Opinion
# 2014-029-067 Claim No. 109470 Motion No. M-84774 Motion No. M-84852 Motion No. M-86344
06-22-2015
JERRY A. GRASSO, JR. v. NEW YORK STATE THRUWAY AUTHORITY
WEITZ & LUXENBERG, P.C. By: Teresa Curtin, Esq. BURKE, SCOLAMIERO, MORTATI & HURD, LLP By: Mark G. Mitchell, Esq.
Synopsis
The four claimants were injured while working to remediate a hazardous waste dumping site involving the I-87/I-84 intersection in Orange County. The four separate claims alleged that the New York State Thruway Authority violated Labor Law §§ 200 and 241(6) (based on12 NYCRR § 12-1.4 and 29 C.F.R. § 1910.120), common law negligence, and strict liability. Claimants' motions for partial summary judgment were joined for disposition with Defendant's motions for summary judgment and for leave to amend its amended answers to include collateral estoppel and res judicata as affirmative defenses. The court: granted in part defendant's motions for leave to amend to include collateral estoppel only as an affirmative defense, and otherwise denied the motions; granted defendant's motions for summary judgment based on collateral estoppel and dismissed Claim Nos. 109470, 109471, 109472 and 109473; and denied claimants' motions for partial summary judgment.
Case information
| UID: | 2014-029-067 |
| Claimant(s): | JERRY A. GRASSO, JR. |
| Claimant short name: | GRASSO |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | Claimants' counsel states in her affirmation supporting claimants' motion that she consents to dismissal of the named State agencies other than NYSTA (see Curtin Aff. at 2, fn.1). However, because these entities are not properly named, the court has amended the captions accordingly. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 109470 |
| Motion number(s): | M-84774, M-84852, M-86344 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | WEITZ & LUXENBERG, P.C. By: Teresa Curtin, Esq. |
| Defendant's attorney: | BURKE, SCOLAMIERO, MORTATI & HURD, LLP By: Mark G. Mitchell, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | June 22, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) | 2014-029-068, 2014-029-069, 2014-029-070 |
Decision
Claimants Jerry A. Grasso, Jr., John Sullivan, Jr., Cathy Marl and Louis Centolanza (collectively "claimants") are seeking damages for injuries they allegedly sustained from exposure to noxious substances while doing remediation work in 2004 at a New York State Thruway Authority ("NYSTA") interstate construction project site near Newburgh, New York ("project"). The claims, filed in June, 2004, assert New York Labor Law §§ 200 and 241(6) violations based on an Industrial Code provision regarding employers' safety and health obligations (12 NYCRR § 12-1.4), and an OSHA regulation (29 C.F.R. § 1910.120), common law negligence, and strict liability.
The pending motions, which are joined for disposition, are: defendant's motions for summary judgment dismissing the claims in their entirety; claimants' motions for partial summary judgment on strict liability and duty issues; and defendant's motions for leave to amend their amended answers to include the defenses of res judicata and collateral estoppel, and to add these defenses as additional grounds for summary judgment. All of the motions are opposed.
In December, 2014, well after the instant motions were submitted in the Court of Claims, the Supreme Court, Orange County (Slobod, J.) issued a Decision and Order in the same four claimants' parallel joint personal injury action, granting the defendant's (contractors on the project) motions for summary judgment and dismissing the actions against them, which included the following causes of action: negligence; failure to warn; violations of Labor Law §§ 200 and 241(6); gross negligence; strict liability; and negligent or intentional infliction of emotional distress. Defendant argues that the Supreme Court decision in the personal injury action collaterally estops claimants from pursuing their claims in the Court of Claims. With the court's permission, the parties submitted supplemental briefings regarding the extent to which the 2014 Supreme Court decision collaterally estops prosecution of the four claims. Background
The Supreme Court, Orange Co., issued two earlier decisions (2009 and 2011) in actions between NYSTA, the general contractor and a number of insurers (Index. No 8476/06).
Claimants' Supreme Court action is captioned Cathy Marl, John Sullivan, Louis Centolanza, and Jerry Grasso v Liro Engineers Inc., a/k/a Liro Group, Inc., a/k/a Liro-Kasner, Inc. and Conrad Geoscience Corp., No. 2277/2007, with third-party action by the Liro defendants against subcontractor Savin Engineers, P.C., which the Supreme Court found to be moot by dismissal of the main action. .
The Claims
The four claims at issue were filed in 2004 by workers on a construction project involving the I-87 (New York State Thruway) /I-84 intersection in Orange County, New York. Part of the area had been used by NYSTA for decades to dump hazardous waste materials. After NYSTA performed two environmental studies, the New York Department of Environmental Conservation granted NYSTA permission to remediate the site (see Ex. 3 to claimants' motion). The grant of permission, and the conditions of compliance, were memorialized in a November 7, 2002 Consent Order ("Consent Order"). NYSTA retained Liro Engineers, Inc. ("Liro") to render engineering services and to manage the project. Liro served as the "eyes and ears" of NYSTA (Mitchell Attorney Aff., Exs. S, T). Liro subcontracted its work on the project to Savin Engineers, P.C. ("Savin"). NYSTA hired claimants' employer Ketco, Inc. ("Ketco") as the general contractor for the construction project. Among Ketco's responsibilities was the excavation and removal of toxic waste materials. Ketco subcontracted with Conrad Geoscience Corp. ("Conrad Geoscience") to prepare health and safety and materials handling plans ("HASP" and "MHP") in accordance with the Consent Order, and to perform environmental testing at the worksite (id., Ex. HH; see Mitchell Aff. in Opp., Ex. 1).
Jerry A. Grasso, Jr./Claim No. 109470, John Sullivan, Jr./Claim No. 109471, Cathy Marl/Claim No. 109472 and Louis Centolanza/Claim No. 109473. The claims are verified by counsel.
The nearly identical verified claims allege that on March 17, 2004, four Ketco employees engaged in remediation work at the project site without respiratory protection, were overcome by toxic fumes and taken to the hospital. Claimants demand a total of $18,000,000 in damages for injuries they sustained from being exposed to high levels of hazardous materials, including, inter alia, dizziness, pain and numbness, elevated blood pressure, liver damage, nausea, cognitive injuries and toxic encephalopathy. Defendant allegedly caused these injuries because they: were negligent in creating an ultrahazardous and dangerous condition; failed to warn claimants of the risks of the presence of toxic chemicals; unreasonably exposed claimants to toxic chemicals; buried toxic chemicals at the site; and retained and negligently supervised unqualified contractors and subcontractors. The claims assert common law negligence, violations of Labor Law §§ 200 and 241(6) by failing to provide safe working conditions, specifically by violating NYCRR § 12-1.4 of the Industrial Code, and 29 C.F.R. § 1910.120, which is an OSHA regulation for workplace standards, and strict liability.
Claimants allege further that the 2002 Consent Order required NYSTA to retain responsibility for ensuring that the remediation would comply with that Order, and that NYSTA had actual or constructive knowledge of the dangerous situation at the site because: they hired Ketco on the basis of a bid too low to ensure that the bidder's work would be adequate; they failed to conduct further investigation of the site before initiating the remediation project; and NYSTA officials were regularly at the site.
The Motions
Defendant moves for summary judgment on the following grounds: the claims are insufficient under CPLR 3013 and 3014; defendant is immune from liability; claimants lack standing to challenge NYSTA's award of general contracts; claimants cannot establish causation; a violation of Labor Law § 241(6) cannot be based on 12 NYCRR 12-1.4(a) of the Industrial Code, which is a general standard, or OSHA regulation 29 C.F.R. §1910.120, which is not part of the Industrial Code; defendant did not exercise the supervision or control necessary to support liability under Labor Law § 200 or common law negligence; and claimants and their employer Ketco may not rely on the presence of hazardous materials to support liability under Labor Law § 200 or common law negligence because it was the condition they were hired to remedy. Defendant also moves to dismiss claimants' demand for punitive damages made in their Supplemental Bills of Particulars.
In opposition, and in support of their motions for partial summary judgment, claimants argue that: NYSTA undertook proprietary functions in remediating the site pursuant to the Consent Order; remediation is an ultrahazardous activity; it is undisputed that claimants were exposed to levels of a toxic agent known to cause the kind of harm they allegedly sustained (see Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762 [2014]); defendant has not met its burden to show it is undisputed that the hazards were part of or inherent in the work claimants were hired to perform, and that NYSTA did not exercise supervisory control over the project or have notice of the dangerous condition; claimants' failure to plead a violation of Part 23 of the Industrial Code is not fatal to their claim under Labor Law § 241(6); and leave to amend the bills of particulars to add Part 23 violations should be granted.
In reply, defendant reiterates its arguments, adding that leave to amend claimants' bills of particulars should be denied as the request is untimely and the cited provisions of Part 23 are inapplicable as a matter of law. Claimants did not oppose dismissal of their demands for punitive damages.
Discussion
To succeed on their summary judgment motions, claimants and defendant must establish "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Gammons v City of New York, 24 NY3d 562, 570 [2014], quoting, Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also CPLR 3212 [b]).
Both collateral estoppel and res judicata are founded in the equitable notion that a party should not be permitted to burden the judicial system and their adversaries with repetitive litigation of a claim or issue previously decided (Ryan v New York Tel. Co., 62 NY2d 494 [1984]). The doctrine of res judicata applies where the parties and the claims in both proceedings are identical and is patently not implicated here. The doctrine of collateral estoppel applies where an issue raised in a later action is identical to an issue (1) that was raised, necessarily decided and material in a prior action; and (2) as to which the party opposing collateral estoppel had a full and fair opportunity to litigate in the earlier proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999], citing Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). The burden is on the party asserting collateral estoppel to prove the first element, while the opponent has the burden of showing the second (id.; Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]). Once the movant makes a prima facie showing that the issues in the two proceedings are identical, the burden shifts to the non-moving party to show a triable issue of fact as to the identity of issues, or its lack of opportunity to fairly litigate them in the prior proceeding (see Matter of Gowrie v Squires, 71 AD3d 1023, 1024 [2d Dept 2010]; see also Matter of Ajay P., 60 AD3d 681, 683 [2d Dept 2009]).
The first prong of the inquiry is met as to a particular issue if it has "been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding" (Matter of Halyalkar v Board of Regents of the State of NY, 72 NY2d 261, 268 [1988]). A grant of summary judgment on a particular issue constitutes a determination on the merits, and gives rise to issue preclusion to the same degree as a favorable resolution at trial (see QFI, Inc. v Shirley, 60 AD3d 656, 657 [2d Dept 2009]; see also Gollel v Nassar, 206 AD2d 835, 836 [4th Dept 1994], lv denied 85 NY2d 802 [1995]; Boorman v Deutsch, 152 AD2d 48, 53 [1st Dept 1989], lv dismissed 76 NY2d 889 [1990]).
For the reasons stated below, the court finds that defendant's invocation of collateral estoppel "provides ample basis" to establish a prima facie case for summary judgment (Perez v State of New York, 33 Misc3d 1221(A) [Ct Cl 2011] [granting leave to amend answer to add defense of collateral estoppel, and granting State's summary judgment motion]). Identity of Issues
The plaintiffs in the Supreme Court personal injury action are the same as the claimants in this action, all of the claims plead against the State were also pleaded in the Supreme Court action against contractors on the project, and claimants make virtually the same arguments, based on the same evidence.
Labor Law § 241(6)The Supreme Court dismissed claimants' causes of action for violations of Labor Law § 241(6) based on Part 12 of the Industrial Code, and an OSHA regulation. Defendant has made a prima facie showing that the issues concerning these claims are identical in the two proceedings. Claimants now concede that OSHA regulations and, except in limited circumstances, Part 12 of the Industrial Code, do not support a violation of Labor Law § 241(6). The burden is now claimants' to show a triable issue of fact as to the identity of issues, or its lack of opportunity to fairly litigate them in the prior proceeding (see Matter of Gowrie v Squires, 71 AD3d 1023, 1024 [2d Dept 2010]).
Claimants have not met their burden. They argue that the Supreme Court failed to consider certain of their factual arguments. For example, claimants assert that, "[T]he Supreme Court failed to consider claimants factual arguments, including expert affidavits, related to whether 12 NYCRR 23-1.7(g) and 12 NYCRR 23-1(b) require respiratory protection and continuous air monitoring in enclosed space of workers' excavator cabs" (Cl Opp. at 5). Claimants' position is erroneous. The Supreme Court resolved this issue when it denied claimants leave to amend their bill of particulars to include these Part 23 regulations, finding that, "The work site in this case was out in the open" (Decision at 5).
Claimants also argue, based on the Court of Appeals' decision in Nostrom v A.W. Chesterton Co., 15 NY3d 502 (2010), that 12 NYCRR § 12-1.4(b)(3) and (4) may support violations of Labor Law § 241(6). In Nostrom , the Court of Appeals rejected the plaintiff's argument that the vicarious liability of owners may be grounded on violation of Part 12 regulations regardless of the location of the exposure, concluding that, "a plaintiff may bring a section 241(6) claim based on a violation of a part 12 rule only where the injury occurred in an unventilated confined area, thereby triggering section 23-1.7(g)'s pass-through provision (see Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275 [1st Dept 2007])." Specifically, the Court explained:
12 NYCRR § 12-1.4(b)(3) and (4) provide, respectively, (3) No employer shall suffer or permit an employee to work in a room in which there exist dangerous air contaminants in a work atmosphere. (4) No employer shall suffer or permit dangerous air contaminants to accumulate or remain in any place or area subject to the provisions of this Part (rule).
Claimants' counsel participated in that case.
[T]he language of 12 NYCRR 23-1.7 (g) confirms that part 12 regulations, by themselves, were not intended to serve as a predicate for liability under Labor Law § 241 (6). Section 23-1.7 (g) makes any "unventilated confined area" where dangerous air contaminants may be present subject to the provisions of part 12. By incorporating the requirements of part 12 into this narrow subset of work sites governed by part 23--unventilated confined areas--it is evident that the intent was to impose a nondelegable duty on owners and contractors in these limited circumstances.
(id. at 508).
The holding in Nostrom does not place into doubt the identity of the issues decided by the Supreme Court with the issues being decided by this court. Claimants relied on Nostrom in the Supreme Court, and they argued that the "narrow subset" of work sites contemplated by the Court of Appeals includes the truck cabs in which they worked at the project site. The Supreme Court disagreed. Relying on language from Nostrom, the Supreme Court dismissed the Labor Law § 241 (6) cause of action on the ground that "12 NYCRR § 12-1.4(b) does not apply to owners, contractors, or their agents" (Decision at 5). There is nothing in the Supreme Court's decision suggesting that it did not consider claimants' argument, and claimants do not identify any language to that effect. The absence of a specific statement rejecting the argument in issue is not material. It is enough that the Supreme Court considered the work site to be "out in the open" (id.), that it cited Nostrom, and it dismissed the complaint. The correctness of that decision is not for this court to determine. The decision is on appeal to the Appellate Division, Second Department, which is the appropriate forum for review.
Labor Law § 200 and Common Law Negligence
Labor Law § 200 is a codification of the common law duty of a land owner to provide and maintain a safe place to work. In order for an owner (or its contractor) to be held liable under Labor Law § 200, there must be evidence that the owner (or contractor) controlled or supervised the manner in which the underlying work was performed, or that it created or had notice of the alleged dangerous condition that caused the injuries (see Costa v Sterling Equipment, Inc., 123 AD3d 649, 640 [2d Dept 2014]; see also Barreto v Metropolitan Transp. Auth., 2015 NY LEXIS 985, 2015 NY Slip Op 03875 [May 7, 2015] [Court of Appeals affirmed dismissal of Labor Law § 200 claim against landowner where employee injured after employer, the general contractor, ordered him to carry steel beam unassisted]); Yackle v State, Claim No. 2003-031-004 [Ct Cl February 10, 2003], citing Comes v New York State Electric and Gas Corporation, 82 NY2d 876 [1993]). General supervisory authority is not sufficient (see Alexandre v City of New York, 300 AD2d 263, 264 [2d Dept 2002] [reversing lower court's denial of summary judgment for City as to claims under Labor Law § 200 and common law negligence where City exercised only general supervisory authority at work site for purpose of overseeing progress of work, and inspecting work product]).
The Supreme Court granted summary judgment and dismissed the Labor Law § 200 and common law negligence causes of action against Liro and Conrad Geoscience. The claims and theories of liability put forth by claimants in both courts are identical (see Complaint, ¶¶ 66-76, Mitchell Supp. Aff., Ex. C; Claims; Bills and Supp. Bills of Particulars ).
The Supreme Court held specifically that neither Liro nor Conrad Geoscience had the requisite control over the work of Ketco's employees, or that it created or had notice of the dangerously high level of contaminants in the air. Claimants assert that the facts are disputed because an employee of Liro's subcontractor Savin stopped work one day, showing control, but the Supreme Court concluded that "general supervisory authority, even if it involves an ability to stop the work, is insufficient to create liability" (Decision at 4, Mitchell Supp. Aff., Ex. B).
Claimants also attempt to raise factual issues by arguing that the issues are not identical and were not resolved because the Supreme Court "did not make any findings of fact as to the State's liability" (Curtin Supp. Aff. at 23). Claimants' focus on the State's absence from the Supreme Court action is misplaced. Claimants do not cite any actual supporting case law for their position. Rather, they misconstrue the one case they do cite, Brennan v State of New York, 64 Misc2d 213 (Ct Cl 1970), modified by 39 AD2d 803, 803 (3d Dept 1972). The issue in Brennan was not whether the first court had made findings of fact as to a particular party, but whether there had been a full and fair opportunity to litigate the issues. The Appellate Division found there had been as to some, but not all of the issues (id.).
Claimants' position is also unrealistic. Participation by the State or its agencies in the first proceeding would have been impossible in light of the Court of Claims' exclusive jurisdiction over actions against the State and State agencies (see Court of Claims Act § 8). Besides, the State's liability, if any, would be entirely derivative of its contractors who participated in the prior action (see Rodenheiser v State of New York, 47 AD3d 788 [2d Dept 2008] [verdict on malpractice claim for State doctor collaterally estopped claimant's subsequent action against State]; see also Becker v State of New York, 274 AD2d 532 [2d Dept 2000] [determination that State employee not negligent in prior litigation with claimant collaterally estopped negligence claim by claimant against the State]; Bechtel v State of New York, 105 AD2d 677 [2d Dept 1984] [federal court ruling in favor of contractors in negligence action compelled Court of Claims judgment in State's favor, as State's liability was "wholly derivative" from contractor]). As a result, the decision of the Supreme Court on these identical issues also obviates any possible derivative liability on the part of NYSTA.
With respect to other necessary elements for claims based on negligence and Labor Law § 200, the Supreme Court held that claimants "have failed to demonstrate the existence of an issue of fact with respect to the element of actual or constructive notice on the part of Liro [that] toxic substances had been released into the air at the work site in dangerous levels" (Decision at 4).
As to Conrad Geoscience, the Supreme Court held:
Like Liro, Conrad cannot be [held] liable for common law negligence or for a violation of Labor Law § 200 unless Conrad owed a duty to the plaintiffs. The obligation to draft an adequate HASP and an adequate MHP were contractual obligations that Conrad had to Ketco; those obligations created no duty toward the plaintiffs. Further, the plaintiffs have failed to rebut Conrad's prima facie showing that it lacked a degree of supervisory authority which would create a duty toward the plaintiffs. As noted above, general supervisory authority is insufficient.
Nor is there a basis for the plaintiffs' contention that Conrad created the dangerous condition that allegedly caused the plaintiffs' injuries. Conrad did not place harmful substances at the site or release those substances into the air. Even if the HASP and MHP were deficient, that deficiency did not exacerbate the underlying condition or launch a force of harm. The plaintiffs do not contend that they reasonably relied on the contract between the Thruway Authority and Conrad.
(id. at 6-7). Strict Liability/Ultrahazardous Activity
Claimants assert that defendant should be held strictly liable for injuries sustained during the remediation process because the area in question was a hazardous waste site and inherently dangerous. The vicarious liability that the claimants attempt to invoke is designed to protect members of the public and does not extend to an employee of the contractor hired to do the dangerous work who, as here, is ordinarily covered by workers' compensation (see Whitaker v Norman, 75 NY2d 779 [1989]; see also Nagy v State of New York, 89 AD2d 199 [3d Dept 1982]).
Claimants argue as well that the Supreme Court did not consider whether NYSTA can be held strictly liable for the deficient HASP and MHP (Curtin Supp. Aff. at 13). Claimants fail to mention the Supreme Court's conclusion that assuming there were deficiencies, they would not result in Conrad's liability to claimants:
[t]he obligation to draft an adequate HASP and an adequate MHP were contractual obligations that Conrad had to Ketco; those obligations created no duty toward the plaintiffs. Further, the plaintiffs have failed to rebut Conrad's prima facie showing that it lacked a degree of supervisory authority which would create a duty toward the plaintiffs.
(Decision at 7).
Claimants are in error as well in arguing that the Supreme Court "never considered" the applicability of certain exceptions to the "general rule that there is no recovery in tort for breach of contract" (Curtin Supp. Aff. at 17). The Supreme Court rejected the applicability of the exceptions raised by claimants by deciding there was no basis "for the plaintiffs' contention that Conrad created the dangerous condition (release of contaminants into the air)," and in deciding that the plaintiffs did not claim reasonable reliance on Conrad's contract (Decision at 7).
Full and Fair Opportunity to Litigate
In the present action, defendant has demonstrated prima facie the identity of issues by showing that the pleadings in the Supreme Court action and those in the present case are materially the same. In response, claimants have failed to proffer any evidence demonstrating that they did not have a full and fair opportunity to contest the Supreme Court proceedings. Further, there is no consideration of fairness or other factor that militates against reliance on collateral estoppel in this case. Claimants are represented by the same counsel as in the Supreme Court action, and such counsel points to no new evidence which would warrant a different outcome in this case (see Sucher v Kutscher's Country Club, 113 AD2d 928, 931 [2d Dept 1985] [considerations of fairness weigh against collateral estoppel when new attorney represents claimant, and record contains "new evidence, not available at the time of the prior proceeding"]). Indeed, she has presented materially identical claims in both proceedings. Under these circumstances, and for the reasons stated above, the doctrine of collateral estoppel applies.
In light of this decision, it is unnecessary to address defendant's remaining arguments. Accordingly, defendant's motions for leave to amend its amended answers to include collateral estoppel and res judicata as affirmative defenses are granted in part to include collateral estoppel only as an affirmative defense, and otherwise denied; and defendant's motions for summary judgment are granted and Claim Nos.109470, 109471, 109472 and 109473 are dismissed; and claimants' motions for partial summary judgment are denied.
June 22, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims