Opinion
No. 2020-01007 Index No. 150973/17
06-08-2022
Josephine Savino, et al., respondents, v. 700 Victory Boulevard, LLC, appellant (and a third-party action).
Malapero Prisco & Klauber, LLP, New York, NY (Andrew L. Klauber of counsel), for appellant. Chelli & Bush (Arnold E. DiJoseph, P.C., New York, NY [Arnold E. DiJoseph III], of counsel), for respondents.
Malapero Prisco & Klauber, LLP, New York, NY (Andrew L. Klauber of counsel), for appellant.
Chelli & Bush (Arnold E. DiJoseph, P.C., New York, NY [Arnold E. DiJoseph III], of counsel), for respondents.
ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), January 2, 2020. The order, insofar as appealed from, denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In December 2016, the plaintiff Josephine Savino (hereinafter the plaintiff) suffered a work-related injury to her left hand while employed as a rental agent for nonparty Samson Management, LLC (hereinafter Samson), at an apartment building owned by the defendant. The plaintiff, and her husband suing derivatively, commenced this action against the defendant to recover damages for personal injuries.
The defendant moved for summary judgment dismissing the complaint, contending that it was the alter ego of Samson and that the plaintiffs' claims against the defendant were therefore barred by the exclusivity provision of the Workers' Compensation Law. In an order dated January 2, 2020, the Supreme Court, inter alia, denied the motion. The defendant appeals, and we affirm.
"The defense afforded to employers by the exclusivity provisions of the Workers' Compensation Law may also extend to suits brought against an entity that is found to be the alter ego of the corporation that employs the plaintiff" (Gerardi v I.J. Litwak Realty Ltd. Partnership, 177 A.D.3d 679, 680; see Zhang v ABC Corp., 194 A.D.3d 990, 992). "A defendant moving for summary judgment under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer" (see Zhang v ABC Corp., 194 A.D.3d at 993; see Robles v Taconic Mgt. Co., LLC, 173 A.D.3d 1089, 1094). "'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'" (Zhang v ABC Corp., 194 A.D.3d at 993, quoting Quizhpe v Luvin Constr. Corp., 103 A.D.3d 618, 619; see Salinas v 64 Jefferson Apts., LLC, 170 A.D.3d 1216, 1218-1219). "'[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'" (Zhang v ABC Corp., 194 A.D.3d at 993, quoting Batts v IBEX Constr., LLC, 112 A.D.3d 765, 767; see Salinas v 64 Jefferson Apts., LLC, 170 A.D.3d at 1219).
Here, although the defendant demonstrated that it entered into a management agreement with Samson whereby Samson agreed to manage the defendant's day-to-day affairs, it offered only the conclusory assertion of Samson's vice president that the defendant's relationship with Samson conformed to that agreement. Since the defendant failed to demonstrate prima facie that it and Samson operated as a single integrated entity or that either of the entities exercised complete domination and control of the other entity's day-to-day operations, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint (see Zhang v ABC Corp., 194 A.D.3d at 993; Salinas v 64 Jefferson Apts., LLC, 170 A.D.3d at 1219).
In light of the foregoing, we need not reach the plaintiffs' remaining contention.
IANNACCI, J.P., RIVERA, CHAMBERS and WOOTEN, JJ., concur.