Opinion
Index No. 513821/2016
11-07-2023
Helen Ramzy, as Administrator of the Estate of FAYEZ RAMZY, deceased, Plaintiff, v. Safdi Plaza Realty Inc., MJM ASSOCIATES CONSTRUCTION, LLC, and 10 JAY LLC, Defendants
Stefano A. Filippazzo, P.C., Brooklyn (Louis Badolato of counsel), for Plaintiff. Litchfield Cavo, LLP, New York City (Carol Lee Chevalier of counsel), for Defendants.
Unpublished Opinion
Stefano A. Filippazzo, P.C., Brooklyn (Louis Badolato of counsel), for Plaintiff.
Litchfield Cavo, LLP, New York City (Carol Lee Chevalier of counsel), for Defendants.
AARON D. MASLOW, JUSTICE
The following numbered papers were used on this motion :
. Certain documents were partially viewed as posted in NYSCEF in order to obtain an understanding of the basic background of this action and to write this decision and order.
NYSCEF Doc No. 1: Summons & Complaint
NYSCEF Doc No. 224: Notice of Motion
NYSCEF Doc No. 225: Statement of Material Facts
NYSCEF Doc No. 226: Affirmation in Support of Motion
NYSCEF Doc No. 227: Memorandum of Law in Support
NYSCEF Doc No. 228: Amended Complaint
NYSCEF Doc No. 230: Bill of Particulars
NYSCEF Doc No. 233: Plaintiff's Response to Discovery Demands
NYSCEF Doc No. 234: Exhibit G - Decedent's Affidavit
NYSCEF Doc No. 240: Exhibit M - Dr. Hedayatnia Affidavit
NYSCEF Doc No. 246: Exhibit S - Plaintiff's EBT Transcript
NYSCEF Doc No. 247: Exhibit T - MJM Assoc. Constr., Inc.'s EBT Transcript
NYSCEF Doc No. 248: Exhibit U - MJM Assoc. Constr., Inc.'s EBT Exhibits
NYSCEF Doc No. 249: Exhibit V - Hanaa Ramzy's EBT Transcript
NYSCEF Doc No. 250: Exhibit W - Expert Disclosure with Cover Email to Plaintiff's Firm
NYSCEF Doc No. 261: Affirmation in Opposition to Motion
NYSCEF Doc No. 262: Response to Statement of Material Facts
NYSCEF Doc No. 269: Memorandum of Law in Opposition
NYSCEF Doc No. 272: Transcript of Oct. 13, 2023 Argument
Background
The instant action alleges causes of action premised upon Labor Law §§ 240, 241, and 200, and common law negligence.
Fayez Ramzy ("Decedent" or "Plaintiff's decedent") was working at a welding job under the employment of Greg's Iron Works, Inc. ("Greg's") at a project located at 10 Jay Street, Brooklyn, New York. On June 14, 2016, he signed an orientation form acknowledging that "all 'hot' welding work being performed 'at height' shall be done from a 'stable work platform (i.e. scaffold or aerial lift) and not a ladder'" (NYSCEF Doc No. 225, Statement of Material Facts ¶ 2; see NYSCEF Doc No. 248, Defendant MJM Assoc. Constr., Inc.'s EBT Exhibits at 127 ; NYSCEF Doc No. 262, Response to Statement of Material Facts ¶ 1).
. Page references herein are to the respective PDF page numbers.
Nine days later, on June 23, 2016, while still working for Greg's on the project, Plaintiff's decedent used a 12-foot unsecured A-frame ladder to weld a column on the 7th floor (see NYSCEF Doc No. 234, Decedent's Aff ¶¶ 4-5). Decedent had no safety devices with him, nor did he have another person present to secure the ladder for him (see id. ¶ 5). While Decedent stood on the ladder, he felt it shift to the left, and then tip and fall (see id. ¶ 5). Decedent "jammed both of [his] shoulders, before hitting [his] knees and [his] head" (id. ¶ 7).
Decedent, still alive on August 9, 2016, commenced an action that day as a plaintiff against Safdi Plaza Realty Inc. and MJM Associates Construction, LLC ("Defendants"), alleging that Defendants caused his injuries due to their "carelessness, recklessness, [and] negligence" in maintaining the safety of the work premises (see NYSCEF Doc No. 1, Complaint ¶ 20). In the course of this case, then-plaintiff Fayez Ramzy died and his daughter Helen Ramzy ("Plaintiff") became the administrator of his estate and the substituted plaintiff (NYSCEF Doc No. 261, Affirmation in Opposition to Motion ¶ 23).
Here, Defendants move for summary judgment and dismissal of Plaintiff's complaint (see NYSCEF Doc No. 224, Notice of Motion).
. Defendants now include 10 Jay LLC.
Contentions
Defendants move against Plaintiff for summary judgment and dismissal, arguing that there are no actual material issues of fact that could substantiate a claim of Defendants' liability (see NYSCEF Doc No. 226, Affirmation in Support of Motion). Defendants' perspective of their non-liability relies on:
a. the means and methods of work of plaintiff's decedent;
b. movants' lack of direction and control of plaintiff's work at the time of injury;
c. movants' lack of negligence;
d. movants' lack of actual or constructive notice of the claimed hazard;
e. the lack of capacity of plaintiff's decedent at the time of his November 20, 2017 affidavit of merit;
f. the inadmissible hearsay testimony of plaintiff and decedent's wife/widow to establish the merits of plaintiff's claim;
g. plaintiff's lack of entitlement to a lesser burden of proof under the Noseworthy doctrine;
h. plaintiff's decedent as the sole proximate cause of the claimed accident;
i. plaintiff's nonviable res ipsa loquitur claim due to defendants' lack of exclusive control of the accident site ladder.(Id. ¶ 2.)
Defendants rely on multiple evidentiary arguments to assert that they have no liability for the injury at issue. They point to several affidavits submitted by Plaintiff in her papers as lacking probative value since Decedent acted as an affiant while suffering from aphasia, and the accounts of Decedent's daughter and wife failed to compensate for it. (See NYSCEF Doc No. 226, Affirmation in Support of Motion ¶ 15; NYSCEF Doc No. 227, Memorandum of Law in Support at 3, 7-10.) Defendants maintain that Decedent's means and methods of work were the sole proximate cause of his accident (see NYSCEF Doc No. NYSCEF Doc No. 227, Memorandum of Law in Support at 5; NYSCEF Doc No. 250, Stephen E. Fournier Aff ¶ 23).
Plaintiff contends that there are obvious issues of fact in this case, rendering Defendants' efforts for summary judgment and dismissal without merit (see NYSCEF Doc No. 261, Affirmation in Opposition to Motion ¶ 1; NYSCEF Doc No. 269, Memorandum of Law in Opposition at 7-16). Plaintiff asserts that Decedent's affidavit is not problematic, as Dr. Mehrdad Hedayatnia affirmed that "aphasia does not signify mental incapacity, so Mr. Ramzy [Decedent] was perfectly competent to execute an affidavit" (NYSCEF Doc No. 240, Mehrdad Hedayatnia Aff ¶ 2).
Taking Decedent's affidavit at face value, Plaintiff argues, highlights several important factual discrepancies. For instance, Defendants' engineer attests that Decedent's failure to utilize safety materials and abide by safety protocols makes Decedent the sole proximate cause of his own accident (see NYSCEF Doc No. 250, Stephen E. Fournier Aff ¶¶ 17-23), but Decedent maintains that he had no safety materials available to him at the time leading up to his fall (see NYSCEF Doc No. 234, Decedent's Aff ¶ 5). Plaintiff references Baab v HP Inc., 211 A.D.3d 783 [2d Dept 2022], among other caselaw, to maintain that "such credibility questions [which indicate clear issues of fact] cannot be determined on a motion for summary judgment," and so Defendants' motion must be denied (NYSCEF Doc No. 269, Memorandum of Law in Opposition at 7).
Discussion
Regardless of the merits of the aforementioned arguments in the parties' submissions, consideration of them is inapposite here because a crucial procedural element is lacking. As this Court's rules provide, "For motions where the papers are filed on NYSCEF, hardcopies of a party's papers shall be submitted in the event that the party's papers exceed 75 pages. This hardcopy submission - which shall include a contents list - shall be made at least nine calendar days prior to the date on which the motion is calendared, in order to facilitate review in advance by the Court." (New York State Unified Court System, 2nd JD - Civil Term, Kings Supreme Court, Hon. Aaron D. Maslow: Part 2 Rules, rule I [B] [3], https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Nov. 6, 2023].)
In the case at hand, several of the Plaintiff's individual documents numbered far beyond 75 pages, let alone that the sum total consumed 1,191 pages. Defendants' motion papers consumed 110 pages. Therefore, altogether there were 1,301 pages. The matter was raised by the Court at oral argument:
THE COURT: Mr. Badolato, my staff was looking through our chambers prodigiously trying to find a hardcopy of the set of the papers. Did you submit a hardcopy set of the papers?
MR. BADOLATO: Your Honor, I am outside counsel. I could not answer that question. I apologize.
THE COURT: Well, we try to inventory very carefully and we didn't see. Ms. Chevalier, did your office submit a hardcopy of the set of papers?
MS. CHEVALIER: No, I did not, Your Honor.
THE COURT: My office did count the pages involved and according to their count, the moving papers had 1,178 pages. In opposition, there [were] 110 pages. I want to ask both of you, do you think it is feasible for a judge to review 1,178 pages, plus another 110 pages off the computer screen? [
MS. CHEVALIER: No, Your Honor.
MR. BADOLATO: No, Your Honor.(NYSCEF Doc No. 272, Argument Transcript at 2.)
. With Defendant's reply papers added in, there were 1,191 pages; altogether there were 1,301 pages submitted with respect to this motion.
While this Court attempted to review as much as possible of the papers in support of and in opposition to Defendants' motion, it could not review all the pages off the computer screen. Therefore, this Court did not evaluate the substantive aspects of the motion." '[T]he court may refuse to consider improperly submitted papers'" (Loeb v Tanenbaum, 124 A.D.2d 941, 942 [3d Dept 1986], quoted in Biscone v JetBlue Airways Corp., 103 A.D.3d 158, 178 [2d Dept 2012]; see Sheedy v Pataki, 236 A.D.2d 92, 97-98 [3d Dept 1997] ["Supreme Court properly required plaintiffs to submit to it all papers that were to be considered on the instant motion.").
. Even if a court relies on electronically filed documents, it possesses the discretion to not consider a document whose location is not adequately described (see Reardon v Macy's, Inc., 191 A.D.3d 712 [2d Dept 2021]; Eastern Funding LLC v San Jose 63 Corp., 172 A.D.3d 818 [2d Dept 2019]), evidencing that procedural requirements are more than mere trivial niceties; accord Garrison v Quirk, 120 A.D.3d 753 [2d Dept 2014] [even if readable CD-R previously submitted to court in connection with earlier motion, absent rule providing otherwise, court should not be compelled to locate previously submitted documents in electronic record in considering subsequent motions]).
A few minutes of research turns up dozens of reported instances in New York caselaw where parties did not adhere to court rules requiring the submission of hardcopies of papers. In Albany County, Justice Paul J. Baisley Jr. denied a motion without prejudice due to "defendant having failed to submit a full set of motion papers marked as 'working copies'" (Webb v Muller, 2016 WL 11721052, *1 [Sup Ct, Albany County 2016]). Justice Joseph Capella, of Bronx County, similarly denied a motion without prejudice for this reason (see Marc v Ray Catena Infiniti, Inc., 2018 WL 11278746 [Sup Ct, Bronx County 2018]). In a Suffolk County case, "the motion by the defendant Intelex USA, LLC for an order compelling discovery is denied without prejudice as the defendant failed to submit working copies of the motion papers filed electronically as required by the Rules of this Part" (Bruno v Intelex USA, LLC, 2019 WL 12337852, *1 [Sup Ct, Suffolk County 2019]). Noting that "Part 14 rules require a party who has participated in e-filing to submit working copies to the court," and that, while a working copy had been provided by the moving plaintiff, it was not accompanied by a confirmation notice , the court in Lopez v Lopera (2012 WL 9337612, *1 [Sup Ct, Queens County 2012]) denied the motion "with leave to renew upon compliance with same" (id.).
. This Court presently does not require the confirmation notice.
. This Court's research on Westlaw identified at least 49 other decisions from Supreme Court, Suffolk County, in which the hardcopy rule was enforced, the latest one being Mills v Reyes (2021 WL 6113975 [Sup Ct, Suffolk County 2021]).
While we live in a technology-dominated world, the need for paper documents has never been completely excised. This case and the complexity of its litigation - allegations of liability under Labor Law §§ 240, 241, and 200, and common law negligence, with concomitant evidentiary issues resulting from the death of Decedent, who left an affidavit which is contested by Defendants, who claim that Decedent lacked capacity to execute it - clearly demonstrate this need. There is a unique importance to each case and concern brought before a judge, and this weightiness manifests itself in a judge's ethical imperative to fully consider whether the parties' papers substantiate their claims or defenses. To fulfill this duty to the best of its ability, this Court holds steadfast to the requirement in its IAS Part 2 rules: "For motions where the papers are filed on NYSCEF, hardcopies of a party's papers shall be submitted in the event that the party's papers exceed 75 pages. This hardcopy submission - which shall include a contents list - shall be made at least nine calendar days prior to the date on which the motion is calendared, in order to facilitate review in advance by the Court." (New York State Unified Court System, 2nd JD - Civil Term, Kings Supreme Court, Hon. Aaron D. Maslow: Part 2 Rules, rule I [B] [3], https://ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Nov. 6, 2023].)
. Ten issues are listed in Defendants' counsel's affirmation, as quoted supra at 2-3. The same counsel stated that Plaintiff is claiming violations of at least 40 provisions of the Industrial Code (see NYSCEF Doc No. 226, Affirmation in Support of Motion ¶ 8).
There is ample support for such a rule in the Uniform Rules for the New York State Trial Courts and jurisprudence. The Uniform Civil Rules for Supreme and County Courts provide that "The court may require the parties to provide working copies of documents filed electronically" (22 NYCRR 202.5-b[d] [5]). This rule was cited in the court decisions mentioned above (supra at 5). Inherent in this provision is the recognition that some documents are "impractical or inconvenient to file electronically" (22 NYCRR 202.5-b[d] [7] ). In the case at hand, Plaintiff's total submitted pages number around 1,200, and several individual documents exceed 100 pages each (see NYSCEF Doc No. 246, Plaintiff EBT Transcript [234 pages]; NYSCEF Doc No. 230, Bill of Particulars [208 pages]; NYSCEF Doc No. 233, Plaintiff's Response to Discovery Demands [169 pages]; NYSCEF Doc No. 247, MJM Assoc. Constr., Inc.'s EBT Transcript [134 pages]; NYSCEF Doc No. 248, MJM Assoc. Constr., Inc.'s EBT Exhibits [127 pages]; NYSCEF Doc No. 249, Hanaa Ramzy's EBT Transcript [108 pages]). Without hardcopies, this court would be relegated to processing and combing through these lengthy documents electronically, which is surely "impractical[,] inconvenient[,]" (id.) and overly burdensome.
. This rule within the Uniform Civil Rules for the Supreme Court and the County Court (22 NYCRR Part 202) now appears in paragraph (5) of subdivision (d) of § 202.5-b; it previously was set forth in paragraph (4) of said subdivision.
. While this provision does not relate specifically to lengthy exhibits and documents, it evidences a realization that not every document lends itself to consideration and review in electronic format. The current efiling system enables parties to officially submit their papers in electronic format as PDFs while permitting judges to maintain the option of requiring hardcopies. While this Court could require working copies in hardcopy format for every motion, it elected not to require such unless the number of pages is in excess of 75. Even then, this Court has not enforced this rule until now, when it was presented with a combination of 1,301 pages in a complex Labor Law case where the injured employee later died, presenting a Noseworthy v City of New York (298 NY 76 [1948]) issue.
Review of motions in advance is a practice of this court (see Matter of Court's Discharge of Its Responsibilities Pursuant to 22 NYCRR § 100.3 (D) (2), (3), - Misc.3d -, 2023 NY Slip Op 23258, *1 [Sup Ct, Kings County 2023]), as is enables full consideration and deliberation which each motion deserves. It is this routine which impelled this court's hardcopy submission rule. As the length of the motion papers filed by a party increases, the sheer amount of pages involved makes the requisite reading and deliberation an increasingly daunting task. When the number of pages reaches 75, hardcopy submission becomes an expediency. As the number of pages to review increases by the hundreds, it becomes an imperative. When a submission is over 1,000 pages, a party has a conscientious duty to the court to offer chambers a hardcopy even in the absence of a rule requiring same; it is only common sense. The presence of paper documents facilitates more comprehensive review by allowing this Court to physically annotate important points on paper, to compare papers side-by-side for opposing arguments, to more easily locate cited decisions, and to reap other benefits of reading tangible, actual documents as opposed to staring at a computer screen.
While this Court's chambers could conceivably print the motion submissions, this undertaking would deplete copy paper, toner cartridges, and time, all at taxpayer expense, which would contravene public policy. The time it takes to perform this routine would be better spent on reading other motions. It therefore becomes incumbent on parties to a motion to provide these documents in paper format in addition to the NYSCEF electronic filings when the Part Rules call for it. The value of advance preparation which informs this obligation also informs the second component of the rule, namely that hardcopies be provided at least nine days prior to the scheduled motion date. As lengthy motions typically demand higher levels of preparation, a party's provision of hardcopies at least nine days before the calendar date enhances this Court's ability to perform its responsibilities.
Determination
Since Plaintiff and Defendants failed to submit the necessary working copies in hardcopy format as mandated by this Court's Part Rules, Defendants' motion for summary judgment and dismissal is DENIED without prejudice to renew.