Truglio v HHM Realty Corp.

[*1] Truglio v HHM Realty Corp. 2009 NY Slip Op 52373(U) [25 Misc 3d 138(A)] Decided on November 19, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-851 Q C.

Margaret Truglio, Respondent,

against

HHM Realty Corp. and HHM ASSOCIATES, INC., Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 11, 2008. The order denied defendants' motion for summary judgment.

ORDERED that the order is affirmed without costs.

Plaintiff, an employee of Maspeth Supply Co., LLC (Maspeth), brought the instant personal injury action against HHM Realty Corp. (Realty) and HHM Associates, Inc. (Associates), alleging that after a heavy rain, she slipped and fell on water that had accumulated in a corridor on the premises of 55-14 48th Street, Maspeth, New York 11378, where she was employed.

Thereafter, defendants moved for summary judgment dismissing the complaint, claiming, inter alia, that at the time of the accident, there was a joint venture or alter ego relationship between them and plaintiff's employer, which barred the action against them based upon the exclusivity provisions of section 11 of the Workers' Compensation Law. In support of the motion, defendants submitted the deposition transcript and an affidavit of Harvey Blatt, a part owner of Maspeth, a corporation which performed construction work. Mr. Blatt was also president and part owner of defendant Realty, a corporation which owned the property where plaintiff was employed, and of defendant Associates, a corporation which transported materials to and from Maspeth's job sites. He stated that the corporations had the same principals and management, were operated jointly, and served a common purpose. Plaintiff opposed the motion, contending that whenever it rained, water accumulated on the floor of the corridor where the accident occurred, and that on several occasions prior to the accident, she had complained about the condition to other Maspeth employees. The Civil Court denied the motion, finding that there were triable issues of fact as to whether defendants had actual or constructive notice of the hazardous condition prior to plaintiff's accident, since all three entities occupied the same premises and since Mr. Blatt was associated with all three of them. The instant appeal by defendants ensued.

Generally, an employee injured during the course of employment is barred from maintaining a common law personal injury action against his or her employer by the exclusivity provisions of Workers' Compensation Law § 11. The defense afforded to employers by the [*2]exclusivity provisions of the Workers' Compensation Law may also extend to other entities (see Cappella v Suresky at Hatfield Lane, LLC, 55 AD3d 522 [2008]). Defendants herein, in order to successfully move for summary judgment based upon the exclusivity defense of the Workers' Compensation Law, were required to show, prima facie, the existence of either a joint venture or an alter ego relationship between them and plaintiff's employer (id.; see also Masley v Herlew Realty Corp., 45 AD3d 653 [2007]).

An entity meets its burden of showing that a joint venture exists by proffering evidence showing that the entities integrated their finances and shared in the profits and losses (see e.g. Wernig v Parents & Bros. Two, 195 AD2d 944 [1993]; Bruno v Dynamic Enters., 132 AD2d 964 [1987]). An entity meets its burden of showing an alter ego relationship by proffering evidence that one entity exercised managerial and financial control over the other (see e.g. Capella, 55 AD3d 522; Mournet v Educational & Cultural Trust Fund of Elec. Indus., 303 AD2d 474 [2003]).

In the instant case, although defendants' proof, in the form of Mr. Blatt's affidavit and deposition testimony, may have demonstrated that defendants had a close relationship with plaintiff's employer, this proof was insufficient to establish as a matter of law that defendants were involved in a joint venture or alter ego relationship such that plaintiff should be barred from proceeding against them by virtue of the Workers' Compensation Law. There are clearly triable issues of fact regarding the existence of a joint venture or alter ego relationship. In light of these issues of fact, as well as the issue of which entity owned, possessed, operated, maintained, or controlled the area where the accident occurred, the Civil Court did not err in denying defendants' motion for summary judgment. Accordingly, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2009