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FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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KALWEEN RODRIGUEZ, Index No.: 506931/2022
Plaintiff,
AFFIRMATON IN
-against- SUPPORT OF MOTION
TO DISMISS
TOV MANAGEMENT CORP., TOV PROPERTY
MANAGEMENT CORP., METROPOLITAN REALTY
MANAGEMENT, INC., and METROPOLITAN REALTY &
MANAGEMENT NY INC.,
Defendants.
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Todd M. McCauley, an attorney duly admitted to practice law before the courts of the
State of New York, hereby affirms the following under penalty of perjury:
1. I am a member of McCauley Law Firm, PLLC, attorneys for defendants, TOV
MANAGEMENT CORP., TOV PROPERTY MANAGEMENT CORP. and METROPOLITAN
REALTY & MANAGEMENT NY INC., and, as such, I am fully familiar with the facts and
circumstances herein.
2. This Affirmation is submitted in support of the defendants’ motion for an Order
pursuant to CPLR 3211(a)(1) and 3211(a)(7), dismissing this action as against the defendants,
TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. for (a) failing
to state a cause of action against them and based on the documentary evidence that the plaintiff's
claims against them are barred by the exclusive remedy provision of the Workers' Compensation
Law; (b) pursuant to CPLR 3211(a)(1) and 3211(a)(7), dismissing the plaintiff's complaint
against the defendant, METROPOLITAN REALTY & MANAGEMENT NY INC., based on the
documentary evidence that this defendant had no involvement, whatsoever, with the alleged
accident location; and (c) for such other and further relief as the Court deems just and proper.
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3. Plaintiff, Kalween Rodriguez, commenced this personal injury action against the
defendants by the filing of a Summons and Verified Complaint, a copy of which is annexed
hereto as Exhibit “A”. He is seeking recovery for injuries allegedly sustained on September 20,
2019, at the premises located at 233 Jamaica Avenue, Brooklyn, New York 11207 (“the
property”), which was owned by the defendant, TOV MANAGEMENT CORP. and managed by
the defendant, TOV PROPERTY MANAGEMENT CORP. Plaintiff alleges that, while he was
working as a superintendent at the property, a portion of the concrete ceiling in the parking
garage fell on him, causing him to sustain injuries. Plaintiff claims that the defendants were
negligent in the ownership, maintenance and control of the subject premises. The moving
defendants have an extension of time to appear in this action up to and including August 12,
2022, pursuant to a Stipulation signed by the plaintiff’s counsel, a copy of which is annexed
hereto as Exhibit “B”.
4. As set forth herein, the plaintiff was hired directly by TOV MANAGEMENT
CORP. to be a full-time, live in superintendent at the property. His day-to-day work at the
property was supervised, directed and controlled by TOV PROPERTY MANAGEMENT CORP,
a closely related company to TOV MANAGEMENT CORP. However, both TOV
MANAGEMENT and TOV PROPERTY MANAGEMENT CORP. had authority over the
plaintiff’s work and the authority to terminate his employment.
5. Approximately two years after the date of his alleged accident, in or about August
of 2021, the plaintiff filed a claim for workers’ compensation benefits under a workers’
compensation policy maintained by County Agency, Inc., a Professional Employer Organization
(“PEO”), which was hired by TOV MANAGEMENT CORP. in 2016 to perform solely
administrative services (including payroll and procurement of workers’ compensation policy) for
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TOV MANAGEMENT CORP.’s work site employees. Plaintiff currently has an active
Workers’ Compensation claim under Case #G310 1442.
6. The documentary evidence herein establishes that the plaintiff is barred under the
Workers’ Compensation law from maintaining an action against the defendants, TOV
MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP., his “special
employers”, and, alternatively, against TOV PROPERTY MANAGEMENT CORP., his
“special” employer,” and against TOV MANAGEMENT CORP., the “alter ego” of TOV
PROPERTY MANAGEMENT CORP.
7. The documentary evidence herein also establishes that the defendant,
METROPOLITAN REALTY & MANAGEMENT NY INC. (“Metropolitan”) had no
connection, whatsoever, with the subject property on the date of the alleged accident. Therefore,
the plaintiff’s action against Metropolitan should be dismissed in its entirety.
STATEMENT OF FACTS
8. Annexed hereto as Exhibit “C” is an affidavit by Gedalia David Altman, Vice
President of TOV MANAGEMENT CORP. and President of METROPOLITAN REALTY &
MANAGEMENT NY INC. (“Metropolitan”). In addition, annexed hereto as Exhibit “D” is an
affidavit by Motty Neiman, the President of TOV PROPERTY MANAGEMENT CORP. As
stated in their affidavits, TOV MANAGEMENT CORP. is the owner of the building located at
233 Jamaica Avenue, Brooklyn, New York 11207. TOV PROPERTY MANAGEMENT CORP.
was formed solely to manage the property. TOV MANAGEMENT CORP. and TOV
PROPERTY MANAGEMENT CORP. entered into a “Property Management Agreement” which
became effective on February 1, 2016. Pursuant to Paragraph “2” - “Management
Responsibilities” in the Agreement, TOV PROPERTY MANAGEMENT CORP. was
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responsible for “performing, or hiring necessary personnel to perform all necessary maintenance
and repairs to the Property”. A copy of the Property Management Agreement is annexed hereto
as Exhibit “E”.
9. TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP.
share office space at 25 Robert Pitt Drive, Monsey, NY 10952. All their financials, bills, and
payments are handled together by TOV PROPERTY MANAGEMENT CORP.’s secretary, Gitty
Koning. TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. work
together closely to handle all details concerning the property and employees at the property.
They both interview candidates for the position of superintendent at the subject property, hire
and fire building superintendents and set their wages and hours. Please see the annexed affidavits
by Gedalia David Altman and Motty Neiman (Exhibits “C” and “D”, respectively).
10. In 2016, TOV PROPERTY MANAGEMENT CORP. placed advertisements for a
full-time position of superintendent at 233 Jamaica Avenue, Brooklyn, New York 11207. Both
TOV PROPERTY MANAGEMENT CORP. and TOV MANAGEMENT interviewed candidates
who applied for the position. In September of 2016, the plaintiff was hired by TOV
MANAGEMENT CORP. to be a full-time, live-in superintendent at the property. The plaintiff
signed a direct “Super Contract”, dated September 13, 2016, with TOV MANAGEMENT
CORP. for the superintendent position. A copy of the signed Super Contract is annexed hereto
as Exhibit “F”. Pursuant to the language in the Super Contract, the plaintiff agreed to use “my
own tools” and do “all work or repairs needed in the building”. It was agreed that he would
receive “apartment 1A free and utilities free, my salary will be $1200.00 twice a month and a
free parking spot in the garage” (see Exhibit “F”). As explained by Mr. Gedalia in his affidavit,
the “Super Contract” was between the plaintiff and TOV MANAGEMENT CORP., not TOV
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PROPERTY MANAGEMNT CORP., since the plaintiff was going to be living and working in
the property owned by TOV MANAGEMENT CORP. Please see the annexed affidavits by
Gedalia David Altman and Motty Neiman (Exhibits “C” and “D”, respectively).
11. TOV PROPERTY MANAGEMENT CORP. supervised, directed and controlled
the plaintiff’s day-to-day work. TOV PROPERTY MANAGEMENT CORP. reported directly to
TOV MANAGEMENT CORP. However, both TOV PROPERTY MANAGEMENT CORP. and
TOV MANAGEMENT exercised joint authority over the plaintiff. They both had the authority
to terminate his employment. Please see the annexed affidavits by Gedalia David Altman and
Motty Neiman (Exhibits “C” and “D”, respectively).
12. On October 12, 2021, the plaintiff’s employment at the property was terminated
by TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. A letter of
termination, dated October 12, 2021, was sent to the plaintiff. A copy of the letter is annexed
hereto as Exhibit “G”. On or about October 23, 2021, the plaintiff filed a “Discharge or
Discrimination Complaint” with the Workers’ Compensation Board against TOV
MANAGEMENT, which he identified in his Complaint as his “employer”. In the signed
Complaint, it states, “Motty Neiman and David (last name unknown) were the managers
who fired me…” (emphasis added in bold). As stated by Mr. Altman in his affidavit, Mr.
Altman’s middle name is “David”, and he was called “David” by the plaintiff. A copy of the
plaintiff’s signed Discharge or Discrimination Complaint is annexed hereto as Exhibit “H”.
13. In addition, on August 23, 2021, approximately two years after the date of his
alleged accident, the plaintiff filed a claim for workers’ compensation benefits. A copy of his
attorneys’ representation letter to the Workers’ Compensation Board and the plaintiff’s
Employee Claim C-3 are annexed hereto collectively as Exhibit “I”.
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14. Pursuant to a hearing that was held on February 8, 2002, the Workers’
Compensation Board’s issued a decision that the plaintiff’s “proper employer” is County
Agency, Inc., located at 129 South 8th Street, Brooklyn, NY 11211. A copy the Workers’
Compensation Board Notice of Decision is annexed hereto as Exhibit “J”.
15. Annexed hereto as Exhibit “K” is an affidavit by Harold Weber, President of
County Agency, Inc. As stated in his affidavit, County Agency, Inc. is a professional employer
organization which has a “PEO Client Service Agreement” with TOV MANAGEMENT CORP.,
which was in effect on the date of the plaintiff’s alleged accident. A copy of the “PEO Client
Service Agreement” is annexed hereto as Exhibit ‘L”.
16. Pursuant to the “PEO Client Service Agreement”, County Agency, Inc. (“PEO
Provider”) agreed to provide TOV MANAGEMENT CORP. (“Client”) with “human resources-
related services to Client as a co-employer of Client’s employees” (Emphasis added in bold).
(Exhibit “L”).
17. Paragraph “1” of the “PEO Client Service Agreement” states:
“PEO Provider is designated as the Administrative Employer and agrees that it
is a co-employer for purposes of carrying out the responsibilities described in
Section 2 of this Agreement (hereafter “Services”). Client is designated as the
Work Site Employer and agrees that it is a co-employer for purposes of carrying
out the responsibilities described in Section 3 of this Agreement. Client’s
employees are referred to as Work Site Employees (WSEs) throughout this
Agreement.”
18. Section 2 - “Rights and Responsibilities of PEO Provider”, paragraph 2.1 of the
“PEO Client Service Agreement” (Exhibit “L”) states that “PEO Provider assumes full
responsibility for “payment of wages, as reported by Client, through PEO Provider’s payroll…”
19. Section 2, paragraph 2.7 of the “PEO Client Service Agreement” (Exhibit “L”)
states that PEO Provider assumes full responsibility for “providing workers’ compensation
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insurance coverage that covers the WSEs, as well as processing and defending all workers’
compensation claims”. (Emphasis added in bold).
20. Section 3 - “Rights and Responsibilities of Client,” paragraph 3.1 of the “PEO
Client Service Agreement” (Exhibit “L”) states that the Client (Tov Management Corp.)
agrees to have “the sole responsibility for the day-to-day control and supervision of WSEs,
as well as hiring, firing, disciplining or promoting WSEs”.
21. County Agency, Inc. procured a workers’ compensation policy with Oriska
Insurance Company, which was in effect on the date of the plaintiff’s alleged accident. A copy
of the Workers’ Compensation policy, issued by Oriska Insurance County, is annexed hereto as
Exhibit “M”. The workers’ compensation policy, #WC46416010100038, was in effect from
April 1, 2019 to April 1, 2020, and names “Tov Management Inc. a/k/a TOV Management
Corp.” as “the insured”.
22. County Agency, Inc. reported the plaintiff’s alleged work-related injury/illness to
Oriska Insurance Company, as stated by Mr. Weber in his affidavit. The plaintiff’s workers’
compensation case is currently active. A copy of the completed C-2F – Employer’s First Report
of Work-Related Injury/Illness is annexed hereto as Exhibit “N”.
23. At a Workers’ Compensation hearing that was held on June 14, 2022, Judge
Howard Geasor made the following decision: “The claimant Kalween Rodriguez had a work-
related injury amended to include head, face, TBI and PCS. Medical treatment and care, as
necessary, for established sites of injury and/or conditions, is authorized. Treatment rendered to
one of the body parts covered by the Medical Treatment Guidelines must be consistent with
those Guidelines”. Parties were directed to submit deposition transcripts of doctors by
September 14, 2022 for further adjudication by a WC Law Judge. Please see a copy of the
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Workers’ Compensation Board’s “Notice of Decision” filed on June 17, 2022, annexed hereto as
Exhibit “O”.
ARGUMENT
POINT I
THE PLAINTIFF’S ACTION AGAINST DEFENDANTS, TOV MANAGEMENT CORP.
AND TOV PROPERTY MANAGEMENT CORP., MUST BE DISMISSED IN ITS
ENTIRETY SINCE SUCH ACTION IS BARRED BY §§ 11 AND 29(6) OF THE
WORKERS’ COMPENSATION LAW OF THE STATE OF NEW YORK
24. Workers’ Compensation Law §§ 11 and 29(6) provide that an employee who is
entitled to receive compensation benefits for injuries sustained in the course of his or her
employment is prohibited from maintaining an action for personal injuries against his or her
employer.
25. Workers' Compensation Law § 11 provides, in applicable part:
"The liability of an employer prescribed by the last preceding section shall be
exclusive and in place of any other liability whatsoever, to such employee, his or
her personal representatives, spouse, parents, dependents, distributees, or any
person otherwise entitled to recover damages, contribution or indemnity, at
common law or otherwise, on account of such injury or death or liability arising
therefrom, except that if an employer fails to secure the payment of compensation
for his or her injured employees and their dependents as provided in section fifty
of this chapter, an injured employee, or his or her legal representative in case of
death results from the injury, may, at his or her option, elect to claim
compensation under this chapter, or to maintain an action in the courts for
damages on account of such injury; and in such an action it shall not be necessary
to plead or prove freedom from contributory negligence nor may the defendant
plead as a defense that the injury was caused by the negligence of a fellow servant
nor that the employee assumed the risk of his or her employment, nor that the
injury was due to the contributory negligence of the employee."
26. Workers' Compensation Law § 29 (6) provides that "[t]he right to compensation
or benefits under this chapter, shall be the exclusive remedy to an employee."
27. "The receipt of workers' compensation benefits is the exclusive remedy that a
worker may obtain against an employer for losses suffered as a result of an injury sustained in
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the course of employment" (Siklas v Cyclone Realty, LLC, 78 AD3d 144, 150, 908 N.Y.S.2d
117 [2010], citing Reich v Manhattan Boiler & Equip. Corp., 91 NY2d 772, 779, 698 N.E.2d
939, 676 N.Y.S.2d 110 [1998]; Hofweber v Soros, 57 AD3d 848, 849, 870 N.Y.S.2d 98 [2008]
lv denied 13 N.Y.3d 703, 915 N.E.2d 290, 886 N.Y.S.2d 365 [2009]; Pereira v St. Joseph's
Cemetery, 54 AD3d 835, 836, 864 N.Y.S.2d 491 [2008]).
28. A person may be deemed to have more than one employer for purposes of the
Workers' Compensation Law, a general employer and a special employer. Munion v Trustees of
Columbia Univ. in City of N.Y., 120 A.D.3d 779, 991 N.Y.S.2d 460, 2014 N.Y. App. Div.
LEXIS 5906, 2014 NY Slip Op 05964 (2nd Dept. 2014).
29. Furthermore, the receipt of Workers' Compensation benefits from a general
employer precludes an employee from commencing a negligence action against a special
employer. Hofweber v Soros, 57 AD3d 848, 849, 870 N.Y.S.2d 98 (2nd Dept. 2008); Croche v
Wyckoff Park Assocs., 274 A.D.2d 542, 711 N.Y.S.2d 490 (2nd Dept. 2000).
30. In Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 585 N.E.2d 355, 578
N.Y.S.2d 106, 1991 N.Y. LEXIS 4925 (1991), the Court of Appeals held:
“We have consistently found as a general proposition that a general employee of
one employer may also be in the special employ of another, notwithstanding the
general employer's responsibility for payment of wages and for maintaining
workers' compensation and other employee benefits”.
31. Moreover, in Thompson, the Court of Appeals further held:
“Indeed, though recognized as an exception to the general approach and analysis,
we have held that the determination of special employment status may be made as
a matter of law where the particular, undisputed critical facts compel that
conclusion and present no triable issue of fact (Sweet v Board of Educ., 290 NY,
at 76, supra; Irwin v Klein, 271 NY, at 487, supra; Ramsey v New York Cent. R.
R. Co., 269 NY, at 223-224, supra; Charles v Barrett, 233 NY 127, 129; Murray v
Union Ry. Co., 229 NY, at 112, supra; see also, Delisa v Arthur F. Schmidt, Inc.,
285 NY 314, 320; Fallone v Misericordia Hosp., 23 AD2d 222, 227, aff’d without
opn 17 NY2d 648; Richiusa v Kahn Lbr. & Millwork Co., 148 AD2d 690, 692;
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Cameli v Pace Univ., 131 AD2d, at 420, supra; Doboshinski v Fuji Bank, 78
AD2d 537, 538; Brooks v Chemical Leaman Tank Lines, 71 AD2d, at 407,
supra). Thus, we have never held that the issue of special employment must
always be submitted to a fact finder where the undisputed facts establish that the
general employer was performing no work for the special employer and did not
retain control over the special employee. This, when combined with other factors,
allows a determination of special employment status as a matter of law”.
“Many factors are weighed in deciding whether a special employment relationship
exists, and generally no one is decisive (Braxton v Mendelson, 233 NY 122, 124,
supra). 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 (Stone v Bigley Bros., 309 NY 132, supra; Sweet v Board of
Educ., 290 NY 73, 76-77, supra; Irwin v Klein, 271 NY 477, 484,supra; Ramsey v
New York Cent. R. R. Co., 269 NY 219, 224, supra; Wawrzonek v Central
Hudson Gas & Elec. Corp., 276 NY 412, 419, supra; Wyllie v Palmer, 137 NY
248, 257).”
32. Furthermore, in Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662, 793
NYS2d 530 (2nd Dept. 2005), the Court held:
"The determination of special employment status may be made as a matter of law
where the particular, undisputed critical facts compel that conclusion and present
no triable issue of fact. Many factors are weighed in deciding whether a special
employment relationship exists, and generally no single one is decisive . . .
Principal factors include who has the right to control the employee's work, who is
responsible for the payment of wages and the furnishing of equipment, who has
the right to discharge the employee, and whether the work being performed was in
furtherance of the special employer's or the general employer's business . . . The
most significant factor is who controls and directs the manner, details, and
ultimate result of the employee's work”.
33. "The protection against lawsuits brought by injured workers which is afforded to
employers by Workers' Compensation Law §§ 11 and 29(6) also extends to entities which are
alter egos of the entity which employs the plaintiff". Batts v IBEX Constr., LLC, 112 AD3d
765, 766, 977 N.Y.S.2d 282 (2nd Dept 2013).
34. "A defendant may establish itself as the alter ego of a plaintiff's employer by
demonstrating that one of the entities controls the other or that the two operate as a single
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integrated entity." Quizhpe v Luvin Constr. Corp., 103 AD3d 618, 619, 960 N.Y.S.2d 130
(2nd Dept. 2013).
35. The documentary evidence herein establishes that County Agency, Inc. was the
plaintiff’s general employer on the date of his alleged accident. As the PEO Provider, County
Agency, Inc.’s responsibilities were solely administrative and included payment of wages and
maintaining a workers’ compensation insurance policy for work site employees of its client,
TOV MANAGEMENT CORP. County Agency, Inc. did not reserve any day-to-day control and
supervision over the plaintiff, Kalween Rodgriguez, and did not have the right to hire, fire,
discipline or promote him.
36. It is respectfully submitted that TOV MANAGEMENT CORP. and TOV
PROPERTY MANAGEMENT CORP. were the plaintiff’s co-special employers and,
alternatively, that TOV MANAGEMENT CORP. is the alter ego of his special employer, TOV
PROPERTY MANAGEMENT CORP. Although legally separate, TOV MANAGEMENT
CORP. and TOV PROPERTY MANAGEMENT CORP. operate as a single integrated entity,
and thus, should be treated as a single entity for exclusivity purposes.
37. TOV PROPERTY MANAGEMENT CORP. supervised, directed and controlled
the plaintiff’s day-to-day work. TOV PROPERTY MANAGEMENT CORP. reports directly to
TOV MANAGEMENT CORP. Both TOV PROPERTY MANAGEMENT CORP. and TOV
PROPERTY MANAGEMENT CORP. share office space and work together closely to handle all
details concerning the subject property and its employees. They both interview candidates for the
position of superintendent at the subject property, hire and fire building superintendents,
including the plaintiff, and set their wages and hours. All their financials, bills, and payments are
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handled together by TOV PROPERTY MANAGEMENT CORP.’s secretary, Gitty Koning.
Please see the annexed affidavits by Gedalia David Altman and Motty Neiman.
38. The plaintiff did not perform any work for County Agency, Inc. Please see the
annexed affidavit by Harold Weber.
39. Since the plaintiff elected to receive Workers' Compensation benefits from his
general employer, County Agency, Inc., for the injuries sustained during the course of his
employment as a superintendent at the subject property, it is respectfully submitted that he is
barred from maintaining an action at law against his co-special employers, TOV
MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP., pursuant to
Workers' Compensation Law §§ 11 and 29(6), and, alternatively, that he is barred from
maintaining an action against his special employer, TOV PROPERTY MANAGEMENT CORP.
and its “alter ego”, TOV MANAGEMENT CORP.
POINT II
THE PLAINTIFF’S ACTION AGAINST DEFENDANT, METROPOLITAN REALTY &
MANAGEMENT NY INC. MUST BE DISMISSED SINCE IT WAS NOT THE
PROPERTY MANAGER FOR THE SUBJECT PREMISES ON THE DATE OF THE
PLAINTIFF’S ACCIDENT AND HAD NO INVOLVEMENT, WHATSOEVER,
WITH THE SUBJECT PREMISES
40. As per the annexed affidavit by Mr. Altman (Exhibit “C”), METROPOLITAN
REALTY & MANAGEMENT NY INC. (“Metropolitan”) was the property manager for the
subject premises from August 1, 2004 to October 31, 2014, pursuant to a “Property
Management Agreement” (annexed hereto as Exhibit “P”) and a “Management Termination
Agreement” (annexed hereto as Exhibit “Q”). Accordingly, its Property Management
Agreement for the subject premises terminated five years prior to the date of the alleged
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accident, and Metropolitan had no connection, whatsoever, with the subject premises on the date
of the alleged accident.
41. It is well-settled that a complaint containing factual claims that are flatly
contradicted by documentary evidence should be dismissed (Well v Rambam, 300 AD2d 580,
581, 753 N.Y.S.2d 512 [2002]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d
159, 162, 654 N.Y.S.2d 791 [1997], cert denied 522 U.S. 967, 118 S. Ct. 413, 139 L. Ed. 2d 316
[1997]).
42. Here, the defendants have submitted undeniable documentary evidence, including
property management contracts, employment contracts, Workers’ Compensation records and
affidavits which support dismissal pursuant to CPLR 3211(a)(1).
43. In addition, the defendants have submitted evidence which supports dismissal
pursuant to CPLR 3211(a)(7) for failure to state a cause of action upon which relief can be
granted.
WHEREFORE, for the reasons set forth above, defendants, TOV MANAGEMENT
CORP., TOV PROPERTY MANAGEMENT CORP. and METROPOLITAN REALTY &
MANAGEMENT NY INC., request that the Court issue an Order dismissing this action in its
entirety against the moving defendants.
Dated: White Plains, New York
August 10, 2022
McCAULEY LAW FIRM, PLLC
By: Todd M. McCauley
Todd M. McCauley, Esq.
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CERTIFICATION OF WORD COUNT
I, TODD M. MCCAULEY, an attorney duly admitted to practice law before the courts of
the State of New York, hereby certify that this AFFIRMATION IN SUPPORT OF MOTION
TO DISMISS contains 3,775 words and therefore complies with the word count limit set forth in
Section 202.8-b of the Uniform Civil Rules for The Supreme Court & The County Court (22
NYCRR 202.8-b), excluding those parts of the affirmation exempted by rule.
This certificate was prepared in reliance on the word-count function of the word-
processing system used to prepare the document (Microsoft Word).
Dated: August 10, 2022
White Plains, New York
Todd M. McCauley
___________________________________
Todd M. McCauley
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FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------X KALWEEN RODRIGUEZ, Index No.: 506931/2022 Plaintiff, AFFIRMATON IN -against- SUPPORT OF MOTION TO DISMISS TOV MANAGEMENT CORP., TOV PROPERTY MANAGEMENT CORP., METROPOLITAN REALTY MANAGEMENT, INC., and METROPOLITAN REALTY & MANAGEMENT NY INC., Defendants. -------------------------------------------------------------------------X Todd M. McCauley, an attorney duly admitted to practice law before the courts of the State of New York, hereby affirms the following under penalty of perjury: 1. I am a member of McCauley Law Firm, PLLC, attorneys for defendants, TOV MANAGEMENT CORP., TOV PROPERTY MANAGEMENT CORP. and METROPOLITAN REALTY & MANAGEMENT NY INC., and, as such, I am fully familiar with the facts and circumstances herein. 2. This Affirmation is submitted in support of the defendants’ motion for an Order pursuant to CPLR 3211(a)(1) and 3211(a)(7), dismissing this action as against the defendants, TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. for (a) failing to state a cause of action against them and based on the documentary evidence that the plaintiff's claims against them are barred by the exclusive remedy provision of the Workers' Compensation Law; (b) pursuant to CPLR 3211(a)(1) and 3211(a)(7), dismissing the plaintiff's complaint against the defendant, METROPOLITAN REALTY & MANAGEMENT NY INC., based on the documentary evidence that this defendant had no involvement, whatsoever, with the alleged accident location; and (c) for such other and further relief as the Court deems just and proper. 1 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 3. Plaintiff, Kalween Rodriguez, commenced this personal injury action against the defendants by the filing of a Summons and Verified Complaint, a copy of which is annexed hereto as Exhibit “A”. He is seeking recovery for injuries allegedly sustained on September 20, 2019, at the premises located at 233 Jamaica Avenue, Brooklyn, New York 11207 (“the property”), which was owned by the defendant, TOV MANAGEMENT CORP. and managed by the defendant, TOV PROPERTY MANAGEMENT CORP. Plaintiff alleges that, while he was working as a superintendent at the property, a portion of the concrete ceiling in the parking garage fell on him, causing him to sustain injuries. Plaintiff claims that the defendants were negligent in the ownership, maintenance and control of the subject premises. The moving defendants have an extension of time to appear in this action up to and including August 12, 2022, pursuant to a Stipulation signed by the plaintiff’s counsel, a copy of which is annexed hereto as Exhibit “B”. 4. As set forth herein, the plaintiff was hired directly by TOV MANAGEMENT CORP. to be a full-time, live in superintendent at the property. His day-to-day work at the property was supervised, directed and controlled by TOV PROPERTY MANAGEMENT CORP, a closely related company to TOV MANAGEMENT CORP. However, both TOV MANAGEMENT and TOV PROPERTY MANAGEMENT CORP. had authority over the plaintiff’s work and the authority to terminate his employment. 5. Approximately two years after the date of his alleged accident, in or about August of 2021, the plaintiff filed a claim for workers’ compensation benefits under a workers’ compensation policy maintained by County Agency, Inc., a Professional Employer Organization (“PEO”), which was hired by TOV MANAGEMENT CORP. in 2016 to perform solely administrative services (including payroll and procurement of workers’ compensation policy) for 2 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 TOV MANAGEMENT CORP.’s work site employees. Plaintiff currently has an active Workers’ Compensation claim under Case #G310 1442. 6. The documentary evidence herein establishes that the plaintiff is barred under the Workers’ Compensation law from maintaining an action against the defendants, TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP., his “special employers”, and, alternatively, against TOV PROPERTY MANAGEMENT CORP., his “special” employer,” and against TOV MANAGEMENT CORP., the “alter ego” of TOV PROPERTY MANAGEMENT CORP. 7. The documentary evidence herein also establishes that the defendant, METROPOLITAN REALTY & MANAGEMENT NY INC. (“Metropolitan”) had no connection, whatsoever, with the subject property on the date of the alleged accident. Therefore, the plaintiff’s action against Metropolitan should be dismissed in its entirety. STATEMENT OF FACTS 8. Annexed hereto as Exhibit “C” is an affidavit by Gedalia David Altman, Vice President of TOV MANAGEMENT CORP. and President of METROPOLITAN REALTY & MANAGEMENT NY INC. (“Metropolitan”). In addition, annexed hereto as Exhibit “D” is an affidavit by Motty Neiman, the President of TOV PROPERTY MANAGEMENT CORP. As stated in their affidavits, TOV MANAGEMENT CORP. is the owner of the building located at 233 Jamaica Avenue, Brooklyn, New York 11207. TOV PROPERTY MANAGEMENT CORP. was formed solely to manage the property. TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. entered into a “Property Management Agreement” which became effective on February 1, 2016. Pursuant to Paragraph “2” - “Management Responsibilities” in the Agreement, TOV PROPERTY MANAGEMENT CORP. was 3 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 responsible for “performing, or hiring necessary personnel to perform all necessary maintenance and repairs to the Property”. A copy of the Property Management Agreement is annexed hereto as Exhibit “E”. 9. TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. share office space at 25 Robert Pitt Drive, Monsey, NY 10952. All their financials, bills, and payments are handled together by TOV PROPERTY MANAGEMENT CORP.’s secretary, Gitty Koning. TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. work together closely to handle all details concerning the property and employees at the property. They both interview candidates for the position of superintendent at the subject property, hire and fire building superintendents and set their wages and hours. Please see the annexed affidavits by Gedalia David Altman and Motty Neiman (Exhibits “C” and “D”, respectively). 10. In 2016, TOV PROPERTY MANAGEMENT CORP. placed advertisements for a full-time position of superintendent at 233 Jamaica Avenue, Brooklyn, New York 11207. Both TOV PROPERTY MANAGEMENT CORP. and TOV MANAGEMENT interviewed candidates who applied for the position. In September of 2016, the plaintiff was hired by TOV MANAGEMENT CORP. to be a full-time, live-in superintendent at the property. The plaintiff signed a direct “Super Contract”, dated September 13, 2016, with TOV MANAGEMENT CORP. for the superintendent position. A copy of the signed Super Contract is annexed hereto as Exhibit “F”. Pursuant to the language in the Super Contract, the plaintiff agreed to use “my own tools” and do “all work or repairs needed in the building”. It was agreed that he would receive “apartment 1A free and utilities free, my salary will be $1200.00 twice a month and a free parking spot in the garage” (see Exhibit “F”). As explained by Mr. Gedalia in his affidavit, the “Super Contract” was between the plaintiff and TOV MANAGEMENT CORP., not TOV 4 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 PROPERTY MANAGEMNT CORP., since the plaintiff was going to be living and working in the property owned by TOV MANAGEMENT CORP. Please see the annexed affidavits by Gedalia David Altman and Motty Neiman (Exhibits “C” and “D”, respectively). 11. TOV PROPERTY MANAGEMENT CORP. supervised, directed and controlled the plaintiff’s day-to-day work. TOV PROPERTY MANAGEMENT CORP. reported directly to TOV MANAGEMENT CORP. However, both TOV PROPERTY MANAGEMENT CORP. and TOV MANAGEMENT exercised joint authority over the plaintiff. They both had the authority to terminate his employment. Please see the annexed affidavits by Gedalia David Altman and Motty Neiman (Exhibits “C” and “D”, respectively). 12. On October 12, 2021, the plaintiff’s employment at the property was terminated by TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. A letter of termination, dated October 12, 2021, was sent to the plaintiff. A copy of the letter is annexed hereto as Exhibit “G”. On or about October 23, 2021, the plaintiff filed a “Discharge or Discrimination Complaint” with the Workers’ Compensation Board against TOV MANAGEMENT, which he identified in his Complaint as his “employer”. In the signed Complaint, it states, “Motty Neiman and David (last name unknown) were the managers who fired me…” (emphasis added in bold). As stated by Mr. Altman in his affidavit, Mr. Altman’s middle name is “David”, and he was called “David” by the plaintiff. A copy of the plaintiff’s signed Discharge or Discrimination Complaint is annexed hereto as Exhibit “H”. 13. In addition, on August 23, 2021, approximately two years after the date of his alleged accident, the plaintiff filed a claim for workers’ compensation benefits. A copy of his attorneys’ representation letter to the Workers’ Compensation Board and the plaintiff’s Employee Claim C-3 are annexed hereto collectively as Exhibit “I”. 5 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 14. Pursuant to a hearing that was held on February 8, 2002, the Workers’ Compensation Board’s issued a decision that the plaintiff’s “proper employer” is County Agency, Inc., located at 129 South 8th Street, Brooklyn, NY 11211. A copy the Workers’ Compensation Board Notice of Decision is annexed hereto as Exhibit “J”. 15. Annexed hereto as Exhibit “K” is an affidavit by Harold Weber, President of County Agency, Inc. As stated in his affidavit, County Agency, Inc. is a professional employer organization which has a “PEO Client Service Agreement” with TOV MANAGEMENT CORP., which was in effect on the date of the plaintiff’s alleged accident. A copy of the “PEO Client Service Agreement” is annexed hereto as Exhibit ‘L”. 16. Pursuant to the “PEO Client Service Agreement”, County Agency, Inc. (“PEO Provider”) agreed to provide TOV MANAGEMENT CORP. (“Client”) with “human resources- related services to Client as a co-employer of Client’s employees” (Emphasis added in bold). (Exhibit “L”). 17. Paragraph “1” of the “PEO Client Service Agreement” states: “PEO Provider is designated as the Administrative Employer and agrees that it is a co-employer for purposes of carrying out the responsibilities described in Section 2 of this Agreement (hereafter “Services”). Client is designated as the Work Site Employer and agrees that it is a co-employer for purposes of carrying out the responsibilities described in Section 3 of this Agreement. Client’s employees are referred to as Work Site Employees (WSEs) throughout this Agreement.” 18. Section 2 - “Rights and Responsibilities of PEO Provider”, paragraph 2.1 of the “PEO Client Service Agreement” (Exhibit “L”) states that “PEO Provider assumes full responsibility for “payment of wages, as reported by Client, through PEO Provider’s payroll…” 19. Section 2, paragraph 2.7 of the “PEO Client Service Agreement” (Exhibit “L”) states that PEO Provider assumes full responsibility for “providing workers’ compensation 6 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 insurance coverage that covers the WSEs, as well as processing and defending all workers’ compensation claims”. (Emphasis added in bold). 20. Section 3 - “Rights and Responsibilities of Client,” paragraph 3.1 of the “PEO Client Service Agreement” (Exhibit “L”) states that the Client (Tov Management Corp.) agrees to have “the sole responsibility for the day-to-day control and supervision of WSEs, as well as hiring, firing, disciplining or promoting WSEs”. 21. County Agency, Inc. procured a workers’ compensation policy with Oriska Insurance Company, which was in effect on the date of the plaintiff’s alleged accident. A copy of the Workers’ Compensation policy, issued by Oriska Insurance County, is annexed hereto as Exhibit “M”. The workers’ compensation policy, #WC46416010100038, was in effect from April 1, 2019 to April 1, 2020, and names “Tov Management Inc. a/k/a TOV Management Corp.” as “the insured”. 22. County Agency, Inc. reported the plaintiff’s alleged work-related injury/illness to Oriska Insurance Company, as stated by Mr. Weber in his affidavit. The plaintiff’s workers’ compensation case is currently active. A copy of the completed C-2F – Employer’s First Report of Work-Related Injury/Illness is annexed hereto as Exhibit “N”. 23. At a Workers’ Compensation hearing that was held on June 14, 2022, Judge Howard Geasor made the following decision: “The claimant Kalween Rodriguez had a work- related injury amended to include head, face, TBI and PCS. Medical treatment and care, as necessary, for established sites of injury and/or conditions, is authorized. Treatment rendered to one of the body parts covered by the Medical Treatment Guidelines must be consistent with those Guidelines”. Parties were directed to submit deposition transcripts of doctors by September 14, 2022 for further adjudication by a WC Law Judge. Please see a copy of the 7 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 Workers’ Compensation Board’s “Notice of Decision” filed on June 17, 2022, annexed hereto as Exhibit “O”. ARGUMENT POINT I THE PLAINTIFF’S ACTION AGAINST DEFENDANTS, TOV MANAGEMENT CORP. AND TOV PROPERTY MANAGEMENT CORP., MUST BE DISMISSED IN ITS ENTIRETY SINCE SUCH ACTION IS BARRED BY §§ 11 AND 29(6) OF THE WORKERS’ COMPENSATION LAW OF THE STATE OF NEW YORK 24. Workers’ Compensation Law §§ 11 and 29(6) provide that an employee who is entitled to receive compensation benefits for injuries sustained in the course of his or her employment is prohibited from maintaining an action for personal injuries against his or her employer. 25. Workers' Compensation Law § 11 provides, in applicable part: "The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee." 26. Workers' Compensation Law § 29 (6) provides that "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee." 27. "The receipt of workers' compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in 8 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 the course of employment" (Siklas v Cyclone Realty, LLC, 78 AD3d 144, 150, 908 N.Y.S.2d 117 [2010], citing Reich v Manhattan Boiler & Equip. Corp., 91 NY2d 772, 779, 698 N.E.2d 939, 676 N.Y.S.2d 110 [1998]; Hofweber v Soros, 57 AD3d 848, 849, 870 N.Y.S.2d 98 [2008] lv denied 13 N.Y.3d 703, 915 N.E.2d 290, 886 N.Y.S.2d 365 [2009]; Pereira v St. Joseph's Cemetery, 54 AD3d 835, 836, 864 N.Y.S.2d 491 [2008]). 28. A person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer. Munion v Trustees of Columbia Univ. in City of N.Y., 120 A.D.3d 779, 991 N.Y.S.2d 460, 2014 N.Y. App. Div. LEXIS 5906, 2014 NY Slip Op 05964 (2nd Dept. 2014). 29. Furthermore, the receipt of Workers' Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer. Hofweber v Soros, 57 AD3d 848, 849, 870 N.Y.S.2d 98 (2nd Dept. 2008); Croche v Wyckoff Park Assocs., 274 A.D.2d 542, 711 N.Y.S.2d 490 (2nd Dept. 2000). 30. In Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 585 N.E.2d 355, 578 N.Y.S.2d 106, 1991 N.Y. LEXIS 4925 (1991), the Court of Appeals held: “We have consistently found as a general proposition that a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits”. 31. Moreover, in Thompson, the Court of Appeals further held: “Indeed, though recognized as an exception to the general approach and analysis, we have held that the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact (Sweet v Board of Educ., 290 NY, at 76, supra; Irwin v Klein, 271 NY, at 487, supra; Ramsey v New York Cent. R. R. Co., 269 NY, at 223-224, supra; Charles v Barrett, 233 NY 127, 129; Murray v Union Ry. Co., 229 NY, at 112, supra; see also, Delisa v Arthur F. Schmidt, Inc., 285 NY 314, 320; Fallone v Misericordia Hosp., 23 AD2d 222, 227, aff’d without opn 17 NY2d 648; Richiusa v Kahn Lbr. & Millwork Co., 148 AD2d 690, 692; 9 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 Cameli v Pace Univ., 131 AD2d, at 420, supra; Doboshinski v Fuji Bank, 78 AD2d 537, 538; Brooks v Chemical Leaman Tank Lines, 71 AD2d, at 407, supra). Thus, we have never held that the issue of special employment must always be submitted to a fact finder where the undisputed facts establish that the general employer was performing no work for the special employer and did not retain control over the special employee. This, when combined with other factors, allows a determination of special employment status as a matter of law”. “Many factors are weighed in deciding whether a special employment relationship exists, and generally no one is decisive (Braxton v Mendelson, 233 NY 122, 124, supra). 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 (Stone v Bigley Bros., 309 NY 132, supra; Sweet v Board of Educ., 290 NY 73, 76-77, supra; Irwin v Klein, 271 NY 477, 484,supra; Ramsey v New York Cent. R. R. Co., 269 NY 219, 224, supra; Wawrzonek v Central Hudson Gas & Elec. Corp., 276 NY 412, 419, supra; Wyllie v Palmer, 137 NY 248, 257).” 32. Furthermore, in Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662, 793 NYS2d 530 (2nd Dept. 2005), the Court held: "The determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact. Many factors are weighed in deciding whether a special employment relationship exists, and generally no single one is decisive . . . Principal factors include who has the right to control the employee's work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business . . . The most significant factor is who controls and directs the manner, details, and ultimate result of the employee's work”. 33. "The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) also extends to entities which are alter egos of the entity which employs the plaintiff". Batts v IBEX Constr., LLC, 112 AD3d 765, 766, 977 N.Y.S.2d 282 (2nd Dept 2013). 34. "A defendant may establish itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single 10 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 integrated entity." Quizhpe v Luvin Constr. Corp., 103 AD3d 618, 619, 960 N.Y.S.2d 130 (2nd Dept. 2013). 35. The documentary evidence herein establishes that County Agency, Inc. was the plaintiff’s general employer on the date of his alleged accident. As the PEO Provider, County Agency, Inc.’s responsibilities were solely administrative and included payment of wages and maintaining a workers’ compensation insurance policy for work site employees of its client, TOV MANAGEMENT CORP. County Agency, Inc. did not reserve any day-to-day control and supervision over the plaintiff, Kalween Rodgriguez, and did not have the right to hire, fire, discipline or promote him. 36. It is respectfully submitted that TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. were the plaintiff’s co-special employers and, alternatively, that TOV MANAGEMENT CORP. is the alter ego of his special employer, TOV PROPERTY MANAGEMENT CORP. Although legally separate, TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. operate as a single integrated entity, and thus, should be treated as a single entity for exclusivity purposes. 37. TOV PROPERTY MANAGEMENT CORP. supervised, directed and controlled the plaintiff’s day-to-day work. TOV PROPERTY MANAGEMENT CORP. reports directly to TOV MANAGEMENT CORP. Both TOV PROPERTY MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP. share office space and work together closely to handle all details concerning the subject property and its employees. They both interview candidates for the position of superintendent at the subject property, hire and fire building superintendents, including the plaintiff, and set their wages and hours. All their financials, bills, and payments are 11 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 handled together by TOV PROPERTY MANAGEMENT CORP.’s secretary, Gitty Koning. Please see the annexed affidavits by Gedalia David Altman and Motty Neiman. 38. The plaintiff did not perform any work for County Agency, Inc. Please see the annexed affidavit by Harold Weber. 39. Since the plaintiff elected to receive Workers' Compensation benefits from his general employer, County Agency, Inc., for the injuries sustained during the course of his employment as a superintendent at the subject property, it is respectfully submitted that he is barred from maintaining an action at law against his co-special employers, TOV MANAGEMENT CORP. and TOV PROPERTY MANAGEMENT CORP., pursuant to Workers' Compensation Law §§ 11 and 29(6), and, alternatively, that he is barred from maintaining an action against his special employer, TOV PROPERTY MANAGEMENT CORP. and its “alter ego”, TOV MANAGEMENT CORP. POINT II THE PLAINTIFF’S ACTION AGAINST DEFENDANT, METROPOLITAN REALTY & MANAGEMENT NY INC. MUST BE DISMISSED SINCE IT WAS NOT THE PROPERTY MANAGER FOR THE SUBJECT PREMISES ON THE DATE OF THE PLAINTIFF’S ACCIDENT AND HAD NO INVOLVEMENT, WHATSOEVER, WITH THE SUBJECT PREMISES 40. As per the annexed affidavit by Mr. Altman (Exhibit “C”), METROPOLITAN REALTY & MANAGEMENT NY INC. (“Metropolitan”) was the property manager for the subject premises from August 1, 2004 to October 31, 2014, pursuant to a “Property Management Agreement” (annexed hereto as Exhibit “P”) and a “Management Termination Agreement” (annexed hereto as Exhibit “Q”). Accordingly, its Property Management Agreement for the subject premises terminated five years prior to the date of the alleged 12 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 accident, and Metropolitan had no connection, whatsoever, with the subject premises on the date of the alleged accident. 41. It is well-settled that a complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed (Well v Rambam, 300 AD2d 580, 581, 753 N.Y.S.2d 512 [2002]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 162, 654 N.Y.S.2d 791 [1997], cert denied 522 U.S. 967, 118 S. Ct. 413, 139 L. Ed. 2d 316 [1997]). 42. Here, the defendants have submitted undeniable documentary evidence, including property management contracts, employment contracts, Workers’ Compensation records and affidavits which support dismissal pursuant to CPLR 3211(a)(1). 43. In addition, the defendants have submitted evidence which supports dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action upon which relief can be granted. WHEREFORE, for the reasons set forth above, defendants, TOV MANAGEMENT CORP., TOV PROPERTY MANAGEMENT CORP. and METROPOLITAN REALTY & MANAGEMENT NY INC., request that the Court issue an Order dismissing this action in its entirety against the moving defendants. Dated: White Plains, New York August 10, 2022 McCAULEY LAW FIRM, PLLC By: Todd M. McCauley Todd M. McCauley, Esq. 13 of 14 FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/10/2022 CERTIFICATION OF WORD COUNT I, TODD M. MCCAULEY, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this AFFIRMATION IN SUPPORT OF MOTION TO DISMISS contains 3,775 words and therefore complies with the word count limit set forth in Section 202.8-b of the Uniform Civil Rules for The Supreme Court & The County Court (22 NYCRR 202.8-b), excluding those parts of the affirmation exempted by rule. This certificate was prepared in reliance on the word-count function of the word- processing system used to prepare the document (Microsoft Word). Dated: August 10, 2022 White Plains, New York Todd M. McCauley ___________________________________ Todd M. McCauley 14 of 14