| Alfonso v Pacific Classon Realty, LLC |
| 2012 NY Slip Op 08468 [101 AD3d 768] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Ciro H. Alfonso, Respondent, v Pacific Classon Realty,LLC, et al., Appellants. |
—[*1] Todd J. Krouner, Chappaqua, N.Y. (Diana M. Carlino of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Kings County (Partnow, J.), dated September 20, 2011, as deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Pacific Classon Realty, LLC, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff allegedly sustained injuries while, in the course of his employment with D.S.Imports, he was attempting to remove a heating unit from the ceiling of certain premises leased,at the time of the accident, by the defendant Delmar Sales, Inc. (hereinafter Delmar Sales) andpurchased, one day after the accident, by the defendant Pacific Classon Realty, LLC (hereinafterPCR).
The Supreme Court should have granted that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against PCR. The defendantsestablished PCR's prima facie entitlement to judgment as a matter of law by submitting evidencewhich established that PCR did not own the premises at the time of the plaintiff's accident, andhad no connection with the premises prior to its acquisition of title one day after the accidentoccurred. The plaintiff's arguments in opposition were based solely upon surmise, conjecture, andsuspicion, and were insufficient to raise a triable issue of fact to defeat that branch of thedefendants' motion which was for summary judgment dismissing the complaint insofar asasserted against PCR (see e.g. Grassi &Co., CPAs, P.C. v Janover Rubinroit, LLC, 82 AD3d 700 [2011]; Rendon v Castle Realty, 28 AD3d532, 533 [2006]).
However, the Supreme Court properly denied that branch of the defendants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against Delmar Sales.Delmar Sales contended that the causes of action against it were barred by the Workers'Compensation Law because the plaintiff was its special employee. "[T]he receipt of workers'compensation benefits is the exclusive remedy that a worker may obtain against an employer forlosses suffered as a result of an injury sustained in the course of employment" (Slikas v Cyclone Realty, LLC, 78AD3d 144, 150 [2010]; see Workers' Compensation Law §§ 10, 11, 29[6]; Reich v Manhattan Boiler & Equip. Corp., 91 NY2d 772 [1998]; Hofweber v Soros, 57 AD3d 848[2008]; Pereira v St. Joseph'sCemetery, 54 AD3d 835 [2008]). " 'A person may be deemed to have more than oneemployer for purposes of the Workers' Compensation Law, a general employer and a specialemployer' " (Slikas v Cyclone Realty, LLC, 78 AD3d at 150, quoting Schramm v Cold Spring Harbor Lab.,17 AD3d 661, 662 [2005]; see Thompson v Grumman Aerospace Corp., 78 NY2d553, 557 [1991]). Moreover, where facts " 'demonstrate the plaintiff's dual employment status,whether the relationship between two corporate entities is that of joint venture[r]s, parent andsubsidiary, corporate affiliates, or general and special employers, immunity will be extended toall the plaintiff's employers' " (Degale-Selier v Preferred Mgt. & Leasing Corp., 57 AD3d 825,825 [2008], quoting Levine v Lee's Pontiac, 203 AD2d 259, 261 [1994]).
Here, the plaintiff received workers' compensation benefits from his employer, D.S. Imports.The defendants, however, failed to make a prima facie showing that the plaintiff was a specialemployee of Delmar Sales (see Slikas vCyclone Realty, LLC, 78 AD3d 144 [2010]; Soto v Akam Assoc., Inc., 61 AD3d 665 [2009]; Degale-Selier v Preferred Mgt. & LeasingCorp., 57 AD3d 825 [2008]; Kramer v NAB Constr. Corp., 250 AD2d 818[1998]), and failed to submit sufficient evidentiary proof to establish that Delmar Sales was analter ego of, or engaged in a joint venture with, D.S. Imports (see Slikas v Cyclone Realty, LLC, 78 AD3d 144 [2010]; Degale-Selier v Preferred Mgt. & LeasingCorp., 57 AD3d 825 [2008]; Masley v Herlew Realty Corp., 45 AD3d 653 [2007]). Accordingly,the Supreme Court properly denied that branch of the defendants' motion which was for summaryjudgment dismissing the complaint insofar as asserted against Delmar Sales.
The Supreme Court also properly denied those branches of the defendants' motion whichwere for summary judgment dismissing the causes of action alleging violations of Labor Law§§ 240 (1) and 241 (6) against the defendant Delmar Sales, made on the ground thatDelmar Sales was not a contractor or owner within the meaning of the Labor Law. Labor Law§§ 240 (1) and 241 (6) apply to owners, contractors, and their agents (seeLabor Law §§ 240 [1]; 241 [6]; Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593[2011]). A party is deemed to be an agent of an owner or contractor under the Labor Law when ithas the " 'ability to control the activity which brought about the injury' " (Guclu v 900 EighthAve. Condominium, LLC, 81 AD3d at 593, quoting Walls v Turner Constr. Co., 4 NY3d 861, 863-864 [2005]; seeRussin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]). A lessee of real propertythat hires a contractor and has the right to control the work at the property is considered to be anowner within the meaning of the law (see Guclu v 900 Eighth Ave. Condominium, LLC,81 AD3d at 593; see also Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320).Moreover, the term owner "may also apply to a lessee, where the lessee has the right or authorityto control the work site, even if the lessee did not hire the general contractor" (Zaher v Shopwell, Inc., 18 AD3d339, 339-340 [2005]; see Bart v Universal Pictures, 277 AD2d 4 [2000]). The keyquestion is whether the defendant had the right to insist that proper safety practices werefollowed (see Grilikhes v InternationalTile & Stone Show Expos, 90 AD3d 480 [2011]; Bart v Universal Pictures, 277AD2d 4 [2000]; Copertino v Ward, 100 AD2d 565 [1984]). Here, Delmar Sales failed toestablish, prima facie, that it was not an owner or agent within the meaning of the Labor Law (see Zaher v Shopwell, Inc., 18 AD3d339 [2005]).
The plaintiff's remaining contention is without merit. Mastro, J.P., Skelos, Florio andDickerson, JJ., concur.