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FILED: ONONDAGA COUNTY CLERK 12/14/2015 12:16 PM INDEX NO. 2015EF4166
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/14/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
CARLOS M. SUAREZ ALFONSO, Index No.: 2015EF4166
Plaintiff,
- against -
EDWIN R. LOPEZ, EVAN DELIVERY COMPANY,
INC., NATIONWIDE TRUCKING EXPRESS, INC.,
and UNITED PARCEL SERVICE, INC.,
Defendants.
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
DEFENDANT UNITED PARCEL SERVICE, INC.’S
MOTION TO DISMISS
ANSA ASSUNCAO, LLP
707 Westchester Avenue, Suite 309
White Plains, New York 10604
(914) 298-2260
-and-
SUGARMAN LAW FIRM LLP
211 West Jefferson Street
Syracuse, New York 13202
(315) 474-2943
Attorneys for Defendant
United Parcel Service, Inc.
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
LEGAL ARGUMENT .................................................................................................................... 2
I. THE BOARD DETERMINED THAT UPS
IS PLAINTIFF’S SPECIAL EMPLOYER. ........................................................................ 2
II. PLAINTIFF CAN VACATE THE ORDER DISMISSING THIS ACTION
IF THE BOARD’S DETERMINATION IS MODIFIED IN THE FUTURE. ................... 5
CONCLUSION ............................................................................................................................... 6
TABLE OF AUTHORITIES
Page
Cases
Abbo-Bradley v. City of Niagara Falls,
132 A.D.3d 1318, 17 N.Y.S.2d 250 (4th Dep’t 2015) ...............................................................4
Barbato v. Bowden,
63 A.D.3d 1580, 880 N.Y.S.2d 817 (4th Dep’t 2009) ...............................................................4
Calhoun v. Big Apple Wrecking Corp.,
162 A.D.2d 574, 557 N.Y.S.2d 90 (2d Dep’t 1990) ..................................................................3
Cuomo v. Long Island Lighting Co.,
71 N.Y.2d 349, 525 N.Y.S.2d 828 (1988) .................................................................................5
Degruchy v. Xerox Corp.,
188 A.D.2d 1003, 591 N.Y.S.2d 661 (4th Dep’t 1992) .............................................................4
Dupkanicova v. James,
17 A.D.3d 627, 793 N.Y.S.2d 512 (2d Dep’t 2005) ..............................................................3, 5
Hofsiss v. Board of Educ. of Mamaroneck Union Free School Dist.,
207 A.D.2d 566, 732 N.Y.S.2d 14 (2d Dep’t 2001) ..................................................................2
Hynes v. Start Elevator, Inc.,
2 A.D.3d 178, 769 N.Y.S.2d 504 (1st Dep’t 2003) ...................................................................4
Kilcer v. Niagara Mohawk Power Corp.,
86 A.D.3d 682, 926 N.Y.S.2d 224 (3d Dep’t 2011) ..................................................................4
Martin v. Casagrande,
159 A.D.2d 26, 559 N.Y.S.2d 68 (4th Dep’t 1990) ...................................................................3
O’Connor v. Midiria,
55 N.Y.2d 538, 450 N.Y.S.2d 455 (1982) .................................................................................3
O’Rourke v. Long,
41 N.Y.2d 219, 391 N.Y.S.2d 553 (1976) .............................................................................2, 4
Orzechowski v. Warner-Lambert Co.,
92 A.D.2d 110, 460 N.Y.S.2d 64 (2d Dep’t 1983) ................................................................2, 3
Proficient Food Co. v. Phoenix Partners, L.P.,
6 A.D.3d 168, 773 N.Y.S.2d 562 (1st Dep’t 2004) ...................................................................6
Ramos v. Baker,
91 A.D.3d 930, 937 N.Y.S.2d 328 (2d Dep’t 2012) ..................................................................4
ii
Rice v. University of Rochester Medical Ctr.,
46 A.D.3d 1421, 849 N.Y.S.2d 134 (4th Dep’t 2007) ...............................................................4
State v. Calhoun,
106 A.D.3d 1470, 964 N.Y.S.2d 838 (4th Dep’t 2013) .............................................................5
Thompson v. Grumman Aerospace Corp.,
78 N.Y.2d 553, 578 N.Y.S.2d 106 (1991) .................................................................................4
Weiner v. City of New York,
19 N.Y.3d 852, 947 N.Y.S.2d 404 (2012) .............................................................................2, 4
Wilson v. A.H. Harris & Sons, Inc.,
131 A.D.3d 1050, 16 N.Y.S.3d 589 (2d Dep’t 2015) ................................................................4
Statutes
CPLR 5015(a)(5) .............................................................................................................................5
Workers Compensation Law § 23................................................................................................2, 3
Workers’ Compensation Law § 123 ............................................................................................2, 3
iii
Defendant United Parcel Service, Inc. (“UPS”), by its attorneys, Ansa Assuncao, LLP
and Sugarman Law Firm LLP, submits this reply memorandum of law in further support of its
motion to dismiss Plaintiff Carlos M. Suarez Alfonso’s (“Plaintiff”) Complaint, dated October 2,
2015 (the “Complaint”), pursuant to CPLR 3211(a)(1), (2) and (7).
PRELIMINARY STATEMENT
Plaintiff concedes that the Workers’ Compensation Law bars him from suing his
employer. Here, Plaintiff named UPS as his employer and obtained workers’ compensation
benefits from UPS on that basis. Plaintiff now, however, tries to claim that the issue of his
employer is unresolved before the State of New York Workers’ Compensation Board (the
“Board”). His argument is legally and factually without merit.
First, the Board has sole and exclusive jurisdiction to determine the employer-employee
relationship between UPS and Plaintiff. The Board has decided that UPS is Plaintiff’s special
employer and ordered UPS to pay his workers’ compensation benefits.
Second, the Board’s decision, until it is amended or set aside, is final and binding on all
parties and is entitled to res judicata effect. The Board’s decision bars Plaintiff from suing his
special employer, UPS.
Third, the Board is a quasi-judicial body and Plaintiff cannot plead one set of facts before
the Board that he repudiates before this Court.
Plaintiff cannot maintain a direct liability action barred by the Workers’ Compensation
Law on the speculative hope that the Board may someday render a different or modified
decision. The Complaint is barred and must be dismissed.
LEGAL ARGUMENT
I.
THE BOARD DETERMINED THAT UPS
IS PLAINTIFF’S SPECIAL EMPLOYER.
Workers’ compensation benefits are “the sole and exclusive remedy of an employee
against his employer for injuries in the course of employment.” (See Plaintiff’s Memorandum of
Law dated December 8, 2015, at p. 3 (quoting Weiner v. City of New York, 19 N.Y.3d 852, 854,
947 N.Y.S.2d 404, 405 (2012)).) Plaintiff states he will voluntarily withdraw this action ifthe
Board determines that UPS is his employer. (Affidavit of Steven W. Williams, sworn to
December 8, 2015, at ¶ 32.) Plaintiff fails to recognize that the Board’s decision naming UPS as
Plaintiff’s special employer has already made this determination. (See Reply Affidavit of
Thomas O. O’Connor, sworn to December 14, 2015 (“O’Connor Reply Aff.”), Exhibit A.)
Workers Compensation Law § 23 states that “[a]n award or decision of the board shall be
final and conclusive upon all questions within its jurisdiction, as against the state fund or
between the parties, unless reversed or modified on appeal therefrom as hereinafter provided.”1
Id.; see also Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 117, 460 N.Y.S.2d 64, 69 (2d
Dep’t 1983). The issue of whether an employer-employee relationship exists between the parties
is within the sole and primary jurisdiction of the Board. O’Rourke v. Long, 41 N.Y.2d 219, 224,
391 N.Y.S.2d 553, 557 (1976); Hofsiss v. Board of Educ. of Mamaroneck Union Free School
Dist., 207 A.D.2d 566, 567, 732 N.Y.S.2d 14, 16 (2d Dep’t 2001). The Board’s decision is
based upon “settled principles of res judicata” because the Board is sitting in a quasi-judicial
1
Workers’ Compensation Law § 23 does not “inhibit the continuing jurisdiction of the [B]oard” as
provided in Workers’ Compensation Law § 123. Workers’ Compensation Law § 23. Workers’
Compensation Law § 123 allows the Board to, “from time to time, make such modification or change
with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.”
Workers’ Compensation Law § 123.
2
capacity. O’Connor v. Midiria, 55 N.Y.2d 538, 541, 450 N.Y.S.2d 455, 456 (1982); see also
Martin v. Casagrande, 159 A.D.2d 26, 29, 559 N.Y.S.2d 68, 70 (4th Dep’t 1990); Dupkanicova
v. James, 17 A.D.3d 627, 628, 793 N.Y.S.2d 512, 514 (2d Dep’t 2005); Orzechowski, 92 A.D.2d
at 117, 469 N.Y.S.2d at 69.
Therefore, the Board’s decision naming UPS as special employer, “is, until set aside, a
final and conclusive determination which bars an action at law.” O’Connor, 55 N.Y.2d at 541,
450 N.Y.S.2d at 457; see also Calhoun v. Big Apple Wrecking Corp., 162 A.D.2d 574, 575, 557
N.Y.S.2d 90 (2d Dep’t 1990).
This Court has no jurisdiction over the issue of the employer-employee relationship. The
Board has the sole and exclusive jurisdiction to determine this relationship between UPS and
Plaintiff. Plaintiff applied for workers’ compensation benefits by naming UPS as his employer.
(Affidavit of Thomas O. O’Connor, sworn to November 13, 2015, Exhibits B, C and D.) The
Board found UPS to be Plaintiff’s employer and ordered UPS to pay his workers’ compensation
benefits. (Id., Exhibits E, F, G, H, I.) The Board has further decided that UPS is Plaintiff’s
“special employer.” (O’Connor Reply Aff., Exhibit A.)
The Board’s decision is final, binding, and entitled to res judicata effect before this
Court.2 See, e.g., Workers Compensation Law § 23; O’Connor, 55 N.Y.2d at 541, 450 N.Y.S.2d
at 456. Telling is the fact that Plaintiff cites to no authority to the contrary.3 (O’Connor Reply
Aff., Exhibit A.)
2
Plaintiff named UPS as his employer before the Board. To the extent he now contends otherwise,
the proper forum is the Board and not this Court -a party may apply to the Board for a change in its
determination pursuant to Workers’ Compensation Law § 123. Workers’ Compensation Law § 123;
O’Connor, 55 N.Y.2d at 541, 450 N.Y.S.2d at 457; Orzechowski, 92 A.D.2d at 117, 469 N.Y.S.2d at 69.
3
Plaintiff’s attempt to avoid the Board’s decision by arguing that it was without prejudice should
be rejected. The decision is final and binding on all parties and this Court until and unless it is amended
or set aside.
3
The Board’s decision requires the dismissal of the Complaint against UPS because
Plaintiff’s receipt of workers’ compensation benefits bars him from suing his special employer,
UPS.4 See, e.g., Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 560, 578 N.Y.S.2d
106, 110 (1991); Degruchy v. Xerox Corp., 188 A.D.2d 1003, 1003, 591 N.Y.S.2d 661, 661 (4th
Dep’t 1992); Wilson, 131 A.D.3d at 1051, 16 N.Y.S.2d at 590.
Additionally, the Board is a quasi-judicial body and a litigant cannot plead in one judicial
body a set of facts that he repudiates in another court. Here, Plaintiff’s identification of UPS as
his employer and acceptance of workers’ compensation benefits from UPS on that basis estops
him from arguing an inconsistent position herein merely because his interests are different before
this Court. See, e.g., Abbo-Bradley v. City of Niagara Falls, 132 A.D.3d 1318, 17 N.Y.S.2d 250,
254 (4th Dep’t 2015); Hynes v. Start Elevator, Inc., 2 A.D.3d 178, 181, 769 N.Y.S.2d 504, 507
(1st Dep’t 2003); Kilcer v. Niagara Mohawk Power Corp., 86 A.D.3d 682, 684, 926 N.Y.S.2d
224, 226 (3d Dep’t 2011). Plaintiff is estopped from claiming in this action that a different entity
is his employer. See, e.g., Ramos v. Baker, 91 A.D.3d 930, 932, 937 N.Y.S.2d 328, 330-31 (2d
Dep’t 2012); Hynes, 2 A.D.3d at 181, 769 N.Y.S.2d at 507.
UPS’s motion dismissing the Complaint should be granted. See, e.g., Weiner, 19 N.Y.3d
at 853, 947 N.Y.S.2d at 405; Barbato v. Bowden, 63 A.D.3d 1580, 1581, 880 N.Y.S.2d 817, 818
(4th Dep’t 2009); Rice v. University of Rochester Medical Ctr., 46 A.D.3d 1421, 1423, 849
N.Y.S.2d 134, 135 (4th Dep’t 2007).
4
As set forth more fully in UPS’s moving papers, the Complaint is barred by UPS’s special
employer status regardless of what entity ultimately pays Plaintiff’s benefits. In fact, on itsface, the
Complaint is barred because the facts alleged by Plaintiff establish that if UPS was not Plaintiff’s direct
employee, he still would be considered UPS’s special employee. See, e.g., Wilson v. A.H. Harris & Sons,
Inc., 131 A.D.3d 1050, 1051, 16 N.Y.S.3d 589, 590-91 (2d Dep’t 2015); O’Rourke, 41 N.Y.2d at 225,
391 N.Y.S.2d at 558 (holding that a common law action “is not available to plaintiff if it appears from the
complaint, expressly or as a matter of law, that he is an employee” of defendant).
4
II.
PLAINTIFF CAN VACATE THE ORDER DISMISSING THIS ACTION
IF THE BOARD’S DETERMINATION IS MODIFIED IN THE FUTURE.
Plaintiff is not prejudiced by dismissal of his Complaint. This Court can vacate its prior
order upon the motion of any party where there is a “reversal, modification or vacatur of a prior
judgment or order upon which it is based.” Board determinations are analogous to judgments or
orders under CPLR 5015(a)(5). Dupkanicova, 17 A.D. at 628, 793 N.Y.S.2d at 514.
In Dupkanicova, the Board determined that plaintiff was entitled to benefits under the
Workers’ Compensation Law. Id. at 627, 793 N.Y.S.2d at 513. Based upon that determination,
the lower court dismissed the complaint holding that workers’ compensation benefits were
plaintiff’s exclusive remedy. Id. at 628. Upon plaintiff’s application, however, the Board
subsequently denied plaintiff workers’ compensation benefits and, thereby, removed the
foundation for the trial court’s dismissal of the complaint. Id. The appellate court held that the
modified determination was analogous to a judgment or order pursuant to CPLR 5015(a)(5) and
affirmed the trial court’s order to vacate the dismissal judgment. Id.
To the extent the Board modifies UPS’s status as Plaintiff’s special employer, Plaintiff
can vacate the order dismissing his Complaint under CPLR 5015(a)(5). Plaintiff, however,
cannot maintain the instant action on the speculation that the Board’s decision naming UPS as
Plaintiff’s special employer might be modified at some unknown time in the future. See, e.g.,
Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 830 (1988); State v.
Calhoun, 106 A.D.3d 1470, 1472, 964 N.Y.S.2d 838, 840 (4th Dep’t 2013).
5
CONCLUSION
UPS’s motion is based upon well-settled principles of law. There is no basis for
Plaintiff’s request for costs. See, e.g., Proficient Food Co. v. Phoenix Partners, L.P., 6 A.D.3d
168, 773 N.Y.S.2d 562, 563 (1st Dep’t 2004). For the foregoing reasons, UPS respectfully
requests that this Court issue an Order dismissing the Complaint pursuant to CPLR 3211(a)(1),
(2) and (7).
Dated: White Plains, New York
December 14, 2015
ANSA ASSUNCAO, LLP
Attorneys for Defendant
United Parcel Service Inc.
By:
Thomas O. O’Connor
Stefanie A. Bashar
707 Westchester Avenue, Suite 309
White Plains, New York 10604
(914) 298-2260
- and -
Kathleen C. Sassani, Esq.
SUGARMAN LAW FIRM LLP
211 West Jefferson Street
Syracuse, New York 13202
(315) 474-2943
6
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FILED: ONONDAGA COUNTY CLERK 12/14/2015 12:16 PM INDEX NO. 2015EF4166 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/14/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA CARLOS M. SUAREZ ALFONSO, Index No.: 2015EF4166 Plaintiff, - against - EDWIN R. LOPEZ, EVAN DELIVERY COMPANY, INC., NATIONWIDE TRUCKING EXPRESS, INC., and UNITED PARCEL SERVICE, INC., Defendants. REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANT UNITED PARCEL SERVICE, INC.’S MOTION TO DISMISS ANSA ASSUNCAO, LLP 707 Westchester Avenue, Suite 309 White Plains, New York 10604 (914) 298-2260 -and- SUGARMAN LAW FIRM LLP 211 West Jefferson Street Syracuse, New York 13202 (315) 474-2943 Attorneys for Defendant United Parcel Service, Inc. TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 LEGAL ARGUMENT .................................................................................................................... 2 I. THE BOARD DETERMINED THAT UPS IS PLAINTIFF’S SPECIAL EMPLOYER. ........................................................................ 2 II. PLAINTIFF CAN VACATE THE ORDER DISMISSING THIS ACTION IF THE BOARD’S DETERMINATION IS MODIFIED IN THE FUTURE. ................... 5 CONCLUSION ............................................................................................................................... 6 TABLE OF AUTHORITIES Page Cases Abbo-Bradley v. City of Niagara Falls, 132 A.D.3d 1318, 17 N.Y.S.2d 250 (4th Dep’t 2015) ...............................................................4 Barbato v. Bowden, 63 A.D.3d 1580, 880 N.Y.S.2d 817 (4th Dep’t 2009) ...............................................................4 Calhoun v. Big Apple Wrecking Corp., 162 A.D.2d 574, 557 N.Y.S.2d 90 (2d Dep’t 1990) ..................................................................3 Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349, 525 N.Y.S.2d 828 (1988) .................................................................................5 Degruchy v. Xerox Corp., 188 A.D.2d 1003, 591 N.Y.S.2d 661 (4th Dep’t 1992) .............................................................4 Dupkanicova v. James, 17 A.D.3d 627, 793 N.Y.S.2d 512 (2d Dep’t 2005) ..............................................................3, 5 Hofsiss v. Board of Educ. of Mamaroneck Union Free School Dist., 207 A.D.2d 566, 732 N.Y.S.2d 14 (2d Dep’t 2001) ..................................................................2 Hynes v. Start Elevator, Inc., 2 A.D.3d 178, 769 N.Y.S.2d 504 (1st Dep’t 2003) ...................................................................4 Kilcer v. Niagara Mohawk Power Corp., 86 A.D.3d 682, 926 N.Y.S.2d 224 (3d Dep’t 2011) ..................................................................4 Martin v. Casagrande, 159 A.D.2d 26, 559 N.Y.S.2d 68 (4th Dep’t 1990) ...................................................................3 O’Connor v. Midiria, 55 N.Y.2d 538, 450 N.Y.S.2d 455 (1982) .................................................................................3 O’Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553 (1976) .............................................................................2, 4 Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64 (2d Dep’t 1983) ................................................................2, 3 Proficient Food Co. v. Phoenix Partners, L.P., 6 A.D.3d 168, 773 N.Y.S.2d 562 (1st Dep’t 2004) ...................................................................6 Ramos v. Baker, 91 A.D.3d 930, 937 N.Y.S.2d 328 (2d Dep’t 2012) ..................................................................4 ii Rice v. University of Rochester Medical Ctr., 46 A.D.3d 1421, 849 N.Y.S.2d 134 (4th Dep’t 2007) ...............................................................4 State v. Calhoun, 106 A.D.3d 1470, 964 N.Y.S.2d 838 (4th Dep’t 2013) .............................................................5 Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106 (1991) .................................................................................4 Weiner v. City of New York, 19 N.Y.3d 852, 947 N.Y.S.2d 404 (2012) .............................................................................2, 4 Wilson v. A.H. Harris & Sons, Inc., 131 A.D.3d 1050, 16 N.Y.S.3d 589 (2d Dep’t 2015) ................................................................4 Statutes CPLR 5015(a)(5) .............................................................................................................................5 Workers Compensation Law § 23................................................................................................2, 3 Workers’ Compensation Law § 123 ............................................................................................2, 3 iii Defendant United Parcel Service, Inc. (“UPS”), by its attorneys, Ansa Assuncao, LLP and Sugarman Law Firm LLP, submits this reply memorandum of law in further support of its motion to dismiss Plaintiff Carlos M. Suarez Alfonso’s (“Plaintiff”) Complaint, dated October 2, 2015 (the “Complaint”), pursuant to CPLR 3211(a)(1), (2) and (7). PRELIMINARY STATEMENT Plaintiff concedes that the Workers’ Compensation Law bars him from suing his employer. Here, Plaintiff named UPS as his employer and obtained workers’ compensation benefits from UPS on that basis. Plaintiff now, however, tries to claim that the issue of his employer is unresolved before the State of New York Workers’ Compensation Board (the “Board”). His argument is legally and factually without merit. First, the Board has sole and exclusive jurisdiction to determine the employer-employee relationship between UPS and Plaintiff. The Board has decided that UPS is Plaintiff’s special employer and ordered UPS to pay his workers’ compensation benefits. Second, the Board’s decision, until it is amended or set aside, is final and binding on all parties and is entitled to res judicata effect. The Board’s decision bars Plaintiff from suing his special employer, UPS. Third, the Board is a quasi-judicial body and Plaintiff cannot plead one set of facts before the Board that he repudiates before this Court. Plaintiff cannot maintain a direct liability action barred by the Workers’ Compensation Law on the speculative hope that the Board may someday render a different or modified decision. The Complaint is barred and must be dismissed. LEGAL ARGUMENT I. THE BOARD DETERMINED THAT UPS IS PLAINTIFF’S SPECIAL EMPLOYER. Workers’ compensation benefits are “the sole and exclusive remedy of an employee against his employer for injuries in the course of employment.” (See Plaintiff’s Memorandum of Law dated December 8, 2015, at p. 3 (quoting Weiner v. City of New York, 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 405 (2012)).) Plaintiff states he will voluntarily withdraw this action ifthe Board determines that UPS is his employer. (Affidavit of Steven W. Williams, sworn to December 8, 2015, at ¶ 32.) Plaintiff fails to recognize that the Board’s decision naming UPS as Plaintiff’s special employer has already made this determination. (See Reply Affidavit of Thomas O. O’Connor, sworn to December 14, 2015 (“O’Connor Reply Aff.”), Exhibit A.) Workers Compensation Law § 23 states that “[a]n award or decision of the board shall be final and conclusive upon all questions within its jurisdiction, as against the state fund or between the parties, unless reversed or modified on appeal therefrom as hereinafter provided.”1 Id.; see also Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 117, 460 N.Y.S.2d 64, 69 (2d Dep’t 1983). The issue of whether an employer-employee relationship exists between the parties is within the sole and primary jurisdiction of the Board. O’Rourke v. Long, 41 N.Y.2d 219, 224, 391 N.Y.S.2d 553, 557 (1976); Hofsiss v. Board of Educ. of Mamaroneck Union Free School Dist., 207 A.D.2d 566, 567, 732 N.Y.S.2d 14, 16 (2d Dep’t 2001). The Board’s decision is based upon “settled principles of res judicata” because the Board is sitting in a quasi-judicial 1 Workers’ Compensation Law § 23 does not “inhibit the continuing jurisdiction of the [B]oard” as provided in Workers’ Compensation Law § 123. Workers’ Compensation Law § 23. Workers’ Compensation Law § 123 allows the Board to, “from time to time, make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.” Workers’ Compensation Law § 123. 2 capacity. O’Connor v. Midiria, 55 N.Y.2d 538, 541, 450 N.Y.S.2d 455, 456 (1982); see also Martin v. Casagrande, 159 A.D.2d 26, 29, 559 N.Y.S.2d 68, 70 (4th Dep’t 1990); Dupkanicova v. James, 17 A.D.3d 627, 628, 793 N.Y.S.2d 512, 514 (2d Dep’t 2005); Orzechowski, 92 A.D.2d at 117, 469 N.Y.S.2d at 69. Therefore, the Board’s decision naming UPS as special employer, “is, until set aside, a final and conclusive determination which bars an action at law.” O’Connor, 55 N.Y.2d at 541, 450 N.Y.S.2d at 457; see also Calhoun v. Big Apple Wrecking Corp., 162 A.D.2d 574, 575, 557 N.Y.S.2d 90 (2d Dep’t 1990). This Court has no jurisdiction over the issue of the employer-employee relationship. The Board has the sole and exclusive jurisdiction to determine this relationship between UPS and Plaintiff. Plaintiff applied for workers’ compensation benefits by naming UPS as his employer. (Affidavit of Thomas O. O’Connor, sworn to November 13, 2015, Exhibits B, C and D.) The Board found UPS to be Plaintiff’s employer and ordered UPS to pay his workers’ compensation benefits. (Id., Exhibits E, F, G, H, I.) The Board has further decided that UPS is Plaintiff’s “special employer.” (O’Connor Reply Aff., Exhibit A.) The Board’s decision is final, binding, and entitled to res judicata effect before this Court.2 See, e.g., Workers Compensation Law § 23; O’Connor, 55 N.Y.2d at 541, 450 N.Y.S.2d at 456. Telling is the fact that Plaintiff cites to no authority to the contrary.3 (O’Connor Reply Aff., Exhibit A.) 2 Plaintiff named UPS as his employer before the Board. To the extent he now contends otherwise, the proper forum is the Board and not this Court -a party may apply to the Board for a change in its determination pursuant to Workers’ Compensation Law § 123. Workers’ Compensation Law § 123; O’Connor, 55 N.Y.2d at 541, 450 N.Y.S.2d at 457; Orzechowski, 92 A.D.2d at 117, 469 N.Y.S.2d at 69. 3 Plaintiff’s attempt to avoid the Board’s decision by arguing that it was without prejudice should be rejected. The decision is final and binding on all parties and this Court until and unless it is amended or set aside. 3 The Board’s decision requires the dismissal of the Complaint against UPS because Plaintiff’s receipt of workers’ compensation benefits bars him from suing his special employer, UPS.4 See, e.g., Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 560, 578 N.Y.S.2d 106, 110 (1991); Degruchy v. Xerox Corp., 188 A.D.2d 1003, 1003, 591 N.Y.S.2d 661, 661 (4th Dep’t 1992); Wilson, 131 A.D.3d at 1051, 16 N.Y.S.2d at 590. Additionally, the Board is a quasi-judicial body and a litigant cannot plead in one judicial body a set of facts that he repudiates in another court. Here, Plaintiff’s identification of UPS as his employer and acceptance of workers’ compensation benefits from UPS on that basis estops him from arguing an inconsistent position herein merely because his interests are different before this Court. See, e.g., Abbo-Bradley v. City of Niagara Falls, 132 A.D.3d 1318, 17 N.Y.S.2d 250, 254 (4th Dep’t 2015); Hynes v. Start Elevator, Inc., 2 A.D.3d 178, 181, 769 N.Y.S.2d 504, 507 (1st Dep’t 2003); Kilcer v. Niagara Mohawk Power Corp., 86 A.D.3d 682, 684, 926 N.Y.S.2d 224, 226 (3d Dep’t 2011). Plaintiff is estopped from claiming in this action that a different entity is his employer. See, e.g., Ramos v. Baker, 91 A.D.3d 930, 932, 937 N.Y.S.2d 328, 330-31 (2d Dep’t 2012); Hynes, 2 A.D.3d at 181, 769 N.Y.S.2d at 507. UPS’s motion dismissing the Complaint should be granted. See, e.g., Weiner, 19 N.Y.3d at 853, 947 N.Y.S.2d at 405; Barbato v. Bowden, 63 A.D.3d 1580, 1581, 880 N.Y.S.2d 817, 818 (4th Dep’t 2009); Rice v. University of Rochester Medical Ctr., 46 A.D.3d 1421, 1423, 849 N.Y.S.2d 134, 135 (4th Dep’t 2007). 4 As set forth more fully in UPS’s moving papers, the Complaint is barred by UPS’s special employer status regardless of what entity ultimately pays Plaintiff’s benefits. In fact, on itsface, the Complaint is barred because the facts alleged by Plaintiff establish that if UPS was not Plaintiff’s direct employee, he still would be considered UPS’s special employee. See, e.g., Wilson v. A.H. Harris & Sons, Inc., 131 A.D.3d 1050, 1051, 16 N.Y.S.3d 589, 590-91 (2d Dep’t 2015); O’Rourke, 41 N.Y.2d at 225, 391 N.Y.S.2d at 558 (holding that a common law action “is not available to plaintiff if it appears from the complaint, expressly or as a matter of law, that he is an employee” of defendant). 4 II. PLAINTIFF CAN VACATE THE ORDER DISMISSING THIS ACTION IF THE BOARD’S DETERMINATION IS MODIFIED IN THE FUTURE. Plaintiff is not prejudiced by dismissal of his Complaint. This Court can vacate its prior order upon the motion of any party where there is a “reversal, modification or vacatur of a prior judgment or order upon which it is based.” Board determinations are analogous to judgments or orders under CPLR 5015(a)(5). Dupkanicova, 17 A.D. at 628, 793 N.Y.S.2d at 514. In Dupkanicova, the Board determined that plaintiff was entitled to benefits under the Workers’ Compensation Law. Id. at 627, 793 N.Y.S.2d at 513. Based upon that determination, the lower court dismissed the complaint holding that workers’ compensation benefits were plaintiff’s exclusive remedy. Id. at 628. Upon plaintiff’s application, however, the Board subsequently denied plaintiff workers’ compensation benefits and, thereby, removed the foundation for the trial court’s dismissal of the complaint. Id. The appellate court held that the modified determination was analogous to a judgment or order pursuant to CPLR 5015(a)(5) and affirmed the trial court’s order to vacate the dismissal judgment. Id. To the extent the Board modifies UPS’s status as Plaintiff’s special employer, Plaintiff can vacate the order dismissing his Complaint under CPLR 5015(a)(5). Plaintiff, however, cannot maintain the instant action on the speculation that the Board’s decision naming UPS as Plaintiff’s special employer might be modified at some unknown time in the future. See, e.g., Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 830 (1988); State v. Calhoun, 106 A.D.3d 1470, 1472, 964 N.Y.S.2d 838, 840 (4th Dep’t 2013). 5 CONCLUSION UPS’s motion is based upon well-settled principles of law. There is no basis for Plaintiff’s request for costs. See, e.g., Proficient Food Co. v. Phoenix Partners, L.P., 6 A.D.3d 168, 773 N.Y.S.2d 562, 563 (1st Dep’t 2004). For the foregoing reasons, UPS respectfully requests that this Court issue an Order dismissing the Complaint pursuant to CPLR 3211(a)(1), (2) and (7). Dated: White Plains, New York December 14, 2015 ANSA ASSUNCAO, LLP Attorneys for Defendant United Parcel Service Inc. By: Thomas O. O’Connor Stefanie A. Bashar 707 Westchester Avenue, Suite 309 White Plains, New York 10604 (914) 298-2260 - and - Kathleen C. Sassani, Esq. SUGARMAN LAW FIRM LLP 211 West Jefferson Street Syracuse, New York 13202 (315) 474-2943 6