SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------------x , Plaintiff, Index No.

: AFFIRMATION IN OPPOSITION

Defendants. ------------------------------------------------------------------------------x , an attorney duly licensed to practice law in the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: 1. matter. 2. I am fully familiar with the facts and circumstances of , the source of my I am a partner of the law firm of , attorney for the plaintiff in the within

knowledge and information being the file maintained by my office. 3. This affirmation is submitted in opposition to the within motion for summary , and .

judgment of defendants 4.

The within matter is an action for injuries which plaintiff sustained on June 21, New York, New York, at

2003 during the course of her employment at Inc. 5. 6. plaintiff

This within action was commenced by service of a Summons and Complaint by ___________on June 21, 2006. On ___________,

2006 plaintiff served an Amended Summons and Verified Complaint. (Attached to Defendants

Motion as Exhibit B). Issue was joined on or about _____ defendants motion as Exhibit C). 7.

(Verified Answer annexed to

In their summary judgment motion returnable on July 20, 2007, defendants

_________________ ASSOCIATES and _________________________ contend, regarding the action against defendants, that it is well settled that a worker injured during the course of a workers employment cannot maintain an action to recover for personal injuries against the owner or tenant of the premises upon which an accident occurred when the owner or tenant of the premises upon which an accident occurred is also the entity which employed the worker. (Page 4, page 8 of the Affirmation_______________________ Esq. attached hereto as Exhibit B). As to defenda__________________________., it is claimed that, pursuant to the terms of their lease that they are an out of possession landlord, and that as such, liability does not attach to them. The facts presented and purported by the defendants as evidentiary proof, can not be imputed to fully support their argument. It is plaintiffs contention that summary judgment as to them must be denied. 8. By its own admission defendant , as affirmed by

, Senior General Partner, is not the employer of the defendant, nor is it in the same employ, of the employers insurer or such other collective bargaining agent of the employers insurer. See Workers Compensation 29(6). Defendant, is not by their own definition,

an employer of Plaintiff or co-employee within the exclusive definition of Workers Comp, wherein liability as to them would be barred by the statute. Further, as to the claim of defendant, ________________________in their motion seeking summary judgment, that at no time did____________________________ maintain, control or have management over the employees at the premises. (see paragraph 7, page 2 of Affidavit of Edwin A. Goodman dated December 22,

2006 annexed as Exhibit C) plaintiff avers that they did have control over the premises, such that they do not fall within the exclusive definition, and as such that the statute as to such defendant does not apply. 10. In the affirmation _______________________, Esq., attorney for defendants,

_________________________________L.P., and , in citing the Workers Comp Law: Under Workers Compensation Law section 11, the liability of an employer shall be exclusive and in place of any other liability whatsoever, to such employeeon account of such injury or death or liability arising there from. In other words it is well settled law that a worker injured during the course of his employment cannot maintain an action to recover damages for personal injuries against the owner or tenant of the premises upon which an accident occurred when the owner or tenant is also the entity which employed the worker. (page 4, paragraph 8 of the Affirmation of . annexed as Exhibit B). Plaintiff was employed by employed _______________________. 11. It is respectfully submitted that defendants motion should be denied on various Inc., she was not

grounds. Firstly, discovery has not even commenced, let alone completed as to any defendant and therefore plaintiff should be permitted to investigate material facts as to each moving defendant. See Integrated Logistic Consultants v. Fidata Corp. et al, 131 AD2d 338; 517 N.Y.S.2d 135 N.Y. App. Div. Summary judgment relief should not be granted where there is any doubt as to the existence of a triable issue (Moskovitz v. Garlock, 23 AD2d 943, 944), or where the issue is even arguable (Barrett v. Jacobs, 225 NY 520, 522), since it serves t deprive a party of his day in court.This is especially so where, as here, there are salient facts within the knowledge and control of the movant which may be revealed through pretrial disclosure proceedings (see, CPLR 3212 [f]; Terranova v. Emil, 20 NY2d 493, 497; Simpson v. Term

Indus.,126 AD2d 484; Mack v. Gregory Mem. Hosp., 90AD2d 969; Bank Leumi Trust Co. v. Felner, 70 AD2d 869). In.this case, there has been no discovery since the motion for

summary judgment was made. 12. Plaintiff submits that that the the exception defendants enumerated by contention Workers

_________________________________.

Compensation 11 and 29(6) is not applicable to this defendant: Workers Compensation section 29 (1), provides: remedies of employees such that the right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, .when such employee is injured or killed by the negligence or wrong in the same employ 13. As defendants state In the case at bar, it is undisputed that plaintiff was an

employee of____________________________________ working in the course of her employment at the time of the subject incident. (Page 5, paragraph 9 of the Affirmation of , Esq.. attached hereto as Exhibit D). Defendant employer of, nor in the same employ as Plaintiff. L.P, as affirmed by ASSOCIATES, is not the By its own admission, defendant

, Senior General Partner, ________________ had no involvement

with the daily operation of the premises, nor did it maintain control or management over the employees at the premises. (Paragraph 6, page 2 of the Affidavit of _________________ dated December 22, 2006 annexed hereto as Exhibit E is not the employer of the defendant, nor is it in the same employ, of the employers insurer or such other collective bargaining agent of the employers insurer. See Workers Compensation 29(6). Defendant ____________________, is not by their own definition, the employer of Plaintiff or co-employee within the exclusive definition of Workers Comp, wherein no liability could be found for such entity, and therefore liability is not barred by the statute. Specifically, defendant ________ ASSOCIATES claims in

their motion seeking summary judgment, that at no time did ________________ASSOCIATES maintain, control or have management over the employees at the premises. (see paragraph 15, page 6 of Affidavit of the __________________, Esq. annexed as Exhibit D). Although the remedy of exclusivity under Section 11 of Workers Compensation Law, is clear by the manner in which the defendants apply the Statute their arguments are not supported. The exclusivity provision provided for under 11 of the Workers Compensation Act, as aforementioned by the defendant ______________________ASSOCIATES, insofar as defendant states that

_________________ is an out of possession landowner that retained no control of the premises is not a proper application the Workers Comp law. As can be seen by the Affidavi t of ., Senior General Partner submitted in support of the defendant

ASSOCIATES motion to dismiss, it is affirmed that as an out of possession landowner For at least ten years _____________ Associates has not had any office, or any other facilities, and has neither occupied nor used any space, at (paragraph 3 at page 1 of Affidavit of ________Avenue, New York, New York.: dated June 21, 2007 annexed hereto as Exhibit E).

Defendant in stating that they are an absentee landlord (paragraph 5 at page 2 the Affidavit of dated December 22, 2006 annexed hereto as Exhibit F) is underlining the issue of fact, and maintains that they are not the employer of the plaintiff, herein but rather the owner, albeit, out of possession landowner and as to them there remain triable issues of fact. Their application of the exclusivity remedy under Workers Comp has no relevance to defendants including , the basis by which defendants INC. and

conclude that their are no triable issues, such that summary judgment may be granted. The exclusive remedy afforded under 11 of the Workers Compensation Law, as defined therein does not provide for, in the context of an employee who sustains grave injury in bringing his action

against the landowner, as in the case of defendant herein

, wherein liability may

not attach, and therefore the plaintiff should not be precluded, nor should same represent a bar to liability against _______________________ which is not plaintiffs employer. 14. Although the defendant ASSOCIATES, L.P., in their

own assertion, in stating that they are an entity distinct from plaintiffs employer, presents a circular argument, and therefore, can be said to be pointing to the very reason for and issues by which liability can attach. Defendants including , however, make no

showing of their claimed protection under 11 and 29(6) under the Workers Compensation Act defendant in no way are they causally linked to the exclusions enumerated under 11. Defendant , in asserting that they, had no control over the premises located

at 754 Fifth Avenue, which is the location of plaintiffs employer at the time of the accident and plaintiff avers that defendants argument that there are entitled to summary judgment by a showing of their lease which they attach to their moving papers, as 1) the lease attachment shows that they a) retained a portion of the premises and b) did enter into an agreement with Bergdorf Goodman, Inc. wherein they did have the right of reentry. , Senior

General Partner, states in his biography on-line at the website of his venture capital firm________________________, that the Goodman family retains ownership of the land and building. (see Biography of G). 15. The granting of summary judgment must be decided in the light most favorable to at s website attached as Exhibit

plaintiff. St. Paul Industrial Park, Inc. v. New York State Urban Development Corporation, 63 A.D.2d 822; 406 N.Y.S.2d 178 (1978): Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the

absence of triable issues. Defendant

ASSOCIATES, L.P., by their own

admission is a landlord out of possession and therefore, a distinct entity, separate and distinguished by their own characterization, which is not plaintiffs employer. Further, plaintiff herein asserts that facts and circumstances concerning defendant ASSOCIATES

with regard to whether or not they had control over the premises, located at 754 Fifth Avenue for which they have submitted no evidentiary proof. This is particularly illustrated by the fact that although it is this defendants contention that they have no involvement with inspection, repair or maintenance of the premises, applications for Work Permits filed with the New York City Department of Buildings, have listed as the landowner, contact, and applicant for each Work Permit, ASSOCIATES, L.P., on whose behalf such applications for Work Permits

were filed with and accepted by the New York City Department of Buildings, for the premises located at 16. (Permits at Department of Buildings at Exhibit H). Clearly, there remain issues of fact, and which may be more definitively

determined following discovery, including depositions of the parties herein. The arguments of the defendants herein with respect to their falling within the exclusivity under Workers Compensation 11 and 29(6) appear on their face as only being supported by conclusory statements -- the determination of which, as relates to the granting of summary judgment, in the absence of evidentiary proof, should not be granted. Assertions made that defendant " is an

out-of-possession landlord that retained no control over the premises and that as such, claims that that they had no right of reentry is in controversy. 17. The lease which defendants purport the operation by which they are out-ofASSOCIATES, L.P.s lease attached hereto as

possession (pages 4 and 86 of exhibit I)

ASSOCIATES, L.P. by its own presentation provides evidentiary proof in its

exhibits submitted in support of their reply to the prior motion of _______ and ____CONSTRUCTION, that they held and retained the 9th floor of the premises located at , INC. (see page _____of the lease attached to the Affirmation Yasmin Soto attached herein as Exhibit J). The ninth floor retention by defendant presents just one of the issues regarding the demised premises as it relates to the condition which resulted in plaintiff s injuries. Plaintiff contends that there are discoverable issues of fact concerning the ninth floor retention by defendant ASSOCIATES, L.P. (Affirmation of_____________ attached

hereto as Exhibit K). The water on which Plaintiff slipped and fell in the 8th floor locker room while in her employ at was coming from the ceiling of the 8th floor, which

water and leaks Plaintiff contends were coming from the 9th floor which was retained by the ____________________s and for which _________________________, L.P. had full access and control, and to which defendant INC. would not have had access and control.

Although defendants herein in setting forth that As is clear by page 66, Section 9.1., entitled Repairs by Tenants, the tenant is responsible to make all repairs, both interior and exterior as well as structural and non-structural. (referred to by defendant as Exhibit A, pg. 90 and annexed hereto as Exhibit L), and that did not have a physical presence

on the building nor is it responsible to maintain the premises. (Page 8, paragraph 19 of Affirmation of was submitted by defendant Esq. annexed hereto as Exhibit M). This statement which , in reply papers to s prior motion,

overlooks that portion of the lease which had been attached, which shows retention of the 9th floor of the premises, and the Right of Reentry by . There evidentiary

proof of other facts which defendant has overlooked which are evidenced by their lease attachment ( s lease attached as exhibit I). Although the defendants state

that they are not responsible for repairs to, and deny that they had control over the premises in direct contradiction of this so called fact, there exists a portion of the lease previously presented by defendants to the court, which as can be seen,________________ has retention of the 9th floor, and that pursuant to the terms of the lease,____________________________, had the right to inspect, and make repairs, Plaintiff asserts that there are factual issues which remain and it is submitted that as to them summary judgment should not be granted. 18. Defendants only conclusory and evidentiary proof in the statement in the maintain control or

Affirmation of Edwin A. Goodman, that At no time did

management over the employees at the premises. (see paragraph 13, page 6 of Affidavit of , Esq. at Exhibit N). See Deborah A. Richardson et al., v. Benoit's Electric, Inc., et al. and Woodstream Holding Corp.,677 N.Y.S.2d 855, 1998 N.Y. App. Div. 254 A.D.2d 798; When an employer and the owner of the premises where a plaintiff is injured are distinct legal entities, there is no basis to dismiss an action against the landowner based on the exclusivity provisions of the Workers' Compensation Law. Defendants argue in their motion that is an out -of-

possession landowner that retained no control of the premises. (Paragraph 13 of Page 6 of the Affirmation of , Esq. annexed as Exhibit O). That defendant/landlord herein , INC. is not disputed. That , L.P.,

L.P., leased the premises to plaintiffs employer

did not maintain control or management over the employees at the premises (Page 6, paragraph 13 of the Affidavit of defendant annexed as Exhibit P). Plaintiff contends that the

did and does, at all times prior to, up to and including the date of the accident

to present retain the ninth floor of the premises, the floor from which the water was leaking onto the ceiling and floors of the eighth floor, for which the defendant was contractually and

statutorily obligated to repair, and for which they had at all times the right to inspect, at the

premises known as

, INC., as referred to in Article XIV. 14.1 of the lease. (Lease of

L.P. lease entitled Landlords Right of Access annexed hereto as exhibit Q). In the case at bar as in Sostre v. Jaeger, et al. 38 A.D.3d 234, 832 N.Y.S.2d 150 the Court held as follows: The landlord could be held liable for the explosion that allegedly caused the employees injuries because it expressly reserved a right under the lease to enter the premises for the purpose of inspection, maintenance and repair. 19. In Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69

N.Y.S2d 559; 50-9 N.E.2d 51 N.Y.S.2d 451 (1987) the Court held that: under the terms of the lease, Village East, as owner-lessor, could enter the premises at all times to inspect and, in addition had the right to make repairs if the tenant failed to make themAlthough there is no evidence that Village East had actual notice of the claimed dangerous condition, its right to reenter the premises is sufficient to charge it with constructive notice. Its failure to act to remedy the defect as it could have done under the lease is the basis for its liability under the various provisions of the Administrative Code. 20. Furthermore defendants claim that as an out of possession landlord (not yet

proven) that they are not liable for statutory violations or structural defects. Plaintiff submits that discovery may show that the continued accumulations of water on the eighth floor locker room of INC. was coming from the 9 th floor and which, may have been the

result of a structural defect and/or statutory violations. See Ponce v. St. Johns Cemetry, et al., 222 A.D.2d 361, 636 N.Y.S.2d 28 (1995) N.Y. App. Div.: Absolute liability is imposed upon owners and contractors pursuant to Labor Law 240 (1) upon proof of a violation thereof and that such violation was the proximate cause of the injuries sustained (Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). However, as almost no pretrial discovery has been conducted herein, the court properly denied summary judgment against the owner defendants pursuant to CPLR [**29] 3212 (f). In these circumstances, discovery may yield information allowing

defendants-respondents to raise issues of facts as to whether, inter alia, a statutory violation was the proximate cause of the accident (see, Avner v 93rd St. Assn., 147 A.D.2d 414. 21. Plaintiff contends that defendant , L.P., has exclusive control of

facts concerning its alleged status and the circumstances concerning the eighth floor leak and the contract and/or lease in existence which provided that , L.P. had the right to

reenter the premises at any time to make repairs as necessary. Further, the fact that the defendant _____ retained the 9th floor of the premises, pursuant to the terms of that lease, it is submitted herein that there remain discoverable issues concerning these facts surrounding these issues and the existence of a structural defect, which raises issues of fact as relating to the source and cause of the leak on the eighth floor and which resulted in plaintiffs accident. In the matter of Donatin v. Sea Crest Trading Co., Inc., 181 A.D.2d 654; 580 N.Y.S.2d 461 (1992) the court stated: We agree with the plaintiff's argument that the court erred in granting summary judgment to the defendant. The cases relied upon by the court, i.e., Heritage v Van Patten (90 AD2d 936, affd 59 NY2d 1017), and St. Andrews v Lucarelli (115 AD2d 155), are distinguishable from the instant case and inapplicable. Moreover, it has been stated thatThe proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment, as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. 22. See Crucetta v. Funnel Equities, Inc., 286 AD2d 747, 730 NYS2d 531. INC. and

Notwithstanding, this exclusive control of facts maintained by defendants,

ASSOCIATES, L.P, there remain discoverable and triable issues of fact concerning the mutual and/or non-exclusive responsibility, overlapping responsibility, title, ownership, contractual agreement, indemnity, assignment, and/or other instrumentality by which the movants, and

defendant

ASSOCIATES, L.P. and move for summary judgment herein can be properly said

to fall within the gambit of the Workers Comp clause which affords the exclusory exemption under which defendants claim right to summary judgment and by which defendants assert that there are no triable issues of fact. 23. In its opinion regarding the liability of a commercial landlord and its tenants,

see Putnam v. Stout, Jr. et al., 381 N.Y.S.2d 848 (1976) stated that: Recognizing that this rule is an exception to the general rule that a landlord is not liable for conditions upon the land after the transfer of possession (see Campbell v. Elsie S. Holding Co., 251 NY 445; Restatement, Torts 2d 355, 356), the Restatement (Second) of Torts has formulated the following rule: a Lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with he consent of the lessee or his sublesee by a condition of disrepair existing before or arising after the lessee has taken possession if (a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and (b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessors agreement would have prevented, and (c) the lessor fails to exercise reasonable care to perform his contract. (Restatement, Torts 2d 357.) 24. In the instant matter in which the defendant ASSOCIATES, LLP,

retained both the 9th floor and the right of reentry to the premises, as in the matter of Guzman v. Haven Plaza Housing Development Fund Company, Inc.,et al., 516 N.Y.S.2d 451 (1987) which the Court held that that: The owner of a leased commercial building covered by the New York City Administrative Code which has no obligation for repairing the premises but retains the right to reenter and inspect and to make needed repairs at tenants expense may be held responsible for injuries due to a defect in the premises...Also under the terms of the lease, Village

East, as owner-lessor, could enter the premises at all times to inspect and, in addition, had the right to make repairs if the tenant failed to make them 25. Further, the defendants, ASSOCIATES, L.P., and , INC. are

not entitled to summary judgment on the ground that the within action is barred by the exclusivity of Workers Compensation, as cited by New York Workers Compensation Law 29(6): OConnor v. Spencer (1977)., Ltd. Pship (2003, App Div, 2d Dept. 769 NYS2d 276: Workers Compensation exclusivity provisions did not bar an injured workers action against a partnership that owned the premises where the worker was injured because none of the property owners partners were officers of the workers corporate employer, and the partnership and the employer were distinct legal entities. 26. , L.P., is the owner of the premises and land, albeit, out of

possession which is located at 754 Fifth Avenue, the site of defendant BERGDORF GOODMAN, INC., plaintiffs employer. Similarly, in the matter of George Lindner et al. v. Kew Realty Co., 113 A.D.2d 36; 494 N.Y.S.2d 870; 1985 N.Y. App. Div., the plaintiff presented to the Court and prevailed on a showing that the ownership of the premises in Heritage v Van Patten (59 NY2d 1017) dissimilarly from the case before the Court in their matter, differed in that that the ownership of the premises which rested with the employers principal, in his individual capacity, but that in their matter at bar, the ownership resides in a partnership similarly from the instant matter in which the defendant ASSOCIATES, L.P and

________________________INC. are not nor have they ever been the Plaintiff s employer. The matter of George Lindner et al, Kew Realty Co., 113 A.D.2d 26, 494 N.Y.S. 2d 870; 1985 N.Y. App. Div further held: Heritage decision was not controlling in that (1) the defendant in Heritage (supra) had specifically pleaded the affirmative defense, while, at bar, the defendants denied the existence of any employment relationship

with the plaintiff, and (2) the ownership of the premises in Heritage lay solely with the employer's principal, in his individual capacity, while, at bar, the ownership resides in a partnership... 27. The court held in. Rice v City of Cortland (1999, 3d Dept) 262 App Div 2d 770,

691 NYS2d 616, the Court erred [emphasis added] in dismissing action on ground that Labor Law 241(6) applied only to employers. Plaintiff concedes that , is not

the employer for purposes of applying the exclusion remedy under Workers Compensation , plaintiff, but an owner of the land and premises on which plaintiff was employed by plaintiffs employer, defendant INC. the premises on which she sustained a grave injury. Plaintiff

while lawfully on the premises was to be afforded the protections under 200 and 241of the Labor Law, which defendant ASSOCIATES, as owner had a duty to provide. The

rational in Allen owners regardless of their status and regardless of their lack of direction and control, are strictly liablein this case under section 240.. Rice v. City of Cortland, 262 App Div 2d 770, 691 NYS2d 616. 28. In the case at bar, defendants make reference to defendants

ASSOCIATES, L.P. and affirmation of were the same as Plaintiffs employer. In relating Plaintiff to defendants_____________ and

as asserted in the , Esq. as if they existed in relation to and

ASSOCIATES, L.P. and in this

manner, they seem to overlook the fact that those defendants do not stand in any relation to plaintiffs employment. Defendants in this regard provide no evidentiary proof of the so called lack of control over the premises by the defendants and,

L.P. who are very clearly not plaintiffs employer, and insofar as plaintiff was not employed by them cannot be barred from liability under Workers Compensation Law.

29.

Defendant

ASSOCIATES, INC., as the landowner is a completely

distinct entity from plaintiff s employer See Richardson v. Benoits Electric, Inc. , N.Y.S.2d 855; 1998 N.Y. App. Div. When an employer and the owner of the premises where a plaintiff is injured are distinct legal entities, there is no basis to dismiss an action against the landowner based on the exclusivity provisions of the Workers' Compensation Law (see, e.g., Rosenburg v. Anguili Buick, 220 AD2d 653, 655; Casas v 559 Warren St. Realty Corp., 211 AD2d 742, 743). Here, as in Buchner v Pines Hotel (87 AD2d 691, 692, affd 58 NY2d 1019), [t]he individual principals in this business enterprise, for their own business and legal advantage, elected to operate that enterprise through separate corporate entities. The structure they created should not lightly be ignored at their behest, in order to shield one of the entities they created from ... common-law tort liability Neither, defendants , L.P. nor INC. are plaintiffs Associates, that

employer. Nor, do the facts do not bear out the assertion of defendant they did not have the right of reentry to the premises located at 30.

______________________s at

____________, and have submitted in support of their motion for summary ___________________________s right of reentry to the

judgment an lease which reflects premises ( 31.

s Lease entitled Landlords Right of Access Exhibit R). , Esq. asserts in her affirmation: In the case at bar, it is clear that is

not obligated contractually to perform any maintenance or repairs on the premises as such is within the exclusive domain of 16 at page 7 of the Affirmation of . and , Inc. as tenants. (see paragraph

(, Esq. at Exhibit M). In Billy v Consolidated Mach. Tool

Corp., 71 AD2d 796, the Court held as in affirming the holding of the lower Court in favor of the plaintiff that the prior order was to be ...modified, affirmed, holding, in an opinion by Judge Gabrielli, that the exclusivity provisions of the Workers' Compensation Law do not bar a

common-law action against an employer for injuries sustained by an employee in the course of his employment where the employer's liability is alleged to have arisen solely from its independent assumption, by contract or operation of law, of the obligations and liabilities of a third-party tort-feasor. 32. that Defendants herein have provided mere conclusory statements as to their claim

is not obligated contractually to perform any maintenance or repairs on the premises as Inc. and , Inc (see

such is within the exclusive domain of paragraph 16, page 7 of Affidavit of contend that

at Exhibit M). Further as they

ASSOCIATES was not on notice of such conditionnor was it s Affirmation,

responsible for inspecting, maintaining or repairing same, as set forth in (see page 7, paragraph 15 of Affirmation of

, Esq. at Exhibit M). There is no

evidentiary material provided in support their own claim, make no reference to or inclusion of any contracts, and/or agreements showing the claimed obligations of , INC. or

, INC. wherein they agreed to indemnify, or assumed the obligations of, or of the notice requisite by agreement, which defendants claim was due to [one] defendant by the[other]. In Billy v Cosolidated Mach. Tool Corp., 71 AD2d 796. Billy v Consolidated Mach. Tool Corp., 51 NY2d in discussing the issue of notice as provided by defendants: Conversely, there

generally is no duty to warn of conditions that can be easily recognized or discovered by the normal use of one's senses (see, De Rossi v Golub Corp., 209 AD2d 911, 912, lv denied 85 NY2d 804; Tarricone v State of New York, 175 AD2d 308, 310, denied 78 NY2d 862). Since the evidence in the record establishes that plaintiff was fully aware of the stairs' defective condition, defendants urge us to apply the latter holdings here. However, they overlook the rule that landowners, who have or should have reason to expect that persons will find it necessary to

encounter the obvious danger, owe a duty of reasonable care to either warn such persons of the danger or to take other reasonable steps to protect them from it 33. Although it was affirmed by , Senior General Partner of

ASSOCIATES that: It did not maintain an office on the premises. (see Affirmation of Mr. dated December 22, 2006 at paragraph 8, page 2 at Exhibit N), it makes no reference their right of reentry as landowner and title holder of the premises. See Lopez v. 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 A.D.2d: 750 N.Y.S2d 44 (2002): Generally, an out-ofpossession landlord may not be held liable for a third-party's injury on his or her premises unless the landlord has notice of the defect and has consented to be responsible for maintenance or repair. Constructive notice may be found, however, where, as here, the landlord expressly reserves a right under the terms of the lease to enter the premises for the purpose of inspection, maintenance and repair, and there is a specific statutory violation. 34. Plaintiff contends that as , L.P., nor , INC. are not the

plaintiffs employer. Although stated in they stated in defendants affidavits, as well as the Affirmation of defendants attorney, that At no time did 754 maintain control or management over the employees of the premises. (see paragraph 16, page 7of the Affirmation of ______________, Esq, at Exhibit M.) they present no evidentiary proof, such that plaintiffs case should be dismissed and base their arguments solely on the non-conclusory and nonapplicable restatement of the law referable to the exclusivity clause under Workers Compensation. Plaintiff is well aware of whom her employer is, namely

_________________ and sets forth that the restatement of the Workers Compensation exclusivity is totally irrelevant, and further not the operation of law by which defendants can be said to properly have rested their argument for summary judgment as to those defendants. See

Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798: ... reliance on Heritage v Van Patten (59 NY2d 1017) is misplaced; here, the owner of the real estate is a corporation and not a coemployee of plaintiff (see, Workers' Compensation Law 29 [6]; see also, Thomas v Maigo Corp., 37 AD2d 754). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J.-Summary Judgment.). 35. Particularly with respect to the defendants ASSOCIATES, L.P.,

,____________________., and ______________________, INC. wherein said defendants herein claim that they have no knowledge as to the notice of the condition, or of the existence of any conditions of which they were aware due to either as they claim a lack of control, right of reentry, lack of obligation or otherwise, with respect to the within matter an equivalent to the within matter is cited in: Richardson v. Benoit's Elec., Inc.: 677 N.Y.S.2d 855.Here, as in Buchner v Pines Hotel (87 AD2d 691, 692, affd 58 NY2d 1019), "[t]he individual principals in this business enterprise, for their own business and legal advantage, elected to operate that enterprise through separate corporate entities. The structure they created should not lightly be ignored at their behest, in order to shield one of the entities they created from common-law tort liability. See Lopez v. Gem Gravure Corp., 798 N.Y.S.2d 345; (2004) N.Y. However, a separate line of cases holds that "the individual principals in this business enterprise, for their own business and legal advantage, elected to operate that enterprise through separate corporate entitiesMoreover, where as here, the parties operated two corporations, one being the landowner and the other operating the business, Courts have held that the workers compensation law does not bar a common-law suit against the landowner (Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798, 677 N.Y.S.2d 855)where a single business is structured as separate legal

entities in order to protect its assets from third parties, the presumption is that the worker's compensation law will not protect the owner from a common-law suit. 36. At most defendants appear to provide conclusions, however, unsubstantiated as to

what operations of law apply to the instant matter, particularly as to the application of which one could conclude, they are not and cannot be found liable and for which reasons they are entitled to summary judgment. Plaintiff has no relationship defendants make a showing of that which is in direct contradiction to their arguments. Plaintiffs claim that they improperly invoke an exclusion afforded under Workers Compensation, 11 and 29(6). The plaintiff further asserts, as in Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798, a matter in which plaintiff is similarly situated: .reliance on Heritage v Van Patten (59 NY2d 1017) is misplaced; here, the owner of the real estate is a corporation and not a coemployee of plaintiff (see, Workers' Compensation Law 29 [6]; see also, Thomas v Maigo Corp., 37 AD2d 754). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J.--Summary Judgment.) See Kevin Sergeant, v Murphy Family Trust, et al., 739 N.Y.S.2d 790; 2002 N.Y. App. Div.: wherein the Court determined that to deciding a summary judgment motion is issue finding rather than issue determination, the submissions should be scrutinized carefully in the light most favorable to the party opposing the motion. 37. Defendants do not claim plaintiff is the employee of , L.P., and

, INC., in so identifying these defendants has shown that, _________________________, INC. and___________________________although, as , states in his affidavit, that is

out-of-possession, do not show themselves as being out-of-possession as they claim therein. Although Mr. , the Senior General Partner of defendant ASSOCIATES, L.P. , Jr.

does not affirm in his affidavit that

has no right of reentry, in the (Affidavits of

annexed to defendants motion as Exhibits G and I) in her affirmation, defendant has no right of reentry. 38.

, Esq. asserts that said

Defendants by their own contradictory contentions raise several issues of fact,

including issues relating to whether there is evidentiary material to support defendants argument that clearly ______ASSOCIATESdid not have any notice nor was it responsible for inspecting, repairing, or maintaining same. This appears to plaintiff herein, to be contradicted by other evidence. ASSOCIATES is listed as being the entity on whose behalf work to be

performed at _____________New York, New York were made. (see Applications for Permits from New York City Department of Buildings at Exhibit G). 39. Plaintiff submits that the argument defendants put forth that Plaintiffs claim

against these defendants is barred by Workers Compensation 11 and 29(6) represents a clear misapplication of the Statute. Defendant ______ASSOCIATES, is not plaintiffs employer. The same is true of , INC. As can be seen by (paragraph 8, page 4 of the Affirmation of , INC., it is an undisputed fact that plaintiff ,

, Esq. at Exhibit F) defendant

was an employee of______________________ working in the course of her employment. Plaintiff of course, admits to the premise underlying the exclusive remedy afforded under Workers Compensation. See Roy Russell v. Renee Gaines, 209 A.D.2d 939; 619 N.Y.S.2d 420; 1994 N.Y. App. Div: Workers' Compensation Law, N.Y. Work. Comp. Law 29 (6) provides that its provisions are the exclusive remedy to an employee when such employee is injured or killed by the negligence or wrong of another in the same employa defendant must himself have been in the course of his employment at the time of the injury. See Casas v. 559 Warren

St. Realty Corp., 211 A.D.2d 742: Unlike the situations presented in Coppola v Singer (211 AD2d 744 [decided herewith]) and Lapinski v Gusmar Realty (211 AD2d 764 [decided

herewith]), the record in this case establishes that the plaintiff was employed solely by Lone Star and that the corporate defendants were separate legal entities from Lone Star and could not be considered the co-employees of the plaintiff. Accordingly, the plaintiff's receipt of Workers' Compensation benefits does not shield the corporate defendants from potential tort liability (see, Bernardo v Melville Indus. Assocs., 148 AD2d 486; Bruno v Dynamic Enters., 132 AD2d 964), inasmuch as they are distinct corporate entities unrelated to the plaintiff's employer. 40. However, defendants by their own arguments which purport that there are no

issues of fact, raise several issues, disprove their own claim in stating they are equal in remedy as to the exclusivity of Workers Compensation 11 and 29(6). Defendants assertions and attempt to distinguish each defendant from the other, are presenting a case where as they clearly identify said defendants as not being the employer of the plaintiff, and further are establishing that the defendants are each separate and disparate in interest and distinct, (and separate from plaintiffs employer) show that plaintiff is not barred by the exclusivity afforded under Workers Compensation Law from brining a matter in tort law. Further, defendants present no evidentiary material supporting their argument of the distinct lack of common interest and separate responsibility which they claim each defendant had with respect to the premises. See Stephen J. Bernardo v. Melville Industrial Associates, 538 N.Y.S.2d 833; 1989 N.Y. App. Div.: The record, including the documentary evidence submitted, clearly established that, at the time of the accident, the injured plaintiff was employed solely by Dachlar Management Corporation a separate legal entity from Melville. Although Melville was instrumental in forming Dachlar Management and is the sole shareholder thereof, these facts are insufficient to shield Melville from tort liabilityreliance on Heritage v Van Patten (59 NY2d 1017) is misplaced; here, the owner of the real estate is a corporation and not a coemployee of plaintiff (see, Workers'

Compensation Law 29 [6]; see also, Thomas v Maigo Corp., 37 AD2d 754). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J.--Summary Judgment.). 41. A question of fact remains as to what extent moving defendants had control over the

premises, regardless of whether or not they were the Plaintiffs employer. Whether or not the defendants ASSOCIATES, L.P. and INC. are Plaintiffs employer, each Summary Judgment

defendant has exclusive control of facts concerning its alleged status.

cannot be granted as to these defendants based upon their lease, which was not attached in its entirety to the motion which Plaintiff opposes herein; b) based upon the fact that the defendant retained the 9th floor of the premises; and (c) the fact that defendant had entered into an contractually agreement to both retain the right of reentry and the right to inspect, and perform repairs. (see page 4 and pg 8 of defendant ________s lease annexed hereto as Exhibit O) The contractual obligations of the defendants/movants for summary judgment and

, INC., and the particulars surrounding their retention of the 9th floor as indicated by the lease annexed hereto as (Exhibit 747, 730 NYS2d 531. 43. In her affirmation of _________________, Esq. asserts that Pursuant to the See Crucetta v. Funnel Equities, Inc., (2001, 2d Dept) 286 AD2d

terms of the Lease Agreement ____________________ as tenant was and is responsible for all maintenance, repairs, construction, renovation, installations, and work performed on the premises ____________________ ASSOCIATES is an out-of-possession landowner that

had retained no control of the premises. These attestations are not supported by any parole evidence. Surely, the agreements by and between these defendants, including leases and any other agreements, entered into by these defendants are the only means by which one can ascertain whether or not defendants had no control of the premises. There remain triable

issues of fact, namely whether the defendants had the right of reentry to the premises, as determined by a showing of the leases entered into by and between_________________ and _____________________. No such leases, agreements, in their entirety or other evidentiary materials to support the assertions of defendants that they should be dismissed from the within action, have been attached to the motion papers. Certainly, a landowner, even an out -ofpossession landowner, retains some rights by its own choosing, in an effort to protect that which it owns. Plaintiff submits to this Honorable Court that there are issues of triable fact, such that the defendants herein, certainly have had the right of reentry to the premises, located at Avenue, and retained the 9th floor of the premises. Further, plaintiff submits that parole s lease that they retained control over the 9 th

evidence, in the form of defendant

floor of the premises, and that as such their claim of being out-of-possession is unsubstantiated. 44. Plaintiff further asserts that defendants in arguing their position as to the bases for

a finding of summary judgment as to the defendants herein, seem to present an argument more akin to arguing the validity of contractual agreements by and between the defendants herein ____________________, INC., 45. In the Affirmation of , and , INC..

, Esq. (paragraph 10, page 5) that as to the INC. was changed

defendant INC. the entity known as

, INC., the surviving corporation, through a reverse merger and that the entity known as INC., became have been an alter ego of , INC. a subsidiary of , INC. Although INC. is purported to

, INC. plaintiff submits that there remain severable

issues of fact in this regard. Although defendants contend that the merger and corporate name change from __________________________ACQUISTION, INC. was changed

to_________________________, INCon October 6, 2005 plaintiff submits that the lease which is attached to defendants moving papers has ____________________________________________ INC., states that GROUP,

INC. not _________________________ INC.) is the leaseholder. Not dissimilar to the instant matter is Mournet, v. Educational and Cultural Trust Fund of the Electrical Industry, Appellant, et al., 303 A.D.2d 474; 756 N.Y.S.2d 433 (2003) wherein the Court held that : Although a representative of ECT submitted an affidavit which established that it and JIB were related entities, this evidence failed to demonstrate JIB's control, if any, over the day-today operations of ECT. Therefore, ECT failed to establish the applicability of the exclusivity provisions of the Workers' Compensation Law (see Cruceta v Funnel Equities, 286 A.D.2d 747, 730 N.Y.S.2d 531 [2001]; Dennihy v Episcopal Health Servs., 283 A.D.2d 542, 543, 724 N.Y.S.2d 768 [2001]; Constantine v Premier Cab Corp., 295 A.D.2d 303, 304, 743 N.Y.S.2d 516 [2002]). Summary judgment was also properly denied on the ground that ECT had exclusive knowledge of some of the facts regarding its alleged status as an alter ego of JIB (see Cruceta v Funnel Equities, supra; Ellis v Allstate Ins.

46.

In the assertions of

, Esq. herein, her arguments are purported to

provide a showing that there are no triable issues of fact, seem more to raise questions of the triable issues, such that there is allusion to some unforeseen force majeure clause in operation, by and/or between the very defendants that are being defended and for whom arguments are being provided for jointly, such as a lease, a showing of which , L.P., as

landowner, [did] or [did not] have the right of reentry to the premises, and the agreement by which NEIMAN MARCUS GROUP, INC., [did] or did not] by its agreement with the

defendants, L.P.,

, and

, INC. have responsibility for Avenue.

maintenance, repairs, renovation and/or alterations at the premises, located at 48.

Defendants motion for summary judgment should be denied for the foregoing

reasons: (1) lack of Plaintiffs being able to conduct any discovery, including the cause of the constant water hazard in the locker room; (2) the contradiction which exists to defendant ASSOCIATES, L.P.s claim that it is an out-of-possession landlord (despite the attachment of the lease which shows that a) ___________________ASSOCIATES, L.P. had retention of the 9th floor of the premises, and b) their showing by the attachment of the lease that they have the right of reentry to the premises, to inspect, and/or repair same, shows that save the Affidavit of the premises lies with relationship between the parties, claiming that they are out -of-possession and that all responsibility for (3) and unresolved questions of fact as to the actual INC. who it is now claimed became

___________________________, INC., and which defendant has there been evidentiary proof of same; and (4) and given that Plaintiff claims a grave injury, co-defendants cross claims against Plaintiffs employer should not be dismissed. WHEREFORE, Plaintiff seeks an order denying the motion of the defendants , , INC. and ASSOCIATES, L.P., in all respects and

for such other and further relief as to this Court may seem just and proper. Dated: New York, New York

_____________________________ , ESQ