ALBERICO v. LDG LLC (2023)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about May 19, 2022, which, to the extent appealed from, denied defendant-appellant Riverside Unit C, LLC's motion for summary judgment dismissing the complaint and cross-claims as against it, unanimously affirmed, without costs.

The motion court correctly determined that the claims against Riverside were not barred by the exclusivity provisions of the Workers’ Compensation Law because nothing in the record indicates that Riverside was the alter ego of plaintiff's employer, defendant Nest Seekers International LLC (see Fuller v. KFG Land I, LLC, 189 A.D.3d 666, 667–668, 139 N.Y.S.3d 166 [1st Dept. 2020];  see also Workers’ Compensation Law §§ 11, 29[6]).  Although Nest Seekers wholly owns Riverside, the record establishes that the two companies operated as separate entities (Figueiredo v. New Palace Painters Supply Co. Inc., 39 A.D.3d 363, 364, 833 N.Y.S.2d 492 [1st Dept. 2007]).  The parties entered into a lease agreement establishing their separate responsibilities as landlord and tenant (see Kolenovic v. 56th Realty, LLC, 139 A.D.3d 588, 589, 32 N.Y.S.3d 137 [1st Dept. 2016]), and maintained their own bank accounts and filed their own taxes.  Because there is no evidence that Nest Seekers dominated and controlled Riverside's day-to-day operations, or any evidence of commingling of assets and resources, the court properly determined that Riverside was not Nest Seeker's alter ego as a matter of law (see Gonzalez v. 310 W. 38th, L.L.C., 14 A.D.3d 464, 464, 788 N.Y.S.2d 384 [1st Dept. 2005];  Longshore v. Davis Sys. of Capital Dist., 304 A.D.2d 964, 965, 759 N.Y.S.2d 204 [3d Dept. 2003]).