| Masley v Herlew Realty Corp. |
| 2007 NY Slip Op 09003 [45 AD3d 653] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Debra Masley, Respondent, v Herlew Realty Corp. et al.,Appellants. |
—[*1] Finger & Finger, White Plains, N.Y. (Dorothy M. Finger and Daniel Finger of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Giacomo, J.), entered November 6, 2006, which deniedtheir motion for summary judgment dismissing the complaint on the ground that the action isbarred by the exclusivity provisions of the Workers' Compensation Law.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint, since the defendants failed to establish as a matter of law that theplaintiff's action against them was barred by her receipt of workers' compensation benefits fromher employer. In this regard, the defendants came forward with no evidence to suggest theexistence of either a joint venture or an alter-ego relationship between them and the plaintiff'semployer (see e.g. Vita v New YorkWaste Servs., LLC, 34 AD3d 559 [2006]; Longshore v Davis Sys. of CapitalDist., 304 AD2d 964 [2003]; Mertz v Seibel Realty, 265 AD2d 925 [1999];Rosenburg v Angiuli Buick, 220 AD2d 654 [1995]; Kaplan v Bayley SetonHosp., 201 AD2d 461 [1994]).
Furthermore, the contention of the defendant Herlew, LLC (hereinafter the LLC) that it is acoemployee of the plaintiff and therefore entitled to the workers' compensation defense(see Workers' Compensation Law § 29 [6]) is without merit. The LLC, which ownsthe property where the plaintiff was injured, is not an officer of the corporation which employedthe plaintiff; hence, it [*2]is not a fellow employee of the plaintiff(see O'Connor v Spencer [1997] Inv.Ltd. Partnership, 2 AD3d 513 [2003]; Virga v Medi-Tech Intl. Corp., 296 AD2d546 [2002]; Richardson v Benoit's Elec., 254 AD2d 798 [1998]; Casas v 559 WarrenSt. Realty Corp., 211 AD2d 742 [1995]).
The defendants' remaining arguments are either improperly raised for the first time on appeal,or without merit. Prudenti, P.J., Spolzino, Fisher and Dillon, JJ., concur.