| Degale-Selier v Preferred Mgt. & Leasing Corp. |
| 2008 NY Slip Op 10116 [57 AD3d 825] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Dona Degale-Selier, Respondent, v Preferred Management &Leasing Corp. et al., Appellants, et al., Defendant. |
—[*1] Subin Associates, LLP, New York, N.Y. (Brooke Lombardi of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Preferred Management &Leasing Corp. and Madeline Antequera appeal from an order of the Supreme Court, Kings County (F.Rivera, J.), entered February 20, 2008, which denied their motion for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
"A person may be deemed to have more than one employer for purposes of the Workers'Compensation Law, a general employer and a special employer" (Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005];see Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]). Where "the facts. . . demonstrate the plaintiff's dual employment status, whether the relationship betweentwo corporate entities is that of joint ventures, parent and subsidiary, corporate affiliates, or general andspecial employers, immunity will be extended to all the plaintiff's employers where the plaintiff hasaccepted Workers' Compensation benefits" (Levine v Lee's Pontiac, 203 AD2d 259, 261[1994]).
A "special employee" is defined as "one who is transferred for a limited time of whatever durationto the service of another" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557[1991]). Although a person's status as a special employee is generally a question of fact, it may bedetermined as a matter of law "where the particular, undisputed critical facts compel that conclusion andpresent no triable issue of fact" (id. at 558).[*2]
The plaintiff applied for and received workers' compensationbenefits from her employer 21st Avenue Transportation Co., Inc. (hereinafter 21st Avenue) (seeO'Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633 [2008]). She then commenced thisaction against, among others, Preferred Management & Leasing Corp. (hereinafter Preferred) andMadeline Antequera (hereinafter together the appellants). The Supreme Court properly denied theappellants' motion for summary judgment dismissing the complaint insofar as asserted against thembecause they failed to make a prima facie showing that the plaintiff was the special employee ofPreferred (see Thompson v Grumman Aerospace Corp., 78 NY2d 553; Kramer v NABConstr. Corp., 250 AD2d 818 [1998]). In addition, the appellants failed to submit sufficientevidentiary proof to establish that Preferred was an alter ego of, or engaged in a joint venture with, 21stAvenue (see Masley v Herlew RealtyCorp., 45 AD3d 653 [2007]; Mournet v Educational & Cultural Trust Fund of Elec.Indus., 303 AD2d 474 [2003]; Esteves v We Transp., 286 AD2d 365 [2001]). Prudenti,P.J., Dillon, Eng and Leventhal, JJ., concur.