By Scheinkman, P.J.; Chambers, Duffy, Nelson, JJ. JESUS MENDOZA, res, v. ENCHANTE ACCESSORIES, INC., app, ET AL., def — (Index No. 1650/10) Koster Brady & Nagler LLP ( Mischel & Horn, P.C., New York, NY [Scott T. Horn and Naomi M. Taub], of counsel), for appellant. Asta & Associates, P.C., New York, NY (Michael J. Asta and Reza Rezvani of counsel), for respondent. In an action to recover damages for personal injuries, the defendant Enchante Accessories, Inc., appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated June 9, 2016. The order denied that defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it or, in the alternative, pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability as contrary to the weight of the evidence or, in the alternative, to amend its answer to assert as an affirmative defense that Workers’ Compensation was the plaintiff’s exclusive remedy and for “judgment notwithstanding the verdict, pursuant to CPLR 4404(b).” ORDERED that the order is affirmed, with costs. In January 2010, the plaintiff commenced this action to recover damages for personal injuries that he alleges he sustained in February 2008 when he fell from a stock picking machine in a warehouse in Sayreville, New Jersey. The plaintiff alleged that, at the time of his fall, he was performing work for his employer, the defendant E.D.S. Distribution Services, LLC (hereinafter EDS), and that the warehouse was managed by the defendant Enchante Accessories, Inc. (hereinafter Enchante), which had control over training and use of the warehouse equipment, specifically the stock picking machines, and the safety devices for such use. The plaintiff further alleged, inter alia, that Enchante was negligent in its supervision and training, and in failing to provide proper safety devices to prevent the accident. Specifically, he contended that the safety belt that he needed to use when operating the stock picking machine was unavailable, and that Enchante failed to train and supervise workers in the warehouse, including him, to ensure that such safety belts were available and used at all times when the stock picking machines were operated. In contrast, Enchante argued, inter alia, that, by the date of the accident, it had turned over management and control of the warehouse to the plaintiff’s employer, EDS, and that, in any event, there were safety belts available to the plaintiff and his decision not to use one was the sole proximate cause of his accident. At trial, after the close of the plaintiff’s case, Enchante moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it, and the Supreme Court reserved decision. At the conclusion of the trial, the jury determined that, on the date of the accident, Enchante exercised supervision and/or control over the warehouse, Enchante was negligent in its supervision and/or control over the warehouse, and Enchante’s negligence was a substantial factor in causing the accident. The jury also found that the plaintiff was negligent and that his negligence was a substantial factor in causing the accident, and apportioned 75% liability to the plaintiff and 25% liability to Enchante. Thereafter, Enchante moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it or, in the alternative, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as against the weight of the evidence or, in the alternative, to amend its answer to assert as an affirmative defense that Workers’ Compensation was the plaintiff’s exclusive remedy and for “judgment notwithstanding the verdict, pursuant to CPLR 4404(b).” In an order dated June 9, 2016, the court denied Enchante’s motion. Enchante appeals. We agree with the Supreme Court’s determination denying Enchante’s motion in its entirety. A motion pursuant to CPLR 4401 will not be granted unless, affording the party opposing the motion every inference which may properly be drawn from the facts presented, and viewing the evidence in the light most favorable to the nonmovant, there is no rational process by which the jury could find for the nonmovant against the moving party (see Szczerbiak v. Pilat, 90 NY2d 553, 556; Nestro v. Harrison, 78 AD3d 1032, 1033). “‘In making this determination, a trial court must not engage in a weighing of the evidence, nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question’” (Hernandez v. Pappco Holding Co., Ltd, 136 AD3d 981, 983, quoting Bzezi v. Eldib, 112 AD3d 772, 774 [internal quotation marks omitted]). Here, Enchante’s contention that the plaintiff’s evidence failed to establish that Enchante had authority to supervise or control the plaintiff’s work is without merit (see e.g. Hernandez v. Pappco Holding Co., Ltd., 136 AD3d at 983). The plaintiff offered, inter alia, the testimony of one of his supervisors and the warehouse manager, as well as the testimony of the Enchante employee who supervised the warehouse manager, which, together with written agreements signed on behalf of Enchante, supported the plaintiff’s contention that, at the time of his accident, Enchante supervised and controlled the plaintiff’s work and the safety devices in the warehouse. The plaintiff also submitted evidence that Enchante did not require the workers to always use safety belts when operating the stock picking machine at the warehouse and that such safety belts were not always available. Thus, viewing the evidence in the light most favorable to the plaintiff (see Raia v. Berkeley Coop. Towers Section II Corp., 147 AD3d 989, 991), the jury would have been able to rationally infer that, contrary to Enchante’s contention, Enchante was in control of and supervising the workers in the warehouse at the time of the accident; that it had failed to provide proper training and safety belts which could have prevented the plaintiff’s accident; and that Enchante’s negligence in failing to provide proper training and safety belts was a substantial factor contributing to the plaintiff’s injuries (see Hernandez v. Pappco Holding Co., Ltd., 136 AD3d at 982-983; see also Gayle v. City of New York, 92 NY2d 936, 937). For similar reasons, we agree with the Supreme Court’s determination denying that branch of Enchante’s motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as against the weight of the evidence. “‘[A] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence’” (Hernandez v. Pappco Holding Co., Ltd., 136 AD3d at 983, quoting Sokolik v. Pateman, 114 AD3d 839, 840). Here, although the jury was presented with conflicting evidence as to whether, at the time of the accident, Enchante supervised and controlled the plaintiff’s work, and whether it provided proper training and safety belts, the jury was within its discretion in resolving the conflicting testimony in favor of the plaintiff (see e.g. Gonzalez v. Board of Educ. of City of N.Y., 165 AD3d 1065, 1066-1067). Notably, Enchante failed to offer any evidence to rebut the testimony of the plaintiff’s expert witness regarding Enchante’s failure to properly train the warehouse workers with respect to the safety devices. In addition, the evidence proffered by Enchante, which consisted of only one trial witness and excerpts of the deposition testimony of three other witnesses, was self-serving. The deposition testimony proffered by Enchante was inconsistent and conflicted with the testimony of the plaintiff’s witnesses. “[S]elf-serving statements of an interested party which refer to matters exclusively within that party’s knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts” (Sacher v. Long Is. Jewish-Hillside Med. Ctr., 142 AD2d 567, 568). Since the jury was faced with multiple instances of conflicting testimony, and “[it] had the opportunity to see and hear the witnesses” (Exarhouleas v. Green 317 Madison, LLC, 46 AD3d 854, 855; see Bertelle v. New York City Tr. Auth., 19 AD3d 343, 343), it was within its discretion to accept the plaintiff’s evidence regarding Enchante’s supervision and control over the warehouse and its workers and the safety devices and reject Enchante’s evidence on the issues (see Gonzalez v. Board of Educ. of City of N.Y., 165 AD3d at 1066-1067; Calix v. New York City Tr. Auth., 14 AD3d 583, 584). Contrary to Enchante’s contention, the branch of its motion which was, in effect, pursuant to CPLR 3025(b) to amend its answer to assert the affirmative defense of Workers’ Compensation exclusivity also was properly denied since Enchante failed to include any proposed amended answer “clearly showing the changes or additions to be made to the pleading” (CPLR 3025[b]; see e.g. G4 Noteholder, LLC v. LDC Props., LLC, 153 AD3d 1326, 1327; Scialdone v. Stepping Stones Assoc., L.P., 148 AD3d 950, 952). In any event, Enchante failed to submit or point to any evidence at trial, or in support of its motion, that would establish the applicability of the defense of Workers’ Compensation exclusivity (see D’Alessandro v. Aviation Constructors, Inc., 83 AD3d 769, 771; Perez v. Access Bio, Inc., 2019 WL 3297297, 2019 NJ Super Unpub LEXIS 1673 [App Div NJ, No. A-3071-16T4])). Enchante’s remaining contentions are without merit. SCHEINKMAN, P.J., CHAMBERS, DUFFY and BRATHWAITE NELSON, JJ., concur.
By Rivera, J.P.; Maltese, Connolly, Nelson, JJ. OVERBAY, LLC, ET AL., app, v. BERKMAN, HENOCH, PETERSON, PEDDY & FENCHEL, P.C., ET AL., res — (Index No. 609537/18) Pinks, Lipshie, White & Nemeth, Hauppauge, NY (Harold I. Guberman and Steven G. Pinks of counsel), for appellants. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Bruce J. Bergman and Martin Valk of counsel), respondent pro se and for respondent Harbour Trio Management, LLC. In an action to recover damages for economic duress, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated November 8, 2018. The order granted the defendants’ motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. The plaintiffs, Overbay, LLC (hereinafter Overbay), and its principal, Demetrius A. Tsunis, were the respective mortgagor and guarantor on a commercial mortgage loan that was foreclosed by the mortgagee, the defendant Harbour Trio Management, LLC (hereinafter Harbour), pursuant to a judgment of foreclosure and sale dated March 28, 2018. Pursuant to the terms of the mortgage, Harbour was entitled to an award of attorney’s fees it incurred in foreclosing the mortgage. In the judgment of foreclosure and sale, the Supreme Court directed that the amount of attorney’s fees would be determined at a hearing to be held on May 15, 2018. However, instead of proceeding to the hearing, the plaintiffs exercised their right of redemption. The plaintiffs demanded from Harbour a pay-off letter so that they could satisfy the judgment with the proceeds of a construction loan, upon which they had to close before the date of the hearing; the loan commitments would otherwise have expired by that point in time. After having received an initial pay-off letter that demanded payment of attorney’s fees in the sum of $68,259.20 and raising objections to certain components of the pay-off amount which did not include the sum demanded for attorney’s fees, the plaintiffs received an additional pay-off letter that included the sum of $82,561.92 for attorney’s fees demanded by Harbour. The plaintiffs ultimately paid the full sum demanded in a final pay-off letter, which included the sum of $82,561.92 for attorney’s fees, without raising a contemporaneous objection to the amount paid. In exchange therefor, Harbour delivered a satisfaction of mortgage to the plaintiffs dated April 24, 2018. On May 17, 2018, the plaintiffs commenced this action against Harbour and the defendant Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (hereinafter Berkman), the attorneys who represented Harbour in the mortgage foreclosure action. The plaintiffs sought reimbursement of the subject attorney’s fees, alleging that they were forced to pay those fees involuntarily under economic duress in order to close on their refinancing loan. The defendants moved for summary judgment dismissing the complaint, contending that the plaintiffs were not subjected to economic duress and that the attorney’s fees were not paid under protest, that recovery is barred by the voluntary payment doctrine and estoppel, and that Berkman cannot be held liable in this action under the law of agency. In an order dated November 8, 2018, the Supreme Court granted the defendants’ motion. The plaintiffs appeal, and we affirm. An agent who acts on behalf of a disclosed principal will not be liable for breach of contract unless there is clear and explicit evidence of the agent’s intention to be bound (see Savoy Record Co. v. Cardinal Export Corp., 15 NY2d 1, 4; Mencher v. Weiss, 306 NY 1, 4; Safety Envtl., Inc. v. Barberry Rose Mgt. Co., Inc., 94 AD3d 969; Weinreb v. Stinchfield, 19 AD3d 482). Here, the defendants demonstrated, prima facie, that Berkman was merely acting as Harbour’s disclosed agent in the underlying mortgage foreclosure action, and thus, cannot be held liable in damages in this action. In opposition, the plaintiffs failed to raise a triable issue of fact. “The existence of economic duress is demonstrated by proof that one party to a contract has threatened to breach the agreement by withholding performance unless the other party agrees to some further demand” (Trustco Bank N.Y. v. M.M.E. Power Enters., 223 AD2d 587, 589 [internal quotation marks omitted]). However, there is no actionable duress where the alleged menace was to exercise a legal right (see Madey v. Carman, 51 AD3d 985, 987; Precision Mech. v. Dormitory Auth. of State of N.Y., 5 AD3d 653, 654; Fourth Ocean Putnam Corp. v. Suburbia Fed. Sav. & Loan Assn., 124 AD2d 550, 552). Here, Harbour demonstrated, prima facie, that its exercise of its legal right to the subject attorney’s fees pursuant to the explicit terms of the underlying mortgage loan agreement did not rise to the level of actionable economic duress. In opposition, the plaintiffs failed to raise a triable issue of fact. Further, “the voluntary payment doctrine…bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” (Dillon v. U-A Columbia Cablevision of Westchester, 100 NY2d 525, 526). There is a presumption that payments are voluntary (see 82 NY Jur 2d, Payment and Tender, §82). Additionally, in order for a protest of payment to be characterized as appropriate, it must be in writing and made at the time of payment (see Nunner v. Newburgh City School Dist., 92 AD2d 888). Here, Harbour demonstrated, prima facie, that the voluntary payment doctrine bars recovery by the plaintiffs of their payment of the full amount of attorney’s fees, which was not contemporaneously protested at the time of payment. In opposition, the plaintiffs failed to raise a triable issue of fact. “An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury. It is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party’s words or conduct, has been misled into acting upon the belief that such enforcement would not be sought” (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [citations and internal quotation marks omitted]). Here, Harbour demonstrated, prima facie, that it detrimentally relied upon the plaintiffs’ satisfaction payment of the judgment of foreclosure and sale that included the full amount of attorney’s fees demanded in the final pay-off letter when, in exchange therefor, it issued the mortgage satisfaction letter. In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court’s determination granting the defendants’ motion for summary judgment dismissing the complaint. RIVERA, J.P., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.
