| Samuel v Fourth Ave. Assoc., LLC |
| 2010 NY Slip Op 06164 [75 AD3d 594] |
| July 20, 2010 |
| Appellate Division, Second Department |
| Riki Samuel et al., Appellants, v Fourth AvenueAssociates, LLC, Respondent. |
—[*1] Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn andNaomi M. Taub], of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.),entered April 10, 2009, as, upon renewal, in effect, vacated a prior order of the same court datedJanuary 9, 2009, denying the defendant's motion for summary judgment dismissing thecomplaint, and thereupon granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and, uponrenewal, the order dated January 9, 2009, denying the defendant's motion for summary judgmentdismissing the complaint is adhered to.
The protection against lawsuits brought by injured workers which is afforded to employersby Workers' Compensation Law §§ 11 and 29 (6) also extends to entities which arealter egos of the entity which employs the plaintiff (see Cappella v Suresky at Hatfield Lane, LLC, 55 AD3d 522,522-523 [2008]; Hageman v B & GBldg. Servs., LLC, 33 AD3d 860, 861 [2006]). A defendant may establish itself as thealter ego of a plaintiff's employer by demonstrating that one of the entities controls the other orthat the two operate as a single integrated entity (see Cappella v Suresky at Hatfield Lane,LLC, 55 AD3d at 523; Ortega vNoxxen Realty Corp., 26 AD3d 361, 362 [2006]; Crespo v Pucciarelli, 21 AD3d 1048, 1049-1050 [2005];Thompson v Bernard G. Janowitz Constr. Corp., 301 AD2d 588 [2003]; Dennihy vEpiscopal Health Servs., 283 AD2d 542, 543 [2001]; Ramnarine v Memorial Ctr. forCancer & Allied Diseases, 281 AD2d 218 [2001]). However, a mere showing that theentities are related is insufficient where a defendant cannot demonstrate that one of the entitiescontrols the day-to-day operations of the other (see Mournet v Educational & Cultural TrustFund of Elec. Indus., 303 AD2d 474, 475 [2003]; Constantine v Premier Cab Corp.,295 AD2d 303, 304 [2002]; Rosenburg v Angiuli Buick, 220 AD2d 654, 655 [1995]).Here, because the defendant failed to make a prima facie showing either that it and the plaintiff'semployer operated as a single integrated entity or that either company controlled the day-to-dayoperations of the other, the Supreme Court erred in awarding the defendant summary judgmentdismissing the complaint on the basis that it was the alter ego of the plaintiff's employer (seeMournet v Educational & Cultural Trust Fund of Elec. Indus., 303 AD2d at 475;Constantine v Premier Cab Corp., 295 AD2d at 304; Rosenburg v Angiuli Buick,220 AD2d at 655; but see Anduaga vAHRC NYC New Projects, Inc., 57 AD3d 925 [2008]).
We also reject the defendant's contention that the plaintiff was its "special employee." It haslong been established that a worker "may be in the general employment of one master and thespecial employment of another" (Murray v Union Ry. Co. of N.Y. City, 229 NY 110,112-113 [1920]). Such a relationship is formed where a worker is "transferred for a limited timeof whatever duration to the service of another" (Thompson v Grumman AerospaceCorp., 78 NY2d 553, 557 [1991]). Although "no one [factor] is decisive," the question of"who controls and directs the manner, details and ultimate result of the employee's work" is a"significant and weighty feature" of the analysis (id. at 558). In analyzing the question ofspecial employment, the "[e]ssential" question is whether there is a "working relationship withthe injured plaintiff sufficient in kind and degree so that the third party, or the third party'semployer, may be deemed plaintiff's employer" (Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]). Wherea defendant establishes that a plaintiff is its special employee, it may then claim the protection ofworkers' compensation exclusivity (seeGraziano v 110 Sand Co., 50 AD3d 635, 637 [2008]).
Here, the defendant failed to make a prima facie showing that it controlled the plaintiff'swork or that the plaintiff was its special employee on another theory (see Fung v JapanAirlines Co., Ltd., 9 NY3d at 359; Thompson v Grumman Aerospace Corp., 78NY2d at 558; Degale-Selier v PreferredMgt. & Leasing Corp., 57 AD3d 825, 826 [2008]; Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d 911, 913 [2007]).Accordingly, this contention does not supply an alternative ground for affirming the SupremeCourt's order (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539[1983]). Skelos, J.P., Eng, Hall and Lott, JJ., concur.