Opinion
No. 9064/10.
10-08-2014
Elvis SOBENIS, Plaintiff, v. HARRIDGE HOUSE ASSOCIATES OF 1984, 225 East 57th Street Owners Corp., and Wallack Management, Inc., Defendants.
Opinion
The following papers numbered 1 to 10 read herein:
| Papers | Numbered |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed | 1–2, 3–4, 5–6 |
| Opposing Affidavits (Affirmations) | 7 |
| Reply Affidavits (Affirmations) | 8 |
| Sur Reply Affidavit (Affirmation) | 9, 10 |
Other Papers
Upon the foregoing papers, defendants 225 East 57th Street Owners Corp. (225 East 57th Street) and Wallack Management, Inc., (Wallack) move for an order: (1) pursuant to CPLR 2221 granting defendants leave to renew plaintiff's May 16, 2013 motion for leave to amend his complaint to add causes of action based on Labor Law §§ 200 and 241(6) ; and, upon granting such leave, (2) vacating this court's order dated October 31, 2013, which granted plaintiff leave to amend his complaint to add the causes of action based on Labor Law §§ 200 and 341(6) ; (3) denying plaintiff's motion to amend the complaint; and (4) dismissing the action in its entirety pursuant to the decision and order of the Appellate Division, Second Department, dated November 27, 2013 (Sobenis v. Harridge House Assoc. of 1984, 111 AD3d 917 [2d Dept 2013] ).
Defendant Harridge House Associates of 1984 (Harridge) did not appear in the action. The court notes that there is a notation on plaintiff's certificate of readiness indicating that Harridge was never served. All references to “defendants” in this decision refer to defendants 225 East 57th Street Owners Corp. and Wallack Management, Inc.
Plaintiff cross moves for an order, pursuant to CPLR 3215, granting plaintiff a judgment on default against the defendants with respect to the Labor Law §§ 200 and 241(6) causes of action.
Defendants cross move for an order, pursuant to CPLR 3012(d), compelling plaintiff to accept the defendants' answer to his amended complaint dated May 16, 2013 and associated papers.
Defendants' motion is granted to the extent that renewal is granted, and upon renewal this court's October 31, 2013 order is vacated, and plaintiff's motion for leave to amend the complaint to add the Labor Law §§ 200 and 241(6) causes of action is denied. The motion is otherwise denied. Plaintiff's cross motion is denied. Defendants' cross motion is denied as moot.
Plaintiff alleged that he was injured when he fell from a ladder while he was working on an air conditioning system located in a building owned by 225 East 57th Street and managed by Wallack. Plaintiff commenced this action in April 2010, and, in an amended complaint dated May 28, 2010, alleged causes of action premised Labor Law § 240(1) and common-law negligence. Following joinder of issue and the completion of discovery, defendants moved for summary judgment dismissing the complaint. This court denied defendants' summary judgment motion in an order dated September 6, 2012. While defendants' appeal of the September 6, 2012 order was pending, plaintiff moved for an order granting him leave to amend his complaint to add causes of action based on Labor Law §§ 200 and 241(6). This motion to amend was granted by this court in an order dated October 31, 2013, in which the court deemed the amended complaint served on defendants. Thereafter, in a decision dated November 27, 2013, the Appellate Division, Second Department, reversed this court's denial of defendants' summary judgment motion, and granted defendants' summary judgment motion to dismiss the complaint.
Turning to the motions before the court, the court initially concludes that the defendants are entitled to renewal. In this regard, the Appellate Division's reversal of this court's order denying summary judgment is a proper ground for renewal, as it constitutes a change in the law, “i.e., a new pronouncement of the law governing this case” (Spierer v. Bloomingdale's, 59 AD3d 267, 267–268 [1st Dept 2009], lv denied 13 NY3d 713 [2009] ; Koscinski v. St. Joseph's Med. Ctr., 47 AD3d 685, 685–686 [2d Dept 2008] ; CPLR 2221[e][2] ). In its decision, the Second Department found that plaintiff did not have a Labor Law § 240(1) cause of action because plaintiff's work on the air conditioning system did not fall within the protective ambit of by Labor Law § 240(1), but rather, constituted routine maintenance (Sobenis, 111 AD3d at 917–918 ). With respect to the common-law negligence cause of action, the Second Department found that it should be dismissed because plaintiff's accident was caused by the means and methods of his work, because plaintiff's work was directed and controlled by his employer, and because defendants had no authority to exercise supervisory control over plaintiff's work (Sobenis, 111 AD3d at 918 ).
While the Second Department did not directly consider plaintiff's Labor Law §§ 200 and 241(6) claims, the Second Department's holdings bar plaintiff's proposed amendments. In this regard, the holding that the Labor Law § 240(1) cause of action was barred because the work only involved routine maintenance also bars the proposed Labor Law § 241(6) cause of action (see Esposto v. New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003] ; Moscoso v. Overlook Tower Corp., ––– AD3d ––––, 2014 N.Y. Slip Op 06686 [1st Dept 2014] ; Garcia–Rosales v. Bais Rochel Resort, 100 AD3d 687, 687–688 [2d Dept 2012], lv denied 20 NY3d 858 [2013] ). Plaintiff makes no argument addressing the impact of the routine maintenance finding.
On the other hand, plaintiff asserts that since Labor Law § 200 was intended to afford workers broader protection than provided under the common law, the Second Department's holding that plaintiff has no common-law negligence claim is not a bar to his section 200 claim. Plaintiff is correct that the enactment of the predecessor to today's section 200 in 1902 as part of the Employers Liability Act (L 1902, ch 600) along with its early amendments (L 1910, ch 352, § 200), was intended to provide greater protection to workers (see Gasper v. Ford Motor Co, 13 N.Y.2d 104, 110 [1963] ). It did so primarily by limiting the impact of the fellow-servant rule, and the defenses of assumption of risk and contributory negligence (L 1902, ch 600, § 3; L 1902, ch 2, § 2; Wiley v. Solvay Process Co., 215 N.Y. 584, 587–589 [1915] ; Guilmartin v. Solvay Process Co ., 189 N.Y. 490, 494–495 [1907] ). Section 200, however, also expanded worker protections by expanding the duty to the employers' plant (Gasper, 13 N.Y.2d at 110 ), which includes the tools and appliances necessary to perform the work (Wiley, 215 N.Y. at 589–591 ). With the elimination or tempering of the old employer friendly defenses as part of the evolution of the common law (see Custodi v. Town of Amherst, 20 NY3d 83, 87–90 [2012] [assumption of the risk]; Buckley v. City of New York, 56 N.Y.2d 300, 303 [1982] [fellow servant rule]; CPLR 1411 [comparative fault instead of contributory negligence or assumption of the risk] ), and through cases clearly stating that an employer's duty under the common law includes the provision of a safe plant and safe tools and appliances (see Adlam v. Konvalinka, 291 N.Y. 40, 43 [1943] ; Monroe v. City of New York, 67 A.D.2d 89, 95–97 [2d Dept 1979] ; Salvieterra v. Havekotte, 273 A.D.2d 218, 219 [2d Dept 2000] ; see also Chowdhury v. Rodriguez, 57 AD3d 121, 127–131 [2d Dept 2008] ), there is no longer any distinction between a workers's rights under section 200 and under the common law (see Ashjian v. Orion Power Holding, Inc., 70 AD3d 738, 740 [2d Dept 2010] ; Monroe, 67 A.D.2d aat 95–97; see also Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998] ; Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 [1993] ). As such, the Second Department's finding that the common-law negligence cause of action is without merit mandates a finding that the proposed Labor Law § 200 cause of action is likewise without merit (see Shaw v. RPA Assoc., LLC, 75 AD3d 634, 635–636 [2d Dept 2010] ; Ashjian, 70 AD3d at 740 ; Hunter v.. R.J.L. Dev., LLC, 44 AD3d 822, 825 [2d Dept 2007] ).
Plaintiff further attempts to avoid the impact of the Second Department's decision by pointing out that the basis for the section 200 claim in the amended complaint included allegations that defendants provided a wobbly and defective ladder and by arguing that these allegations of a defective ladder were not addressed by the Second Department in its decision. Regardless of the specific allegations of the common law negligence claim as pled, the issue of the ladder's condition was placed before the Second Department in the briefs on appeal and in plaintiff's deposition testimony (Defendants' Affirmation in Reply, Exhibit B). In any event, the specific arguments plaintiff made in opposing defendants' summary judgment motion and appeal do not particularly matter. The Second Department decision is binding on this court because it constitutes law of the case (Spierer, 59 AD3d at 267 ; see also Brodsky v. New York City Campaign Fin. Bd., 107 AD3d 544, 545–546 [1st Dept 2013] ; Matter of Haberman v. Zoning Bd. of Appeals of City of Long Beach, 94 AD3d 997, 999–1000 [2d Dept 2012], lv dismissed 19 NY3d 951 [2012] ). The focus of the law of the case doctrine is on whether the parties had a full and fair opportunity to litigate the issue at the time of the prior determination (see Frankson v. Brown & Williamson Tobacco Corp., 67 AD3d 213, 217 [2d Dept 2009] ; Stone v. Stone, 19 AD3d 404, 404 [2d Dept 2005], lv dismissed 5 NY3d 824 [2008] ; Engel v. Eichler, 300 A.D.2d 622, 623 [2d Dept 2002] ). Accordingly, what matters is that plaintiff had a full and fair opportunity to raise the issue with respect to the ladder's condition in opposition to defendants' summary judgment motion and on appeal, not whether he actually did so (see Clark Constr. Corp. v. BLF Realty Holding Corp., 54 AD3d 604, 604 [1st Dept 2008] ; Stone, 19 AD3d at 404 ). In the absence of any evidence that plaintiff did not have such a full and fair opportunity to litigate the issue, and in the absence of extraordinary circumstances, such a new evidence or a change in the law, plaintiff has failed to demonstrate any reason for reopening the question of defendants' negligence under the guise of the Labor Law § 200 cause of action (see Frankson, 67 AD3d at 218 ). Finally, contrary to plaintiff's contention, defendants' delay in serving a copy of the Second Department's decision on plaintiff with notice of entry had no impact on its binding effect under the law of the case doctrine (cf. Franklyn Dev. Co., Inc. v. Atlantic Mut. Ins. Co., 60 AD3d 897, 899 [2d Dept 2009] [pendency of appeal does not preclude application of related collateral estoppel doctrine]; Anonymous v. Dobbs Ferry Union Free School Dist., 19 AD3d 522, 522–523 [2d Dept 2005] [same] ).
Plaintiff additionally asserts that defendants waived their current arguments because they “essentially” consented to the grant of the motion to amend the complaint, and because they defaulted on the newly added causes of action by failing to answer the amended complaint following this court's October 31, 2013 order granting leave to amend. Regardless of how vigorously defendants' opposed the motion, however, they cannot be deemed to have consented to the issuance of the order as they submitted opposition papers to the motion and this court granted leave to amend by way of a court order rather than as the result of a stipulation of the parties.
Plaintiff has also failed to demonstrate any default by defendants in answering the amended complaint. The court's own records do not show that the order granting leave was entered (CPLR 2120), and, perhaps more importantly, for purposes of finding defendants in default, plaintiff has failed to show that the October 31, 2013 order was served on defendants with notice of entry (see Schilt v. Matherson, 104 A.D.2d 668, 668–669 [2d Dept 2013]; Anamdi v. Anugo, 238 A.D.2d 366, 366 [2d Dept 1997] ; Matter of Raes Pharm. v. Perales, 181 A.D.2d 58, 63–65 [1st Dept 1992] ). In any event, assuming that defendants' time to answer the amended complaint must be deemed to have commenced as of October 31, 2013, any default is excusable as law office failure, as defendants' actions demonstrate no intent to abandon the litigation, there was no lengthy delay, defendants' promptly moved to renew this court's determination after the issuance of the Second Department's decision, and they have a meritorious defense to the action (see Case v. Cayuga County, 60 AD3d 1426, 1427 [4th Dept 2009], lv dismissed 13 NY3d 770 [2009] ; Santos v. City of New York, 269 A.D.2d 585, 585 [2d Dept 2000], lv denied 95 N.Y.2d 766 [2000] ; Bong Hag Ma v. Bong Sig Ma, 254 A.D.2d 34, 35 [1st Dept 1998] ).
Plaintiff's cross motion must be denied for these reasons, as well as his failure to comply with the requirements of CPLR 3215(f) in moving for a default judgment.
Accordingly, as plaintiff has failed to demonstrate any ground for ignoring the impact of the Second Department's holdings on the Labor Law §§ 200 and 241(6) causes of action, plaintiff's motion to amend the complaint is denied as palpably insufficient and patently devoid of merit (see Peterson v. City of New York, ––– AD3d ––––, 2014 N.Y. Slip Op 06191 *1 [2d Dept 2014]; Longo v. Long Is. R .R., 116 A.D.2d 676, 677 [2d Dept 2014] ; Ashjian, 70 AD3d at 740 ).
The court, however, cannot grant defendants' request that the court “issue [ ] an order dismissing this action in its entirety pursuant to the decision of the Appellate Division, Second Department.” Given that the Second Department granted defendants' motion for summary judgment dismissing the complaint and given that this court, on renewal, has denied plaintiff's motion to for leave to amend the complaint, there is simply nothing remaining for this court to dismiss.
This constitutes the decision and order of the court.