Lopez v Gem Gravure Co.

[*1] Lopez v Gem Gravure Co. 2004 NY Slip Op 50984(U) Decided on September 8, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2004
Supreme Court, Kings County

ANTONIO LOPEZ, Plaintiff,

against

GEM GRAVURE CO., THE GEON COMPANY, MATTHEWS INTERNATIONAL CORP., SPARTECH POLYCOM. WILLET LIMITED, TADIR AIR, INC. n/k/a TADIR AIR CONDITIONING, INC., McQUAY INTERNATIONAL as Successor in Interest to SYNDER GENERAL, BARRY BLOWER, INC., LAU INDUSTRIES, INC. and GRAINGER INDUSTRIAL, BREEN COLOR CONCENTRATES, INC., SILOGRAM LUBRICANTS CORP., and SUPERFLEX MANAGEMENT, L.L.C., Defendants.



17939/2002

Martin Schneier, J.

Plaintiff brought this action alleging he suffered injuries while in the employ of Superflex Management, L.L.C. ("Management"). Defendant Superflex Ltd. ("LTD") is the owner of the premises where plaintiff was injured. Ltd moves to dismiss the action on the grounds that it is barred by sections 11 and 29(6) of the Workers Compensation Law.

Subdivision 6 of Section 29 of the Worker's Compensation Law makes Worker's Compensation the exclusive remedy for injuries caused by a fellow employee and prevents a tort action against a coemployee. When an employee is employed by a corporation and is injured on property owned by officers of the corporation, the owners cannot be sued because they are considered fellow employees within the meaning of section 29(6) of the Worker's Compensation Law (Heritage v. Van Patten, 59 N.Y.2d 1017). A corporation, however, is not a coemployee, even where the ownership of the corporate employer and corporate property owner are the same (Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798; but see, Di Rie v. Automotive Realty Corp.,199 A.D.2d 98). Accordingly, LTD's motion to dismiss pursuant to section 29(6) must be denied.

Section 11 of the Worker's Compensation Law makes Compensation the sole remedy of an employee against the employer. The employer, however, may consist of more that one entity. Examples include corporations that function as "a single intergrated entity" (Ramnarine v. Memorial Center for Cancer and Allied Diseases, 281 A.D.2d 218), joint ventures (Felder v. Old Falls Sanitation Co., Inc., 366 N.Y.S.2d 687) and corporate "alter egos" (Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152). The common thread of these cases is that the entities are so entwined that they constitute a single employer for purposes of workers compensation. [*2]

However, a separate line of cases holds that "[t]he individual principals in this business enterprise, for their own business and legal advantage, elected to operate that enterprise through separate corporate entities. The structure they created should not lightly be ignored at their behest, in order to shield one of the entities they created from ... common-law tort liability" (Buchner v Pines Hotel, 87 AD2d 691, 692, affd

58 NY2d 1019). Moreover, where as here, the parties operated two corporations, one being the landowner and the other operating the business, Courts have held that the workers compensation law does not bar a common-law suit against the landowner (Richardson v. Benoit's Elec., Inc., 254 A.D.2d 798) The difference between these two lines of cases is that, where different business, although legally separate, operate as a single entity, they will be treated as a single entity for the purposes of the worker's compensation law. On the other hand, where a single business is structured as separate legal entities in order to protect its assets from third parties, the presumption is that the worker's compensation law will not protect the owner from a common-law suit.

Turning to the facts in this case, the Court finds that the evidence submitted by LTD is insufficient to overcome the presumption that worker's compensation is not the exclusive remedy. Accordingly, the motion for summary judgment is denied.

This shall constitute the decision and order of the Court.

Dated: September 8, 2004 ______________________

J.S.C.