Morato-Rodriguez v Riva Constr. Group, Inc.

Morato-Rodriguez v Riva Constr. Group, Inc. 2011 NY Slip Op 07349 Decided on October 20, 2011 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 October 20, 2011
Gonzalez, P.J., Mazzarelli, Sweeny, Abdus-Salaam, Román, JJ.
5771 303634/09

[*1]Karlo Morato-Rodriguez, Plaintiff-Appellant,

v

Riva Construction Group, Inc., Defendant-Respondent, 1412 Broadway, LLC, Defendant-Appellant, Admit One, LLC, Corp., Defendant.




Kagan & Gertel, Esqs., Brooklyn (Irving Gertel of counsel), for
Karlo Morato-Rodriguez, appellant.
McGaw, Alventosa & Zajac, Jericho (Dawn C. DeSimone of
counsel), for 1412 Broadway, LLC, appellant.
Karl Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville
(James V. Derenze of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered February 14, 2011, which granted defendant Riva Construction Group's motion for summary judgment dismissing the complaint against it, unanimously affirmed, without costs.

The motion court correctly determined that plaintiff's claims against defendant Riva are barred by Workers' Compensation Law § 11. Riva demonstrated that it and nonparty WTS Contracting Corp. are alter egos by establishing that they share a president and chief executive, an office manager and an office address, and were insured by the same liability and Workers' Compensation policies (see Carty v East 175th St. Hous. Dev. Fund Corp., 83 AD3d 529 [2011]). Although plaintiff was paid with a WTS check and WTS was identified as his employer in the report regarding his accident as well as in the Workers' Compensation notice of award, these facts are consistent with the averment by the president of both Riva and WTS that WTS was merely the payroll entity for all Riva employees (cf. Vera v NYC Partnership Hous. Dev. Fund Co., Inc., 40 AD3d 472 [2007]). Additionally, plaintiff testified that his supervisor, a Riva employee, was the only person who instructed him regarding the work. [*2]

In view of the foregoing, the claimed need for further discovery in the form of depositions from defendant Riva is unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2011

CLERK