SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1111 

CA 16-00588 

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ. 

 

JENNA CLEARY, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

WALDEN GALLERIA LLC, ET AL., DEFENDANTS, 

AT&T MOBILITY LLC, FORMERLY KNOWN AS CINGULAR 

WIRELESS LLC, AND NEW CINGULAR WIRELESS PCS, LLC,

DEFENDANTS-RESPONDENTS. 

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFF-APPELLANT. 

HAVKINS ROSENFELD RITZERT & VARRIALE, LLP, NEW YORK CITY (JARETT L.

WARNER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Frederick

J. Marshall, J.), entered September 25, 2015. The order, insofar as

appealed from, granted that part of a motion seeking summary judgment

dismissing the complaints and any cross claims against defendants AT&T

Mobility LLC, formerly known as Cingular Wireless LLC, and New

Cingular Wireless PCS, LLC.

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the motion is denied in

part, and the complaints and any cross claims are reinstated against

defendant AT&T Mobility LLC, formerly known as Cingular Wireless LLC,

and defendant New Cingular Wireless PCS, LLC. 

Memorandum: In these consolidated actions seeking to recover

damages for injuries allegedly sustained by plaintiff in lifting an

allegedly dangerous or defective security gate at her place of

employment, plaintiff appeals from an order insofar as it granted that

part of a motion seeking, inter alia, summary judgment dismissing the

complaints and any cross claims against AT&T Mobility LLC, formerly

known as Cingular Wireless LLC, and New Cingular Wireless PCS, LLC

(defendants) on the ground that such claims are barred by the

exclusive remedy provisions of Workers’ Compensation Law §§ 11 and 29

(6). We conclude that Supreme Court erred in determining as a matter

of law that plaintiff’s claims against defendants are barred by those

provisions. Defendants failed to establish as a matter of law that

they were plaintiff’s special employers (see generally Fung v Japan

Airlines Co., Ltd., 9 NY3d 351, 357-360; Thompson v Grumman Aerospace

Corp., 78 NY2d 553, 557-560; VeRost v Mitsubishi Caterpillar Forklift

Am., Inc., 124 AD3d 1219, 1221, lv denied 25 NY3d 968). Moreover,
-2- 1111 

CA 16-00588 

although it is well settled that the “protection against lawsuits

brought by injured workers which is afforded to employers by Workers’

Compensation Law §§ 11 and 29 (6) also extends to entities which are

alter egos of the entity which employs the plaintiff” (Samuel v Fourth

Ave. Assoc., LLC, 75 AD3d 594, 594-595; see Wolfe v Wayne-Dalton

Corp., 133 AD3d 1281, 1284; Allen v Oberdorfer Foundries, 192 AD2d

1077, 1078), defendants failed to establish that they functioned as

alter egos of plaintiff’s employer. “A defendant may establish itself

as the alter ego of a plaintiff’s employer by demonstrating that one

of the entities controls the other or that the two operate as a single

integrated entity” (Batts v IBEX Constr., LLC, 112 AD3d 765, 766; see

Samuel, 75 AD3d at 595). However, a mere showing that the entities

are related is insufficient where, as here, a defendant cannot

demonstrate that one of the entities controls the daily operations of

the other (see Samuel, 75 AD3d at 595). “ ‘[C]losely associated

corporations, even ones that share directors and officers, will not be

considered alter egos of each other if they were formed for different

purposes, neither is a subsidiary of the other, their finances are not

integrated, [their] assets are not commingled, and the principals

treat the two entities as separate and distinct’ ” (Lee v Arnan Dev.

Corp., 77 AD3d 1261, 1262).

Turning to the two other grounds for summary judgment raised by

defendants in the motion, we note that the court did not address those

other grounds, thereby implicitly denying the motion on those other

grounds (see Supensky v State of New York, 2 AD3d 1436, 1437; Bald v

Westfield Academy & Cent. Sch., 298 AD2d 881, 882; Brown v U.S.

Vanadium Corp., 198 AD2d 863, 864). Although defendants are not

aggrieved by the order and thus could not have cross-appealed herein

(see e.g. Matter of Tehan v Tehan’s Catalog Showrooms, Inc. [appeal

No. 2], ___ AD3d ___, ___ [Nov. 10, 2016]), they nonetheless properly

raise those grounds as alternative bases for affirmance of the order

granting their motion (see Cox v McCormick Farms, Inc., ___ AD3d ___,

___ [Nov. 10, 2016]; see generally Parochial Bus Sys. v Board of Educ.

of City of N.Y., 60 NY2d 539, 545-546). We conclude, however, that

those alternative grounds lack merit. 

“In seeking summary judgment dismissing the complaint [against

them], defendant[s] had the initial burden of establishing that [they]

did not create the alleged dangerous condition and did not have actual

or constructive notice of it” (Seferagic v Hannaford Bros. Co., 115

AD3d 1230, 1230-1231 [internal quotation marks omitted]). We conclude

that defendants did not meet that burden (see Gabriel v Johnston’s

L.P. Gas Serv., Inc., 143 AD3d 1228, 1230-1231; Smith v Szpilewski,

139 AD3d 1342, 1342-1343) and that plaintiff in any event raised a

triable issue of fact whether defendants had such actual or

constructive notice of the alleged defect (see Mandzyk v Manor Lanes,

138 AD3d 1463, 1464-1465). We further conclude that defendants failed

to demonstrate that the allegedly dangerous or defective condition of

the gate was not a proximate cause of plaintiff’s injuries (see Smith, 
-3- 1111 

CA 16-00588 

139 AD3d at 1342-1343; Mercedes v Menella, 34 AD3d 655, 656). 

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court