Nunez v. Park Plus, Inc. , 146 A.D.3d 488 ( 2017 )

Nunez v Park Plus, Inc. (2017 NY Slip Op 00122)

Nunez v Park Plus, Inc.

2017 NY Slip Op 00122

Decided on January 10, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2017
Andrias, J.P., Moskowitz, Kapnick, Webber, Kahn, JJ.

2702 301814/10 83770/11

[*1]Emilio Nunez, Plaintiff-Respondent,

v

Park Plus, Inc., Defendant-Respondent, DeSoto Parking, LLC, Defendant-Appellant.



Park Plus, Inc., Third-Party Plaintiff-Respondent,

v

DeSoto Parking, LLC, Third-Party Defendant-Appellant, Little Man Parking, LLC, Third-Party Defendant.

Chesney & Nicholas, LLP, Syosset (John F. Janowski of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP (Brian J. Isaac of counsel), for Emilio Nunez, respondent.

McGivney & Kluger, P.C., New York (Kenneth S. Ross of counsel), for Park Plus, Inc., respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 30, 2015, which to the extent appealed from as limited by the briefs, denied defendant DeSoto Parking, LLC's motion for summary judgment dismissing plaintiff's complaint on the ground that it was barred by the Workers' Compensation Law, unanimously affirmed, without costs.

Plaintiff was employed by third-party defendant Little Man Parking, LLC at a lot owned by defendant-third party defendant DeSoto Parking, LLC. Plaintiff was injured when a mechanical lift holding a parked car landed on his foot, resulting in the amputation of his toe.

The motion court correctly concluded that plaintiff did not suffer a grave injury within the meaning of Workers' Compensation Law § 11. Consequently, he cannot maintain an action against his employer. However, there are issues of fact concerning whether DeSoto was the alter ego of plaintiff's employer, third-party defendant Little Man Parking, LLC (see Carty v East 175th St. Hous. Dev. Fund Corp., 83 AD3d 529 [1st Dept 2011) sufficient to warrant denial of DeSoto's motion for summary judgment. In addition, there exists, at the very least, a question of fact concerning whether there was a written agreement in place for DeSoto to indemnify third-party plaintiff Park Plus, Inc., the lift owner (see Baginski v Queen Grand Realty LLC, 68 AD3d 905 [2d Dept 2009]).

The motion court also properly determined that DeSoto failed to establish a prima facie case concerning whether plaintiff was

its special employee (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 10, 2017

CLERK