Roche v. T.G. Realty, Inc. ( 1999 )

—In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated August 21, 1998, as granted the plaintiffs motion to strike its affirmative defense that the plaintiffs exclusive remedy is Workers’ Compensation Law benefits.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion to strike the affirmative defense is denied.

The Supreme Court erred in granting the plaintiffs motion to strike the defendant’s affirmative defense based upon the exclusive remedy provisions of the Workers’ Compensation Law. There is a triable issue of fact as to whether the defendant is an alter ego of Gaffco, Inc., the plaintiffs employer, which bears on whether the defendant is entitled to raise the defense of the Workers’ Compensation Law (see, Alvarez v Jamnick Realty Corp., 260 AD2d 328; see also, Donatin v Sea Crest Trading Co., 181 AD2d 654; cf., Mattarelliano v Moish Gas Stas., 242 AD2d 685). Ritter, J. P., Santucci, Thompson and Joy, JJ., concur.