Opinion
2018–10873 Index No. 600586/17
05-28-2019
Olga D. LANDAVERDE, respondent, v. LIN–ANN ENTERPRISES, INC., appellant.
Mulholland Minion Duffy Davey McNiff & Beyrer, Williston Park, N.Y. (John A. Beyrer of counsel), for appellant. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Christen Giannaros], of counsel), for respondent.
Mulholland Minion Duffy Davey McNiff & Beyrer, Williston Park, N.Y. (John A. Beyrer of counsel), for appellant.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Christen Giannaros], of counsel), for respondent.
RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS JOHN M. LEVENTHAL HECTOR D. LASALLE, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered July 19, 2018. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On February 23, 2015, the plaintiff allegedly was injured when she slipped and fell on ice on property owned by the defendant. The plaintiff was a bus driver employed by nonparty Logan Bus Co., Inc. As a result of the accident, the plaintiff received Workers' Compensation benefits. She commenced this action against the defendant seeking to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, contending that it and the plaintiff's employer were alter egos and that the defendant was, therefore, protected by the exclusivity provisions of the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29[6] ).
"The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) also extends to entities which are alter egos of the entity which employs the plaintiff" ( Batts v. IBEX Constr., LLC, 112 A.D.3d 765, 766, 977 N.Y.S.2d 282 ; see Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d 594, 594–595, 906 N.Y.S.2d 67 ). " ‘A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer’ " ( Moses v. B & E Lorge Family Trust, 147 A.D.3d 1045, 1046, 48 N.Y.S.3d 231, quoting Batts v. IBEX Constr., LLC, 112 A.D.3d at 766, 977 N.Y.S.2d 282 ; see Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d 871, 872, 12 N.Y.S.3d 906 ). "A defendant may establish itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity" ( Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d at 872, 12 N.Y.S.3d 906 [internal quotation marks omitted]; see Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d at 594–595, 906 N.Y.S.2d 67 ). However, "a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other" ( Moses v. B & E Lorge Family Trust, 147 A.D.3d at 1046–1047, 48 N.Y.S.3d 231 [internal quotation marks omitted]; see Batts v. IBEX Constr., LLC, 112 A.D.3d at 767, 977 N.Y.S.2d 282 ; Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d at 595, 906 N.Y.S.2d 67 ).
Here, the defendant failed to make a prima facie showing that it and the plaintiff's employer operated as a single integrated entity, or that either company controlled the day-to-day operations of the other (see Moses v. B & E Lorge Family Trust, 147 A.D.3d at 1047, 48 N.Y.S.3d 231 ; Zhiwei Mao v Krantz & Levinson Realty Corp., 117 A.D.3d 944, 945, 985 N.Y.S.2d 893 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
BALKIN, J.P., CHAMBERS, LEVENTHAL and LASALLE, JJ., concur.