Opinion
75962011
04-01-2014
Jordano Bessa, Plaintiff, v. Anflo Industries, Inc., Vista Engineering, Inc., and Royal One Real Estate, LLC, Defendants. Vista Engineering Corporation, Third-Party Plaintiff, East Coast Painting and Maintenance, LLC, Third-Party Defendant.
Attorney for Plaintiff Stefanidis and Mironis, LLP 31-10 37th Avenue Long Island City, NY 11101 Attorney for Defendant Royal One Real Estate, LLC Havkins Rosenfeld Ritzert & Varriale, LLO 114 Old Country Rd. Ste 300 Mineola, NY 11501 Attorney for Vista Engineering Corp. Baxter Smith & Shapiro, PC 99 North Broadway Hicksville, NY 11801 Attorney for East Coast Painting & Maintenance, LLC Churbuck Calabria Jones and Materazo, PC 43 A East Barclay St. Hicksville, NY 11801
Attorney for Plaintiff
Stefanidis and Mironis, LLP
31-10 37th Avenue
Long Island City, NY 11101
Attorney for Defendant Royal One Real Estate, LLC
Havkins Rosenfeld Ritzert & Varriale, LLO
114 Old Country Rd. Ste 300
Mineola, NY 11501
Attorney for Vista Engineering Corp.
Baxter Smith & Shapiro, PC
99 North Broadway Hicksville, NY 11801
Attorney for East Coast Painting & Maintenance, LLC
Churbuck Calabria Jones and Materazo, PC
43 A East Barclay St.
Hicksville, NY 11801
Bernice D. Siegal, J.
The following papers numbered 1 to 16 read on this motion pursuant to CPLR 2221(d) granting Defendant Royal One Real Estate, LLC leave to reargue its prior motion for summary judgment and dismissal of plaintiff's complaint and the Order to Show Cause for an order pursuant to CPLR 2221(d), granting defendant/third-party plaintiff Vista Engineering Corporation leave to reargue its prior motion for summary judgment and dismissal of plaintiff's complaint, which was decided by the Order of the Honorable Bernice D. Siegal, dated March 26, 2014; and upon reargument, dismissing plaintiff's complaint and each and every cause of action set forth therein.
PAPERS
NUMBERED
Notice of Motion - Sequence 8...............................................1 - 4
Order to Show Cause- Sequence 9..........................................5 - 8
Affirmation in Opposition........................................................9 - 12
Affirmation in Support.............................................................13
Reply Affirmation- Vista Engineering Corp............................14 - 16
Reply Affirmation- Royal One Real Estate, LLC......................17 - 19
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Royal One Real Estate, LLC ("Royal") moves for leave to reargue, pursuant to CPLR §2221, a prior motion for summary judgment and dismissal of plaintiff's complaint and Vista Engineering Corporation ("Vista") likewise moves for leave to reargue its prior motion for summary judgment and dismissal of plaintiff's complaint.
The court notes that the papers submitted by Vista were not properly bound and the court was left with loose papers that were detached from the original binding causing a considerable delay in the processing of the within motion, and was in derogation of court rules.
Background
Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on October 6, 2010, when he fell after stepping into a hole in the ground at a storage yard located at 42—31 Crescent Street in Long Island City, New York. The undisputed record indicates that plaintiff fell into the hole while carrying a five-gallon bucket full of concrete. At the time of the incident, plaintiff was employed by East Coast Painting and Maintenance, LLC ("East Coast").
Vista was awarded a contract by the New York City Transit Authority (NYCTA) to perform painting and scraping work for the elevated structures at Queensboro Plaza South. Royal owns the undeveloped earthen lot where plaintiff fell, 42—31 Crescent Street, located several blocks from the work site. Vista leased this lot from Royal, for use as a construction storage yard. Vista hired East Coast as a subcontractor to paint and scrap portions of the bridge construction site. Daniel Ribeiro aka Jordano Bessa ("plaintiff") was employed as a bridge painter for East Coast in October 2010.
The underlying motions for summary judgment were granted to the following extent: awarding Royal and Vista dismissal of Plaintiff's Labor Law 241(6) claims predicated upon Industrial Code 23-1.7(e)(2) and 23-1.7(b)(1); awarding East Coast dismissal of the contractual indemnification claims by Vista and to dismiss Vista's cause of action for breach of contract; awarding East Coast's motion to dismiss the contribution and common-law indemnification claims; and awarding Vista summary judgment on their contractual indemnification claim from East Coast.
The sole issue before this court upon reargument is whether Royal and Vista (hereinafter collectively as "Movants") are entitled to reargument on the issue of Plaintiff's alleged fraud with respect to his use of a fictitious name for the purpose of commencing the within action.
Facts
Plaintiff testified at his Examination Before Trial that his full name is Daniel Ribeiro. Plaintiff is a Brazilian national without status in the United States. (EBT pp 12, line2-7.) Plaintiff also testified that he assumed the name "Jordano Bessa" in 1997, after a friend provided him with identification so that plaintiff could work as a bridge painter. (EBT pp 13, line 17-24.) The order issued March 26, 2014 did not address Royal's claim that the current action cannot be maintained because plaintiff filed suit under the assumed name of another individual plaintiff therefore perpetrating a fraud. Defendants seek re-argument on this basis and dismissal of plaintiff's claims in their entirety.
Movants' motions to re-argue are granted and upon reargument this court denies Movants' motions to dismiss as more fully set forth below.
Discussion
Motions for reargument are "addressed to the sound discretion of the court." (McGill v. Goldman, 261 AD2d 593, 594 [2nd Dep't1999]; Frisenda v. X Large Enterprises, Inc., 280 AD2d 514, 515 [2d Dep't 2001]; see also V. Veeraswamy Realty v. Yenom , 71 AD3d 874, 874 [2d Dep't 2010]; Barnett v. Smith, 64 AD3d 669, 670 [2d Dep't 2009]; E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 AD3d 653, 654 [2d Dep't 2007].) Additionally, motions for reargument are controlled by CPLR §2221(d) which states in pertinent part, "[a] motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." Thus, a motion to reargue is not designed to provide an opportunity to present new arguments that were not originally presented, but rather to provide parties with the opportunity to show that the court overlooked or misapprehended the relevant facts or principles of law. ( Amato v. Lord & Taylor, Inc., 10 AD3d 374, 375 [2nd Dep't. 2004]; McGill, 261 AD2d at 594.)
The court failed to address the portion of motions made by Vista and Royal for dismissal of Plaintiff's cause of action on the grounds that Plaintiff committed a fraud by assuming the name of "Jordano Bessa". Accordingly, Movants' motions for reargument are granted.
Motion to Dismiss based on Fraud
Movants contend that Plaintiff committed a fraud when he assumed the name "Jordano Bessa" in 1997 after a friend provided him with identification so that plaintiff could work as a bridge painter and that this alleged fraud is a bar to Plaintiff's action. The act of assuming of a fictitious name has previously been held to be insufficient grounds for dismissing a lawsuit. (Sheppard v. Ridgewood Grove, Inc., 126 N.Y.S.2d 761 [Sup. Ct. 1953] citing International Union Bank v. Nat. Surety Co., 245 NY 368 [Ct. App. 1927].) Furthermore, it has likewise been held that a contract exists between two parties as they know one another; however assuming the name of another third-party individual does not bind that third-party in contract. (Maslin v. Columbian Nat. Life Ins. Co., 3. F.Supp. 368 [S.D.N.Y.1932] [finding where a healthy man assumed the identity of a diseased man in order to gain life insurance the contract existed only between the insurance company and the person examined, not the diseased man].)
Royal and Vista contend that Sheppard stands for the proposition that a party may not maintain an action for breach of contract under a fictitious name, however this is unsupported. Sheppard clearly states, "[i]n the absence of any statutory restriction, or fraud a party may contract and sue in a fictitious name, it being the identity of the individual that is regarded." (Sheppard, 126 N.Y.S.2d at 762; see also Gottheif v. Shapiro, 136 AD 1 [1909] [stating "it is the identity of the individual that is regarded, not the name that he may bear or choose to assume" and holding plaintiff could still foreclose on property although defendant adopted his brother's name throughout the mortgage transaction].) The Sheppard court dismissed the defense and did not bar the plaintiff from maintaining the action because he contracted in a fictitious name. (Sheppard, 126 N.Y.S.2d at 762 [holding "[t]his defense is insufficient and is dismissed."].)
Furthermore, filing this action under his assumed name, Jordano Bessa, does not prejudice Royal or Vista, as neither knew the plaintiff prior to this action. Royal only knew that it leased the lot to Vista, who subcontracted the work to East Coast. East Coast knew the plaintiff only as Jordano Bessa: all forms, credentials, and accident reports relating to his employment were in that name. To file his suit under the name Daniel Riberio would be to deceive and complicate defendant's discovery and ability to defend the action.
Similarly, Royal and Vista claim that plaintiff has committed fraud by commencing the instant action under his assumed name and therefore the complaint should be dismissed. However, neither defendant offers convincing supporting precedent for this claim. Vista and Royal cite Pastrana v. City of New York, 262 AD2d 53 [1st Dep't 1999] and Brady v. City of New York, 257 AD2d 466 [1st Dep't 1999] for support that the plaintiff's action should be dismissed because he filed under an assumed name. However, the Pastrana court is inapplicable as the defendants in Pastrana could not effectively defend the action without obtaining a medical authorization from the actual Medicaid holder as well as the plaintiff, and difficulties would remain in determining which of the women actually received which services. ( Pastrana, 262 AD2d. at 54 [where plaintiff's use of an assumed name of another individual was only to obtain Medicaid benefits for breast implant surgery and thus prejudiced the defendant's ability to defend the plaintiff's malpractice claim].) Herein there has been no showing of prejudice. Brady is likewise inapplicable. In Brady, the claimant provided both a false name and address in the notice, severely hindering the defendant municipal corporation from investigating the claim. ( Brady, 257 AD2d. at 466.) Herein, plaintiff consistently used an assumed name for all employment related documents. Furthermore, defendants do not claim that plaintiff's use of an assumed name hindered their ability to defend the present negligence/labor law action. Moreover, it is uncontested that the plaintiff was the party injured. Thus, Brady and Pastrana are distinguishable from the current action because the defendants' ability in Brady and Pastrana to properly research and defend the action against them was hampered by the respective plaintiff's fraud.
Labor Law §2 defines "employee" as, "a mechanic, workingman or laborer working for another for hire." The definition does not leave room for interpretation; an employee is any person who has been hired to work. Here, it is undisputed that the plaintiff was a laborer working for hire on Royal's property. "[T]he clear legislative history of sections 200, 240 and 241 of the Labor Law, which demonstrates that the Legislature's principal objective and purpose underlying these enactments was to provide for the health and safety of employees." (Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573, 577 [Ct. App. 1990].) "The Labor Law, therefore, applies to all workers in qualifying employment situations—regardless of immigration status—and nothing in the relevant statutes or our decisions negates the universal applicability of this principle see generally Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46, 50-51[Ct. App. 2004] " (Balbuena v. IDR Realty LLC, 6 NY3d 338, 358-59 [Ct. App. 2006].) Abbatiello defined the "special cases" where absolute liability is imposed on owners as a person "permitted or suffered to work on a building or structure and that he was hired by someone, be it the owner, contractor, or their agent."(Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46, 50-51; but see Hoffman Plastic Compounds, Inc. v NLRB, 535 US 137 [Sup. Ct. 2002] [distinguishing the award of backpay for work not performed by an illegal immigrant].)
It is a well-established principle in tort law that an employer has a duty to exercise reasonable care to protect his or her employees from known dangers. (27 Am. Jur. 2d Employment Relationship §181 [2015]; RESTATEMENT (SECOND) OF TORTS § 314B [1965]; but see Probst v. Delamater, 100 NY 266 [Ct. App. 1855] [holding that when the employer has exercised all the "care and caution which a prudent man would take for the safety and protection of his own person," the employer has fulfilled his or her duty of care to an employee and is not liable for the employee's injuries].) Labor Law §200 codified this common law duty of an employer to protect the health and safety of his or her employees. (La Veglia v. St. Francis Hosp., 78 AD3d 1123, 1125 [2nd Dep't 2010]; Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 503 [Ct. App. 1993].)
"As between an undocumented worker and the federal government, the act of submitting fraudulent documents in order to secure employment is unlawful (see 8 USC § 1324c [a]). As between the employer and the federal government, the act of hiring an undocumented worker knowingly or without verifying his or her employment eligibility is unlawful (see 8 USC § 1324a [a] [1]). As between the undocumented worker and the employer, however, there is a contract of employment, under which the worker is entitled to be paid for his or her work. Moreover, as between the worker and an alleged tortfeasor, there are duties under the common law and the New York statutes governing workplace safety (see Labor Law § 240 [1]; § 241 [6])." ( Majlinger v. Cassino Contr. Corp., 25 AD3d 14, 24—25 [2nd Dep't 2005].)
The Labor Law is blind as to status. Therefore, the plaintiff's use of an assumed identity, although unlawful, does not eradicate the defendant's liability. "The contractual, statutory, and common-law duties owed to the worker are unrelated to, and do not depend on, the worker's compliance with federal [] laws." (Id. at 25; see Mendoza v. Monmouth Recycling Corp., 672 A2d 221, 224—25 [1996].)
Herein, the use of an assumed name does not directly relate to the subject matter of the litigation. The plaintiff is suing under negligence and labor law and therefore whether he used his legal or assumed name at work has no effect on his claims; his claims are not dependent on the use of Jordano Bessa or Daniel Ribeiro as his name.
Thus, plaintiff's use of an assumed name is irrelevant in the current labor law and negligence action, "[u]nder common-law negligence principles, and pursuant to Labor Law §200, a landowner has a duty to provide workers with a reasonably safe place to work.'" (Soskin v. Scharff, 309 AD2d 1102, 1105 [3rd Dept. 2003] quoting Lombardi v. Stout, 80 NY2d 290, 294 [Ct. App. 1992].) Plaintiff's Labor Law §200 claim is based on a dangerous work site condition, the hole in the ground, that occurred on Royal's property. Plaintiff claims that overgrown vegetation and poor lighting at the lot created dangerous work site at the lot, which is owned by Royal. When the accident results from a dangerous work site condition, there is no requirement that defendant supervise and control plaintiff's work in order to impose liability. (Cordeiro v. TS Midtown Holdings, LLC, 87 AD3d 904, 906 [1st Dept. 2011]). The protection afforded by Labor Law §200 applies beyond construction work and construction workers; §200 protects all employees in "[a]ll places which [the Labor Law] Applies." (Jock v. Fien, 80 NY2d 965, 967 [Ct. App. 1992]; see Labor Law § 2[9], [10]). Whether the plaintiff used his given name or an assumed name does not render Labor Law §200 inapplicable. (see Labor Law §200 ["All places to which this chapter applies shall be operated to provide protection to the lives, health and safety of all persons employed therein"].) Thus, because the Labor Law applies to all employees and codifies the common law principle that a master owes his servant a reasonable duty of care, the name an employee is known by to his or her employer is irrelevant.
Conclusion
The Labor Law exists to protect all employees. This protection exists independently of an immigrant employee's work status. Plaintiff's filing of this suit under an assumed name did not prejudice defendants, as it was the name he was known as in the profession, and does not sever the protections afforded him by the Labor Law. For the reasons set forth above, Movants' motions for reargument are granted, and upon reargument the court denies Movants' motions for dismissal of Plaintiff's cause of action based on fraud.
Dated:April 1, 2014___________________________
Bernice D. Siegal, J. S. C.