Opinion
102474/11
03-18-2019
Jhon PIZARRO, Plaintiff, v. DENNIS JAMES BOYLE, INC. and Catherine Lignelli, Defendants. Dennis James Boyle, Inc., Third Party Plaintiff, v. Complete Copper Works Inc., Third Party Defendant.
Queller, Fisher, Washor, Fuchs & Kool, LLP for plaintiff Barry Washor & Brian S. Schwartz The Woolworth Building 233 Broadway, 18th Floor New York, NY 10279 Gorton & Gorton LLP for defendant/third-party plaintiff Dennis Boyle John T. Gorton 1205 Franklin Avenue Suite 100 Garden City, NY 11530 Mintzer Sarowitz Zeris Ledva & Meyers, LLP for third-party defendant Complete Copper Works Kevin L. Kelly 39 Broadway, Suite 950 New York, NY 10006
Queller, Fisher, Washor, Fuchs & Kool, LLP for plaintiff
Barry Washor & Brian S. Schwartz
The Woolworth Building
233 Broadway, 18th Floor
New York, NY 10279
Gorton & Gorton LLP for defendant/third-party plaintiff Dennis Boyle
John T. Gorton
1205 Franklin Avenue Suite 100
Garden City, NY 11530
Mintzer Sarowitz Zeris Ledva & Meyers, LLP for third-party defendant Complete Copper Works
Kevin L. Kelly
39 Broadway, Suite 950
New York, NY 10006
Carmen Victoria St. George, J.
Motion sequence numbers 008 and 009 are consolidated for disposition.
In this Labor Law action, plaintiff Jhon Pizarro moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law § 240 (1) as against defendant/third-party plaintiff Dennis James Boyle, Inc. (motion sequence number 008).
Third-party defendant Complete Copper Works, Inc. (Complete Copper Works) moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint in its entirety (motion sequence number 009).
Dennis James Boyle, Inc. cross-moves for: (1) summary judgment dismissing the affirmative defense that the third-party complaint is barred by the Workers' Compensation Law; and (2) conditional summary judgment on its common-law indemnification claim against Complete Copper Works.
BACKGROUND
On September 21, 2010, plaintiff was allegedly injured while renovating defendant Catherine Lignelli's house during a construction project at the premise located at 381 Dune Road in Bridgehampton, New York (hereinafter, the premises). Plaintiff was injured while renovating defendant Catherine Lignelli's house. It is undisputed that Dennis James Boyle, Inc. was the general contractor on the project. Plaintiff was working for Complete Copper Works, a roofing subcontractor, at the time of the accident.
Plaintiff testified at his deposition that he was injured on September 21, 2010 while he was working for Complete Copper Works (plaintiff tr at 30, 34). His boss was Michael Schroder (Schroder) (id. at 30). Schroder directed his work at the site (id. at 40). According to plaintiff, his accident happened at about 9:00 or 9:30 a.m., and he had been working at the location for about three months (id. at 37). Plaintiff and Schroeder had arrived at the site at about 6:00 a.m. in the Complete Copper Works van (id. at 43-44, 46). Plaintiff testified that Complete Copper Works was "put[ting] metal within the edge of the house" (id. at 38). The house had two stories, and was undergoing a complete renovation (id. at 39, 42). Plaintiff was about to put up flashing on the roof when his accident occurred (id. at 42). The flashing had to be installed about 10 feet above the ground (id. at 43).
According to plaintiff, at 8:30 a.m., plaintiff started taking the metal to the area under the roof where they were about to work (id. at 49). Plaintiff was using a 16-foot aluminum extension ladder (id. at 50). Schroder had detached the ladder and converted it into two separate ladders (id. at 51-52). Schroder had placed both sections of the ladder against the house (id. at 52). Plaintiff told Schroder that the ladder did not have any feet, but Schroder told plaintiff, "You go up there because you are lighter, and I'm heavier than you are, and I do need the ladder which [has] the feet" (id. at 53). Plaintiff grabbed all of his tools, and started to climb the ladder (id. at 57). When plaintiff reached the seventh rung of the ladder, plaintiff "was grabbing the ladder, holding the ladder with his left hand," and "[w]hen [he] did try to put the things within the roof, the ladder slipped back and everything got collapsed" (id. ). Plaintiff was carrying his tank and his torch in his right hand, acid in his left hand, and a piece of metal under his arm (id. ). Plaintiff was still on the ladder when it fell to the ground (id. at 60). Schroder witnessed his accident (id. ). Plaintiff received workers' compensation benefits (id. at 152).
Dennis James Boyle (Boyle) testified that he is the principal of Dennis James Boyle, Inc. (Boyle tr at 7). Dennis James Boyle, Inc. does renovations, painting, and repairs (id. ). The Lignellis hired his company to finish an ongoing construction project at the premises (id. at 11, 15-16). In September 2010, Dennis James Boyle, Inc.'s subcontractors were working at the site (id. at 10, 11, 18). Boyle received a telephone call from one of his subcontractors at the site about the accident and called an ambulance (id. at 43-44). At some point thereafter, Boyle went to the worksite, and everyone stated that Schroder "took apart the ladder" (id. at 48). Boyle looked for contracts between Dennis James Boyle, Inc. and Complete Copper Works for work at the site, but did not find any such contracts (id. at 79, 80). He did not tell Schroder how to install the flashing, and his company did not supply any equipment for the flashing installation (id. at 38).
Schroder testified that he is the president of nonparty Custom Copper Works, Inc. (Custom Copper Works), a construction company that performs sheet metal, roofing, and siding work (Schroder tr at 6-7). The company was dissolved in 2009 or the beginning of 2010 (id. at 8). Custom Copper Works performed shower work at the premises, left the site, and then returned to do roof work when it was ready to be done (id. at 44-45). When his company went out of business, "Norske took over the trucks that [he] had, bought the trucks from [him] and everything was put in Norske's name" (id. at 46). When Schroder first started work at the premises, he was working for Custom Copper Works, but then closed Custom Copper Works and started to do other work for Complete Copper Works (id. at 11, 12). He estimated that he worked at the premises for Custom Copper Works for about three days (id. at 12). Plaintiff was an employee of Complete Copper Works on the date of the accident (id. at 12, 48). Schroder testified that he was talking to someone when he witnessed the accident, and was standing within 15 feet of plaintiff (id. at 17). According to Schroder, plaintiff "put up a ladder to go up on the roof to get a measurement on the length, and as he was going up the ladder, he had sand on his feet because it's on the beach, the house is on the beach, so he kicked his feet off on the second [rung] up" (id. ). Schroder testified that plaintiff "was kicking his feet, kicking the ladder with his feet, and that's when the ladder slipped out" (id. ). The ladder slid sideways off the edge of the roof and hit the barbeque (id. at 18). Plaintiff "popped his elbow" when he hit the ground (id. at 21). When asked whether plaintiff was on one part of the extension ladder, Schroeder testified "that, I don't remember, if it was one part or two parts" (id. ). He added that "I think it was probably still together. I mean, I don't recall. I can't say exactly if I recall" (id. at 22). Schroder called Dag Haraldson (Haraldson) en route to the hospital, and Haraldson told Schroder which entity to indicate was plaintiff's employer (id. at 57).
Haraldson testified that he was the owner/president of Complete Copper Works (Haraldson 3/2/17 tr at 7). Complete Copper Works was incorporated in New York in August 2010 (id. ). He was also the owner/president of Norske, Inc. (Norske), which was also incorporated in New York (id. at 7, 8). Complete Copper Works was in the business of metal fabrication (id. at 8). Complete Copper Works dissolved in 2014 (id. at 9-10). Norske was a general contractor in 2010, and is still an active corporation (id. at 10). Haraldson testified that "[t]here were times when we swapped or commingled employees as needed" (id. at 11; see also Haraldson 8/23/17 tr at 33). Schroder recommended that plaintiff come work for Complete Copper Works (Schroder 3/2/17 tr at 12). Plaintiff began working for Complete Copper Works on the date of the accident, and never worked for Norske (id. at 12, 13). Haraldson was unable to find employment records from 2010 (id. at 27). According to Haraldson, Schroder used to own Custom Copper Works, and began working for Complete Copper Works "around the time we incorporated" (id. at 37).
Haraldson was deposed on two occasions: on March 2, 2017 and again on August 23, 2018. The court cites to his deposition testimony according to the date of the deposition.
Haraldson further stated that Complete Copper Works carried a general liability policy in September 2010 (id. at 73). A certificate of insurance indicated that Complete Copper Works had automobile and workers' compensation coverage (id. ). Norske and Complete Copper Works appeared on the same certificate of insurance because "[they] shared the same office, same insurance, things like that" (id. at 75). The worker's compensation coverage was in effect from April 2010 through April 2011 (id. at 78). Haraldson testified that he moved employees from one job to another regardless of who their employer was; however, he later stated that he did not recall a specific instance of doing so (Haraldson 8/23/18 tr at 31-33). According to Haraldson, Complete Copper Works and Norske had separate bank accounts (id. at 51-52). He testified that Norske had a payroll (id. at 46), and that Complete Copper Works had a payroll (which was generated from the money made by Complete Copper Works) (id. ). Norske billed Complete Copper Works because Norkse was ultimately responsible for the bills (id. at 50).
A police report from the date of the accident states that:
"above complainant [Mike Schroder] states one of his partners workers who was working for him today, Jhon Pizarro ... was climbing an 8 foot ladder to work on the soffet overhang when one of his feet slipped off of the step due to sand on the bottom of his shoe. The ladder bounced and kicked out falling approximately 3-4 feet onto the barbeque grill. When said subject's foot slipped he slid down the ladder as it fell, subject's arm became caught between two of the steps of the ladder, possibly dislocating his elbow. Bridgehampton Fire/Rescue responded and transported to Southampton Hospital"
(Schwartz affirmation in support, exhibit B at 1-2).
On September 22, 2010, Bender Insurance Agency, Inc. issued a certificate of insurance indicating that Complete Copper Works was insured for, among other things, workers' compensation liability from April 1, 2010 through April 1, 2011 (Gorton affirmation in support, exhibit L).
The New York State Insurance Fund issued workers' compensation insurance policy number G 1318 829-9 insuring Norske for the period from April 1, 2010 through April 1, 2011 (id. , exhibit M). An information page indicates that Complete Copper Works was also covered under the policy effective September 21, 2010 (id. ).
On April 16, 2015, the Workers' Compensation Board approved a Workers' Compensation Law § 32 settlement agreement between plaintiff and the New York State Insurance Fund (id. , exhibits H, J). The notice of approval indicates that Norske was plaintiff's employer (id. , exhibit J at 1).
Plaintiff's amended complaint seeks recovery under Labor Law §§ 200, 240, 241, and 242-a and under principles of common-law negligence.
Dennis James Boyle, Inc. impleaded Complete Copper Works, asserting the following three claims: (1) common-law indemnification; (2) failure to procure insurance; and (3) common-law contribution.
In its fourth affirmative defense, Complete Copper Works asserts that the third-party complaint is barred or limited by the Workers' Compensation Law.
By stipulation of discontinuance dated March 30, 2017, plaintiff discontinued the action as against defendant Catherine Lignelli.
DISCUSSION
It is well established that "[t]he proponent of summary judgment must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law" ( Ryan v Trustees of Columbia Univ. in the City of NY, Inc. , 96 AD3d 551, 553 [1st Dept 2012] [internal quotation marks and citation omitted] ). "Thus, the movant bears the burden to dispel any question of fact that would preclude summary judgment" (id. ). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v Citibank Corp. , 100 NY2d 72, 81 [2003] ). On a motion for summary judgment, "the court's role is limited to issue finding, not issue resolution" ( Kriz v Schum , 75 NY2d 25, 33 [1989] ).
A. Plaintiff's Motion for Partial Summary Judgment Under Labor Law § 240 (1) (Motion Sequence No. 008)
Plaintiff argues that he is entitled to partial summary judgment against Dennis James Boyle, Inc. under Labor Law § 240 (1) because: (1) he was engaged in a covered activity; and (2) the ladder lacked stabilizing feet, and slipped back and fell over.
In response, Dennis James Boyle, Inc. contends that there are issues of fact as to whether the ladder was defective. Additionally, Dennis James Boyle, Inc. argues that plaintiff was the sole proximate cause of his accident in kicking the ladder out from underneath him. Dennis James Boyle, Inc. also contends that there are issues of fact as to plaintiff's credibility.
Labor Law § 240 (1) requires that ladders and other safety devices be "so constructed, placed and operated as to give proper protection" to a worker ( Labor Law § 240 [1] ; see also Klein v City of New York , 89 NY2d 833, 833-834 [1996] ). "[T]he single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ( Runner v New York Stock Exch., Inc. , 13 NY3d 599, 603 [2009] ).
" ‘It is sufficient for purposes of liability under section 240 (1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent’ " ( Hill v City of New York , 140 AD3d 568, 570 [1st Dept 2016], quoting Orellano v 29 E. 37th St. Realty Corp. , 292 AD2d 289, 291 [1st Dept 2002] ). The plaintiff is not required to show that the ladder was defective (see Soriano v St. Mary's Indian Orthodox Church, Inc ., 118 AD3d 524, 526 [1st Dept 2014] ).
Here, plaintiff testified that the ladder "slipped back," and that he fell on top of the ladder, causing him to strike his head (plaintiff tr at 59). Schroder had separated the ladder into two sections, and plaintiff was using the section that did not have feet (id. at 51-53). Thus, plaintiff has demonstrated prima facie entitlement to summary judgment under Labor Law § 240 (1) (see Fletcher v Brookfield Props ., 145 AD3d 434, 434 [1st Dept 2016] ; Fanning v Rockefeller Univ. , 106 AD3d 484, 484-485 [1st Dept 2013] ).
Dennis James Boyle, Inc. has failed to raise an issue of fact as to its liability. Although Dennis James Boyle, Inc. argues that there is a question of fact as to whether the ladder was defective, plaintiff was not required to demonstrate a defect in the ladder (see Orellano , 292 AD2d at 291 ). Dennis James Boyle, Inc. has not submitted any evidence contradicting plaintiff's account that the ladder "slipped back" and collapsed (plaintiff tr at 59; Schroder tr at 17). Even if plaintiff was negligent in kicking sand off his boots, such actions would constitute, at most comparative negligence, and plaintiff's comparative negligence is not a defense to liability under Labor Law § 240 (1) (see Messina v City of New York , 148 AD3d 493, 494 [1st Dept 2017] ["At most, plaintiff's application of pressure to the ladder while engaged in the work he was directed to do, which caused it to twist, was comparative negligence, no defense to a section 240 (1) claim"]; see also Nacewicz v Roman Catholic Church of the Holy Cross , 105 AD3d 402, 403 [1st Dept 2013] ).
Moreover, while Dennis James Boyle, Inc. asserts that there is an issue of fact as to plaintiff's credibility, Dennis James Boyle, Inc. has not put forth a version of the accident for which it would not be liable, and has not raised a substantial challenge to plaintiff's credibility as to a material fact (see Klein , 89 NY2d at 835 ; Rivera v Dafna Constr. Co., Ltd. , 27 AD3d 545, 546 [2d Dept 2006] ; Franco v Jemal , 280 AD2d 409, 410 [1st Dept 2001] ).
Accordingly, plaintiff's motion for partial summary judgment under Labor Law § 240 (1) is granted against Dennis James Boyle, Inc.
B. Complete Copper Works' Motion for Summary Judgment (Motion Sequence Number 009)/Dennis James Boyle, Inc.'s Cross Motion for Summary Judgment
Complete Copper Works moves for summary judgment dismissing the third-party complaint, arguing that Dennis James Boyle, Inc. cannot maintain third-party claims for indemnification and contribution against plaintiff's employer, since plaintiff did not suffer a "grave injury." Complete Copper Works argues that plaintiff received workers' compensation benefits as a result of the accident. In addition, Complete Copper Works argues that there is no written contract requiring it to indemnify Dennis James Boyle, Inc.
Dennis James Boyle, Inc. argues, in opposition, that Complete Copper Works had no workers' compensation coverage at the time of the accident. According to Dennis James Boyle, Inc., although Complete Copper Works has produced a certificate of insurance, the certificate of insurance is insufficient to show that coverage existed. Thus, Complete Copper Works is not entitled to the protection of Workers' Compensation Law § 11. Dennis James Boyle, Inc. further contends that plaintiff was not a special employee of Complete Copper Works, because plaintiff was never an employee of Norske.
In reply, Complete Copper Works argues that the third-party complaint must be dismissed because Complete Copper Works was an alter ego of Norske. Complete Copper Works points out that both companies were owned by the same individual, shared employees, had one office, and shared insurance. Additionally, Complete Copper Works argues that it was plaintiff's special employer. Complete Copper Works maintains that Norske surrendered and relinquished control over plaintiff's job duties to Complete Copper Works at the time of the accident. Thus, plaintiff was a special employee of Complete Copper Works, and actually received workers' compensation benefits from Complete Copper Works' alter ego, Norske.
In its cross motion for summary judgment and a surreply, Dennis James Boyle, Inc. asserts that Complete Copper Works' special employee and alter ego arguments were improperly made in reply. Dennis James Boyle, Inc. further argues that plaintiff was not a special employee of Complete Copper Works. Dennis James Boyle, Inc. contends that plaintiff never worked for Norske in any capacity, and that Norkse did not perform any work at the site. Complete Copper Works and Norske were not formed for identical purposes. Moreover, there is no evidence that Norske dominated the day-to-day functions of Complete Copper Works. Both companies maintained separate bank accounts and payroll, which were used to their pay their own overhead/operating expenses. Haraldson testified that he had no specific recollection of swapping employees between the two companies. Furthermore, Norske billed Complete Copper Works for its share of office expenses.
In opposition to the cross motion, Complete Copper Works argues that the company was formed to take advantage of Schroder's metal skills. Complete Copper Works and Norske had the same supervisor and owner, shared the same office and clerical workers, and the two entities bought the trucks that had been previously owned by Custom Copper Works. Haraldson had the sole right to hire and terminate employees of both companies, and moved them to whatever job he decided. In addition, Haraldson retained any income generated by Norske and Complete Copper Works. Moreover, Complete Copper Works paid Norske for overhead.
At the outset, the court shall consider Complete Copper Works' arguments that plaintiff was its special employee, and that Complete Copper Works was an alter ego of Norske. "The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion" (Matter of Kennelly v Mobius Realty Holdings LLC , 33 AD3d 380, 381 [1st Dept 2006] [internal quotation marks and citation omitted] ). "This rule, however, is not inflexible, and a court, in the exercise of its discretion, may consider a claim or evidence offered for the first time in reply where the offering party's adversaries responded to the newly presented claim or evidence" ( id. at 381-382 ). Here, the court allowed Dennis James Boyle, Inc. to submit a surreply addressing these issues. Therefore, Dennis James Boyle, Inc. had an opportunity to address these arguments.
Next, the court notes that it is undisputed that there were no written contracts requiring Complete Copper Works to indemnify Dennis James Boyle, Inc. or purchase insurance for Dennis James Boyle, Inc.'s benefit (Boyle tr at 77-79). Therefore, the second cause of action in the third-party complaint must be dismissed.
Thus, the court must consider whether Dennis James Boyle, Inc. is entitled to common-law indemnification and contribution from Complete Copper Works.
Workers' Compensation Law § 11 provides, in relevant part, that:
"[a]n employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury.’ "
However, the Court of Appeals has held that "an employer may not benefit from section 11's protections against third-party liability unless it first complies with section 10 and secures workers' compensation for its employees" ( Boles v Dormer Giant, Inc. , 4 NY3d 235, 239 [2005] ). Here, it is undisputed that Norske, not Complete Copper Works, obtained workers' compensation coverage.
Whether Plaintiff Was a Special Employee of Complete Copper Works
This exclusivity provision has also been applied to shield persons or entities other than the injured plaintiff's direct employer from suit, including special employers (see Fung v Japan Airlines Co., Ltd. , 9 NY3d 351, 357—358 [2007] ). It is well settled that a worker "may be in the general employment of one employer and the special employment of another" ( Murry v Union Ry. Co. of NY City , 229 NY 110, 112-113 [1920] ). Such a relationship is found where a worker is "transferred for a limited time of whatever duration to the service of another" ( Thompson v Grumman Aerospace Corp. , 78 NY2d 553, 557 [1991] ). "General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer" (id. ). While "a person's categorization as a special employee is usually a question of fact, ... the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact" ( id. at 557—558 ). Although "no one [factor] is decisive" in determining whether a special employment relationship exists, "a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee's work" ( id. at 558 ). Moreover, courts have considered whether the plaintiff was "aware of and consented to his [or her] special employee status" (id. ).
Applying these principles, Complete Copper Works has failed to demonstrate that plaintiff was its special employee as a matter of law. Although plaintiff testified that he was supervised by Schroder, a Complete Copper Works employee, and that Schroder provided the ladder (plaintiff tr at 30, 31, 34, 49), Complete Copper Works has failed to show that plaintiff was "aware of and consented to his special employment status" ( Thompson , 78 NY2d at 558 ; see also Zupan v Irwin Contr., Inc ., 145 AD3d 715, 718 [2d Dept 2016] ; Bellamy v Columbia Univ. , 50 AD3d 160, 166 [1st Dept 2008] ; Bernier v Gabriel Contr. , 6 AD3d 369, 371 [2d Dept 2004] ; Shelley v Flow Intl. Corp. , 283 AD2d 958, 960 [4th Dept 2001], lv dismissed 96 NY2d 937 [2001] ). Plaintiff testified that he was employed by Complete Copper Works, and that his supervisor was Schroder (plaintiff tr at 30, 34). He had been working at the site for about three months (id. at 37). However, there is no evidence that plaintiff was aware of the possibility of an employment relationship with an entity other than Complete Copper Works (see Shelley , 283 AD2d at 960 ). Additionally, Schroder testified that he performed work for Custom Copper Works at the premises for only three days, and that he worked there for Complete Copper Works for two days (Schroder tr at 11-12). In addition, Haraldson testified that the first day that plaintiff began working for Complete Copper Works was the day of the accident (Haraldson 3/2/17 tr at 13). Schroder came to Haraldson and suggested that he hire plaintiff (Haraldson 8/23/18 tr at 24).
Moreover, Dennis James Boyle, Inc. has failed to meet its burden of establishing that plaintiff was not its special employee, considering the evidence that he was supervised by Schroder on the site and that Complete Copper Works provided the ladder (plaintiff tr at 30, 31, 34; Schroder tr at 17, 23).
Whether Complete Copper Works Was the Alter Ego of Norske
The exclusive remedy provision also bars employees from seeking damages from "alter egos" of their employers (see Morato-Rodriguez v Riva Constr. Group, Inc. , 88 AD3d 549, 549 [1st Dept 2011] ). The alter ego rule applies when one of the entities in question controls the other or when the two entities operate as a single integrated entity (see Carty v East 175th St. Hous. Dev. Fund Corp ., 83 AD3d 529, 529 [1st Dept 2011] ; Gonzalez v 310 W. 38th, L.L.C. , 14 AD3d 464, 464 [1st Dept 2005] ).
"Factors relevant to the determination of that issue include whether the two entities share a common purpose, have integrated or commingled assets, share a tax return, are treated by the owners as a single entity, share the same insurance policy, and share managers or are owned by the same person"
( Buchwald v 1307 Porterville Rd., LLC , 160 AD3d 1464, 1465 [4th Dept 2018] ).
In Morato-Rodriguez, supra , the First Department held that "[t]he motion court correctly determined that plaintiff's claims against defendant Riva are barred by Workers' Compensation Law § 11" ( Morato-Rodriguez , 88 AD3d at 549 ). Both entities "share[d] a president and chief executive, an office manager and an office address, and were insured by the same liability and Workers' Compensation policies" (id. ). "Additionally, plaintiff testified that his supervisor, a Riva employee, was the only person who instructed him regarding the work" (id. ).
In Hernandez v Sanchez (40 AD3d 446, 447 [1st Dept 2007] ), two entities were alter egos where both companies had the same officers and members of the board of directors, both operated out of the same premises, used the same computer and telephone systems, and their employees were covered by the same insurance policies, and used the same employee payroll, benefits, and services.
Similarly, in Crespo v Pucciarelli (21 AD3d 1048, 1049 [2d Dept 2005] ), the Second Department held that co-subsidiaries of a parent corporation were alter egos of each other for purposes of Workers' Compensation Law § 11 where both companies shared offices and employees; the vehicles used in the business were shared by their common employees; the same individual was the president of both companies; and the employees of both companies were covered under the same workers' compensation insurance policy.
Here, the evidence indicates that: (1) Haraldson was the owner/president of both Complete Copper Works and Norske, and that he had the sole right to hire and terminate employees of both entities (Haraldson 3/2/17 tr at 7; Haraldson 8/23/18 tr at 45); (2) Complete Copper Works and Norske "shared the same office, the same insurance, and things like that," including back room office employees (Haraldson 3/2/17 tr at 75; Haraldson 8/23/18 tr at 32; Schroder tr at 65; Gorton affirmation in support, exhibit M); (3) both companies "swapped or commingled employees as needed" in September 2010, although Haraldson testified that he could not recall a specific instance of doing that (Haraldson 3/2/17 tr at 11; Haraldson 8/23/18 tr at 31-33); (4) the vehicles were used for work by Complete Copper Works and Norske (Schroder tr at 65; Haraldson 3/2/17 tr at 80); and (5) the income from both companies went to Haraldson (Haraldson 8/23/18 tr at 45). Thus, Complete Copper Works has demonstrated that both companies operated as a single integrated entity, and is therefore entitled to the defense afforded by Workers' Compensation Law § 11. Accordingly, Complete Copper Works is entitled to dismissal of the third-party complaint. In light of the above, Dennis James Boyle, Inc.'s cross motion for summary judgment is denied.
CONCLUSION
Accordingly, it is
ORDERED that the motion (sequence number 008) of plaintiff Jhon Pizarro for partial summary judgment on the issue of liability under Labor Law § 240 (1) is granted against defendant Dennis James Boyle, Inc., with the issue of plaintiff's damages to be determined at the trial of this action; and it is further
ORDERED that the motion (sequence number 009) of third-party defendant Complete Copper Works, Inc. for summary judgment dismissing the third-party complaint is granted, and the third-party complaint is severed and dismissed as against said third-party defendant, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the cross motion of defendant/third-party plaintiff Dennis James Boyle, Inc. to strike the affirmative defense that the third-party complaint is barred by the Workers' Compensation Law, and for a conditional order of common-law indemnification against third
party defendant Complete Copper Works, Inc. is denied; and it is further
ORDERED that the caption is amended to reflect the prior discontinuance and the dismissal of Catherine Lignelli, to read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 34
X
Index No. 102474/11
Mot. Seq. Nos. 008 & 009
JHON PIZARRO,
Plaintiff,
against
DENNIS JAMES BOYLE, INC.,
Defendant.
X
Third-Party Index No. 590006/12
DENNIS JAMES BOYLE, INC.,
3rd Party Plaintiff,
against
COMPLETE COPPER WORKS INC.,
3rd Party Defendant.
X
The Clerk is directed to amend the caption accordingly, and the parties are to use the amended caption in all further proceedings regarding this case.