Mendoza v Velastate Corp.

Mendoza v Velastate Corp. 2012 NY Slip Op 06545 Decided on October 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 2, 2012
Andrias, J.P., Friedman, Acosta, Freedman, Richter, JJ.
7312 310188/08 84087/09

[*1]Osvaldo Mendoza, Plaintiff-Appellant,

v

Velastate Corp., Defendant-Respondent. Velastate Corp., Third-Party Plaintiff-Respondent, Thrift Land USA of Yonkers Inc., Third-Party Defendant-Respondent.




Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac
of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York
(Patrick J. Lawless of counsel), for Velastate Corp., respondent.
Law Office of James J. Toomey, New York (Eric P. Tosca of
counsel), for Thrift Land USA of Yonkers Inc., respondent.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered August 10, 2011, which granted defendant's cross motion for summary judgment dismissing the complaint and denied plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim, unanimously modified, on the law, to deny the cross motion, and otherwise affirmed, without costs.

Plaintiff was injured while engaged in his duties as an employee of third-party defendant Thrift Land USA of Yonkers, Inc. (Thrift), which operates a warehouse on property leased from defendant/third-party plaintiff Velastate Corp. Plaintiff moved for summary judgment as to liability on his claim under Labor Law § 240(1), and Velastate cross-moved for summary judgment dismissing the complaint on the ground that it was an alter ego of plaintiff's employer (Thrift) and, as such, immune from being sued by plaintiff under Worker's Compensation Law §§ 11 and 29(6) (see Shine v Duncan Petroleum Transp., 60 NY2d 22, 28 [1983] [Cooke, Ch. J., concurring]). Supreme Court denied plaintiff's motion and granted Velastate's cross motion, and plaintiff has appealed.

The cross motion should have been denied. In this action, Velastate is asserting a third-party claim for indemnity and contribution against Thrift. The pendency of a claim asserted in litigation by one corporation against the other suggests, on its face, that the entities have at least [*2]some adverse interests and, in the absence of any explanation, it is impossible to conclude as a matter of law that Velastate and Thrift, however
they may be related, "function[] as one company" and "share . . . a common purpose" (Carty v East 175th St. Hous. Dev. Fund Corp., 83 AD3d 529 [1st Dept 2011]) to such an extent that they should be considered alter egos.

Since it cannot be determined at this juncture whether Velastate is entitled to immunity under the Worker's Compensation Law, plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim must be addressed on the merits. We find that the record raises issues of fact as to whether plaintiff was the sole proximate cause of his injuries. Specifically, the affidavits and depositions in the record give conflicting accounts of whether plaintiff freely chose the equipment he was using for his work when he was injured, used the equipment with his manager's knowledge and tacit approval, or was directed to use the equipment by his manager. Accordingly, we affirm the denial of plaintiff's summary judgment motion.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2012

CLERK