MASLEY v. HERLEW REALTY CORP (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Giacomo, J.), entered November 6, 2006, which denied their motion for summary judgment dismissing the complaint on the ground that the action is barred by the exclusivity provisions of the Workers' Compensation Law.

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint, since the defendants failed to establish as a matter of law that the plaintiff's action against them was barred by her receipt of workers' compensation benefits from her employer.  In this regard, the defendants came forward with no evidence to suggest the existence of either a joint venture or an alter-ego relationship between them and the plaintiff's employer (see e.g. Vita v. New York Waste Servs., LLC, 34 A.D.3d 559, 824 N.Y.S.2d 177;  Longshore v. Davis Sys. of Capital Dist., 304 A.D.2d 964, 759 N.Y.S.2d 204;  Mertz v. Seibel Realty, 265 A.D.2d 925, 696 N.Y.S.2d 598;  Rosenburg v. Angiuli Buick, 220 A.D.2d 654, 632 N.Y.S.2d 658;  Kaplan v. Bayley Seton Hosp., 201 A.D.2d 461, 607 N.Y.S.2d 425).

 Furthermore, the contention of the defendant Herlew, LLC (hereinafter the LLC) that it is a coemployee of the plaintiff and therefore entitled to the workers' compensation defense (see Workers' Compensation Law § 29[6] ) is without merit.  The LLC, which owns the property where the plaintiff was injured, is not an officer of the corporation which employed the plaintiff;  hence, it is not a fellow employee of the plaintiff (see O'Connor v. Spencer [1997] Inv. Ltd. Partnership, 2 A.D.3d 513, 769 N.Y.S.2d 276;  Virga v. Medi–Tech Intl. Corp., 296 A.D.2d 546, 745 N.Y.S.2d 704;  Richardson v. Benoit's Elec., 254 A.D.2d 798, 677 N.Y.S.2d 855;  Casas v. 559 Warren St. Realty Corp., 211 A.D.2d 742, 622 N.Y.S.2d 105).

The defendants' remaining arguments are either improperly raised for the first time on appeal, or without merit.