| Lee v Arnan Dev. Corp. |
| 2010 NY Slip Op 07655 [77 AD3d 1261] |
| October 28, 2010 |
| Appellate Division, Third Department |
| Anthony Lee et al., Respondents, v Arnan DevelopmentCorporation, Doing Business as Oneonta Block Company, Appellant. |
—[*1] Scarzafava & Basdekis, L.L.P., Oneonta (John F. Scarzafava of counsel), forrespondents.
Cardona, P.J. Appeal from an order of Supreme Court (Coccoma, J.), entered July 27, 2009in Otsego County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff Anthony Lee (hereinafter plaintiff) was hired by Otsego Ready Mix (hereinafter theemployer) as a cement truck operator. He asserts that on August 4, 2006, following a delivery toOneonta Block Company, he began to clean out the truck's chutes in the area where he hadpreviously been directed to do so after completing deliveries to Oneonta. Plaintiff noted that theground in this area was soft, with quantities of fresh, loose dirt and nonuniform chunks ofconcrete. According to plaintiff, in the midst of the cleaning process, he descended by ladderfrom the back of the truck and attempted to step onto the ground. He claims that as he did so, thesoil shifted beneath his left foot, which sank approximately six to eight inches into the softground. This caused his knee to twist, resulting in injuries. Thereafter, plaintiff filed a workers'compensation claim with the employer and his medical expenses were paid. In March 2008,plaintiff and his wife, derivatively, commenced this action against defendant, doing business asOneonta, alleging, among other things, negligence. Defendant moved for summary judgmentdismissing the complaint and Supreme Court denied the motion, prompting this appeal.[*2]
Initially, defendant asserts that it is the alter ego of theemployer and, therefore, plaintiffs are barred from recovering because workers' compensation istheir exclusive remedy (see Workers' Compensation Law § 11). Contrary todefendant's argument, however, the record does not establish that contention. Significantly,"[c]losely associated corporations, even ones that share directors and officers, will not beconsidered alter egos of each other if they were formed for different purposes, neither is asubsidiary of the other, their finances are not integrated, assets are not commingled, and theprincipals treat the two entities as separate and distinct" (Longshore v Davis Sys. of CapitalDist., 304 AD2d 964, 965 [2003]; see Armstrong v Foxcroft Nurseries, 283 AD2d814, 815 [2001]; Wernig v Parents & Bros. Two, 195 AD2d 944, 945-946 [1993]).
Here, it is undisputed that defendant and the employer are owned by the same individual,Robert Harlem, who testified at his deposition that he is the owner, president and sole officer offive different entities, including the employer and Oneonta. While it appears that each entity mayhave utilized goods and services from the others at certain times and, for instance, purchasedjoint workers' compensation coverage, the record shows that the companies were not subsidiariesof one another and were each formed for distinct purposes (see Buchner v Pines Hotel, 87AD2d 691, 692 [1982], affd 58 NY2d 1019 [1983]; see also Allen v OberdorferFoundries, 192 AD2d 1077, 1078 [1993]).[FN*]Furthermore, each company maintained its own office space in separate locations and Harlemmade clear that the employer's payroll and bank account were separate from the other entities.Nor was there evidence of a joint venture (see Barker v Menard, 237 AD2d 839, 841[1997], lv denied 90 NY2d 804 [1997]; Buchner v Pines Hotel, 87 AD2d at 692;Chalmers v Eaton Corp., 71 AD2d 721, 722 [1979]). Given this proof, Supreme Courtcorrectly denied summary judgment to defendant on this issue.
Next, defendant argues that Supreme Court erred in failing to grant its motion for summaryjudgment on the merits. "To demonstrate its entitlement to summary judgment, defendant was'required to establish as a matter of law that [it] maintained the property in question in areasonably safe condition and that [it] neither created the allegedly dangerous condition existingthereon nor had actual or constructive notice thereof' " (Godfrey v Town of Hurley, 68 AD3d 1527, 1527 [2009], quotingRichardson v Rotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; see Braudy v Best Buy Co., Inc., 63AD3d 1092 [2009]; Candelario vWatervliet Hous. Auth., 46 AD3d 1073, 1074 [2007]; Mokszki v Pratt, 13 AD3d 709,710 [2004]).
This record supports the conclusion that defendant failed to meet its initial burden on thismotion. Significantly, Harlem acknowledged that from 1982 to 2005, Oneonta dumped chunks ofconcrete blocks and bricks that had been broken in the manufacturing process directly onto theground in the area where plaintiff alleges the accident occurred. Harlem stated that, afterdumping of this debris was discontinued, the area was leveled with a bulldozer and, thereafter,finer "aggregate" material was periodically placed on top. Harlem also noted that cement truckdrivers were required to wash out the chutes after a delivery was finished, and this procedurewould sometimes occur in the subject area. Although Harlem denied actual or constructive noticeof any hazard by testifying that he was unaware of any footing problems in [*3]the area and received no other complaints regarding injuries,defendant's proof failed to establish, as a matter of law, that it maintained its premises in areasonably safe condition and did not create a dangerous condition when it designated cementtruck clean-out be performed in the same area where cement debris was dumped and covered inwith loose fill. Accordingly, summary judgment was properly denied (see Knapp v Golub Corp., 72 AD3d1260, 1262 [2010]; Hagin v Sears,Roebuck & Co., 61 AD3d 1264, 1265 [2009]).
The remaining arguments raised by defendant have been examined and found to beunpersuasive.
Mercure, Spain, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: For example, the employerproduces and delivers concrete, while Oneonta produces masonry products which happen toutilize concrete from the employer.