| Gomez v Penmark Realty Corp. |
| 2008 NY Slip Op 03988 [50 AD3d 607] |
| April 29, 2008 |
| Appellate Division, First Department |
| Lucillo Gomez, Respondent, v Penmark Realty Corp.,Appellant. |
—[*1] Laurence M. Savedoff, P.L.L.C., Bronx (Laurence M. Savedoff of counsel), forrespondent.
Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered March 12, 2007, which, inan action for personal injuries sustained by plaintiff while performing his duties assuperintendent of a building managed by defendant, sua sponte denied as untimely defendant'smotion for summary judgment dismissing the complaint on the basis of the exclusivityprovisions of the Workers' Compensation Law, and sua sponte struck defendant's affirmativedefense based on the Workers' Compensation Law, unanimously reversed, on the law, withoutcosts, the affirmative defense reinstated, the motion granted, and the complaint dismissed. TheClerk is directed to enter judgment accordingly.
The motion, which was made within 120 days as required by CPLR 3212 (a), should nothave been denied as untimely based on Justice Saks's part rules imposing a 60-day limit wherethe case had not previously been before Justice Saks but a different judge whose part rules madeno provision for the timing of summary judgment motions, and it does not appear that defendantcould have known of the assignment to Justice Saks until after the 60 days had run. Nor shouldthe workers' compensation defense have been stricken because defendant had previously madeand withdrawn a motion for summary judgment based on that defense. The parties' stipulationwithdrawing the motion shows that plaintiff agreed to the withdrawal, and does not show thatdefendant agreed not to make the motion again or conceded lack of merit to the workers'compensation defense. On the merits, the record establishes that although, as the Workers'Compensation Board ruled, plaintiff was the building owner's employee, plaintiff wasinterviewed and hired by defendant, his paychecks were signed by defendant, and his dailyactivities were comprehensively and exclusively supervised by an employee of defendant,establishing, as a matter of law, that defendant was plaintiff's special employer, and thusdefendant is shielded from this action by the exclusivity provisions of the Workers'Compensation Law (see Thompson v Grumman Aerospace Corp., 78 NY2d 553,557-559, 560 [1991]; Ayala v MutualHous. Assn., Inc., 33 AD3d 343 [2006]; Villanueva v Southeast Grand St. Guild Hous. Dev. Fund Co., Inc., 37AD3d 155 [2007]). Concur—Tom, J.P., Mazzarelli, Andrias and Williams, JJ.