Opinion
March 2, 1992
Appeal from the Supreme Court, Kings County (G. Aronin, J.).
Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment is denied.
The plaintiff, an employee of Sea Crest Linen Supply Company (hereinafter Linen), was injured at work when a portion of a plaster ceiling caved in on her. Linen was the sole tenant of the building where the injury occurred. The building was owned by the defendant, Sea Crest Trading Co., Inc. After the plaintiff received workers' compensation benefits through Linen, she commenced this action based, inter alia, on the defendant's failure to maintain the ceiling.
The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint as barred by the exclusivity provisions of the Workers' Compensation Law.
We agree with the plaintiff's argument that the court erred in granting summary judgment to the defendant. The cases relied upon by the court, i.e., Heritage v Van Patten ( 90 A.D.2d 936, affd 59 N.Y.2d 1017), and St. Andrews v Lucarelli ( 115 A.D.2d 155), are distinguishable from the instant case and inapplicable. Moreover, it has been stated that "The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment, as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. The failure to make such a showing requires the denial of the motion, regardless of the insufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851; Royal v Brooklyn Union Gas Co., 122 A.D.2d 132; Raia Indus. v Young, 124 A.D.2d 722)" (Fox v Wyeth Labs., 129 A.D.2d 611; Zuckerman v City of New York, 49 N.Y.2d 557, 562).
Here, although the defendant presented some evidence that the two companies were related, that evidence fell far short of establishing the defendant's entitlement to judgment as a matter of law. There clearly exists a triable issue of fact as to whether the defendant was such an "alter ego" of Linen as to warrant a finding that it is entitled to a defense of workers' compensation (see, Buchner v Pines Hotel, 87 A.D.2d 691, affd 58 N.Y.2d 1019; Bradford v Air La Carte, 79 A.D.2d 553; Thomas v Maigo Corp., 37 A.D.2d 754; Daisernia v Co-Operative G.L.F. Holding Corp., 26 A.D.2d 594; Mastey v Mancusi, 122 Misc.2d 119). "The defendant has the burden of establishing the defense of workers' compensation by a preponderance of the credible evidence" (Williams v Forbes, 175 A.D.2d 125, 126). Mangano, P.J., Sullivan, Balletta and Ritter, JJ., concur.