                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 29, 2016                   522955
________________________________

VANESSA PRINGLE et al., as
   Administrators of the Estate
   of JOHN LEE DEAN, Deceased,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

AC BODYWORKS & SONS, LLC,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   November 15, 2016

Before:   Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.

                             __________


      Rodman & Campbell, PC, New York City (Hugh W. Campbell of
counsel), for appellants.

      Stockton, Barker & Mead, LLP, Troy (Robert S. Stockton of
counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from an order of the Supreme Court (Melkonian, J.),
entered January 26, 2016 in Albany County, which granted a motion
by defendant AC Bodyworks & Sons, LLC for summary judgment
dismissing the complaint against it.

      On March 10, 2014, John Lee Dean (hereinafter decedent) was
fatally crushed by an unmanned, flatbed truck that unexpectedly
moved forward, pinning him against a wall. At the time, decedent
was working on the truck as an auto detailer in the employ of AC
Bodyworks & Sons, Inc. The truck was owned by defendant AC
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Bodyworks & Sons, LLC (hereinafter defendant). In September
2014, the administrators of decedent's estate applied for
workers' compensation benefits and received an award for his
work-related death. Thereafter, they commenced this action
against, among others, defendant to recover damages for his
wrongful death. Defendant answered, and thereafter moved for
summary judgment asserting that the claim is barred by the
exclusivity provision of Workers' Compensation Law § 11. Supreme
Court granted the motion, holding that this exclusivity provision
extended to defendant and rejecting plaintiffs' contention that
the motion was premature. Plaintiffs appeal, and we reverse.

      "As a general rule, when an employee is injured in the
course of his [or her] employment, his [or her] sole remedy
against [the] employer lies in his [or her] entitlement to a
recovery under the Workers' Compensation Law" (Coonjbeharry v
Altone Elec., LLC, 94 AD3d 1306, 1307 [2012] [internal quotation
marks and citations omitted]). Here, although documents
establish that AC Bodyworks & Sons, Inc. was decedent's employer
on the date of the accident, defendant contends that it is also
shielded from this action because it is a dissolved, predecessor
entity that transferred "all ownership and operation of the
business, including ownership of all business vehicles" to its
successor, AC Bodyworks & Sons, Inc.

      Plaintiffs served a notice for discovery and inspection on
October 14, 2015. The notice sought decedent's employment
records and the organizational and operational documents related
to the formation and dissolution of defendant. The notice was
ignored and defendant's motion was filed October 30, 2015.

      Submissions in support of defendant's motion described
decedent as an employee of defendant, but were silent as to the
relationship between defendant and AC Bodyworks & Sons, Inc. The
affirmation of defendant's counsel was limited to the argument
that plaintiffs' claims were barred by Workers' Compensation Law
§ 11. An affidavit by a claims specialist for an insurance firm
included an assertion that the workers' compensation death
benefits were paid under a policy issued to defendant, yet
annexed a copy of the decision issued by the Workers'
Compensation Board that identified the employer as "AC Bodyworks
                              -3-                522955

& Sons, Inc." In response, plaintiffs furnished a certified
abstract of the truck's title and registration listing the owner
and registrant as defendant, together with a copy of the workers'
compensation reports identifying AC Bodyworks & Sons, Inc. as
decedent's employer, thus, highlighting the distinct entities.

      In a reply affidavit, Brian Caprara, a former member of
defendant and the president of AC Bodyworks & Sons, Inc.,
furnished copies of documents purportedly showing the dissolution
of defendant in September 2012, and the incorporation of AC
Bodyworks & Sons, Inc. later that month. Although Caprara
asserted, without any documentary support, that all business
vehicles were transferred to the corporation at that time, he
conceded that the registration of the subject vehicle had not
been transferred from defendant due to an administrative error.
Caprara also asserted that "there were not two separate
businesses operating" on the date of the incident.

      We find that defendant's motion should have been denied as
premature. "[A] summary judgment motion is properly denied as
premature when the nonmoving party has not been given reasonable
time and opportunity to conduct disclosure relative to pertinent
evidence that is within the exclusive knowledge of the movant or
a codefendant" (Metichecchia v Palmeri, 23 AD3d 894, 895 [2005]).
Although we have held that, "in certain situations, . . . more
than one entity may be considered a plaintiff's employer for
purposes of workers' compensation" (Coonjbeharry v Altone Elec.,
LLC, 94 AD3d at 1307; see Len v State of New York, 74 AD3d 1597,
1599 [2010], lv dismissed and denied 15 NY3d 912 [2010]),
defendant's submissions fall far short of establishing that
premise as a matter of law. A determination as to whether two
entities are alter egos of each other requires a far more
detailed record than is present here (see e.g. Longshore v Davis
Sys. of Capital Dist., 304 AD2d 964, 965 [2003]). Notably,
defendant proffered no documentary proof of any transfer of
assets between the two entities, while plaintiffs have furnished
admissible proof in the form of certified records from the
Department of Motor Vehicles indicating that defendant obtained
title to the truck on November 28, 2012 (10 weeks after
dissolution), put new license plates on it in January 2014 (16
months after dissolution), and held title and registration on the
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date of the accident. It is therefore not mere surmise that
questions of fact exist as to whether the title and registration
reflect administrative errors or, as suggested by plaintiffs, the
continued operation of defendant as of the date of the accident.
The relevance of decedent's employment records and documents
substantiating the relationship between the two entities and the
transfer of assets from defendant to AC Bodyworks & Sons, Inc.,
together with the need for deposition testimony, is readily
apparent.

     Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
