Aarons, J.
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 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
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 A.D.2d 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 N.Y.2d 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 A.D.2d 856, 857 [1998]; Kinsman v McGill, 210 A.D.2d 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 A.D.2d 918, 920 [1993]).
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
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.
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.