Wentland v Future Stewart Partners, LLC 2024 NY Slip Op 30783(U) March 12, 2024 Supreme Court, New York County Docket Number: Index No. 156865/2023 Judge: Paul A. Goetz 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.156865/2023 WENTLAND, WALTER vs. FUTURE STEWART PARTNERS, LLC

Motion No. 001 Page 1 of 4 The following e

- filed documents, l isted by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31
were read on this motion to/for DISMISSAL

. Upon the foregoing documents, it is
Defendant, Future Stewart Partners, LLC (“Future ”) moves pursuant to CPLR §

3211(a)(1) and CPLR § 3211(a)(7) to dismiss plaintiff, Walter Wetlan d’s complaint in its
entirety. Defendant submits document ary evidence under CPLR § 3211(a)(1) which it argues

bars plaintiff’s claims under the exclusivity provision of Workers' Compensation Law § 11 , by
establishing that defendant is part of a joint venture with plaintiff’s employer. Defendant argues

that if pl aintiff’s claims are barred by this provision, then the entire complaint must be dismissed

under CPLR § 3211(a)(7) for a failure to state a cause of action o n which relief can be sought.

DISCUSSION
Under CPLR § 3211(a)(7) “ A party may move for judgment di smissing one or more
causes of action asserted against him on the ground that the pleading fails to state a cause of

action .” When “considering the sufficiency of a pleading subject to a motion to dismiss for

failure to state a cause of action under CPLR 3 211(a)(7), our well

- settled task is to determine
whether, ‘accepting as true the factual averments of the complaint, plaintiff can succeed upon



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. PAUL A. GOETZ PART 47
Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 156865/2023

MOTION DATE 10/19/2023

MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION WALTER WENTLAND

Plaintiff,

- v
- FUTURE STEWART PARTNERS, LLC,

Defendant.

----- -------------------------------------------------------------- -- ------------ X INDEX NO. 156865/2023

NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/12/2024

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### [* 1]156865/2023 WENTLAND, WALTER vs. FUTURE STEWART PARTNERS, LLC

Motion No. 001 Page 2 of 4 any reasonable view of the facts stated” ( Campaign for Fiscal Equity, Inc. v State , 86 NY2d 307,

318 [1995]). Fu rther, “[u] nder CPLR 3211(a)(1), dismissal may be appropriately granted only
where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively
establishing a defense as a matter of law” ( Seaman v Schulte Roth & Zabel LLP , 176 AD 3d 538,

538

- 39 [1st Dept 2019] [internal quotation marks removed ]). “ An unambiguous written

agreement can

... constitute documentary evidence ” ( id . at 539).
Workers’ Compensation Law § 11 states,
The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom.

“ Generally, an injured employee's sole remedy against his or her employer is recovery
under the Workers' Compensation Law ” ( Hageman v B & G Bldg. Services, LLC , 3 3 AD3d 860,
861 [2d Dept 2006] ). “I n instances regarding injuries that occur during the course of a plaintiff's
employment, the

... exclusivity provisions of the Workers' Compensation Law may also extend
to suits brought by a plaintiff against corporations w hich are the alter egos of, or joint venturers
with, the corporation which employs the plaintif f” ( Hageman v B & G Bl dg. Services, LLC , 33
AD3d 860, 861 [2d Dept 2006] ). “A defendant may establish itself as the alter ego of a
plaintiff's employer by demon strating that one of the entities controls the other or that the two
operate as a single integrated entity

. ” ( Salcedo v Demon Trucking, Inc ., 146 AD3d 839, 841 [2d
Dept 2017 ).
To establish that the relationship between two companies represents a joint ven tu re, a
party must show “ acts manifesting the intent of the parties to be associated as joint venturers,
mutual contribution to the joint undertaking through a combination of property, financial INDEX NO. 156865/2023

NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/12/2024

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### [* 2]156865/2023 WENTLAND, WALTER vs. FUTURE STEWART PARTNERS, LLC

Motion No. 001 Page 3 of 4 resources, effort, skill or knowledge, a measure of joint pro prietorship and control over the
enterprise, and a provision for the sharing of profits and losses” ( Lebedev v Blavatnik , 193 AD3d
175, 185 [1st Dept 2021] )

. “ A joint venture is “an association of two or more persons to carry out
a single business enterpri se for profit, for which purpose they combine their property, money,
effects, skill and knowledge” ( Kaufman v Torkan , 51 AD3d 977, 979 [2d Dept 2008] ).
“[P]artnership agreement [s] , payroll records and tax statements, along with the deposition
testimony of one of the principals of the joint venture ” can be used as evidence to determine that
a joint venture exists ( Mitchell v A.F. Roosevelt Ave. Corp ., 207 AD2d 388, 389 [2d Dept 1994] ).

Further, evidence that “[a] n examination of the agreement

... discloses tha t the parties are

referre d to as ‘Joint Venturers' and that the agreement is limited to the project ” of performing the
injury producing work
, supports the existence of a joint venture ( Fallone v Misericordia Hosp.
, 23 AD2d 222, 225 [1st Dept 1965 ]).

Here, i n support of its motion, defendant submits an operating agreement between ADP

International Americas LLC (“ADPIA”) and AFCO AvPORTS Management LLC (“AvPorts”)

outlin ing the terms of t he management of defendant LLC (NYSCEF Doc No 21)

. The operating

agreem ent notes that ADPIA and AvPorts entered into a Joint Ventu re Agreement on April 15,

2019 ( id .). ADPIA and AvPorts entered into this ag reement which formed defendant LLC for
the purpose of obtaining a contract to perform work at Stewart International Airp or t ( id .). It was
during th e performance of this work that plaintiff was injured (NYSCEF Doc No 16 ¶ 5) . The
operating agreement indicates that AvPorts and ADPIA both hold equal membership interests
and contributed equal capital into the formation of defen dant LLC (NYSCEF Doc No 21 at 16).

Further, as in Fallone an examination of the agreement indicates that ADPIA and

AvPorts refer to themselves as joint venturers with the purpose of performing the injury INDEX NO. 156865/2023

NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/12/2024

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### [* 3]156865/2023 WENTLAND, WALTER vs. FUTURE STEWART PARTNERS, LLC

Motion No. 001 Page 4 of 4 producing work. Since it is undisputed that AvPorts was plaintiff’s employer at the time of the

accident, and since defendant has provided prima facie evidence that AvPorts was in a joint

venture with ADPIA, which formed defendant LLC, plaintiff ’s “employer” through the Workers ’
Compensation Law refers to all members of the joint venture

. Th erefore, plaintiff’s exclusive
remedy as against all members of the joint venture is through the Workers’ Compensation Law.

Thus, as plaintiff’s claims are barred
, the complaint must be dismissed for a failure to state a
cause of action on which relief can be sought

.

Accordingly it is,
ORDERED that the defendant’s motion to dismiss is granted in its entirety
, with costs and

disbursements to defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter
judgment accordingly

.

3/ 1 2 /2024 DATE PAUL A. GOETZ, J.S.C.

CHECK ONE: X CASE DISPOSED NON

- FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT OR DER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 156865/2023

NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/12/2024

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