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INFORMATION PROVIDED FOR THE FIRST TIME IN A REPLY TO OPPOSITION TO A SUMMARY JUDGMENT MOTION CAN NOT BE RELIED UPON TO MAKE OUT A PRIMA FACIE CASE, THE APPELLANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ON THE JOB INJURY CASE ON THE GROUND THAT APPELLANT WAS PLAINTIFF’S GENERAL EMPLOYER AND PLAINTIFF’S ONLY REMEDY WAS WORKERS’ COMPENSATION PROPERLY DENIED (SECOND DEPT).

The Second Department determined that information provided for the first time in a reply affidavit could not be relied upon to sustain a movant’s prima facie burden for a summary judgment motion. The plaintiff, who was injured on the job, alleged he was hired by the defendant Bright Star Messenger Service, LLC (hereinafter the appellant). In its motion for summary judgment the appellant alleged it was plaintiff’s general employer and plaintiff’s only remedy was Workers’ Compensation. But included in appellant’s papers was plaintiff’s claim for Worker’s Compensation benefits which listed plaintiff’s employer as “Bright Star Courier.” Therefore the appellant failed to make out a prima facie case that it was plaintiff’s employer. The appellant then submitted a reply affidavit stating that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC prior to the accident:

… Contrary to the appellant’s contention, it failed to make a prima facie showing that it was the plaintiff’s general employer. The appellant submitted the affidavit of a representative of the appellant, who stated that the plaintiff was employed by the appellant on the date of the accident, and that the appellant had procured workers’ compensation insurance for the plaintiff. However, the appellant also submitted Workers’ Compensation Board records showing that the plaintiff had filed a claim for benefits that listed the plaintiff’s employer as “Bright Star Courier.” Under these circumstances, the appellant failed to demonstrate, prima facie, that it was the plaintiff’s general employer … . While the appellant submitted a reply affidavit from its representative averring that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC, prior to the accident, a party cannot sustain its prima facie burden by relying on evidence submitted for the first time in its reply papers  … . The appellant’s failure to make a prima facie showing of its entitlement to judgment as a matter of law required the denial of its motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Matthews v Bright Star Messenger Ctr., LLC, 2019 NY Slip Op 04375, Second Dept 6-5-19

 

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