Opinion
02-22-2017
Jackie MOSES, appellant, v. B&E LORGE FAMILY TRUST, etc., defendant, Clean Rite Centers—Flatbush Avenue, LLC, respondent.
Bornstein & Emanuel, P.C. (Neil R. Finkston, Great Neck, NY, of counsel), for appellant. Tarshis & Hammerman, LLP (Carol R. Finocchio, New York, NY [Marie R. Hodukavich ], of counsel), for respondent.
Bornstein & Emanuel, P.C. (Neil R. Finkston, Great Neck, NY, of counsel), for appellant.
Tarshis & Hammerman, LLP (Carol R. Finocchio, New York, NY [Marie R. Hodukavich ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated November 9, 2015, as granted the motion of the defendant Clean Rite Centers—Flatbush Avenue, LLC, in effect, for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Clean Rite Centers—Flatbush Avenue, LLC, in effect, for summary judgment dismissing the complaint insofar as asserted against it is denied.
The plaintiff allegedly fell and sustained injuries as a result of a defective flooring condition while working as an overnight maintenance man at a laundromat in Brooklyn. He commenced this action to recover damages for personal injuries against the owner of the premises, as well as the holder of a lease for the premises, the defendant Clean Rite Centers—Flatbush Avenue, LLC (hereinafter CRC–Flatbush).
At the time of the accident, the plaintiff was employed by nonparty CRC–Management Co., LLC (hereinafter CRC–Management), and, after the accident, he sought Workers' Compensation benefits from CRC–Management. CRC–Flatbush moved, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff's causes of action were barred by the exclusive remedy provisions of the Workers' Compensation Law. Among other things, CRC–Flatbush argued that it was "part of a single integrated entity" along with CRC–Management since they were both subsidiaries of nonparty Clean Rite Centers, LLC. The Supreme Court granted the motion, and the plaintiff appeals.
"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 Haines v. Verazzano of Dutchess, LLC, 130 A.D.3d 871, 872, 12 N.Y.S.3d 906 ; cf. Smith v. Roman Catholic Diocese of Syracuse, 252 A.D.2d 805, 806, 677 N.Y.S.2d 183 ). "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 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 quotation marks 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, CRC–Flatbush failed to make a prima facie showing either that it and the plaintiff's employer, CRC–Management, operated as a single integrated entity, or that either company controlled the day-to-day operations of the other (see 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 ; Hughes v. Solovieff Realty Co., L.L.C., 19 A.D.3d 142, 143, 796 N.Y.S.2d 354 ; Constantine v. Premier Cab Corp., 295 A.D.2d at 304, 743 N.Y.S.2d 516 ; see also Almonte v. Western Beef, Inc., 21 A.D.3d 514, 515–516, 800 N.Y.S.2d 739 ). Accordingly, the Supreme Court should have denied CRC–Flatbush's motion, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that it was the alter ego of the plaintiff's employer, 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 ).