ARIAS v. ANJO MANUFACTURING CO INC (2019)

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered April 9, 2018, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff fell from a ladder while working in defendant's warehouse facility, and received workers' compensation benefits from his employer, nonparty David Rosen Bakery Supply (DRBS).

Defendant failed to establish prima facie that plaintiff was its special employee (see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991].  In particular, the deposition testimony of plaintiff's purported supervisor failed to establish that defendant exerted sufficient direction and control over plaintiff's work (see Thompson, 78 N.Y.2d at 557, 578 N.Y.S.2d 106, 585 N.E.2d 355).  The supervisor testified that he did not give plaintiff instructions or check on plaintiff periodically throughout the time plaintiff worked at the warehouse and that he went to the warehouse only once to show plaintiff what needed to be done and did not know about the other work plaintiff was doing.  Indeed, he testified that plaintiff went to DRBS's offices every morning to check in and receive his assignments.  The supervisor's affidavit appears to have been tailored to avoid the consequences of his earlier testimony, but in any event does not establish the requisite direction and control.

Defendant also failed to establish that it was DRBS's alter ego (see Moses v. B & E Lorge Family Trust, 147 A.D.3d at 1046–1047, 48 N.Y.S.3d 231;  Gonzalez v. 310 W. 38th, L.L.C., 14 A.D.3d 464, 788 N.Y.S.2d 384 [1st Dept. 2005];  see also Paulino v. Lifecare Transp., 57 A.D.3d 319, 869 N.Y.S.2d 439 [1st Dept. 2008] ).  There is no evidence in the record showing the relationship between the two companies, e.g., payroll records or contracts, or other documents demonstrating that DRBS controlled defendant's day-to-day operations or finances.

We have considered defendant's remaining arguments and find them unavailing.