OLSEN, MICHAEL JAMES v. KOZLOWSKI, SHIRLEY F. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1044.1
CA 11-02000
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MICHAEL JAMES OLSEN, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
LOUIS F. KOZLOWSKI, DEFENDANT,
AND SHIRLEY F. KOZLOWSKI, DEFENDANT-APPELLANT.
FELT EVANS, LLP, CLINTON (KENNETH L. BOBROW OF COUNSEL), FOR
DEFENDANT-APPELLANT.
STANLEY LAW OFFICES, LLP, SYRACUSE (ROBERT A. QUATTROCCI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Oneida County (Samuel
D. Hester, J.), entered April 25, 2011 in a personal injury action.
The order, insofar as appealed from, denied that part of the cross
motion of defendants seeking summary judgment dismissing the complaint
against defendant Shirley F. Kozlowski and granted the motion of
plaintiff for partial summary judgment on liability pursuant to Labor
Law § 240 (1) against Shirley F. Kozlowski.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiff’s motion in its
entirety and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he sustained when he
fell from the second floor of a residence that was being constructed
by his employer, L & A Builders, Inc. (L & A). Plaintiff moved for
partial summary judgment on liability under Labor Law § 240 (1), and
defendants, the owners of the property where the accident occurred,
cross-moved for summary judgment dismissing the complaint. Supreme
Court granted that part of the cross motion for summary judgment
dismissing the complaint against defendant Louis F. Kozlowski, which
was unopposed. The court also denied that part of defendants’ cross
motion and granted that part of plaintiff’s motion with respect to
Shirley F. Kozlowski (defendant). We conclude that the court properly
denied that part of the cross motion with respect to defendant but
erred in granting that part of plaintiff’s motion against her. “[A]
worker, such as the plaintiff, who is injured during the course of his
employment cannot maintain an action to recover damages for personal
injuries against the owner of premises where the accident occurred
when the owner is also an officer of the corporation that employed the
worker” (Lovario v Vuotto, 266 AD2d 191, 192; see Kent v Younis, 265
-2- 1044.1
CA 11-02000
AD2d 889, 890). Although plaintiff met his initial burden on his
motion with respect to defendant (see Russell v Baker Rd. Dev., 278
AD2d 790, 790, lv dismissed 96 NY2d 824; Skinner v Oneida-Herkimer
Solid Waste Mgt. Auth., 275 AD2d 890, 890-891), defendant submitted
evidence raising a triable issue of fact whether she was an officer of
L & A at the time of the accident, and thus whether the action against
her is barred by the exclusivity provisions of Workers’ Compensation
Law § 29 (6) (cf. Melson v Sebastiano, 32 AD3d 1259, 1260-1261; see
generally Mesa v Violante, 204 AD2d 610, 610, lv denied 85 NY2d 803).
We therefore modify the order accordingly.
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court