Marion v. Tappan Zee Constructors, LLC

Full title: TIMOTHY MARION, Plaintiff, v. TAPPAN ZEE CONSTRUCTORS, LLC, FLUOR…

Court: Supreme Court, Ulster County

Date published: Jan 29, 2020

2020 N.Y. Slip Op. 34593 (N.Y. Sup. Ct. 2020)

Opinion

Index 16-2180

01-29-2020

TIMOTHY MARION, Plaintiff, v. TAPPAN ZEE CONSTRUCTORS, LLC, FLUOR ENTERPRISES, INC., AMERICAN BRIDGE COMPANY, TRAYLOR BROS., INC. AND GRANITE CONSTRUCTION NORTHEAST, INC., Defendants. RJI No. 55-16-01707

STEVEN M. MELLEY, PLLC Attorneys for Plaintiff, By: Steven M. Melley, Esq. FLACKER, GARLICK & ASSOCIATES, LLP Attorneys for Defendants, By: Robert N. Dengler, Esq.

CHRISTOPHER E. CAHILL JUDGE.

Unpublished Opinion

Motion Return Date: September 9, 2019

STEVEN M. MELLEY, PLLC Attorneys for Plaintiff, By: Steven M. Melley, Esq.

FLACKER, GARLICK & ASSOCIATES, LLP Attorneys for Defendants, By: Robert N. Dengler, Esq.

Present: Christopher E. Cahill, JSC.

DECISION & ORDER

CHRISTOPHER E. CAHILL JUDGE.

Defendants, with the exception of defendant Tappan Zee Constructors, LLP ("TZC"), move to dismiss the complaint for failure to state a cause of action pursuant to CPLR § 3211(a)(7). The plaintiff opposes the motion and cross-moves for an order denying the motion to dismiss as premature as no discovery has been held. The plaintiff also seeks to strike the defendants' answers or compel the defendants to comply with his discovery demands. The defendants oppose the cross-motion.

Defendant TZC entered into a contract with the NYS Thruway Authority to design and build a new Tappan Zee Bridge to span the Hudson River from Westchester County, New York to Rockland County, New York. On March 20, 2013, the plaintiff was hired as a boat captain by TZC and was required to operate a vessel on the Hudson River for the bridge project. On September 17, 2013, the plaintiff claims that he was injured while navigating rough waters on the river. He commenced this action on August 15, 2016, alleging that the vessel was not suited to navigate the waters of the Hudson River. He also contends he is totally disabled as a result of these work-related injuries. Specifically, he has alleged causes of action pursuant to the Jones Act (46 USC § 30104), general maritime law and state law. Besides TZC, the plaintiff has named the other four corporate entities as defendants as they were members of TZC s limited liability company.

The plaintiff alleges that the defendants have continuously refused to comply with his discovery demands, and that his demands were either denied, ignored or unresponsive. The plaintiff also maintains that the defendants have wilfully stalled the discovery process for several years. Although discovery with TZC has been ongoing, the plaintiff states that the moving defendants "have engaged in zero disclosure," as the four defendants have not produced any records or documents, although demanded, and have failed to produce a single person with any knowledge to submit to an examination before trial. Finally, the plaintiff asserts that the defendants are not immune from liability as members of TZC's limited liability company as the defendants argue.

Defendants oppose plaintiffs cross-motion and maintain that he fails to state a cause of action under maritime law or state law. The defendants allege they have complied with the discovery demands of the plaintiff in relation to TZC, and that they are immune from liability as a limited liability company for acts taken on behalf of the company. The defendants' opposition papers, however, are silent in regard to plaintiffs allegation that they failed to comply with his discovery demands over several years.

As to the law applicable to defendants' motions, it is well established that the pleadings shall be liberally construed, the facts alleged accepted as true, and every possible favorable inference given to plaintiff (Leon v. Martinez, 84 N.Y.2d 83 [1994]). A motion to dismiss pursuant to CPLR § 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law (AG Capital Funding Partners L.P. v. State St. Bank and Trust Co., 5 N.Y.3d 582 [2005]). The Court's sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory (Clarke v. Laidlaw Transit. Inc., 125 A.D.3d 920 [2^nd Dept. 2015]). In addition, New York courts adhere to the policy of favoring the resolution of actions on the merits rather than by dismissal (Henry v. Datson, 140 A.D.3d 1120 [2^nd Dept. 2016]).

In support of this dismissal motion, defendants argue that as a matter of law, under Limited Liability Law Sections 609 and 610, they cannot be sued because the plaintiffs claim of liability is based "solely" on their status as members of Tappan Zee Constructors, LLC. As plaintiff argues, however, and as the complaint alleges, each defendant and "its agents, servants, employees and/or contractors under its control", did negligently "modify, alter and/or replaced all or a part of the captain's chair/seat, but not the structure for the seat (nor remedy its lack of suspension)...". The only way this claim can be evaluated is by having the member defendants comply with plaintiffs discovery demands. Plaintiff emphasizes that the information sought by discovery is within the exclusive knowledge of the defendants, and that the plaintiff will be prejudiced if this action is dismissed without discovery.

A trial court must use its sound discretion in resolving discovery disputes (Mot Ardon v. 302-304 St. Assocs., 94 N.Y.2d 740 [2000]). Pursuant to CPLR § 3124, it is well established that disclosure provisions are to be liberally construed and a trial court is afforded broad discretion in managing disclosure (McMahon v. Manners. 158 A.D.3d 616 [2^nd Dept. 2018]). CPLR § 3101(a) requires full disclosure of all evidence material and necessary for the prosecution or defense of an action, regardless of the burden of proof (Forman v. Henkin, 30 N.Y.3d 656 [2018]). CPLR § 3126 authorizes the court to fashion an appropriate remedy for non-disclosure, the nature and degree of which is a matter committed to the court's sound discretion and will not be disturbed absent a clear abuse of the court's discretion (Those Certain Underwriters at Llovds. London v. Occidental Gems. Inc., 11 N.Y.3d 843 [2008]). Discretion in compelling compliance and imposing penalties for noncompliance in discovery matters is soundly vested in the trial court (Sugar Foods De Mexico v. Scientific Scents. LLC, 88 A.D.3d 1194 [3^rd Dept. 2011]).

In addition, CPLR § 3211(d) permits a party opposing a dismissal motion to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated (Brielmeier v. Leal, 145 A.D.3d 753 [2^nd Dept. 2016]). Supreme Court is afforded discretion when presented with a request for further disclosure pursuant to CPLR § 3211(d), and appellate review is guided by whether the court abused its discretion (Stubbs v. Ellis Hosp, 68 A.D.3d 1617 [3^rd Dept. 2009]). A motion to dismiss is properly denied as premature when the nonmoving party has not been given a reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant (Greener v. Town of Hurley, 140 A.D.3d 1285 [3^ri Dept. 2016]).

While discovery with Tappan Zee Constructors, LLC has been conducted and depositions have been held, the Court finds the defendants' motion to dismiss is premature as discovery has not been completed with the remaining defendants and no depositions have been conducted in regard to these defendants (Wesolowski v. St. Francis Hosp., 108 A.D.3d 525 [2^nd Dept. 2013]). Even assuming that the movant made a prima facie showing of its entitlement to dismissal as a matter of law, the court can exercise its discretion in denying the motion as premature, with leave to renew following discovery (see, CPLR §3211(d); Botros v. Flamm, 77 A.D.3d 602 [2^nd Dept. 2010]). Since relevant discovery has not been completed, defendants' motion to dismiss is denied, but may be renewed once discovery has been concluded. (Herrera v. Gargiso, 140 A.D.3d 1122 [2^nd Dept. 2016]). Defendants are directed to comply with plaintiffs outstanding discovery demands within 30 days of the date of service of a copy of this decision and order upon them, together with notice of entry, and to attend an EBT within 60 days thereafter.

The parties' request for costs and attorney fees are denied as the parties are responsible for their own expenses as "incidents of litigation." (In re Hyde, 15 N.Y.3d 179 [2010]). It is hereby

ORDERED that plaintiffs motion to compel discovery is granted to the extent set forth herein, and the defendants' motion to dismiss the complaint is denied subject to renewal after discovery is completed.

This shall constitute the Decision and Order of the Court. The original Decision and Order and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.

SO ORDERED.

PAPERS CONSIDERED:

1. Notice of Motion dated August 12, 2019; Affirmation of Robert M. Dengler, Esq. dated August 12, 2019 with exhibits 1-5; Memorandum of Law dated August 12, 2019;

2. Notice of Cross-motion dated August 29, 2019; Affirmation of Steven M. Melley, Esq. dated August 29, 2019 with exhibits A-J;

3. Memorandum of Law dated September 25, 2019.