PIZARRO v. DENNIS JAMES BOYLE INC (2020)

Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered March 20, 2019, which, to the extent appealed from as limited by the briefs, granted third-party defendant's (Complete Copper) motion to dismiss the third-party complaint, and denied third-party plaintiff's (Boyle) cross motion to strike the affirmative defense based on the Workers' Compensation Law, unanimously affirmed, without costs.

The motion court providently exercised its discretion in considering the special employment and alter ego arguments raised by Complete Copper for the first time in its reply papers, having given Boyle the opportunity to respond to Complete Copper's arguments by way of a sur-reply and a motion for summary judgment (see Matter of Kennelly v. Mobius Realty Holdings LLC, 33 A.D.3d 380, 381, 822 N.Y.S.2d 264 [1st Dept. 2006];  see also Sally v. Keyspan Energy Corp., 106 A.D.3d 894, 896, 966 N.Y.S.2d 133 [2d Dept. 2013], lv denied 22 N.Y.3d 860, 2014 WL 223761 [2014] ).

Complete Copper established prima facie that it is entitled to the protections of Workers' Compensation Law § 29(6) by showing that it is the alter ego of nonparty Norske, Inc., which was named as plaintiff's employer in his Workers' Compensation claim and paid his benefits (see Paulino v. Lifecare Transp., 57 A.D.3d 319, 319, 869 N.Y.S.2d 439 [1st Dept. 2008];  Hernandez v. Sanchez, 40 A.D.3d 446, 836 N.Y.S.2d 577 [1st Dept. 2007];  see also Carty v. East 175th St. Hous. Dev. Fund Corp., 83 A.D.3d 529, 529, 921 N.Y.S.2d 237 [1st Dept. 2011] ).  Complete Copper submitted evidence that it and Norske shared a president and sole owner, office staff, office space, and insurance policies, that Norske owned the equipment used by Complete Copper, and that Norske's president and owner generated the work invoices and obtained insurance coverage on behalf of Complete Copper.

In opposition, Boyle failed to raise an issue of fact.

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