S2d 44 (2002): “Generally, an out-of-

possession landlord may not be held liable for a third-party's injury on his or her premises unless

the landlord has notice of the defect and has consented to be responsible for maintenance or

repair. Constructive notice may be found, however, where, as here, the landlord expressly

reserves a right under the terms of the lease to enter the premises for the purpose of inspection,

maintenance and repair, and there is a specific statutory violation.”

34. Plaintiff contends that as , L.P., nor , INC. are not the

plaintiff’s employer. Although stated in they stated in defendants affidavits, as well as the

Affirmation of defendants’ attorney, that “At no time did 754 maintain control or management

over the employees of the premises.” (see paragraph 16, page 7of the Affirmation of

______________, Esq, at Exhibit “M”.) they present no evidentiary proof, such that plaintiff’s

case should be dismissed and base their arguments solely on the non-conclusory and non-

applicable restatement of the law referable to the exclusivity clause under Workers’

Compensation. Plaintiff is well aware of whom her employer is, namely

_________________ and sets forth that the restatement of the Workers’ Compensation

exclusivity is totally irrelevant, and further not the operation of law by which defendants can be

said to properly have rested their argument for summary judgment as to those defendants. See

Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798: “... 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.).”

35. Particularly with respect to the defendants ASSOCIATES,

L.P., ,____________________., and ______________________, INC. wherein said defendants

herein claim that they have no knowledge as to the notice of the condition, or of the existence of

any conditions of which they were aware due to either as they claim a lack of control, right of

reentry, lack of obligation or otherwise, with respect to the within matter an equivalent to the

within matter is cited in: Richardson v. Benoit's Elec., Inc . : 677 N.Y.S.2d 855.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.” See Lopez v. Gem Gravure Corp., 798 N.Y.S.2d 345; (2004) N.Y. However, a

separate line of cases holds that "the individual principals in this business enterprise, for their

own business and legal advantage, elected to operate that enterprise through separate corporate

entities…Moreover, where as here, the parties operated two corporations, one being the

landowner and the other operating the business, Courts have held that the workers compensation

law does not bar a common-law suit against the landowner (Richardson v. Benoit's Elec. , Inc. ,

254 A.D.2d 798, 677 N.Y.S.2d 855)…where a single business is structured as separate legal

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;

1994 N.Y. App. Div: “Workers' Compensation Law, N.Y. Work. Comp. Law § 29 (6) provides

that its provisions are the exclusive remedy to an employee when such employee is injured or

killed by the negligence or wrong of another in the same employ…a defendant must himself

have been in the course of his employment at the time of the injury. See Casas v. 559 Warren

St. Realty Corp., 211 A.D.2d 742: “Unlike the situations presented in Coppola v Singer (211

AD2d 744 [decided herewith]) and Lapinski v Gusmar Realty (211 AD2d 764 [decided

herewith]), the record in this case establishes that the plaintiff was employed solely by Lone Star

and that the corporate defendants were separate legal entities from Lone Star and could not be

considered the co-employees of the plaintiff. Accordingly, the plaintiff's receipt of Workers'

Compensation benefits does not shield the corporate defendants from potential tort liability (see,

Bernardo v Melville Indus. Assocs., 148 AD2d 486; Bruno v Dynamic Enters., 132 AD2d 964),

inasmuch as they are distinct corporate entities unrelated to the plaintiff's employer.”

40. However, defendants by their own arguments which purport that there are no issues

of fact, raise several issues, disprove their own claim in stating they are “equal” in remedy as to

the exclusivity of Worker’s Compensation §§11 and 29(6). Defendants’ assertions and attempt

to distinguish each defendant from the other, are presenting a case where as they clearly identify

said defendants as not being the employer of the plaintiff, and further are establishing that the

defendants are each separate and disparate in interest and distinct, (and separate from plaintiff’s

employer) show that plaintiff is not barred by the exclusivity afforded under Worker’s

Compensation Law from brining a matter in tort law. Further, defendants present no evidentiary

material supporting their argument of the distinct lack of common interest and separate

responsibility which they claim each defendant had with respect to the premises. See Stephen J.

Bernardo v. Melville Industrial Associates, 538 N.Y.S.2d 833; 1989 N.Y. App. Div.: “The

record, including the documentary evidence submitted, clearly established that, at the time of the

accident, the injured plaintiff was employed solely by Dachlar Management Corporation a

separate legal entity from Melville. Although Melville was instrumental in forming Dachlar

Management and is the sole shareholder thereof, these facts are insufficient to shield Melville

from tort liability…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.).”

41. A question of fact remains as to what extent moving defendants had control over the

premises, regardless of whether or not they were the Plaintiff’s employer. Whether or not the

defendants ASSOCIATES, L.P. and INC. are Plaintiff’s employer, each defendant

has “exclusive control of facts concerning its alleged status.” Summary Judgment cannot be granted as

to these defendants based upon their lease, which was not attached in its entirety to the motion which

Plaintiff opposes herein; b) based upon the fact that the defendant retained the 9 th floor of

the premises; and (c) the fact that defendant had entered into an contractually agreement to both retain

the right of reentry and the right to inspect, and perform repairs. (see page 4 and pg 8 of defendant

________’s lease annexed hereto as Exhibit “O”) The contractual obligations of the

defendants/movants for summary judgment and , INC., and the particulars

surrounding their retention of the 9th floor as indicated by the lease annexed hereto as (Exhibit See

Crucetta v. Funnel Equities, Inc., (2001, 2d Dept) 286 AD2d 747, 730 NYS2d 531.

43. In her affirmation of _________________, Esq. asserts that “Pursuant to the

terms of the Lease Agreement ____________________ as tenant was and is responsible for all

maintenance, repairs, construction, renovation, installations, and work performed on the

premises… ____________________ ASSOCIATES is an out-of-possession landowner that

had retained no control of the premises.” These attestations are not supported by any parole

evidence. Surely, the agreements by and between these defendants, including leases and any

other agreements, entered into by these defendants are the only means by which one can

ascertain whether or not defendants had “no control of the premises.” There remain triable

issues of fact, namely whether the defendants had the right of reentry to the premises, as

determined by a showing of the leases entered into by and between_________________ and

_____________________. No such leases, agreements, in their entirety or other evidentiary

materials to support the assertions of defendants that they should be dismissed from the within

action, have been attached to the motion papers. Certainly, a landowner, even an “out-of-

possession” landowner, retains some rights by its own choosing, in an effort to protect that

which it owns. Plaintiff submits to this Honorable Court that there are issues of triable fact,

such that the defendants herein, certainly have had the right of reentry to the premises, located

at Avenue, and retained the 9th floor of the premises. Further, plaintiff submits that parole

evidence, in the form of defendant ’s lease that they retained control over the 9 th

floor of the premises, and that as such their claim of being “out-of-possession” is

unsubstantiated.

44. Plaintiff further asserts that defendants in arguing their position as to the bases for

a finding of summary judgment as to the defendants herein, seem to present an argument more

akin to arguing the validity of contractual agreements by and between the defendants herein

____________________, INC., , and , INC..

45. In the Affirmation of , Esq. (paragraph 10, page 5) that as to the

defendant INC. the “entity known as INC. was changed

, INC., the surviving corporation, through a reverse merger and that “the entity known as

INC., became , INC. a subsidiary of , INC. Although INC. is purported to

have been an alter ego of , INC. plaintiff submits that there remain severable

issues of fact in this regard. Although defendants contend that the merger and corporate name

change from “__________________________ACQUISTION, INC. was changed

to_________________________, INC…on October 6, 2005 plaintiff submits that the lease

which is attached to defendants moving papers has

____________________________________________ INC., states that GROUP,

INC. not _________________________ INC.) is the leaseholder. Not dissimilar to the instant

matter is Mournet, v. Educational and Cultural Trust Fund of the Electrical Industry,

Appellant, et al., 303 A.D.2d 474; 756 N.Y.S.2d 433 (2003) wherein the Court held that : “…

Although a representative of ECT submitted an affidavit which established that it and JIB were

related entities, this evidence failed to demonstrate JIB's control, if any, over the day-to-day

operations of ECT. Therefore, ECT failed to establish the applicability of the exclusivity

provisions of the Workers' Compensation Law (see Cruceta v Funnel Equities , 286 A.D.2d

747, 730 N.Y.S.2d 531 [2001 ] ; … Dennihy v Episcopal Health Servs. , 283 A.D.2d 542, 543,

724 N.Y.S.2d 768 [2001]; Constantine v Premier Cab Corp. , 295 A.D.2d 303, 304, 743

N.Y.S.2d 516 [2002]). Summary judgment was also properly denied on the ground that ECT

had exclusive knowledge of some of the facts regarding its alleged status as an alter ego of JIB

(see Cruceta v Funnel Equities, supra; Ellis v Allstate Ins.”

46. In the assertions of , Esq. herein, her arguments are purported to

provide a showing that there are no triable issues of fact, seem more to raise questions of the

triable issues, such that there is allusion to some unforeseen force majeure clause in operation,

by and/or between the very defendants that are being defended and for whom arguments are

being provided for jointly, such as a lease, a showing of which , L.P., as

landowner, [did] or [did not] have the right of reentry to the premises, and the agreement by

which NEIMAN MARCUS GROUP, INC., [did] or did not] by its agreement with the

defendants, L.P., , and , INC. have responsibility for

maintenance, repairs, renovation and/or alterations at the premises, located at Avenue.

48. Defendants’ motion for summary judgment should be denied for the foregoing

reasons: (1) lack of Plaintiff’s being able to conduct any discovery, including the cause of the

constant water hazard in the locker room; (2) the contradiction which exists to defendant

ASSOCIATES, L.P.’s claim that it is an “out-of-possession” landlord (despite the attachment

of the lease which shows that a) ___________________ASSOCIATES, L.P. had retention of

the 9th floor of the premises, and b) their showing by the attachment of the lease that they have

the right of reentry to the premises, to inspect, and/or repair same, shows that save the

Affidavit of claiming that they are “out-of-possession” and that all responsibility for

the premises lies with (3) and unresolved questions of fact as to the actual

relationship between the parties, INC. who it is now claimed “became

___________________________, INC., and which defendant has there been evidentiary proof

of same; and (4) and given that Plaintiff claims a “grave injury”, co-defendants cross claims

against Plaintiff’s employer should not be dismissed.

WHEREFORE, Plaintiff seeks an order denying the motion of the defendants

, , INC. and ASSOCIATES, L.P., in all respects and

for such other and further relief as to this Court may seem just and proper.

Dated: New York, New York

_____________________________ , ESQ