Samuel v. Fourth Ave. Associates, LLC

• Decision Date: 20 July 2010
• Citation: 75 A.D.3d 594,906 N.Y.S.2d 67
• Parties: Riki SAMUEL, et al., appellants, v. FOURTH AVENUE ASSOCIATES, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 67

75 A.D.3d 594

Riki SAMUEL, et al., appellants,

v.FOURTH AVENUE ASSOCIATES, LLC, respondent.

Supreme Court, Appellate Division, Second Department, New York.

July 20, 2010.

Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser of counsel), for appellants.

Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Naomi M. Taub], of counsel), for respondent.

PETER B. SKELOS, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their 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 dated January 9, 2009, denying the defendant's motion for summary judgment dismissing the complaint, and thereupon granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and, upon renewal, the order dated January 9, 2009, denying the defendant's motion for summary judgment dismissing the complaint is adhered to.

The protection against lawsuits brought by injured workerswhich is afforded to employers by Workers' Compensation Law §§ 11and29(6) also extends to entities which are alter egos of the entity which employs the plaintiff( seeCappella v. Suresky at Hatfield Lane, LLC,55 A.D.3d 522, 522-523, 864 N.Y.S.2d 316;Hageman v. B & G Bldg. Servs., LLC,33 A.D.3d 860, 861, 823 N.Y.S.2d 211).A defendant may establish itself as the alter ego of a plaintiff's employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity ( seeCappella v. Suresky at Hatfield Lane, LLC,55 A.D.3d at 523, 864 N.Y.S.2d 316;Ortega v. Noxxen Realty Corp.,26 A.D.3d 361, 362, 809 N.Y.S.2d 546;Crespo v. Pucciarelli,21 A.D.3d 1048, 1049-1050, 803 N.Y.S.2d 586;Thompson v. Bernard G. Janowitz Constr. Corp.,301 A.D.2d 588, 754 N.Y.S.2d 50;Dennihy v. Episcopal Health Servs.,283 A.D.2d 542, 543, 724 N.Y.S.2d 768;Ramnarine v. Memorial Ctr. for Cancer & Allied Diseases,281 A.D.2d 218, 722 N.Y.S.2d 493).However, a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other ( seeMournet v. Educational & Cultural Trust Fund of Elec. Indus.,303 A.D.2d 474, 475, 756 N.Y.S.2d 433;Constantine v. Premier Cab Corp.,295 A.D.2d 303, 304, 743 N.Y.S.2d 516;Rosenburg v. Angiuli Buick,220 A.D.2d 654, 655, 632 N.Y.S.2d 658).Here, because the defendant failed to make a prima facie showing either that it and the plaintiff's employer operated as a single integrated entity or that either company controlled the day-to-day operations of the other, the Supreme Court erred in awarding the defendant summary judgment dismissing 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 A.D.2d at 475, 756 N.Y.S.2d 433;Constantine v. Premier Cab Corp.,295 A.D.2d at 304, 743 N.Y.S.2d 516;Rosenburg v. Angiuli Buick,220 A.D.2d at 655, 632 N.Y.S.2d 658;but seeAnduaga v. AHRC NYC New Projects, Inc.,57 A.D.3d 925, 869 N.Y.S.2d 801).

We also reject the defendant's contention that the plaintiff was its "special employee."It has long been established that a worker "may be in the general employment of one master and the special employment of another"( Murray v. Union Ry. Co. of N.Y. City,229 N.Y. 110, 112-113, 127 N.E. 907).Such a relationship is formed where a worker is"transferred for a limited time of whatever duration to the service of another"( Thompson v. Grumman Aerospace Corp.,78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355).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, 578 N.Y.S.2d 106, 585 N.E.2d 355).In analyzing the question of special employment, the "[e]ssential" question is whether there is a "working...