Opinion
2016–12519 Index No. 51268/15
07-18-2018
Jose SANCHEZ, appellant, v. 3180 RIVERDALE REALTY, LLC, respondent.
Melcer Newman, PLLC (Beth S. Gereg, Smithtown, NY, and Jeffrey B. Melcer, of counsel), for appellant. DeAngelis & Hafiz, Mount Vernon, N.Y. (Talay Hafiz of counsel), for respondent.
Melcer Newman, PLLC (Beth S. Gereg, Smithtown, NY, and Jeffrey B. Melcer, of counsel), for appellant.
DeAngelis & Hafiz, Mount Vernon, N.Y. (Talay Hafiz of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County ( Lawrence H. Ecker, J.), dated September 28, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff, employed by nonparty Badaly & Badaly Construction (hereinafter B & B Construction), allegedly was injured while performing construction work on premises owned by the defendant. The plaintiff commenced this action to recover damages for personal injuries, alleging, inter alia, a violation of Labor Law § 240(1). The defendant moved for summary judgment dismissing the complaint based on the exclusivity defense of the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29[6] ). The Supreme Court granted the defendant's motion.
The protection against lawsuits brought by injured workers that is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) also extends to entities that are alter egos of the entity that employs the injured workers (see Moses v. B & E Lorge Family Trust, 147 A.D.3d 1045, 1047, 48 N.Y.S.3d 231 ; Salcedo v. Demon Trucking, Inc., 146 A.D.3d 839, 841, 44 N.Y.S.3d 543 ; Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d 871, 872, 12 N.Y.S.3d 906 ; Batts v. IBEX Constr., LLC, 112 A.D.3d 765, 766, 977 N.Y.S.2d 282 ). "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" ( Batts v. IBEX Constr., LLC, 112 A.D.3d at 766, 977 N.Y.S.2d 282 ; see Moses v. B & E Lorge Family Trust, 147 A.D.3d at 1047, 48 N.Y.S.3d 231 ; Salcedo v. Demon Trucking, Inc., 146 A.D.3d at 841, 44 N.Y.S.3d 543 ; Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d at 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 quotations marks and citations omitted]; see Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d 594, 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" ( Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d at 595, 906 N.Y.S.2d 67 ; see Batts v. IBEX Constr., LLC, 112 A.D.3d at 767, 977 N.Y.S.2d 282 ; Constantine v. Premier Cab Corp., 295 A.D.2d 303, 304, 743 N.Y.S.2d 516 ).
Here, the defendant failed to make a prima facie showing either that the plaintiff's employer, B & B Construction, and the defendant 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 ; Samuel v. Fourth Ave. Assoc., LLC, 75 A.D.3d at 595, 906 N.Y.S.2d 67 ; Degale–Selier v. Preferred Mgmt. & Leasing Corp., 57 A.D.3d 825, 826, 870 N.Y.S.2d 94 ; Masley v. Herlew Realty Corp., 45 A.D.3d 653, 654, 846 N.Y.S.2d 252 ). The plaintiff was employed solely by B & B Construction and the defendant was a separate legal entity that could not be considered an alter ego of B & B Construction (see Workers' Compensation Law § 29[6] ; Haracz v. Cee Jay, Inc., 74 A.D.3d 1147, 1148, 902 N.Y.S.2d 429 ; Masley v. Herlew Realty Corp., 45 A.D.3d at 654, 846 N.Y.S.2d 252 ).
Since the defendant failed to satisfy its prima facie burden, the Supreme Court should have denied that branch of the defendant's motion which was for summary judgment dismissing the complaint based on the exclusivity defense of the Workers' Compensation Law, 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 ; Salcedo v. Demon Trucking, Inc., 146 A.D.3d at 841, 44 N.Y.S.3d 543 ).
SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS–RADIX, JJ., concur.