Motion-Secondary: Kalween Rodriguez v. Tov Management Corp., Tov Property Management Corp., Metropolitan Realty Management, Inc., Metropolitan Realty & Management Ny Inc

On March 09, 2022 a Motion-Secondary was filed involving a dispute between Kalween Rodriguez, and Metropolitan Realty Management, Inc., Metropolitan Realty & Management Ny Inc, Tov Management Corp., Tov Property Management Corp., for Torts - Other Negligence (Premises) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 04/26/2023 08:46 PM INDEX NO. 506931/2022
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/26/2023

SUPREME COURT OF THE STATE OF NEW YORK Index No.: 506931/2022
COUNTY OF KINGS
--------------------------------------------------------------------------X MEMORANDUM OF LAW
KALWEEN RODRIGUEZ, IN OPPOSITION TO
DEFENDANTS’ PRE-ANSWER
Plaintiff, MOTION TO DISMISS
v.
TOV MANAGEMENT CORP., TOV PROPERTY Assigned to: Hon. Richard
MANAGEMENT CORP., METROPOLITAN REALTY J. Montelione, Part 99
MANAGEMENT CORP, INC. and METROPOLITAN
REALTY & MANAGEMENT NY INC., New rtn date: May 10, 2023
Defendants.
--------------------------------------------------------------------------X Mot. Seq. #001

INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiff respectfully submits this memorandum in response and

opposition to defendants’ grossly premature, pre-answer motion to dismiss the

complaint under CPLR 3211(a)(1) and (a)(7). This negligence/premises liability

action arises out of an accident in which a section of the concrete ceiling of the

parking garage in defendants’ building (“the building”) collapsed and fell on

plaintiff’s head, causing brain injury and other physical impairments. 1 Plaintiff

sued, among others, two “closely related”2 (but independent) entities with similar-

sounding names—defendant Tov Management Corp. (“TMC”) and defendant Tov

Property Management Corp. (“TPMC”). TMC is the owner of the building and

TPMC is the managing agent.3 The crux of the complaint alleges TMC and TPMC

were negligent in their duty to properly operate, manage, maintain, inspect and

1 See NYSCEF Doc. No. 10 at ¶ 51..
2 See NYSCEF Doc. No. 9 at ¶ 4.
3 See id. at ¶ 3.

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repair the building, including the area of the building’s parking garage where the

concrete ceiling crashed down onto plaintiff. 4

Defendants’ pre-answer dismissal motion raises “special employer” and

“alter ego” defenses. It makes two alternative arguments, neither of which is

persuasive: (i) that TMC and TPMC were “plaintiff’s co-special employers” 5; or (ii)

that TPMC was plaintiff’s special employer and TMC, as the alter ego of TPMC, can

ride on the coattails of TMC’s special employer defense. 6 This motion fails at the

starting gate for the following reasons: First, it is premature since no discovery

whatsoever has taken place. Second, it is based on highly fact-intensive affirmative

defenses that do not lend themselves to resolution at the pleadings stage. Third,

defendants come nowhere close to establishing their special employer and alter ego

affirmative defenses as a matter of law.

APPLICABLE LEGAL PRINCIPLES

A. Legal Standards Imposed on Defendants at Motion-to-Dismiss
Stage.

A CPLR 3211(a)(1) motion to dismiss will only be granted “where the

documentary evidence utterly refutes the plaintiff’s factual allegations, thereby

conclusively establishing a defense as a matter of law.” Maware v. Landau, 130

A.D.3d 986, 987 (2d Dep’t 2015). If the evidence submitted in support of the motion

is not “documentary,” the motion must be denied. See Phillips v. Taco Bell Corp.,

152 A.D.3d 806, 807 (2d Dep’t 2017); Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908,

4 See NYSCEF Doc. No. 10 at ¶¶ 50-54.
5 See NYSCEF Doc. No. 9 at ¶ 36.
6 See id.

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909 (2d Dep’t 2017). “Affidavits are not documentary evidence within the meaning

of CPLR 3211(a)(1).” Clarke v. Laidlaw Tr., Inc., 125 A.D.3d 920, 921 (2d Dep’t

2015).

“On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is

to be afforded a liberal construction, the facts alleged are presumed to be true, the

plaintiff is afforded the benefit of every favorable inference, and the court is to

determine only whether the facts as alleged fit within any cognizable legal theory.”

Kassapian v. City of New York, 155 A.D.3d 851, 853 (2d Dep’t 2017). “Whether the

complaint will later survive a motion for summary judgment, or whether the

plaintiff will ultimately be able to prove its claims, of course, plays no part in the

determination of a prediscovery CPLR 3211 motion to dismiss.” Shaya B. Pac., LLC

v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 (2d Dep’t

2006).

B. Law Governing Special Employer Defense.

A general employee of one employer may be considered a special

employee of another employer if the employee is “transferred for a limited period of

time” from the general employer to the special employer. See Thompson v.

Grumman Aerospace Corp., 78 N.Y.2d 553, 557 (1991); George v. IBC Sales Corp.,

76 A.D.3d 950, 951-952 (2d Dep’t 2010). The “transfer of control” determination is

so fact-intensive and context-specific that it will rarely be decided on summary

judgment, let alone at the motion-to-dismiss stage. See Franco v. Kaled. Mgt. Corp.,

74 A.D.3d 1142, 1142 (2d Dep’t 2010); Bellamy v. Columbia Univ., 50 A.D.3d 160,

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161-162 (1st Dep’t 2008). “The most significant factor [for determining special

employee status] is who controls and directs the manner, details, and ultimate

result of the [purported special] employee’s work.” Mauro v. Zorn Realties, Inc., 206

A.D.3d 645, 647 (2d Dep’t 2022); Chiloyan v. Chiloyan, 170 A.D.3d 943, 945 (2d

Dep’t 2019). “[A] person’s categorization as a special employee is usually a question

of fact.” Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 557.

C. Law Governing Alter Ego Defense.

One of the ways a defendant may avail itself of the Workers’

Compensation Law exclusivity defense is by showing that it was the alter ego of

plaintiff’s nominal or general employer. See Batts v. IBEX Constr., LLC, 112

A.D.3d 765, 765-766 (2d Dep’t 2013). In order to make the requisite threshold

showing of alter ego, the proponent of the alter ego theory must establish, with

facts, that one defendant controls the other defendant to such a degree that the two

operate as a single integrated entity. See Salinas v. 64 Jefferson Apts., LLC, 170

A.D.3d 1216, 1218 (2d Dep’t 2019). “[A] mere showing that the entities are related

is insufficient where a defendant cannot demonstrate that one of the entities

controls the day-to-day operations of the other.” Samuel v. Fourth Ave. Assocs., 75

A.D.3d 594, 595 (2d Dep’t 2010).

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Point I: DEFENDANTS’ SPECIAL EMPLOYER AND ALTER EGO
ARGUMENTS CONSTITUTE AFFIRMATIVE DEFENSES
THAT DO NOT LEND THEMSELVES TO RESOLUTION ON A
PRE-ANSWER, PRE-DISCOVERY MOTION TO DISMISS

Because special employer and alter ego defenses are affirmative

defenses involving highly fact-intensive, context-dependent inquiries, they do not by

definition lend themselves to determination at the pleadings stage. See e.g. Bostick

v. Penske Truck Leasing Co., L.P., 140 AD3d 999, 1001 (2d Dep’t 2016) (observing

that special employee inquiry is particularly fact-laden and generally ill-suited for

resolution on summary judgment); Residential Bd. of Millennium Point v.

Condominium Bd. of Millennium Point, 197 A.D.3d 420, 423 (1st Dep’t 2021)

(holding fact-intensive nature of alter-ego inquiry makes it best suited for jury

deliberation); Davis v. 574 Lafa Corp., 206 A.D.3d 613, 615-616 (2d Dep’t 2022)

(holding a fact-driven affirmative defense requiring factual analysis and

presentation of evidence “should be raised in the defendant’s answer [as opposed to]

a pre-answer motion to dismiss”).

As a corollary, it is premature and improper to grant dismissal

based on the applicability of an inherently fact-driven affirmative defense where,

as is the case here, the plaintiff has been afforded no opportunity to conduct any

discovery to test the factual basis of that affirmative defense. See Lee v. Dow

Jones & Co., Inc., 121 A.D.3d 548, 549 (1st Dep’t 2014) (denying as premature

defendant’s CPLR 3211[a][7] motion to dismiss grounded in special employer

defense “since [plaintiffs] had not yet had discovery”); Nastasi v. Span, Inc., 8

A.D.3d 1011, 1012 (4th Dep’t 2004) (“Because discovery has not been conducted

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with respect to the special employment defense, however, the court properly

denied that part of defendants’ motion seeking summary judgment dismissing the

complaint against Span based upon that defense”).

Defendants’ motion should be denied at the outset because it is

woefully premature. Defendants display no small amount of audacity in trying to

knock out the complaint at the pre-answer, pre-discovery phase, based on the

alleged applicability of fact-intensive affirmative defenses whose resolution

typically belongs to a jury. The fact that defendants fail to cite to a single case

where a defendant successfully raised either a special employer or alter ego

affirmative defense in a CPLR 3211 motion to dismiss at the pleadings stage puts

an exclamation mark on our argument that this motion is premature.

Defendants use three affidavits to try to establish that TMC and

TPMC were “plaintiff’s co-special employers.” The first affidavit is from Harold

Weber (“Weber”), the President of nonparty County Agency, Inc. (“County Agency”),

which states in effect that County Agency was the payroll entity that nominally

employed plaintiff.7 The second affidavit is by TPMC President, Motty Neiman

(“Neiman”), which conclusorily asserts, inter alia, that TPMC “supervised, directed

and controlled the plaintiff’s day-to-day work[.]” 8 The third affidavit is by TMC

Vice-President Gedalia David Altman (“Altman”), which vaguely states, inter alia,

that TMC and TPMC share a secretary who “handle[s] … [both companies’]

7 See NYSCEF Doc. No. 20 at ¶¶ 4-6.
8 See NYSCEF Doc. No. 13 at ¶ 7.
6

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financials, bills, and payments”9, and that TMC and TPMC “work together closely to

handle all details concerning the property and employees at the property. 10

The timing of defendants’ motion also unfairly prejudices plaintiff’s

ability to fend off the premature dismissal of his complaint. Seeking to shield

Weber, Neiman and Altman from deposition, defendants simply want plaintiff and

the Court to take them at their word on the special employment and alter ego

issues. Case law, however, stands in defendants’ way. It is well settled that a party

confronted with a motion, whether it be a motion to dismiss or one for summary

judgment, should not be forced to make-do with a nonexistent discovery record, but

instead should have a fair, reasonable, and adequate opportunity to obtain all the

evidence it requires to appropriately oppose that motion; in order to level the

playing field by preventing the nonmovant from having to cobble together a less-

than-optimal response, or a response not as well-developed as it otherwise would

have been had it been permitted to take at least a modicum of discovery, courts will

properly deny such a motion as premature. See e.g. Menche v. CDx Diagnostics,

Inc., 199 A.D.3d 678, 680 (2d Dep’t 2021) (holding it was error for court to grant

summary relief on pre-answer record because plaintiff “had not received

any discovery, and no preliminary conference had taken”); Cruz v. Fanoush, 214

A.D.3d 703, 703 (2d Dep’t 2023) (affirming denial of pre-deposition motion for

summary judgment: ‘A party should be afforded a reasonable opportunity to conduct

discovery prior to the determination of a motion for summary judgment”);

9 See NYSCEF Doc. No. 12 at ¶ 6.
10 See id. at ¶ 7.
7

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Rutherford v. Brooklyn Navy Yard Dev. Corp., 174 A.D.3d 932, 933 (2d Dep’t 2019)

(affirming denial of defendant’s dispositive motion since it “was made before a

preliminary conference was held, before any written discovery was exchanged, and

before any depositions were taken”).

As the above discussion indicates, defendant raises issues and

arguments that are ordinarily entertained on a CPLR 3212 motion for summary

judgment as opposed to a CPLR 3211 motion to dismiss. Moreover, summary

judgment is seldom granted based on special employer and alter ego defenses due to

the existence of triable issues of material fact. See e.g. Reynoso v. Kensington Mgt.

Servs., 181 A.D.2d 415, 415 (1st Dep’t 1992) (holding that a managing agent is not

per se a special employer: “In this personal injury action by plaintiff against the

owner, New Heights, and the managing agent, Kensington, of the Washington

Heights apartment building where he was employed as the superintendent, there

are questions of fact presented as to whether Kensington was plaintiff’s special

employer”); Clarke v. Laidlaw Tr., Inc., 125 A.D.3d at 921 (denying defendant’s

CPLR 3211[a][1] motion to dismiss based on an alter ego theory: “The evidence that

did qualify as documentary evidence did not conclusively establish that the

defendant and FSM were alter egos within the meaning of the Workers’

Compensation Law”). This reality drives home the point that it would be premature

and inappropriate to dismiss complaint at this early, pre-discovery stage of

litigation.

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Point II: DEFENDANTS HAVE FAILED TO ESTABLISH THAT TMC
AND TPMC ARE ALTER EGOS OF ONE ANOTHER

As alluded to above, “the standard for finding an alter ego relationship

is high, requiring direct intervention by the parent in the management of the

subsidiary to such an extent that the subsidiary’s paraphernalia of incorporation,

directors and officers are completely ignored.” Len v. State of New York, 74 A.D.3d

1597, 1599 (3d Dep’t 2010). Simply put, the parent “must exercise complete

domination and control” over its subsidiary’s daily operations in order to give rise to

the protection of Workers' Compensation Law §§ 11 and 29(6). See Dennihy v.

Episcopal Health Servs., 283 A.D.2d 542, 543 (2d Dep’t 2001) 543 (“the parent

corporation must exercise complete domination and control of the subsidiary’s day-

to-day operations”) (emphasis in original).

“Closely associated corporations, even ones that share directors and

officers, will not be considered alter egos of each other if they were formed for

different purposes, neither is a subsidiary of the other, their finances are not

integrated, their assets are not commingled, and the principals treat the two

entities as separate and distinct.” Longshore v. Davis Sys. of Capital Dist., 304

A.D.2d 964 (3d Dep’t 2003).

In determining whether two businesses functioned as a single

integrated entity for purposes of imputing an alter ego relationship, the courts

consider the following factors:

(i) Whether one entity was a subsidiary of the other (see Salinas v. 64

Jefferson Apts., LLC, 170 A.D.3d at 1218);

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(ii) Whether the two entities intermingled their funds, kept separate bank

accounts, filed separate tax returns, and/or maintained separate

financial records and budgets (see Board of Trustees, Sheet Metal

Workers’ Natl. Pension Fund v. Allure Metal Works, Inc., 209 A.D.3d

712, 713 [2d Dep’t 2022]; Cargill Soluciones Empresariales, S.A. de

C.V., SOFOM, ENR v. Desarrolladora Farallon S. de R.L. de C.V., 146

A.D.3d 439, 441 [1st Dep’t 2017]; Carty v. East 175th St. Hous. Dev.

Fund Corp., 83 A.D.3d 529, 529 [1st Dep’t 2011]);

(iii) Whether there was an overlap in ownership, officers, directors and

personnel (see Mauro v. Zorn Realties, Inc., 206 A.D.3d at 647; Salcedo

v. Demon Trucking, Inc., 146 A.D.3d 839, 841 [2d Dep’t 2017]);

(iv) Whether the two entities were formed for different purposes, had

separate workforces and human resources departments, and

transacted business under each other’s names (see Colon v. 251

Lexington I LLC, 200 A.D.3d 573, 573 [1st Dep’t 2021]; Robles v.

Taconic Mgt. Co., LLC, 173 A.D.3d 1089, 1094 [2d Dep’t 2019]);

(v) Whether the entities shared payroll (see Ortiz v. Rose Nederlander

Assoc., Inc., 90 A.D.3d 454, 454-455 [1st Dep’t 2011]);

(vi) Whether the entities were “treated as independent profit centers” (see

Tap Holdings, LLC v. Orix Fin. Corp., 109 A.D.3d 167, 174 [1st Dep’t

2013]);

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(vii) Whether the entities shared the same corporate address, telephone

number, email, domain name, website, computer system, or

information technology (IT) department, and whether they used their

names interchangeably (see Silver v. Whitney Partners LLC, 130

A.D.3d 512, 512-513 [1st Dep’t 2015]; Board of Mgrs. of the Gansevoort

Condominium v. 325 W. 13th, LLC, 121 A.D.3d 554, 555 [1st Dep’t

2014]);

(viii) Whether the entities shared the same office equipment, office supplies,

or furniture (see Peery v. United Capital Corp., 84 A.D.3d 1201, 1202

[2d Dep’t 2011]; Gateway I Group, Inc. v. Park Ave. Physicians, P.C., 62

A.D.3d 141, 145 [2d Dep’t 2009]);

(ix) Whether the entities have “a single policy manual [that] sets forth

common rules and polies of employment” (see Ramnarine v. Memorial

Ctr. for Cancer & Allied Diseases, 281 A.D.2d 218, 218 [1st Dep’t

2003]); and

(x) Whether the entities shared coverage under a single liability insurance

policy (see Mauro v. Zorn Realties, Inc., 206 A.D.3d at 647;

Coonjbeharry v. Altone Elec., LLC, 94 A.D.3d 1306, 1308 [3d Dep’t

2012]).

Here, while the line separating TMC and TPMC may be blurred,

defendants comes nowhere close to establishing as a matter of law that the two are

alter egos of one another. There is no argument or mention whatsoever of: (i) a

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parent-subsidiary relationship; (ii) intermingled funds; (iii) shared financial assets

or liabilities, such as bank accounts or tax returns; (iv) shared finances; (v) a

combined budget; (vi) overlapping corporate officers or management; (vii) a shared

workforce or human resources department; (viii) a shared purpose; (ix) shared

payroll; (x) whether they hold themselves out to the public as alter egos of each

other; (xi) a shared corporate address, telephone number, email, domain name,

website, computer system, or IT department; (xii) shared office equipment, supplies

or furniture; (xiii) a common policy manual; or (xiv) a joint insurance policy.

Instead, the best defendants can muster is to argue in conclusory

fashion that TMC and TPMC together hired and fired plaintiff and set his wages

and hours11; that the two share a secretary who “handle[s] … [their] financials,

bills, and payments” (whatever that means)12; and that the two entities “work

together closely to handle all details concerning the property and employees at the

property.13 These generalized and ambiguous assertions fall fatally short of

demonstrating an alter ego relationship as a matter of law. See e.g. Kolenovic v.

56th Realty, LLC, 139 A.D.3d 588, 589 (1st Dep’t 2016) (building owner and

managing agent were not alter egos for purposes of workers’ compensation

exclusivity, even though the two shared office space, the managing agent had an on-

site manager at the building who assigned work to and had the power to fire

employees of plaintiff’s employer, the defendant managed payroll for plaintiff’s

11 See NYSCEF Doc. No. 9 at ¶ 37.
12 See id.
13 See id.

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employer, and plaintiff's employer was named an additional insured on defendant’s

liability insurance policy).14

Point III: DEFENDANTS’ ALTERNATIVE ARGUMENT THAT TMC
AND TPMC WERE “PLAINTIFF’S CO-SPECIAL
EMPLOYERS” FLIES IN THE FACE OF BINDING
PRECEDENT

Defendants’ alternative argument that TMC and TPMC were

“plaintiff’s co-special employers”15 stretches the special-employer doctrine several

bridges too far and flies squarely in the face of well-established precedent. As a

preliminary matter, defendants cite no case law to support such a novel proposition.

This speaks volumes. Moreover, defendants’ argument rests on the false

assumption that a plaintiff can have more than one special employer. Such an

assumption cannot be reconciled with the hallmark feature of a special employment

relationship: a “surrender of control by the general employer and assumption of

control by the special employer.” Thompson v. Grumman Aerospace Corp., 78

N.Y.2d at 557 (emphasis supplied). Nothing in the relevant case law states, or even

hints, that a plaintiff can have two “special employers.” Defendants’ attempt to

14 See also Constantine v. Premier Cab Corp., 295 A.D.2d 303, 304 (2d Dep’t 2002)
(“[A]lthough the defendant submitted affidavits which established that it, Millar, and
Schindler were related entities, this evidence failed to demonstrate Schindler’s control, if
any, over the day to day operations of either the defendant or Millar. Therefore, the
defendant failed to establish the applicability of the exclusivity provisions of the Workers’
Compensation Law”); Ocana v. Quasar Realty Partners L.P., 137 A.D.3d 566, 567 (1st Dep’t
2016) (building owner and its managing agent were not alter egos); accord, e.g., Zhang v.
ABC Corp., 194 A.D.3d 990, 993 (2d Dep’t 2021); Savino v. 700 Victory Blvd., LLC, 206
A.D.3d 780, 781 (2d Dep’t 2022); Fazzolari v. Sun Enters., LLC, 189 A.D.3d 1001, 1002 (2d
Dep’t 2020); Zhiwei Mao v. Krantz & Levinson Realty Corp., 117 A.D.3d 944, 945 (2d Dep’t
2014).
15 See NYSCEF Doc. No. 9 at ¶ 36.

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argue otherwise contradicts binding precedent, which only speaks to situations

involving the surrender of control by one general employer to one special employer.

See e.g. Dube v. County of Rockland, 160 A.D.3d 807, 808 (2d Dep’t 2018); Abreu v.

Wel-Made Enters., Inc., 105 A.D.3d 878, 879 (2d Dep’t 2013); D’Alessandro v.

Aviation Constructors, Inc., 83 A.D.3d 769, 769-770 (2d Dep’t 2011). For the above

reasons, defendants’ alternative argument fails.

Point IV: TMPC’S ALLEGED ALTER EGO STATUS IS IRRELEVANT
ANYWAY BECAUSE IT DOES NOT CHANGE THE FACT
THAT TMPC’S LIABILITY IS BASED ON ITS OWNERSHIP
AND CONTROL OF THE BUILDING

The final nail in the coffin of defendants’ motion is that TPMC’s

liability in this negligence/premises liability action is based on its ownership and

control of the building, rendering its alter ego analysis irrelevant. See Correa v.

Orient-Express Hotels, Inc., 84 A.D.3d 651, 651 (1st Dep’t 2011):

We reject defendant's argument that, even if it controlled 21 Club, Inc.
and thus can be considered its alter ego, this action would still be barred
by the exclusivity provisions of the Workers’ Compensation Law.
Defendant’s liability is premised upon its ownership and/or control of the
premises, not its ownership and/or control of 21 Club, Inc. Accordingly,
whether or not defendant is the alter ego of 21 Club, Inc. is irrelevant.
Further, defendant’s argument relies upon a factual issue, whether it
controlled 21 Club, Inc. and thus constituted its alter ego, which cannot be
determined on this pre-answer motion to dismiss.

(emphasis supplied). See also e.g. Lee v. Dow Jones & Co., Inc., 121 A.D.3d at

549 (reversing grant of defendant’s CPLR 3211[a][1] and [a][7] motion to

dismiss: “Here, defendant’s submissions regarding ‘special employment’ did not

negate the elements of plaintiffs’ complaint, which asserts common law

negligence”).

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CONCLUSION

For all the grounds and reasons set forth herein, defendants’ pre-

answer motion to dismiss the complaint should in all respects be denied.

Dated: New York, New York
April 26, 2023
Respectfully submitted,

______________________________
David C. Zegarelli
THE FLOMENHAFT LAW FIRM, PLLC
Attorneys for Plaintiffs
90 Broad Street, Suite 1901
New York, New York 10004
646.747.0300
dzegarelli@brainjusticeny.com

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CERTIFICATE OF COMPLIANCE

Counsel hereby certifies that the foregoing memorandum of law

complies with Rule 202.8-b(c) because it is prepared in a proportionally-spaced

typeface using Microsoft Word in 12-point Century Schoolbook font.

The total number of words in this memorandum, inclusive of point

headings and footnotes and exclusive of pages containing the caption, signature

block, table of contents, table of authorities, proof of service and certificate of

compliance, or any authorized addendum containing statutes, rules, regulations,

etc., is 3,671.

Dated: New York, New York
April 26, 2023
Respectfully submitted,

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Case Info

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Document Filed Date

April 26, 2023

Case Filing Date

March 09, 2022

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