Preview
FILED: KINGS COUNTY CLERK 05/09/2023 01:52 PM INDEX NO. 506931/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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KALWEEN RODRIGUEZ, Index No.: 506931/2022
Plaintiff,
REPLY 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 Reply Affirmation is submitted in further 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. (“TMC”) and TOV PROPERTY MANAGEMENT
CORP. (“TPMC”), 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
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involvement, whatsoever, with the alleged accident location; and (c) for such other and further
relief as the Court deems just and proper.
3. At the outset, it is undisputed that the Defendant, METROPOLITAN REALTY &
MANAGEMENT NY INC., had no involvement, whatsoever, with this case. Therefore, the
Complaint should be dismissed against this defendant in its entirety.
4. It is well settled that a defendant may move to dismiss a complaint under CPLR
3211 (a) (1) "on the ground that . . . a defense is founded upon documentary evidence" (CPLR
3211 [a]).
5. In addition, it is well-settled that "[a] court is, of course, permitted to consider
evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to
CPLR 3211 (a) (7)" Sokol v Leader, 74 A.D.3d 1180, 904 N.Y.S.2d 153, 2010 N.Y. App. Div.
LEXIS 5393, 2010 NY Slip Op 5539 (2nd Dept. 2010).
6. Moreover, pursuant to CPLR Section 3211(c), “Upon the hearing of a motion
made under subdivision (a) or (b), either party may submit any evidence that could properly be
considered on a motion for summary judgment.” This includes affidavits. As held by the New
York Court of Appeals:
“Under CPLR 3211, a trial court may use affidavits in its
consideration of a pleading motion to dismiss. CPLR 3211 (subd
[c]), by providing that "either party may submit any evidence that
could properly be considered on a motion for summary judgment",
leaves this question free from doubt.” Rovello v. Orofino Realty
Co., 40 N.Y.2d 633, 357 N.E.2d 970, 389 N.Y.S.2d 314, 1976
N.Y. LEXIS 3050 (1976).
7. CPLR Section 3211(c) states:
“Evidence Permitted; Immediate Trial; Motion Treated as One for Summary
Judgment.
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Upon the hearing of a motion made under subdivision (a) or (b),
either party may submit any evidence that could properly be
considered on a motion for summary judgment. Whether or not
issue has been joined, the court, after adequate notice to the parties,
may treat the motion as a motion for summary judgment. The court
may, when appropriate for the expeditious disposition of the
controversy, order immediate trial of the issues raised on the
motion.”
8. Here, the Plaintiff did submit documentary evidence within the meaning of CPLR
3211 (a) (1). The documentary evidence conclusively establishes that TMPC was the Plaintiff’s
“special employer” on the date of the accident. The documentary evidence includes the
Plaintiff’s employment contract; the management contract between TMC and TMPC; the “PEO
Client Service Agreement” between TMC and County Agency, Inc.”; and Workers’
Compensation records of the Plaintiff. The documentary evidence conclusively establishes that
TMC hired the Plaintiff, and TPMC directed and controlled his day-to-day work activities.
County Agency, Inc.’s “PEO Client Service Agreement” conclusively shows that County
Agency, Inc. did not reserve any day-to-day control and supervision over the Plaintiff and did
not have the right to hire, fire, discipline or promote him. As set forth in the PEO Client Service
Agreement, 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, TMC. Plaintiff does not dispute any of these facts in his opposition
papers.
9. In addition, the Defendants submitted affidavits from not only themselves but also
from the non-party, County Agency, Inc. The affidavits conclusively establish that only TMPC
directed, controlled and supervised the Plaintiff’s work. Again, the Plaintiff does not dispute this
fact.
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10. It is well-settled that “a 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.” Cipollone v. Aramark Healthcare Support Servs., LLC, 2012
U.S. Dist. LEXIS 28109, *1, 2012 WL 683578.
11. 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). An employee cannot sue any employer
with which he had a special employment relationship. Cipollone v. Aramark Healthcare Support
Servs., LLC, 2012 U.S. Dist. LEXIS 28109, 2012 WL 683578.
12. 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”.
13. In the context of special employment under New York Workers' Compensation
law, New York courts continue to hold that “the most significant factor is who controls and
directs the manner, details, and ultimate result of the employee's work.” Cipollone v. Aramark
Healthcare Support Servs., LLC, 2012 U.S. Dist. LEXIS 28109, 2012 WL 683578. Here, TPMC
has presented uncontradicted evidence that it was the Plaintiff’s special employer as a matter of
law. TPMC directed, controlled and supervised the Plaintiff’s work on a daily basis. This fact is
undisputed by the Plaintiff.
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14. Lastly, based on the affidavits submitted by TMC and TPMC, it is respectfully
submitted that TMC has conclusively established as a matter of law that it is the alter ego of
TPMC within the meaning of the Workers' Compensation Law. Although legally separate, TMC
and TPMC operate as a single integrated entity. TPMC supervised, directed and controlled the
Plaintiff’s day-to-day work. TPMC reports directly to TMC. Both TMC and TPMC. 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 handled together by TOV PROPERTY
MANAGEMENT CORP.’s secretary, Gitty Koning. Please see the affidavits by Gedalia David
Altman and Motty Neiman which were submitted in support of the instant motion.
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
May 9, 2023
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 REPLY AFFIRMATION IN SUPPORT OF
MOTION TO DISMISS contains 1226 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: May 9, 2023
White Plains, New York
Todd M. McCauley
___________________________________
Todd M. McCauley
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Preview
FILED: KINGS COUNTY CLERK 05/09/2023 01:52 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------X KALWEEN RODRIGUEZ, Index No.: 506931/2022 Plaintiff, REPLY 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 Reply Affirmation is submitted in further 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. (“TMC”) and TOV PROPERTY MANAGEMENT CORP. (“TPMC”), 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 1 of 6 FILED: KINGS COUNTY CLERK 05/09/2023 01:52 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/09/2023 involvement, whatsoever, with the alleged accident location; and (c) for such other and further relief as the Court deems just and proper. 3. At the outset, it is undisputed that the Defendant, METROPOLITAN REALTY & MANAGEMENT NY INC., had no involvement, whatsoever, with this case. Therefore, the Complaint should be dismissed against this defendant in its entirety. 4. It is well settled that a defendant may move to dismiss a complaint under CPLR 3211 (a) (1) "on the ground that . . . a defense is founded upon documentary evidence" (CPLR 3211 [a]). 5. In addition, it is well-settled that "[a] court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7)" Sokol v Leader, 74 A.D.3d 1180, 904 N.Y.S.2d 153, 2010 N.Y. App. Div. LEXIS 5393, 2010 NY Slip Op 5539 (2nd Dept. 2010). 6. Moreover, pursuant to CPLR Section 3211(c), “Upon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment.” This includes affidavits. As held by the New York Court of Appeals: “Under CPLR 3211, a trial court may use affidavits in its consideration of a pleading motion to dismiss. CPLR 3211 (subd [c]), by providing that "either party may submit any evidence that could properly be considered on a motion for summary judgment", leaves this question free from doubt.” Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 357 N.E.2d 970, 389 N.Y.S.2d 314, 1976 N.Y. LEXIS 3050 (1976). 7. CPLR Section 3211(c) states: “Evidence Permitted; Immediate Trial; Motion Treated as One for Summary Judgment. 2 of 6 FILED: KINGS COUNTY CLERK 05/09/2023 01:52 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/09/2023 Upon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment. The court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised on the motion.” 8. Here, the Plaintiff did submit documentary evidence within the meaning of CPLR 3211 (a) (1). The documentary evidence conclusively establishes that TMPC was the Plaintiff’s “special employer” on the date of the accident. The documentary evidence includes the Plaintiff’s employment contract; the management contract between TMC and TMPC; the “PEO Client Service Agreement” between TMC and County Agency, Inc.”; and Workers’ Compensation records of the Plaintiff. The documentary evidence conclusively establishes that TMC hired the Plaintiff, and TPMC directed and controlled his day-to-day work activities. County Agency, Inc.’s “PEO Client Service Agreement” conclusively shows that County Agency, Inc. did not reserve any day-to-day control and supervision over the Plaintiff and did not have the right to hire, fire, discipline or promote him. As set forth in the PEO Client Service Agreement, 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, TMC. Plaintiff does not dispute any of these facts in his opposition papers. 9. In addition, the Defendants submitted affidavits from not only themselves but also from the non-party, County Agency, Inc. The affidavits conclusively establish that only TMPC directed, controlled and supervised the Plaintiff’s work. Again, the Plaintiff does not dispute this fact. 3 of 6 FILED: KINGS COUNTY CLERK 05/09/2023 01:52 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/09/2023 10. It is well-settled that “a 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.” Cipollone v. Aramark Healthcare Support Servs., LLC, 2012 U.S. Dist. LEXIS 28109, *1, 2012 WL 683578. 11. 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). An employee cannot sue any employer with which he had a special employment relationship. Cipollone v. Aramark Healthcare Support Servs., LLC, 2012 U.S. Dist. LEXIS 28109, 2012 WL 683578. 12. 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”. 13. In the context of special employment under New York Workers' Compensation law, New York courts continue to hold that “the most significant factor is who controls and directs the manner, details, and ultimate result of the employee's work.” Cipollone v. Aramark Healthcare Support Servs., LLC, 2012 U.S. Dist. LEXIS 28109, 2012 WL 683578. Here, TPMC has presented uncontradicted evidence that it was the Plaintiff’s special employer as a matter of law. TPMC directed, controlled and supervised the Plaintiff’s work on a daily basis. This fact is undisputed by the Plaintiff. 4 of 6 FILED: KINGS COUNTY CLERK 05/09/2023 01:52 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/09/2023 14. Lastly, based on the affidavits submitted by TMC and TPMC, it is respectfully submitted that TMC has conclusively established as a matter of law that it is the alter ego of TPMC within the meaning of the Workers' Compensation Law. Although legally separate, TMC and TPMC operate as a single integrated entity. TPMC supervised, directed and controlled the Plaintiff’s day-to-day work. TPMC reports directly to TMC. Both TMC and TPMC. 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 handled together by TOV PROPERTY MANAGEMENT CORP.’s secretary, Gitty Koning. Please see the affidavits by Gedalia David Altman and Motty Neiman which were submitted in support of the instant motion. 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 May 9, 2023 McCAULEY LAW FIRM, PLLC By: Todd M. McCauley Todd M. McCauley, Esq. 5 of 6 FILED: KINGS COUNTY CLERK 05/09/2023 01:52 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/09/2023 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 REPLY AFFIRMATION IN SUPPORT OF MOTION TO DISMISS contains 1226 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: May 9, 2023 White Plains, New York Todd M. McCauley ___________________________________ Todd M. McCauley 6 of 6