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 E. 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.
150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC

Motion No. 001

Page 1 of 4

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 

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

 MOTION DATE 06/05/2024

 MOTION SEQ. NO. 001

DECISION + ORDER ON 

MOTION

SHARMAINE MOSLEY,

 Plaintiff, 

- v -

RCPI LANDMARK PROPERTIES, LLC, TISHMAN SPEYER 

PROPERTIES, L.P, RCPI HOLDCO, LLC, AND 

SCHINDLER ELEVATOR CORPORATION,

 Defendants. 

---------------------------------------------------------------------------------X

INDEX NO. 150907/2018

NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/28/2024

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150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC

Motion No. 001

Page 2 of 4

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.

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150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC

Motion No. 001

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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 

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150907/2018 MOSLEY, SHARMAINE vs. RCPI LANDMARK PROPERTIES, LLC

Motion No. 001

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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

INDEX NO. 150907/2018

NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/28/2024

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