Vita v. New York Waste Services, LLC

Decision Date14 November 2006
Docket Number2005-10990.
Citation824 N.Y.S.2d 177,34 A.D.3d 559,2006 NY Slip Op 08237
PartiesVINCENT J. VITA et al., Respondents, v. NEW YORK WASTE SERVICES, LLC, et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Ordered that the order is affirmed insofar as appealed from, with costs.

On their motion, inter alia, pursuant to CPLR 3211 (b) to dismiss the sixth, seventh, eighth, and eleventh affirmative defenses, the plaintiffs bore the burden of demonstrating that those defenses were without merit as a matter of law (see Santilli v Allstate Ins. Co., 19 AD3d 1031, 1032 [2005]; Town of Hempstead v Lizza Indus., 293 AD2d 739, 740 [2002]). Contrary to the defendants' contention, the Supreme Court properly granted the motion with respect to those defenses based on the exclusivity provisions of the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29 [6]), since the plaintiffs sustained their burden as to those defenses. In this regard, the plaintiffs submitted overwhelming affidavit and documentary evidence demonstrating that the injured plaintiff was employed by and performed services for Allied Waste Services, Inc. (hereinafter Allied Waste), and its subsidiary, Island Waste Services, at the time he was injured by a vehicle owned by the defendant New York Waste Services, LLC (hereinafter New York Waste), and operated by the defendant Gene R. Brewer, an employee of New York Waste. In response, the defendants merely came forward with conclusory assertions that the injured plaintiff was an employee of New York Waste, and their affidavits and other submissions were devoid of any evidence that New York Waste was an alter ego of Allied Waste (see e.g. Longshore v Davis Sys. of Capital Dist., 304 AD2d 964 [2003]; Rosenburg v Angiuli Buick, 220 AD2d 654 [1995]; Kaplan v Bayley Seton Hosp., 201 AD2d 461 [1994]). Similarly, the defendants presented no evidence suggesting that the two corporations were engaged in a joint venture (see generally Buchner v Pines Hotel, 87 AD2d 691 [1982], affd 58 NY2d 1019 [1983]) or that the...

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