| George v IBC Sales Corp. |
| 2010 NY Slip Op 06567 [76 AD3d 950] |
| September 14, 2010 |
| Appellate Division, Second Department |
| Saramma George, Individually and as Administratrix of the Estateof George Kuruvilla, Deceased, Respondent, v IBC Sales Corporation, Appellant, et al.,Defendants. |
—[*1] Henry Stanziale, Mineola, N.Y. (Thomas Stanziale of counsel), for respondent.
In an action to recover damages for wrongful death, etc., the defendant IBC SalesCorporation appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (McCarty III, J.), dated September 11, 2009, as denied its cross motion forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant IBC Sales Corporation (hereinafter IBC Sales) owned a bakery thrift store inOzone Park (hereinafter the thrift store). At the thrift store, IBC Sales distributed and sold breadand snack cakes produced by nonparty Interstate Brands Corporation (hereinafter Brands). IBCSales is a 100% owned subsidiary of Brands. Brands had previously owned the thrift store, but"contributed" it to IBC Sales in 2004.
On September 24, 2005, the plaintiff's decedent was working at the thrift store when "JohnDoe," an unidentified male, entered the store, and shot and killed the plaintiff's decedent, anemployee of Brands assigned to work in the thrift store. Brands paid the plaintiff's decedent'ssalary.
According to an affidavit executed by an officer and vice-president of Brands who was alsothe vice-president of IBC Sales, Brands and IBC Sales executed a "MasterManagement/Employment Services Agreement" (hereinafter the Agreement), dated December14, 2005, subsequent to the death of the plaintiff's decedent, which was to be effective as of May30, 2004, prior to the death of the plaintiff's decedent, pursuant to which Brands, as a generalemployer, agreed to provide personnel to IBC Sales as special employees and IBC Sales wouldprovide services to Brands. The Agreement further stated that both IBC Sales and Brandsintended that when special employees were working for IBC Sales, such persons would be"considered special or borrowed employees," but when an employee of Brands was not workingfor IBC Sales, Brands would provide direction and control. The Agreement also provided thatBrands was to provide all compensation to IBC Sales's special employees.[*2]
In his affidavit, Brands's human resources managerattested that a number of Brands's staff worked at the thrift store, and the plaintiff's decedent wassuch an employee.
The plaintiff, the decedent's wife, filed a claim for benefits with the New York StateWorkers' Compensation Board, which found that the plaintiff's decedent suffered a work-relateddeath, and directed Brands's workers' compensation insurer to pay benefits to the plaintiff.
The plaintiff thereafter commenced this action against IBC Sales, among others, seekingdamages, inter alia, for wrongful death. The plaintiff moved to dismiss IBC Sales's workers'compensation-based affirmative defenses, and IBC Sales cross-moved for summary judgmentdismissing the complaint insofar as asserted against it. In the order appealed from, the SupremeCourt denied both the motion and the cross motion. IBC Sales appeals from so much of the orderas denied its cross motion.
The Supreme Court properly determined that IBC Sales failed to meet its burden inestablishing its prima facie entitlement to judgment as a matter of law premised upon theexclusivity provision of the Workers' Compensation Law (see Zuckerman v City of NewYork, 49 NY2d 557 [1980]).
"If a corporation is the alter ego of or the joint venturer with the injured plaintiff's employer,and/or the corporate veil between the employer and the defendant should be pierced, thenworkers' compensation is the plaintiff's exclusive remedy against the corporation" (Romano vCurry Auto Group, 301 AD2d 509, 510 [2003]). "In order for corporations to be consideredalter egos, 'there must be direct intervention by the parent in the management of the subsidiary tosuch an extent that "the subsidiary's paraphernalia of incorporation, directors and officers" arecompletely ignored' " (Allen v Oberdorfer Foundries, 192 AD2d 1077, 1078 [1993],quoting Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163 [1980]). Here, aquestion of fact exists as to whether IBC Sales is an "alter ego" of Brands (see Alini v Lucent Tech., Inc., 59AD3d 471, 472 [2009]; Longshore v Davis Sys. of Capital Dist., 304 AD2d 964,964-965 [2003]; Cruceta v Funnel Equities, 286 AD2d 747, 748 [2001]).
In addition, IBC Sales failed to establish as a matter of law that the plaintiff's decedent wasits special employee (see Alini v Lucent Tech. Inc., 59 AD3d at 472). "A specialemployee is . . . one who is transferred for a limited time of whatever duration tothe service of another" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557[1991]). "[A] person's categorization as a special employee is usually a question of fact"(id. at 557). Many factors are considered in determining if a special employmentrelationship exists, such as who controls and directs the manner, details, and ultimate result ofthe employee's work, and whether the employee was aware of and consented to the specialemployment relationship, although no one factor is determinative (id.; see Bernier v Gabriel Contr., 6 AD3d369, 371 [2004]; D'Amato v Access Mfg., 305 AD2d 447, 448 [2003]). Here, IBCSales failed to submit any evidence as to which entity directed the manner, details, and ultimateresult of the plaintiff's decedent's work, or that the plaintiff's decedent was aware of andconsented to the arrangement. Moreover, the Agreement, enacted subsequent to the plaintiff'sdecedent's death, failed to establish that a special employment relationship existed as a matter oflaw at the time of the plaintiff's decedent's death. Accordingly, the Supreme Court properlydenied IBC Sales's cross motion for summary judgment dismissing the complaint insofar asasserted against it. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur.