Opinion
162197/2015
12-17-2019
VERIZON NEW YORK, INC., v. ALTZ GROUP, INC., Defendant.
Talene Dadian White, Esq., Pillinger Miller Tarallo, LLP, 17 State Street, 7th Floor, New York, NY 10004, 212-461-6115, Attorneys for Plaintiff Barry Richard Feldman, Esq., The Law Offices of Barry Richard Feldman, L.L.C., 1413 Ave. J, 3rd Floor, Brooklyn, NY 11230, 347-702-4867, Attorneys for Defendant
Talene Dadian White, Esq., Pillinger Miller Tarallo, LLP, 17 State Street, 7th Floor, New York, NY 10004, 212-461-6115, Attorneys for Plaintiff
Barry Richard Feldman, Esq., The Law Offices of Barry Richard Feldman, L.L.C., 1413 Ave. J, 3rd Floor, Brooklyn, NY 11230, 347-702-4867, Attorneys for Defendant
Mary V. Rosado, J.
This Court conducted a bench trial on December 2, 2019 on Plaintiff Verizon New York, Inc.'s ("Plaintiff" or "Verizon") claim for negligence based upon property damage it allegedly sustained at the premises located at 4770 White Plains Road, Bronx, New York 10470 (the "premises" or "building"). For the reasons stated herein, this Court finds that Plaintiff failed to prove its claim for negligence against Defendant Altz Group, Inc. ("Defendant" or "Altz Group") and the action is dismissed.
The Verified Complaint also states a second cause of action for trespass, which it appears that Plaintiff decided not to pursue at trial. Accordingly, that cause of action is dismissed.
Background
This action came to this Court following an administrative order of the Hon. Deborah A. Kaplan dated August 5, 2019 for trial. (NYSCEF Doc. No. 64.) As is relevant here, prior to that, Defendant moved for summary judgment, pursuant to CPLR 3212, asserting the same meritorious arguments made at trial; however, the motion was denied as untimely by the Hon. Nancy M. Bannon on September 26, 2018. (NYSCEF Doc. No. 61.)
At trial, Ms. Janine Evans, an employee of Verizon, testified on its behalf. Ms. Evans is a specialist at Verizon in its Special Projects and Claims Department. She testified that her job responsibilities include providing testimony as to how Verizon allocates damages. On the dates of the alleged property damage, January 26, 2013 and January 28, 2013, Ms. Evans was employed by Verizon, she performed the same job responsibilities, but worked in the Billing Department, where she also reviewed billing packages and costs. In order to prepare for her testimony, she reviewed the billing statement related to the alleged damage dated October 21, 2014 and documentation supporting the line item billing. (Plaintiff's Ex. 1.) Specifically, Ms. Evans testified that pages 2 through 3 of Plaintiff's Exhibit 1 are an explanation of charges and pages 4 through 5 are an explanation of the use of the fiber optic and copper cables.
The Court notes that the Verified Complaint only claims property damage with respect to the date of January 26, 2013, no amended complaint was ever filed, and Plaintiff's counsel did not move, pursuant to CPLR 3025(c), to conform the pleadings to the evidence.
Ms. Evans testified that the billing statement reported the charge for labor to repair the alleged property damage at the premises on both January 26 and January 28, 2013 as 108 hours resulting in the amount of $11,506.99. (Plaintiff's Ex. 1.) There was an administrative cost of $2,182.85 and 44 hours of engineering work in the amount of $10,707.67. (Id. ) The alleged damage also cost Verizon $697.92 in contractor's services; $398.97 in material; $999.13 in motor vehicle costs and $193.47 in contractor costs. (Id. ) The loss of use to exchange the fiber optic cables for 36 pairs that were damaged was $3,972.96 and the loss of use of the local copper exchange loop for 5100 pairs of copper cable that were damaged was $14,331.00. (Id. ) The billing statement indicates that in total, the alleged property damage cost Verizon $44,990.96 in repairs. (Id. ) However, upon cross-examination, Ms. Evans was unable to confirm the rate of the labor or describe the alleged property damage without looking at the timesheets that were submitted or the property damage report. She had no personal knowledge of the work performed.
James S. Hogan, a former employee of Verizon who was employed on the dates of the alleged property damage, was employed by Verizon for seventeen years as a local manager. Mr. Hogan's job responsibilities included running a crew that built and routinely maintained the fiber optic infrastructure in the Bronx, which included performing routine maintenance. Mr. Hogan testified that he maintained payphones at the subject premises, which were owned by Verizon, until the building was sold sometime in 2012. After the sale of the premises, Verizon retained an easement at the premises to continue to run fiber optic and copper cabling on the first and second floors and to maintain a secure telephone room on the second floor. The cabling was exposed on the ground floor. Mr. Hogan further testified that Verizon's cables were tagged or marked with spray paint—specifically, the fiber optic cable, which delivered light; had orange tags to indicate that it belonged to Verizon and the copper cabling, which delivered phone service, was spray painted white. Mr. Hogan also testified that the secure room on the second floor remained locked via a lock in the door handle to which only Verizon employees had keys because the room contained Verizon equipment and cabling.
While Mr. Hogan testified that no Verizon employees worked at the premises, in January 2013, Mr. Hogan stopped by the premises several times. He also testified that as of January 3, 2013, there were at least twelve employees working at the premises under the supervision of Defendant Altz Group, the general contractor overseeing demolition work at the premises.
Mr. Hogan testified that on January 26, 2013 at approximately 11:30 or 11:45 a.m., an alarm sounded at the premises because a fiber optic cable had been compromised and, as a result, he, as well as the New York Police Department ("NYPD"), were notified. (See Plaintiff's Ex. 4 at p. 5.) That same day, when Mr. Hogan arrived at the premises, he entered the building, using his Verizon keys, through the back entrance. To get to that entrance, he had to cut a lock that had been changed on the fence around the back of the building. Mr. Hogan testified that this was the sole entrance to the building because there was no front door. There are two garage bays at the front of the building and there are no other side doors. Upon entering, the building was empty because it was a Saturday evening; however, it appeared, due to the existence of a scaffold, that active construction work had transpired sometime earlier that day. Mr. Hogan then discovered that a fiber optic cable in the ceiling of the ground floor had been severed in half and he suspected that the cable was cut by someone. (See id. [Mr. Hogan, in his damages report, wrote the following: "We're currently refuting Building Contractor[']s claim that a robbery occurred in building. We contest this erroneous claim with pictures, first on scene eye witness accounts, and evidence found on site. Building Contractor contacted NYPD to file bogus robbery report in order to cover-up their culpability damaging Vz Telecom equipment."].)
Mr. Hogan's inspection of the secure room indicated that the room was intact. At approximately 6:30 that evening, Mr. Hogan dispatched a crew to repair the service outage. In order to repair the severed cable, Verizon workers had to bring in two sections of fiber optic cables, 50 feet in length, and drop them down from the ceiling. Mr. Hogan testified that he did not know who owned the building, except he did know that Verizon had recently sold the building and retained an easement to keep cabling and equipment on the property. He also testified that he did not know if any other entity was working that day, including Altz Group.
In addition, Mr. Hogan testified that on January 28, 2013, the hi-tech maintenance department received an alarm indicating that damage to equipment occurred in the secure room. On that same date, Mr. Hogan was notified of the alarm at approximately 8 a.m. and returned to the premises at approximately 9 a.m., where he stayed for an hour. The power to the building was subsequently shut off. He testified that all the copper cabling was cut away, approximately 30 to 35 pieces of cabling were missing and the apparatuses in the secure room were stacked against the wall. Mr. Hogan further testified that this situation caused a disruption in service for over 100 customers and that Verizon had to transfer those lines out of the building to adjacent sites. He also testified that the secure room had been compromised and the doorknob to the secure room had been removed. Moreover, Mr. Hogan testified that he spoke to an individual who identified himself as the Altz Group representative in order to follow up with him regarding a future damages claim. Mr. Hogan described this individual as a tall, slender, middle-aged (which he later elaborated to mean in his 40s) male, with an Eastern European accent, who provided Mr. Hogan with his contact information. By the time Mr. Hogan arrived at the premises, the Altz Group representative had already called the NYPD and was speaking to a police officer. A report of the stolen equipment was filed by the NYPD. Additionally, Mr. Hogan filed his own damages report with Verizon as part of his job duties. (See Plaintiff's Ex. 5 at p. 6 ["Monday morning I returned to 4770 White Plains Rd with colleague to find Contractor claiming the room was broken into, NYPD filing PO report, and a damaged door to Vz Telecom Room."].)
Mr. Hogan testified that he believed it was understood that the Verizon equipment and cables were not to be touched by Altz Group or any subcontractors it hired, but he did not tell the Altz Group representative not to touch the cables and equipment because it was not his department. Additionally, Mr. Hogan testified that because Altz Group was the general contractor for the premises, Verizon determined Altz Group was at fault since it was responsible for securing the building. (See Plaintiff's Ex. 5 at p. 6 ["All Verizon parties involved agree that Building Contractor [Altz Group] is covering-up wrong doing."].) However, Mr. Hogan testified that he did not notice if any of the exterior doors were broken because he had used the same door to enter and exit the building.
Mr. Hogan also testified that he personally approved timesheets for the repairs that took place on January 26, 2013 (Plaintiff's Ex. 2) and January 29, 30 and 31, 2013 (Plaintiff's Ex. 3). He testified that these timesheets were prepared by himself within 24 to 48 hours of the work performed, within a week of the repairs performed at the latest. Mr. Hogan further testified that on January 26, 2013, the repair work required two technicians working for 6 hours each, a total of 12 hours, which included travel time, time to determine the issue, drop cables and splice cabling together. (Plaintiff's Ex. 2.) The repair work for the January 28, 2013 incident required twelve technicians working for 8 hours each, a total of 96 hours. (Plaintiff's Ex. 3.) Altogether, the repairs took 108 hours of labor. (See Plaintiff's Exs. 2, 3.) Plaintiff's Exhibit 4, referred to supra , is a damage claim that Mr. Hogan prepared as part of his job duties, which he initialized on January 28, 2013. The report explained the alleged damage, how the fiber optic cable was repaired, discussed the 5100 pairs of copper cabling that went missing and how it was not cost effective to make repairs, so the customers were transferred to other sites. As discussed supra , Mr. Hogan testified that page 6 of the report indicates that the "damager" [sic], which he named as the Altz Group, should be billed for the alleged property damage and further testified that the copper cable was never recovered by the NYPD.
Through Mr. Hogan's testimony, a series of photographs, which he took with his cellphone, were admitted into evidence that portrayed the alleged damage that occurred at the premises on January 28, 2013. (Plaintiff's Exs. 5-16.) The photographs depict the cut copper cabling (Plaintiff's Exs. 5, 11, 14, 15); the closures that had cables cut and were thrown into one of Altz Group's dumpsters at the premises (Plaintiff's Exs. 6, 16); surge protector terminals that were missing 50 feet of copper cabling (Plaintiff's Ex. 7); copper conduits that cut off 3900 copper cables at the duct with a saw (Plaintiff's Exs. 8, 12); a 3000 copper cable that was cut flush at the floor, along with a fiber optic cable that was also cut (Plaintiff's Ex. 9); a cut fiber optic cable, which rendered the unit that it was attached to useless (Plaintiff's Ex. 10); and further destruction, which included the removal of chrome blocks from the backboard (Plaintiff's Ex. 13).
However, Mr. Hogan also testified that he could not say if the cables were intentionally cut because there were other instances where cables were cut four or five more times through April 2013, which caused Verizon to redesign the cables to run outside of the building. He also testified that he was not subpoenaed in any criminal case and does not know if a letter instructing Defendant Altz Group to ensure that work was not performed near the Verizon cables was ever sent to Altz Group since that is not part of his job duties.
Mr. Alan Bresler, the current Vice President of Altz Group, testified on its behalf. In 2013, he worked as an independent contractor for Altz Group. He testified that Altz Group has its own subcontractors that perform construction work. Through his testimony, an agreement between Altz Group, as contractor, and PIC Contracting Corp. ("PIC"), as subcontractor, dated November 26, 2012, for demolition and debris removal was admitted into evidence. (Defendant's Ex. A.) Mr. Bresler testified that Altz Group performed a background check, which he believed also contained a criminal background check, on the companies that it subcontracted with. Mr. Bresler testified that he was present when Defendant's Exhibit A was signed by Mr. Andrew Pacanski, on behalf of PIC, and Mr. Menachem Blum, the President of Altz Group. (See id. ) Upon questioning, Mr. Bresler described Mr. Pacanski as a 40 to 50-year-old Eastern European man. Another identical agreement between Altz Group, as contractor, and CMR HVAC Mechanical Contractor ("CMR"), as subcontractor, dated December 20, 2012, for electrical, plumbing and HVAC removal at the premises was also admitted into evidence. (Defendant's Ex. B.) This agreement was signed by Mr. Ramon A. Ramirez, on behalf of CMR, and Mr. Blum, on behalf of Altz Group. (Id. ) Mr. Bresler testified that he witnessed the signing of this agreement as well.
Both agreements contain the following pertinent provisions: Article 2 [e], which states that "Sub Contractor [sic] shall accept full responsibility for all conditions at the project that may affect its performance and warrant that the performance of the work will be in conformity with all applicable codes, rules, regulations and ordinances[;]" Article 4 Contract Sum, discussing that set sum is to be based on the progress of the job and paid every two weeks; Article 10, discussing that the subcontractor is responsible for securing the premises, specifically § 10.4 that states "[t]he Sub Contractor [sic] shall be solely responsible for any theft or damage to any materials, tools or equipment stored within the premises and will be liable to the owners of said materials, tools, or equipment if theft or damage occurs." (Defendant's Exs. A, B at Art. 2 [e], § 10.4.)
Defense counsel referred to Article 4 at trial, though it appears that he intended to refer to Article 5, "Payments," when discussing progress payments. (Defendant's Exs. A, B at § 5.1.2 ["The period covered by each Application for Payment shall be two calendar weeks."].)
Mr. Bresler also testified that the owners of each subcontractor, respectively, supervised the work of their employees, created their own work schedule for their respective employees, that each subcontractor's employees drove their own vehicles, paid their own taxes, and were considered by Altz Group to be independent contractors. Mr. Bresler further testified that he verbally told the PIC and CMR employees that they could not work where Verizon had cables in the premises, which he believed were fiber optic cables, in the ceiling, which were exposed, or in the secure room where only the owner had the key because it contained Verizon equipment.
Moreover, Mr. Bresler testified that he visited the premises once a week or every two weeks. Upon his inspection of the exterior of the building, he found that one door was not fully secured, some emergency side exit doors had locks that were not working and one roll down gate did not close fully. Mr. Bresler testified that he tried to lock the unsecured door. He also testified that he communicated these issues to both PIC and CMR employees. By the time the construction project finished, Mr. Bresler was aware of three or four additional incidents of vandalism at the premises that were reported by the subcontractors because they stopped leaving tools at the premises and secured the doors. Mr. Bresler testified that there were no Altz Group employees other than himself at the premises and that he was notified that Verizon sustained damage.
Upon cross-examination, Mr. Bresler testified that his job duties included overseeing construction projects at the premises and monitoring progress on those projects, including during January 2013. Though he testified that he was not responsible for supervising the work of the subcontractors, when he was previously deposed, he admitted that he was. However, at trial, Mr. Bresler testified he only supervised the work of the subcontractors for the purpose of paying out the subcontract agreements. Contrary to his direct examination, Mr. Bresler testified that he did not make sure the doors were secured or that the rolling gate was repaired. Additionally, he did not remember if anyone from Verizon ever spoke with him at the premises.
Discussion
As an initial matter, contrary to the language that is incorporated by reference into each of their respective agreements, the assertion of Defendant Altz Group that PIC and CMR are not subcontractors, but are independent contractors, is without merit. Specifically, each mirror agreement, at § 9.1.1, states as follows: "The Agreement is this executed AIA Document, Standard Form of Agreement Between Contractor and Sub Contractor [sic]." (Defendant's Exs. A, B at p. 4.) Section 9.1.2 of each agreement states that: "The General Conditions are AIA Document A201-2007, General Conditions of the Contract for Construction." (Defendant's Exs. A, B at p. 4.) While not introduced into evidence, § 5.1.1 of the AIA Document A201-2007 standard form defines the term "subcontractor" as "a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site."
Nonetheless, Defendant Altz Group was not negligent in selecting, instructing or supervising the PIC and CMR workers to avoid damaging Verizon's equipment regardless of whether these workers are subcontractors or independent contractors. With respect to independent contractors, "[t]he general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts." ( Kleeman v. Rheingold , 81 NY2d 270, 273 [1993].) "The primary justification for this rule is that ‘one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor.’ " ( Brothers v. New York State Elec. & Gas Corp. , 11 NY3d 251, 257-58 [2008], quoting Kleeman , 81 NY2d at 274.) "Control of the method and means by which work is to be performed, therefore, is a critical factor in determining whether a party is an independent contractor or an employee for the purposes of tort liability." ( Goodwin v. Comcast Corp. , 42 AD3d 322, 322 [1st Dept 2007].)
However, there are exceptions to this general rule of liability. "These exceptions, most of which are derived from various public policy concerns fall roughly into three basic categories: negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or ‘inherently’ dangerous; and, finally, instances in which the employer is under a specific nondelegable duty." ( Kleeman , 81 NY2d at 274 [internal citations and footnotes omitted].)
Here, Altz Group, through Mr. Bresler's testimony, indicated that it visited the premises once a week or every two weeks in a supervisory capacity. While the Court notes that Mr. Bresler was impeached with his deposition testimony as to the extent of his supervisory role over PIC and CMR, he clarified that he visited the premises to monitor progress for the purpose of paying out the respective subcontract agreements. He also testified that both PIC and CMR had respective owners that supervised their employees' work, created their own work schedule for their employees, that employees drove their own vehicles and paid their own taxes.
The Court finds that Altz Group's general supervisory role over the construction work, without more, is insufficient to impose vicarious liability. ( Leeds v. D.B.D. Servs. , 309 AD2d 666, 667 [1st Dept 2003].) Because Defendant Altz Group merely exercised a limited supervisory role at the premises and instructed PIC and CMR not to work in areas where there were Verizon cables, it cannot be found negligent for instructing or supervising those workers. (Cf. Chainani v. Board of Educ. of City of NY , 87 NY2d 370, 380 [1995] [holding that defendant acted properly in instructing third party and was not obligated to give further instructions regarding how to specifically do the work; it could reasonably rely on third party to act responsibly in carrying out instructions and was not negligent]; Restatement [Second] of Torts § 414 [stating that an employer that retains control over any part of the work is subject to liability for physical harm or other negligence of an independent contractor to those whom the employer owes a duty for failure to exercise that control with reasonable care].)
The Court need not address the negligent hiring aspect as that argument was not raised at trial or in the parties' pre-trial memoranda of law.
Similarly, Plaintiff did not meet its burden of proof that Defendant Altz Group was negligent for failing to secure the premises. The traditional common-law elements of negligence are duty, breach, damages, causation and foreseeability. ( Hyatt v. Metro-North Commuter R.R. , 16 AD3d 218, 218 [1st Dept 2005].) While Mr. Bresler may have credibly testified that he had prior actual or constructive knowledge of several other burglaries or acts of vandalism that were reported to him by the subcontractors, Verizon failed to prove the first element—that Defendant Altz Group had a duty to Plaintiff to keep its property at the premises safe.
Here, although Mr. Hogan testified that Altz Group was responsible for securing the premises and Mr. Bresler admitted to knowing that some of the locks were broken, the evidence admitted at trial indicated that the contracts between Altz Group and PIC and CMR, respectively, required those entities to secure the premises. (Defendant's Exs. A, B at § 10.4.) Notably, Plaintiff's counsel failed to introduce any evidence at trial to substantiate Mr. Hogan's testimony that Altz Group owed a duty to Verizon to keep its property safe and prevent against damage and loss or to safeguard the premises, such as a contract.
Had such evidence been introduced, for example that Altz Group had a contractual duty to keep the premises safe, it may be held liable under either of the following exceptions to independent contractor liability where the employer's duty is nondelegable: "where the employer ... has assumed a specific duty by contract [or] is under a duty to keep premises safe." ( Rosenberg v. Equitable Life Assur. Socy. of U.S. , 79 NY2d 663, 668 [1992].) "In such instances, the employer cannot insulate itself from liability by claiming that it was not negligent: the employer is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated." (Id. ) As Plaintiff has failed to prove the first element of negligence, an analysis of the remaining elements is not needed.
However, the Court notes that the Court file does contain the contract between the new owner of the premises, Centers FC Realty LLC, and Defendant Altz Group. (NYSCEF Doc. No. 50.) While the contract does not specifically delineate Defendant Altz Group's duties as contractor, § 9.1.2 states that "[t]he General Conditions are AIA Document A201-2007, General Conditions of the Contract for Construction." (Id. at § 9.1.2.) AIA Document A201-2007 at § 10.2.1.3, entitled "Safety of Persons and Property," states that:
The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to ... other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction .
(Emphasis added.) Section 10.2.5 further states, in relevant part, that:
The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in party by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone whose acts they may be liable and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3.
(Id. ) Even if the Court took judicial notice of the file in this matter, the form contract, AIA Document A201-2007, is not a part of the court file and, therefore, Plaintiff would still fail to prove that Defendant Altz Group owed it a duty to hold it liable on a negligence theory. (See e.g. Walker ex rel. Velilla v. City of New York , 46 AD3d 278, 281-82 [1st Dept 2007].)
Conclusion
Based upon the foregoing, after a bench trial, this Court dismisses Plaintiff Verizon New York, Inc.'s claims for negligence and trespass and, accordingly the action is dismissed.
It is hereby
ORDERED that Defendant shall serve a copy of this Decision and Order with Notice of Entry upon all parties entitled to notice.
This constitutes the Decision and Order of this Court.