                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 29, 2016                    522420
________________________________

RITA GARELLE,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

CHERYL GEINITZ,
                    Respondent.
________________________________


Calendar Date:    November 17, 2016

Before:   Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

                              __________


      Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard
of counsel), for appellant.

      Law Office of Susan B. Owens, New York City (Julio E.
Urrutia of counsel), for respondent.

                              __________


Aarons, J.

      Appeal from an order of the Supreme Court (O'Shea, J.),
entered April 30, 2015 in Chemung County, which, among other
things, granted defendant's motion for summary judgment
dismissing the complaint.

      Defendant is the president and a shareholder of Total
Recall Message Center, Inc. and she also owns, in her individual
capacity, the property and building where Total Recall and other
tenants rent commercial office space. In January 2010,
plaintiff, an employee of Total Recall, slipped and fell on an
ice patch in the parking lot behind Total Recall while on a work-
sanctioned break. Plaintiff subsequently commenced this
negligence action alleging that she sustained personal injuries
as a consequence of her slip and fall. Following joinder of
                              -2-                522420

issue and discovery, plaintiff moved under CPLR 3211 and 3212 to
strike defendant's Workers' Compensation Law affirmative defense.
Defendant moved for summary judgment dismissing the complaint on
the ground that the complaint was barred by Workers' Compensation
Law §§ 11 and 29. Supreme Court denied plaintiff's motion and
granted defendant's motion. Plaintiff appeals.

      Initially, we disagree with plaintiff that Supreme Court
erred in entertaining defendant's Workers' Compensation Law
affirmative defense. As her sixth affirmative defense, defendant
alleged that plaintiff's "action [was] barred by the Workers'
Compensation Law," which plaintiff contends was insufficient.
Although defendant did not specify what section of the Workers'
Compensation Law she intended to rely upon, a correspondence from
defendant's counsel to plaintiff's counsel, which defendant
incorporated by reference in her verified bill of particulars as
to her affirmative defenses, set forth various legal decisions
discussing, among other things, Workers' Compensation Law § 29
(6). Under these circumstances, we conclude that plaintiff was
sufficiently apprised that defendant would rely on this specific
provision (see generally Schmidt's Wholesale v Miller & Lehman
Constr., 173 AD2d 1004, 1004 [1991]) and, thus, Supreme Court
properly entertained this affirmative defense.

      Turning to the merits, when an employee, during the course
of his or her employment, is injured due to the negligence of a
coemployee, the employee's right to compensation lies under the
exclusive provisions of the Workers' Compensation Law (see
Workers' Compensation Law § 29 [6]; Heritage v Van Patten, 59
NY2d 1017, 1019 [1983]). Where the defendant is both the
property owner and a corporate officer of the plaintiff's
employer, the defendant's responsibility to provide the plaintiff
with a safe place to work may be merged, in which case, workers'
compensation benefits are the sole remedy for the plaintiff (see
Parrinello v Mancuso, 251 AD2d 856, 857 [1998]; Kinsman v McGill,
210 AD2d 659, 660 [1994]). If, however, the "defendant's duty of
care toward [the] plaintiff was owed purely in [the] capacity as
owner of the property at the accident site, and not at all as a
coemployee," Workers' Compensation Law § 29 (6) will not bar the
plaintiff's negligence action (Cusano v Staff, 191 AD2d 918, 920
[1993]).
                              -3-                522420

      The parties do not dispute where plaintiff slipped and
fell. The issue distills to whether the accident site was in an
area that was exclusive to Total Recall and its employees such
that defendant, as the property owner and an executive officer of
Total Recall, had indistinguishable obligations to maintain the
area in a reasonably safe condition. The record discloses that
when necessary, Total Recall employees, with tools provided by
Total Recall, salted and shoveled the walkway outside the
office's rear entrance to clear a path to their cars in the
parking lot. Indeed, according to the leases that defendant
executed with the other commercial tenants who rented space at
her property, each tenant was "responsible for snow removal."
However, while defendant elaborated in her deposition that this
responsibility of each tenant extended to the "front of each
business," the leases are entirely silent as to specifically
where each tenant was responsible for snow removal; critically,
plaintiff's accident occurred behind the building. Furthermore,
defendant did not execute a formal lease with Total Recall and,
therefore, the extent and boundaries of Total Recall's snow
removal obligations are unclear. Moreover, defendant hired
someone to plow snow from the parking lot and paid that person
from the building's financial account. While defendant maintains
that where plaintiff fell in the parking lot was within an area
generally set aside for Total Recall employees to park, defendant
also testified that there were no signs directing where employees
of other building tenants could or could not park. Based on the
foregoing, we conclude that questions of fact exist concerning
whether the area where plaintiff fell was within the exclusive
control of Total Recall (see Cusano v Staff, 191 AD2d at 919-920;
compare Kinsman v McGill, 210 AD2d at 660). Consequently,
Supreme Court should have denied defendant's summary judgment
motion.

      Finally, in light of our determination, plaintiff is not
entitled to dismissal of defendant's Workers' Compensation Law
affirmative defense as a matter of law. As such, Supreme Court
properly denied plaintiff's motion.

     Peters, P.J., Garry, Devine and Mulvey, JJ., concur.
                              -4-                  522420

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendant's
motion; said motion denied; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
