The opinion
Mosley v RCPI Landmark Props., LLC
2024 NY Slip Op 33033(U)
August 28, 2024
Supreme Court, New York County
Docket Number: Index No. 150907/2018
Judge: James d'Auguste
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 150907/2018
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: Hon. James E. d’Auguste PART 55
Justice
---------------------------------------------------------------------------------X INDEX NO. 150907/2018
SHARMAINE MOSLEY,
MOTION DATE 06/05/2024
Plaintiff,
MOTION SEQ. NO. 001
-v-
RCPI LANDMARK PROPERTIES, LLC, TISHMAN SPEYER
PROPERTIES, L.P, RCPI HOLDCO, LLC, AND DECISION + ORDER ON
SCHINDLER ELEVATOR CORPORATION, MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 52, 53, 54, 55, 56,
57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73
were read on this motion to/for DISMISS .
Plaintiff Sharmaine Mosley brings this action to recover damages for personal injuries
allegedly sustained on January 19, 2018, when the elevator in which she was traveling suddenly
dropped. Defendants RCPI Landmark Properties, LLC (RCPI Landmark), Tishman Speyer
Properties, L.P. (Tishman), RCPI Holdco, LLC, and Schindler Elevator Corporation (Schindler)
(collectively, defendants) move, pursuant to CPLR 3025, to amend their answer to plead an
affirmative defense of res judicata and collateral estoppel and to deem the amended answer served
nunc pro tunc. Upon granting leave to amend, defendants move, pursuant to CPLR 3211 (a) (5),
to dismiss the complaint based on that defense. The motion is granted in part, as set forth below.
Background
According to the complaint, the accident occurred at the premises known as 1 Rockefeller
Plaza, New York, New York (the Premises) (NYSCEF Doc No. 54, Gunaydin affirmation, exhibit
A, ¶¶ 19-20). RCPI Landmark owns the Premises (id., ¶¶ 21-22; NYSCEF Doc No. 56, Gunaydin
affirmation, exhibit B). Schindler had a duty to inspect the elevators at the Premises (NYSCEF
150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC Page 1 of 4
Motion No. 001
1 of 4
[* 1]
INDEX NO. 150907/2018
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/28/2024
Doc No. 54, ¶ 63; NYSCEF Doc No. 55, Gunaydin affirmation, exhibit B). Plaintiff, a Tishman
employee (NYSCEF Doc No. 57, Gunaydin affirmation, exhibit D, ¶ 18), alleges that on January
29, 2018, she was traveling in elevator no. 5S14 at the Premises when it dropped suddenly and
without warning, causing her to sustain injury (NYSCEF Doc No. 54, ¶ 67). Plaintiff commenced
this action 10 days later by filing a summons and complaint alleging that defendants were negligent
in their ownership, operation and maintenance of the Premises, including the subject elevator.
Defendants RCPI Landmark, Tishman Speyer Properties, L.P. and RCPI Holdco, LLC, and
Schindler, separately, interposed answers.
Defendants now move to amend their answer to plead a sixth affirmative defense of res
judicata and collateral estoppel and to dismiss the complaint upon such defense. In a November
27, 2019, memorandum decision issued on plaintiff’s claim for workers’ compensation benefits,
the Workers’ Compensation Board (the WCB) concluded:
“In the present case, the claimant’s account of the accident, although consistently
relayed to the providers, is wholly refuted by the video footage. There was no
occurrence as described by the claimant in her testimony or in the C-3, prior or after
the four second gap in the footage from 6:58:33 a.m. to 6:58:37 a.m. The
surveillance captured the claimant and another co-worker operating the elevator to
transport workers with no incident from 6:30:51 a.m. to 6:50 a.m. Thereafter, the
elevator remained on the same floor, as reflected by the same tiled floor and debris
in the background of the opened elevator door that did not again close, and the unlit
floor panel. The uniformed, hatted co-worker came and looked at the elevator and
exited without the claimant; he did not come and get her as the claimant set forth.
Additionally, the video ends with the claimant placing a cone and out-of-service
sign prior to getting her bag and leaving the elevator, when the claimant testified
that her co-worker had taken her upstairs.
“Therefore, the Board Panel finds, upon review of the record and based upon a
preponderance of the evidence, that there is insufficient evidence that the accident
occurred” (NYSCEF Doc No. 62, Gunaydin affirmation, exhibit I at 20-21).
The WCB disallowed the claim and closed plaintiff’s case (id. at 21). Defendants argue that the
WCB’s decision is entitled to preclusive effect.
150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC Page 2 of 4
Motion No. 001
2 of 4
[* 2]
INDEX NO. 150907/2018
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/28/2024
Plaintiff, in response, submits that she does not oppose the initial relief requested on the
motion. However, to the extent defendants seek to assert a sixth affirmative defense that the action
is barred by res judicata and collateral estoppel (NYSCEF Doc No. 65, Gunaydin affirmation,
exhibit L, ¶ 9), plaintiff posits that the amendment is without merit. Under a recent amendment to
the Worker’s Compensation Law, except for determinations on employer/employee relationships,
WCB decisions are not entitled to preclusive effect. Plaintiff also contends that the complaint
should not be dismissed as barred by the doctrines of res judicata and collateral estoppel.
Discussion
It is well settled that “‘leave to amend a pleading should be freely granted in the absence
of prejudice to the non-moving party where the amendment is not patently lacking in merit’”
(Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 [2015] [citation omitted]). “[A]
party opposing leave to amend ‘must overcome a heavy presumption of validity in favor of
[permitting amendment]’” (McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012] [citation
omitted]), by demonstrating prejudice or surprise or that the amendment is palpably insufficient or
patently devoid of merit (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept
2010]).
Plaintiff has demonstrated that the proposed sixth affirmative defense is patently devoid of
merit. Workers’ Compensation Law § 118-a, known as the Justice For Injured Worker’s Act (L
2022, ch 835, § 1), provides, in pertinent part, that “no finding or decision by the workers’
compensation board, judge or other arbiter shall be given collateral estoppel effect in any other
action or proceeding arising out of the same occurrence, other than the determination of the
existence of an employer employee relationship.” The purpose of the Act is “[t]o correct recent
court decisions that granted preclusive effect to decisions of the Workers’ Compensation Board
(WCB), barring injured workers from seeking justice through the courts because of an
150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC Page 3 of 4
Motion No. 001
3 of 4
[* 3]
INDEX NO. 150907/2018
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/28/2024
administrative decision of the WCB” (Senate Introducer’s Mem in Support of 2021 NY Senate
Bill S9149). It has been held that the statute, effective December 30, 2022 (L 2022, ch 835, § 2),
applies retroactively (see Nellis v Cadman Assoc. LLC, 82 Misc 3d 553, 555-556 [Sup Ct, Kings
County 2023], citing Pacheco v P.V.E. Co., LLC, 80 Misc 3d 1109, 1112 [Sup Ct, Kings County
2023]). Consequently, because the WCB’s determination that there was insufficient evidence of
an accident having occurred has no preclusive effect, plaintiff is not prohibited from maintaining
this action. In view of the foregoing, defendants’ motion to dismiss the complaint is also denied.
Accordingly, it is
ORDERED that the branch of the motion brought by defendants RCPI Landmark
Properties, LLC, Tishman Speyer Properties, L.P., RCPI Holdco, LLC, and Schindler Elevator
Corporation for leave to amend their answer is granted to extent of granting defendants leave to
serve an amended answer in the proposed form annexed to the moving papers as exhibit L
(NYSCEF Doc No. 65), but leave to add the proposed sixth affirmative defense that “Plaintiff’s
claim is barred pursuant to the doctrines of collateral estoppel/res judicata” is denied; and it is
further
ORDERED that the amended answer in the proposed form annexed to the moving papers
shall be deemed served nunc pro tunc upon service of this order with written notice of entry; and
it is further
ORDERED that the branch of defendants’ motion to dismiss the complaint is denied.
8/28/2024 $SIG$
DATE James d’Auguste, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC Page 4 of 4
Motion No. 001
4 of 4
[* 4]