Joseph Bennett,, Appellant, et al., Plaintiff,v.Michael Hucke, et al., Defendants, Alan Kirk, et al., Respondents.BriefN.Y.August 23, 2016JOSEPH BENNETT, as Guardian of JAMES BENNETT, an incapacitated person, Plaintiff-Appellant, TRACEY BENNETT, Plaintiff-Respondent, -against- MICHAEL HUCKE, CINDY HUCKE, ALAN KIRK, ALAN H. KIRK, INC., ALAN KIRK CUSTOM HOMES, INC., A&LP CONSTRUCTION CO., INC., and ANDREW PERCOCO, Defendants-Respondents. GATHMAN & BENNETT, LLP Attorneys for Plaintiff-Appellant Joseph Bennett, as Guardian of James Bennett, an incapacitated Person 191 New York Avenue, 2nd floor Huntington, New York 11743 (631) 423-7777 Supreme Court of the State of New York Appellate Division:Second Department REPLY BRIEF OF PLAINTIFF-APPELLANT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Supreme Court, Suffolk County, Index No. 10131/07 TO BE ARGUED BY: JOHN BENNETT TIME REQUESTED: 15 MINUTES Appellate Division Case No. 2013-06108 2014-02911 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ...............................................................................1 POINT I JUSTICE LASALLE'S ORDER OF APRIL 1, 2013 IS INCONSISTENT WITH HIS ORDERS OF APRIL 5, 2013 AND JANUARY 14, 2014 AND THE COURT IMPROPERLY DENIED PLAINTIFF'S MOTION SEEKING RENEWAL AND REVERSAL OF THE GRANT OF SUMMARY JUDGMENT TO THE KIRKS.......................................................8 POINT II PLAINTIFF'S ARGUMENT REGARDING LAW OF THE CASE IS CONTROLLING HEREIN ................................................................................11 POINT III THE COURT BELOW INCORRECTLY RULED THAT THE KIRK DEFENDANTS ESTABLISHED THEIR ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW .....................................14 POINT IV THE COURT BELOW INCORRECTLY RULED THAT ALAN H. KIRK INC. HAD ONLY LIMITED SUPERVISORY ROLE WHICH WOULD NOT SUBJECT IT TO LIABILITY ..................................................16 POINT V ALAN KIRK HAS FAILED TO ESTABLISH HIS ENTITLEMENT TO SUMMARY JUDGMENT IN HIS INDIVIDUAL CAPACITY ......................19 POINT VI THE PLAINTIFF BELOW WAS DENIED ANY INFERENCES AND SHOULD HAVE BEEN AFFORDED THOSE INFERENCES GRANTED TO THE NON-MOVING PARTY ................................................21 ii POINT VII THE COURT BELOW FAILED TO PROPERLY CONSIDER THE EVIDENCE SUBMITTED IN SUPPORT OF AND IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT ........................................22 POINT VIII THE COURT BELOW DID NOT CORRECTLY FIND THAT THE INADVERTENT OMISSION OF AN ANSWER FROM THE UNDERLYING MOTION PROVIDED NO BASIS TO DENY SUMMARY JUDGMENT .................................................................................23 POINT IX PLAINTIFF'S ARGUMENTS RELATIVE TO ANDREW PERCOCO DOES NOT SUPPORT THE POSITION THAT THE KIRK DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT...............25 POINT X THE COURT'S GRANT OF SUMMARY JUDGMENT TO ANDREW PERCOCO INDIVIDUALLY SHOULD BE REVERSED...............................26 CONCLUSION........................................................................................................33 iii TABLE OF AUTHORITIES Cases Page(s) Badr v. Martin, Hogan, Respondent, 75 NY2d 629, 555 NYS2d 249 (Court of Appeals 1990) ....................................3 Reillo v. Energy Saving Insulation Corp., 306 AD2d 775, 762 NYS2d 146 (Appellate Div. 3d Dept. 2003) .....................31 Russin v. Picciano, 54 NY2d 311 (1981) ...........................................................................................12 Wing Wong v. King Sun Yee, 262 AD2d 254, Appellate Div. First Dept. 1999) ..............................................30 Statutes/Regulations/Miscellaneous Business Corporation Law Section 30.....................................................................32 Business Corporation Law Sections 630 ...........................................................28, 30 Workers Compensation Law Section 52 ...........................................................30, 31 Workers Compensation Law Section 52 Subdivision C....................................28, 31 1 PRELIMINARY STATEMENT This Reply is submitted on behalf of the Plaintiff-Appellant in furtherance of the Appeal herein and in Reply to the Briefs of the Defendants-Respondents Alan Kirk and Alan H. Kirk Inc. and Andrew Percoco and A&LP Construction Co. Inc. Relative to the Preliminary Statement and Counter Statement of Facts submitted by the Defendant-Respondent Kirk are a number of glaring misstatements as to what is contained in the Record. This involved a construction project at the home of Michael and Cindy Hucke wherein the Plaintiff-Appellant sustained fall from an elevated work platform with absolutely no safety protections in effect whatsoever that resulted in injury which has caused brain damage and paralysis and presently has left Plaintiff-Appellant confined to a wheelchair. Further, the Plaintiff- Appellant is unable to give testimony on his own behalf. On Page 5 of the Preliminary Statement of the Defendant-Respondent Kirk it is contended by counsel that "OSHA investigated the accident the same day and determined that there was no violation with regard to the scaffold or fall protection" this is absolutely untrue and not in any way supported by the record, nor can counsel for the Defendant-Respondent point to any section of the Record which stands for this proposition. Specifically, while OSHA responded on that date, they issued a violation for a hole on the floor and issued no other violations. This does not mean that they did not find any other violations. To this end, a few 2 weeks after the accident when OSHA again inspected the scene, as testified to by Percoco, when the OSHA inspector found that there was still no scaffold, lifelines or, in point-of-fact any protection available for people working on elevated surfaces on the project, he cautioned Mr. Percoco to advise whoever was in charge of the project as to the need for OSHA compliant fall protection. The individual who Mr. Percoco testified he advised, was none other than Alan Kirk (Record Pages 954 to 955). The conclusion drawn by the Defendant-Respondent herein is a clear misstatement of the Record. The conditions onsite were just as dangerous weeks later as on the date of Plaintiff's accident. At Page 18 of the Defendant-Respondent's Counter Statement of Judicial Determinations of Fact and Law. They represent that although Justice LaSalle noted "the Huckes relied on Kirk to supervise, he did not make any findings therein as to the nature or scope of that supervision". This argument misstates both the specific determination made by the Court in its Order of April 1, 2013 and further, the role of the Court in determining a Summary Judgment Motion. Specifically, in the Court's Order of April 1, 2013 they made the following finding: "Significantly, the Huckes submitted evidence that they relied upon the Kirks to supervise the work of the subcontractors". Accordingly, counsel for the Defendant-Respondent's argument that Judge LaSalle "did not make any findings therein as to the nature or scope of that supervision" misconstrues the status of the issues presently before the Court at that 3 point in time. The Court made specific findings that the homeowners relied upon the Kirks (plural, not singular limited to the corporation as suggested by the Defendant-Respondent) to supervise the work of subcontractors. Relative to the Summary Judgment Motion presently before the Court there was no requirement that the Court make a specific finding as to the nature or scope of supervision. It is enough that they have made that determination and relied upon that evidence in granting the homeowners Motion for Summary Judgment. This creates a question of fact. Counsel for the Defendant-Respondent Kirk essentially objects to any reference by way of testimony of other witnesses or documents that in any way refutes Mr. Kirk's testimony as violative of the Collateral Evidence Rule and not appropriate to be when considered by the Court. This determination evidences a fundamental misunderstanding of the nature of the Collateral Evidence Rule. See Badr v. Martin, Hogan, Respondent, 75 NY2d 629, 555 NYS2d 249 (Court of Appeals 1990). Therein the Court of Appeals discussed in detail the Collateral Evidence Rule and when same was violated. More specifically the Collateral Evidence Rule operates to bar testimony which would show only that the Plaintiff had acted deceitfully on a prior unrelated occasion. If that is the purpose for which the evidence is offered, then under the Collateral Evidence Rule it is barred. 4 A close reading, however, of the Record refutes Mr. Kirk's testimony in its entirety, demonstrates that none of this evidence is collateral in nature. More particularly, none of this evidence seeks to show that the Defendant-Respondent Kirk had acted deceitfully previously on a prior unrelated occasion. To this end, Kirk had offered testimony, either by way of his deposition or Affidavit that he was in contract solely in his corporate capacity with the homeowners Huckes. He has absolutely no contract to support him, no W2s, no 1099, no paperwork whatsoever. What is contained in the Record are numerous checks written individually to Mr. Kirk by the homeowners, many of which contain the reference G.C. or General Contractor (Appellant's Brief Pages 33-35). This is not collateral evidence. Mr. Kirk also testified and contends that he provided no general contracting services or supervision on the Hucke job and further testified he has absolutely no construction experience whatsoever. These conclusions have all been refuted by either documents in the Record of testimony of other witnesses. None of the evidentiary material is barred by the Collateral Evidence Rule, more particularly, Mr. Kirk has an extensive construction background. The Architect, Mr. Sutton testified that Mr. Kirk served, contrary to his testimony as a General Contractor on the Kern project, the Rothstein Contract and the Seigucci project (Record Pages 1092-1099). The Architect discussed in detail with the Huckes the neophyte 5 homeowners the need to hire an experienced General Contractor to run a $700,000.00 job. The person identified by the Huckes to Mr. Sutton as that General Contractor was Alan Kirk (Record 1058-1060). Mr. Kirk testified that he supervised and directed no employees whatsoever or subs on the Hucke job, nor on any other job. This testimony has clearly been refuted by the Testimony of Mr. Percoco, specifically relative to the Hucke job who testified that Kirk directed other contractors on the site and interacted with all trades and provided direction to trades (Record 860). Further, Mr. Percoco who worked with Mr. Kirk on other jobs, further as set forth in the Appellant's Brief with specific pagination references, Percoco had testified that he observed Kirk providing direction to repair defective work to other contractors on the Kern job. Mr. Sutton testified in detail as to Kirk's supervisory experience on other jobs. Relative to the Kern job, which was essentially proceeding at roughly the same time that the Hucke job was being conducted and involved the same contractors, subcontractors and architect. Kirk testified that he never supervised that job. Mr. Kirk's own sworn Affidavits in support of his filed Mechanics Lien and Summons and Complaint brought against the homeowner in the Kern construction it was sworn to that he supervised the construction of the Kern's home (Record Page 1592-1601). 6 Despite Mr. Kirk's contention that he never ordered any materials for the job, as part of discovery and as contained in the Record are 58 Invoices from Thurber Lumber addressed to Mr. Kirk for material that he ordered for the Hucke job (Record 1339-1346/1350-1392). Even more damaging is Mr. Percoco's testimony that when he was questioned by OSHA personnel who thought he was the general contractor who cautioned him for the need for fall protection when after Plaintiff's devastating injury, workman were still onsite working at elevated heights with no protection whatsoever, that Percoco should advise whoever was in charge of the job as to the need for fall protection. The person that Mr. Percoco testified who he advised as the individual in charge of safety issues on the job to whom he delivered the OSHA message was non-other than Alan Kirk (Record Page 956). It is respectfully submitted that despite the Defendant-Respondent's Kirk's arguments to the contrary, these are not collateral attacks barred under the Collateral Evidence Rule, they are directly germane to the testimony of Mr. Kirk. In point of fact, if Kirk has chosen to offer false testimony on the record in an effort to escape liability given the fact that the Plaintiff-Appellant herein has been silenced by virtue of his injuries, the only manner the Plaintiff may demonstrate such falsehood is by other testimony and documentary records, none of which are barred by the Collateral Evidence Rule. 7 As to the claims set forth by the Defendant-Respondent Percoco individually it is respectfully submitted that the failure to secure the payment of compensation relative to Mr. Percoco should be reversed and permitted to go forward. 8 POINT I JUSTICE LASALLE'S ORDER OF APRIL 1, 2013 IS INCONSISTENT WITH HIS ORDERS OF APRIL 5, 2013 AND JANUARY 14, 2014 AND THE COURT IMPROPERLY DENIED PLAINTIFF'S MOTION SEEKING RENEWAL AND REVERSAL OF THE GRANT OF SUMMARY JUDGMENT TO THE KIRKS The arguments raised on behalf of the Defendant-Respondent in and of themselves establish the basis for reversal. Defendant-Respondents concede that in the Order of April 1, 2013 Justice LaSalle determined that the homeowners relied upon the Kirk Defendants (plural) to supervise the work of subcontractors. They attempt to avoid the effect of this finding by commenting at Page 19 of their Brief "he (Judge LaSalle) did not further elaborate therein regarding the nature and extent of any supervision provided by Kirk". It is submitted that this argument is of no effect. The mere fact that the Court has made a determination of the supervisory role of Kirk relative to the work of Subcontractors creates a question of fact which when read in conjunction with this Court's Decision of April 5, 2013 wherein the Court granted summary judgment to the Kirks Defendants mandates reversal. As pointed out in the Appellant's Brief, the Court's determination that "the Huckes, Percoco and Alan Kirk all testified that the subcontractors on the project were in charge of their own work and safety procedures" is not borne out 9 by the Record. There is simply no such testimony in the record. The Court's determination that Kirk did not supervise, did not mean that he did not have authority to do so. It is noteworthy that the evidence that the Court below had to have relied upon in granting the Kirk Defendants Summary Judgment Motion in their Decision of April 5, 2013 (Record Pages A9-A13) is limited to the Affidavits and testimony of Alan Kirk. As pointed out in the Appellants Brief herein, the credibility of Mr. Kirk on these points in essentially non-existent. The Respondent argument to the effect that the Court below properly denied the Plaintiff's Motion to Renew in its Decision of January 14, 2014, also is not supported by the Record. The primary focus of the Motion for Renewal was related to two factors: 1. The fact that the Court below made a specific finding of fact relative to Kirk's supervision of workers onsite in the Decision of April 1, 2013, the Plaintiff could not have brought to the Court's attention at an earlier time due to the fact that the Motions were initially filed, some six or seven months earlier. This was as subsequent Judicial Determination. 2. The second basis for renewal was the fact that the Court in rendering their Decision previously concerning Percoco's Motion for Summary Judgment, denied that application by virtue of Percoco's then failure to include all of the pleadings. The Court correctly in the initial Percoco Summary Judgment Motion 10 denied same based upon the failure to include all pleadings. Accordingly, the Court was clearly searching the Record in rendering their Summary Judgment Motion Decisions herein to determine that all pleadings had been properly submitted. Accordingly, the Plaintiff had no way of knowing that the Court would not hold Kirk to the same standard. It is clearly admitted now, by counsel for the Defendant-Respondent that they failed to submit an Answer and accordingly, the pleadings were not before the Court when they granted the Kirk Defendants Summary Judgment Motion in the Decision of April 5, 2014. This was not a fact that the Plaintiff could have argued until it was determined that the Court was not holding Kirk to the same standard. Accordingly, on these two basis alone, Plaintiff's Motion to Renew should have been granted. 11 POINT II PLAINTIFF'S ARGUMENT REGARDING LAW OF THE CASE IS CONTROLLING HEREIN It is submitted that the Defendant-Respondents argument that the Order of April 1, 2013 was not in conflict with the Order of April 5, 2013 is not supported by the Record. The finding necessarily made by this Court as part of the grant of Summary Judgment to the Huckes in the Order of April 1, 2013 specifically included a finding that the Huckes submitted evidence that they relied upon the Kirk Defendants (plural) to supervise the work of subcontractors" (Record P191). The Decision of April 1, 2013 does not make a finding that any evidence was submitted to the effect that Kirks role was limited to coordination of work schedules and performing administrative tasks as set forth in the subsequent Decision, some four days later, on April 5, 2013 (Record Page A13). There was no such limitation in this Court's finding in its determination of April 1, 2013. Had there been, the Court's Decision of April 1, 2013 would have been identical to the Court's Decision regarding the role of Kirk in the April 5, 2013 Decision. It is not. The Defendant-Respondent now seeks to somehow argue that the finding made by the Court that Kirk was hired to supervise the work of contractors should be read for some de minimis involvement on the project. This is not supported by the Record, but in essence this is simply a further factual question which was ignored 12 by the Court below. The Court in part did note that Kirk basically served as a Construction Manager with its supervisor role being limited to the coordination of work schedules, performing administrative tasks and liaisoning between the subcontractors and homeowners in the April 5, 2013 Decision. Further, former Defendant Cindy Hucke testified that she relied upon Alan Kirk to supervise to make sure that work was being performed properly (Record Page 718). The testimony is unrefuted and is not referenced either in the Decision nor in the Defendant-Respondent's Brief. Defendant-Respondent seeks to argue that the Kirk Defendants were not agents of the homeowners, the further urge that the term agent has been limited to those who have been delegated authority and control over the work which results in injury Russin v. Picciano, 54 NY2d 311 (1981). Cindy Hucke's testimony, however, is unrefuted, that she was relying upon and expected Alan Kirk to supervise the work onsite to make sure that the work was being performed properly. That in as of itself is a question of fact. This is also far more than just scheduling. As set forth in detail in Appellant's Brief, the fact that a Defendant utterly failed to undertake any supervisory role whatsoever does not mean that they did not have authority to do so. The Defendant-Respondents attempt to argue that despite the fact that they have submitted no expert affidavit whatsoever, they focused their argument on the fact that the expert's affidavit is completely silent as 13 to the Kirk Defendants and "indeed it exculpates them" (Appellant's Brief Page 25). It is an absurd conclusion. A review of the Pomeranz Affidavit contained at Record Pages 1609 - 1614 of the Record do not, in point of fact exculpate the Kirk Defendants at all. The Pomeranz Affidavit sets forth in detail the complete absence of any safety materials onsite and establishes the causal relationship of the lack of available safety devices with the ultimate injury. 14 POINT III THE COURT BELOW INCORRECTLY RULED THAT THE KIRK DEFENDANTS ESTABLISHED THEIR ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW The only testimony which the Court could have relied on below was that of Alan Kirk in submission seeking Summary Judgment. In view of the Record in its entirety with appropriate inferences drawn in favor of the non-moving party, the Defendant-Respondent Kirk's sworn testimony essentially has no credibility whatsoever. Further, the conclusions drawn as to testimony offered by other parties onsite were not supported by the record. The conclusion drawn by the Defendant-Respondent "there are no issues of credibility regarding the limited role of Alan H. Kirk, Inc. in the Kirk project" is also completely misleading given this Record. The only testimony whatsoever that seeks to distinguish Alan Kirk Inc. from Alan H. Kirk the individual comes from Mr. Kirk himself. It is not supported by the checks written by the homeowners, it is not submitted by the materials that Mr. Hucke ordered directly onsite, it is not submitted by the fact when Mr. Percoco was pressured by OSHA personnel to advise the person in charge of safety onsite as to the continued deficiencies in scaffolding, he conceded Alan Kirk was in charge of safety issues. For Mr. Kirk to escape liability personally, this Court had to have relied solely on Mr. Kirk's testimony and his Affidavit. Once the Court 15 embarks upon an analysis of Mr. Kirk's credibility, they must review all of the various arguments made by the Plaintiff below, which show, based upon the testimony of Mr. Percoco, the architect and sworn pleading submitted in other actions by Mr. Kirk that his testimony had absolutely no basis in believability. 16 POINT IV THE COURT BELOW INCORRECTLY RULED THAT ALAN H. KIRK INC. HAD ONLY LIMITED SUPERVISORY ROLE WHICH WOULD NOT SUBJECT IT TO LIABILITY Defendant-Respondent chooses to ignore the testimony offered herein by Cindy Hucke that she expected Kirk to make sure that work was performed properly onsite (Record Page 718). Further, the conclusion at Page 30 of the Defendant-Respondent's Brief that Percoco testified that the Kirk Defendants had authority or control over the work A&LP was hired to perform" is not supported by the Record. Further, the clear testimony on this point is that when continued visits occurred by OSHA personnel who believed that the job was being supervised by Percoco and noted the continuing lack of any safety devices whatsoever, Percoco advised Kirk as the individual who was in charge and supervising the site of OSHA'S directives. This, at the very least, creates an issue of fact (Record Pages 953-954). The attempt of Defendant-Respondents to distance themselves from the testimony of the Architect Alfred Sutton, in attempting to argue that Alfred Sutton had no knowledge as to Kirk's role on the site is also not supported by the Record. More particularly, Sutton testified in detail that he stressed to the Kirk homeowners who had no construction experience whatsoever the absolute necessity of hiring a 17 qualified General Contractor (Record Pages 1058-1060). The drawing up of detailed Plans for a $700,000.00 home renovation after having stressed this point to the neophyte homeowners Sutton testified that it was his understanding that Alan Kirk was the person the Huckes selected to perform that supervisory function as General Contractor (Record Pages 1059-1060). This is not speculation as suggested by Defendant-Respondent and is clear and unrefuted testimony in the Record which also establishes both a question of fact and an inference. The issue of whether or not Kirk was onsite when scaffolding was being erected, which Percoco testified he believed that he was, which the Defendant Respondent then refers to Percoco's testimony that he did not actually know when Kirk was when the scaffolding was being erected in and of itself merely creates another question of fact. Kirk had knowledge of the lack of scaffold protection onsite before the accident (Record Page 854-855). The fact that Kirk never undertook to perform work, never bothered to supervise, does not mean that he did not have a duty or obligation to do so. Equally as unavailing is Defendant-Respondent's attempt to distance himself from the Architect, Mr. Sutton's Affidavit and related homeowners' liability claim which set forth that Kirk was the General Contractor on that jobsite objected to "extrinsic evidence which cannot be used to impeach a party on matters or transactions which are collateral to the case at hand". More particularly Mr. Kirk testified in agonizing detail during his deposition that he had 18 absolutely no construction supervisory experience, that he never supervised a construction job before, provided no supervisory services on the Kern job, he had no construction knowledge whatsoever other than that as to light trim carpentry. This was direct testimony offered by Mr. Kirk all of which was refuted by testimony of Percoco and Alan Sutton which emphasized Kirk's extensive construction background. Kirk's testimony herein is simply an effort to distance himself and his company from liability under the Labor Law. Finally, Defendant- Respondent attempts to argue at Page 34 of their Brief that "Appellant's arguments regarding the occasional inclusion of the initial GC on checks issued by Huckes to Kirks fails to raise a triable issue of fact". This is untrue as this is not an occasional notation, this is on the majority of checks. With the exception of one single check which was payable to Alan H. Kirk, Inc., all checks were payable to Kirk individually (Appellant's Brief Pages 33-35). 19 POINT V ALAN KIRK HAS FAILED TO ESTABLISH HIS ENTITLEMENT TO SUMMARY JUDGMENT IN HIS INDIVIDUAL CAPACITY Despite Defendant Respondent's argument that the Record establishes that Kirk's involvement was undertaken in his role as President of Alan H. Kirk Inc. is not supported by the Record. In point of fact, the only testimony that we have that this was Kirk's corporation, not Kirk individually who was involved in the job project comes from the mouth of Alan Kirk. Based on the totality of the Record, his testimony should not be accorded any credibility whatsoever. Kirk is a sophisticated General Contractor, who understands liability under the Labor Law and who in the Kern litigation was represented by the same law firm representing him in this litigation. The defensive postures were the same in that they attempted to make Mr. Kirk a mere construction advisor in an effort to escape liability. The fact that Mr. Kirk was not asked the question at his deposition concerning corporate versus individual status, does not preclude its inquiry by this Court and it is a clearly allegation contained within the pleadings. Parenthetically, what the Defendant- Respondent has not disclosed to this Court is that the voluminous records from the homeowners including numerous checks endorsed by Mr. Kirk personally were not delivered until after the Kirk Deposition. More particularly, the materials that Mr. Kirk ordered directly for this job were part of the Appellate 20 Record below and should have been considered by this Court in their searching of the Record. This establishes clear questions of fact. 21 POINT VI THE PLAINTIFF BELOW WAS DENIED ANY INFERENCES AND SHOULD HAVE BEEN AFFORDED THOSE INFERENCES GRANTED TO THE NON-MOVING PARTY This point was limited to some seven lines in the Defendant-Respondent's Brief, but is clear from a review of this record, that despite controlling case law requiring a contrary result, the Plaintiff was afforded no inferences by this Court. Especially egregious herein by virtue of the fact that the Plaintiff has now been silenced by virtue of the devastating injury sustained in this accident. 22 POINT VII THE COURT BELOW FAILED TO PROPERLY CONSIDER THE EVIDENCE SUBMITTED IN SUPPORT OF AND IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT It is submitted herein that Defendant-Respondents attempt to argue that the Court properly did not consider collateral or extrinsic evidence is not supported by the Record. This situation is a uniquely factual one by nature of the devastating injury sustained by the Plaintiff in this accident. The Kirk Defendants, the Percoco Defendants and indeed the Architect Alfred Sutton all have a longstanding commercial relationship where they work on projects together. Accordingly, due to the significant brain damage sustained by the Plaintiff herein, he is unable to offer testimony to refute the testimony of the economic partners who were sued herein as Defendants. The Defendants could essentially offer any testimony they chose and Plaintiff's voice has been silenced. Accordingly, in searching the Record, the Court must look to credibility of Alan Kirk in his testimony, in his sworn writings and relative to the day-to-day interaction on the project with the Huckes in determining whether or not an inference should be afforded and a question of fact exists. It is respectfully submitted herein that no inferences were accorded to the Plaintiff. At the very least, all of the various materials referenced in opposition to the Motion create a clear existence of the question of fact. 23 POINT VIII THE COURT BELOW DID NOT CORRECTLY FIND THAT THE INADVERTENT OMISSION OF AN ANSWER FROM THE UNDERLYING MOTION PROVIDED NO BASIS TO DENY SUMMARY JUDGMENT In viewing the Court's Decision and at Pages A24 to A28 of the Record the Court has made no such determination that the inadvertent admission of an Answer provided no basis to deny Summary Judgment to the Kirk Defendants. In point of fact, despite the fact that in Plaintiff's Motion to Renew and Reargue it raised both the inconsistent finding of this Court in its Order of April 1, 2013 concerning the supervisory role of Mr. Kirk and the fact that they failed to consider the absence of pleadings, which are conceded by counsel for the Defendant-Respondent not be part of the Record as a basis for renewal. The Court did not even address these issues in its Decision. The argument is not whether or not the inclusion of the pleading would have changed the result in any way, the critical factor herein is that it is conceded the pleading was not included. Further, as to the other moving parties, the Percoco's and indeed even the Plaintiff below mandated the inclusion of all pleadings and in point of fact denied their Motions when the pleadings were not before the Court. 24 The Kirk Defendants should not be entitled to any different standard of pleading. 25 POINT IX PLAINTIFF'S ARGUMENTS RELATIVE TO ANDREW PERCOCO DOES NOT SUPPORT THE POSITION THAT THE KIRK DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT This point is difficult to ascertain what is being argued it appears that the Defendant-Respondent seeks to argue that in reference to Justice Tanenbaum having found that the Plaintiff was an employee of J. Bennett Inc. on the date of accident somehow exculpates the Kirks. This conclusion is difficult to follow, however it has no merit herein. As set forth in numerous cases contained within the initial Brief, the finding of by Justice Tanenbaum of employment by one of the companies ultimately testified to be part of a joint venture does not exculpate Kirk from liability from happenings onsite. Cases of longstanding has held that when an employee is not afforded Workers Compensation Benefits through the joint venture through which they are employed, they may seek Compensation Benefits through commercial chain of command on the job site including that of the general contractor. Accordingly, if Kirk is ultimately found to be a general contractor, the claims as to Kirk's failure to provide Workers Compensation coverage are still factual issues to be determined by the Trial Court and those claims should not have been dismissed. 26 POINT X THE COURT'S GRANT OF SUMMARY JUDGMENT TO ANDREW PERCOCO INDIVIDUALLY SHOULD BE REVERSED The Appellant-Plaintiff has not filed an Appeal on the issue of the granting of Summary Judgment to the individual Defendant Andrew Perococ relative to the Labor Law claims, as Mr. Percoco was apparently operating in his corporate capacity under A&LP Construction Co. Inc. The issue appealed herein is limited to the failure of Andrew Percoco individually to secure the payment of compensation. In the Defendant- Respondent's Counter Statement of Facts they urged that the cause of action should not be considered due to the fact that the response to a Combined Demand served by Plaintiff-Appellant's prior counsel on or about June 21, 2006, approximately one and a half years post-accident, a representation was made that "Plaintiff was not making a claim for Workers Compensation in relation to the accident" (Record Page A367). It should be noted that that action which was then pending under Index No. 1872-2005 was essentially a nullity by virtue of the fact that the action was commenced in the name of the incapacitated person individually and not brought on behalf or by the Guardian. The document in question was a Response to Combined Demands executed by then counsel, not executed either by the Guardian or the individual Defendant in her derivative claim. Immediately after 27 the appointment of Joseph Bennett as Guardian the action was properly commenced on or about April of 2007 alleging the cause of action, failure to secure the payment of compensation, the liability for failure to secure the payment of compensation. The liability for failure to secure the payment of compensation is not governed solely by Section 630 of the Business Corporation Law, but is also governed by Workers Compensation Law Section 52. Counsel for the Defendant-Respondent Percoco essentially concedes that the Court below was correct in denying their Motion which sought Summary Judgment on behalf of the Corporate entity dismissing the claim for the failure to secure Workers Compensation. This fact was never appealed by the Defendant- Respondent and is now entitled to Law of the Case status. The Defendant- Respondent essentially argues that Percoco cannot be exposed to personal liability regardless of the ultimate findings on that issue because the statutory notice required by Business Corporation Law Section 630 was never given (Percoco Brief Page 6). The other Point argued is the Appellant James Bennett was an employee of Bennett Building Inc. Defendant-Respondent Percoco then argues, although they cite to no cases; for the proposition that James Bennett had exempted himself as a sole shareholder under the Workers Compensation Law as an owner for coverage under James Bennett Inc. (Record Page A519). The Defendant- 28 Respondent concludes that since the statutory notice was not given under Section 630 of the Business Corporation Law that the remedy is not available. This is an overly simplistic view of the case as the claim for failure to provide Workers Compensation coverage is addressed in both Sections 630 of the Business Corporation Law and Section 52 Subdivision C of the Workers Compensation Law. There are numerous factual and legal points raised in the Brief of the Plaintiff-Appellant which are not addressed or refuted in the Brief of the Defendant-Respondent Percoco. More particularly, it should be noted that the Plaintiff herein suffered severe brain damage and paralysis as a result of this accident. It is unrefuted that Percoco has testified under oath that A&LP Construction did, in fact, maintain a Workers Compensation Policy on the date of the occurrence (Record Pages 125). Percoco, upon inquiry from the State Insurance Fund shortly after the accident (the State Insurance Fund, the Workers Compensation Carrier for A&LP) affirmatively advised that State Insurance Fund that Bennett was an employee of a subcontractor and accordingly, the State Fund disclaimed any and all coverage in their correspondence of April 21, 2005 to Mr. Percoco (Record Pages 118-119). Mr. Percoco knew that this information was false when he provided it to the State Insurance Fund and clearly, once he was placed under oath, he testified at his 29 deposition that J. Bennett Building Inc. and A&LP Construction Inc. formed a joint venture for purposes of working on this particular job. Percoco has conceded by his own sworn testimony that a joint venture was formed by the two entities solely for the Hucke project. The Courts have routinely held that the employee of either entity to a joint venture is entitled Workers Compensation through either their direct employer or the other joint venturer. Accordingly, if Bennett as a shareholder exempted himself from Workers Compensation coverage as permitted by the Workers Compensation Law for the sole shareholder of a small corporation, there is no basis to argue and, in point of fact, it is not permitted under the Workers Compensation Law for an employee of a joint venture to be exempted from coverage. This point is not even addressed in opposition. More particularly, Mr. Percoco was well aware in 2005 that the information he provided to the State Insurance Fund, which resulted in their disclaimer of coverage to Bennett was not accurate. This was made painfully clear once he was placed under oath and he testified as to the joint venture nature of the construction on this site. The joint venture was initiated for the first time relative to work on the Hucke premises. Due to the severe and disabling injuries sustained herein Bennett is not able to testify as to the working relationship between his corporation and the Percoco corporate entity. However, we do have Mr. Percoco's testimony under oath. 30 The nature of the circumstances herein is that A&LP Construction did, in fact, have a Workers Compensation Policy on the date of accident, however, James Bennett was denied access to those benefits by virtue of the mis-information provided by Percoco individually to his Workers Compensation Carrier, the State Insurance Fund. Had he advised the State Insurance Fund as to the correct nature of the relationship of the corporate parties on the date of accident, Bennett was have been fully accorded coverage under the A&LP State Insurance Fund Policy. Mr. Percoco elected not to provide the State Insurance Fund with accurate information, but only did so when his testimony was finally taken under oath several years later. The Court below has determined that questions of fact exist relative to the obligor for A&LP Construction to have afforded Workers Compensation Benefits to the injured Plaintiff and reliability of Percoco for his providing incorrect information herein to the carrier which resulted in a disclaimer is predicated under both Business Corporation Law Section 630 and Workers Compensation Law Section 52. In point of fact even under Business Corporation Law Section 630 the timeliness of claims asserted against shareholders are evaluated based upon the passing of 90 days time after an unsatisfied execution required by CLS Business Corporation Law Section 630A and returned as against the employer Wing Wong v. King Sun Yee, 262 AD2d 254, Appellate Div. First Dept. 1999). Section 630 of the Business Corporation Law establishes corporate 31 liability for debt, wages or salaries due and owing. It is submitted that the 180 day notice period relative to the termination of services is referable to a claim for wages. Whereas the action to enforce such liability shall be commenced within 90 days after the return of execution unsatisfied against the corporation on the judgment recovered against it. Herein that 90 day period cannot begin to run until such time as a determination has been made by the Trial Court as the obligation of A&LP Construction to have provided Workers Compensation Benefits to the injured Plaintiff herein. If the Court was correct in determining that a factual question existed as to whether the Corporation failed to provide Compensation; a similar finding is required as against the shareholder. Under Section 52 of the Workers Compensation Law, the Workers Compensation Board, as affirmed under the Appellate Div. 3rd Dept. has determined that an employer for whom an employee served as a shareholder and an officer has violated NYS Workers Compensation Law 50 by not having coverage in place at the time of the claimants accident and has noted that the shareholder of the corporate officer personally liable for any assessments resulting from deficiency. Reillo v. Energy Saving Insulation Corp., 306 AD2d 775, 762 NYS2d 146 (Appellate Div. 3d Dept. 2003). Further, Workers Compensation Section 52 Subdivision C notes that when an employer of the Corporation the President, Secretary and treasurer thereof shall be liable for the failure to secure the payment 32 of Compensation under that Section. Percoco as President has clearly liability under the applicable Section of the Workers Compensation Law. Opposition hereto, counsel for the Defendant-Respondent is essentially asserting a Statute of Limitation defense under Section 30 of the Business Corporation Law. Questions of fact exist herein precluding the grant of Summary Judgment to Percoco individually. 33 CONCLUSION For all the foregoing reasons, and those contained in appellant’s main brief, the decision appealed from should be reversed in all respects. Dated: June 30, 2014 Respectfully submitted, ___________________________ John C. Bennett, Esq. GATHMAN & BENNETT, LLP Attorneys for Plaintiff-Appellant 191 New York Avenue Huntington, NY 11743 631-423-7777 CERTIFICATE OF COMPLIANCE The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 6,061. DB