Opinion
11770/04.
Decided August 17, 2005.
Upon the foregoing papers, the motion (No. 260) of the City of New York for summary judgment dismissing the Complaint as to defendants City of New York, New York City Department of Transportation, New York City Department of Environmental Protection, New York City Building Department (hereinafter the "City") is denied; plaintiff's cross motion (No. 1932) to strike the City's Reply Affirmation is denied; the cross motions for summary judgment by defendant Flag Container Services, Inc (No. 1107) and by defendant Tristar Mortgage Corp (No. 1270) each is granted; the cross motion (No. 1127) of defendants Formica Corporation, Kenneth Formica and William Formica, for summary judgment dismissing the complaint as to each is granted; and plaintiff's cross motion (No. 1326) to strike the respective Answers of defendant Flag Container Corp, and of the Formica defendants is denied.
This is an action to recover compensatory damages on behalf of decedent's estate, arising from fatal injuries allegedly incurred by decedent while employed at a construction site on Staten Island. The Complaint alleges that decedent was killed when the walls of the trench in which he was working collapsed due to the willful and/or negligent failure of the defendants to properly shore them.
Motion Nos. 260 and 1932.
In Motion No. 260, the City moves for summary judgment dismissing the Complaint as to each of the City defendants on the ground that the City's sole connection with the construction site is that it issued a permit to co-defendant Formica Construction, Inc. (sued here as Formica Corporation) to open the roadway where the accident occurred. Plaintiff opposes the motion and cross moves to strike the City's Reply Affirmation on the ground that the City improperly introduced new factual and legal issues in its Reply.
Despite its contention that its sole connection with the site was administrative in nature, the City concedes that it is the owner of the roadway in which the trench was cut. It is undisputed that the trench was being dug on a portion of a City roadway and sidewalk at the intersection of two public streets. Accordingly, as owner of the construction site, the City may be liable for injuries decedent suffered arising out of the work he was performing (Labor Law Art. 7), and its motion for summary judgment, addressed solely to its alleged ministerial function, therefore is denied.
Given the disposition of the City's motion, plaintiff's cross motion (No. 1932) to strike the Reply Affirmation submitted by the City in support of its motion is denied as moot. In this regard, the Court notes that, even were it to review the allegedly new issues raised in the Reply, those matters are not dispositive of the issue of the City's liability. At most, they raise issues of fact which, given the early stage of discovery in this action, cannot be determined on the papers presently before the Court.
Motion No. 1107.
Defendant Flag Container Services, Inc. ("Flag") cross moves for summary judgment dismissing the complaint as against it on the grounds that (1) it is neither an owner nor a general contractor at the site, (2) it had no connection with the construction project other than to have delivered a refuse container to the site, and (3) it had no duty to plaintiff. Plaintiff concedes that "[t]o the extent [Flag] had nothing to do with the trench or the construction, they may be entitled to summary judgment." Nonetheless, he opposes the motion on the ground that the accident site was a complex construction project with multiple parties involved, and that until discovery is completed, Flag's liability, if any, remains an issue of fact. Thus, he argues, "It is undisputed that if Flag did in fact have responsibilities that included digging and or protecting the trench they would be a proper party."
Plaintiff's argument is unavailing. Flag has established a prima facie defense to the allegations asserted against it, demonstrating through the uncontradicted affidavit of its principal that its sole functions at the site was to deliver and service the refuse container. Defendant having met its initial burden on this motion, it falls to plaintiff to demonstrate that genuine issues of fact exist to preclude summary judgment ( Zuckerman v. City of New York, 49 NY2d 557, 562).
Here, plaintiff points to no connection between Flag and decedent's injuries, and any suggested link is speculative, at best. The conclusory and unsubstantiated assertions he presents are not supported by competent evidence and thus are insufficient to meet his burden to assemble and lay bare affirmative proof demonstrating that genuine triable issues of fact exist ( Kornfeld v. NRX Tech, 93 AD2d 772 [1st Dept 1983], affd. 62 NY2d 686).
In this regard, plaintiff's assertion that he needs additional discovery to properly oppose Flag's motion is without merit. CPLR 3212(f) provides that summary judgment may be denied where ". . . facts essential to justify opposition may exist but cannot then be stated." In such a case, the court may either deny the motion or direct further discovery so that the evidence needed to oppose the summary judgment can be obtained. However, the mere speculation or hope that discovery will reveal material or relevant information necessary to defeat summary judgment is insufficient. The party asserting that evidence sufficient to defeat the summary judgment motion could be obtained through discovery must demonstrate to the court a good faith factual basis for that belief ( Connecticut Indem Co v. Travelers Ins Co. 300 AD2d 530 [2nd Dept 2002]). Plaintiff has failed to do so here, and, accordingly, the cross motion for summary judgment dismissing the Complaint as against Flag Container Services, Inc. is granted.
Motion No. 1127.
Defendants Formica Corporation, Kenneth Formica, and William Formica (collectively "Formica") cross move for summary judgment dismissing the Complaint as to each on the ground that the claims are barred by the provisions of the Workers' Compensation Law.
In moving for summary judgment, the Formica defendants argue that (1) plaintiff has elected his remedy by accepting worker's compensation benefits, and thus he is precluded from bringing this action against either his employer or co-workers pursuant to Section 11 of the Workmen's Compensation Law; and (2) plaintiff has presented no evidence substantiating his allegation that the Formica defendants engaged in an "intentional tort," an exception to the Section 11 bar.
In opposition, plaintiff argues that there are questions of fact that preclude summary judgment. Specifically, he alleges that (1) there is an issue whether Formica intentionally failed to provide decedent and his co-workers with adequate protection a "blatant and obvious" intentional tort allegedly evidenced by defendant Kenneth Formica's admissions before the Occupational Safety and Health Administration; and (2) there is an issue of fact concerning which Formica entity or individuals owned the premises from which the trench was running at the time of the accident. In addition, plaintiff argues that defendants' cross motion is premature as additional discovery, including deposition of the individual defendants, is needed to adequately address these issues.
The exclusive remedy provision of the Workers' Compensation Law precludes an employee from bringing common-law and other actions against an employer (Workers' Compensation Law § 11) or co-employees (Workers' Compensation Law § 29) absent certain circumstances such as the commission of an intentional tort ( Billy v. Consolidated Mach Tool Corp, 51 NY2d 152, 156, rearg denied 52 NY2d 829). It is undisputed that at the time of the accident plaintiff's decedent was an employee of an entity known as Formica Construction, Inc (sued here as "Formica Corporation"), and that the individual defendants, Kenneth Formica and William Formica, were both principals and employees of that entity. It is also undisputed that, following the accident, decedent's estate representatives applied for and accepted benefits pursuant to the Workers' Compensation Law.
Defendant Formica Construction, Inc. concedes that it was the actual owner of the property under construction at the time of decedent's accident. As Formica also is plaintiff's employer, plaintiff thus is barred by Workers' Compensation Law Section 11 from bringing an action against it in its capacity as owner of the property under construction ( Billy v. Consolidated Machine Tool Corp., 51 NY2d at 158-159; Termine v. Continental Baking Co, 299 AD2d 406 [2nd Dept 2002]).
In this regard, as Formica Construction, Inc. indisputably was decedent's employer, plaintiff's speculation as to whether it or another entity was the actual owner of the premises is "of no probative value" as the claim against Formica Construction would be barred in any event ( Ogilvie v. McDonald's Corp, 294 AD2d 550, 551 [2nd Dept 2002]; cf DeJesus v. Todaro, 2 AD3d 282 [1st Dept 2003]; Rivera v. Mary Immaculate Hosp Assn, 306 AD2d 265 [2nd Dept 2003]).
Similarly, the individual defendants, Kenneth Formica and William Formica, also are entitled to summary judgment dismissing the Verified Complaint as to them, regardless of any ownership interest they may have in either the corporation or the premises (Workers' Compensation Law § 29; Heritage v. Van Patten, 59 NY2d 1017).
Finally, plaintiff's conclusory assertion that the Formica defendants committed a "blatant and obvious" intentional tort resulting in decedent's death does not alter the result here. While an employer or a co-employee who commits an intentional tort against an employee is not protected by the exclusive remedy doctrine, a complaint pleading an intentional tort sufficient to neutralize that exclusivity must allege an intentional or deliberate act by the employer directed at causing harm to that particular employee ( Mylroie v. GAF Corp., 81 AD2d 994 [3rd Dept 1981], affd 55 NY2d 893). "In order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as the intent to cause injury . . . A result is intended if the act is done with the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue" (Acevedo v. Consolidated Edison Co. of New York, 189 AD2d 497, 500-501 [1st Dept 1993], quoting Finch v. Swingly, 42 AD2d 1035 [4th Dept 1973]). Here, plaintiff's allegations failed to establish the elements of an intentional tort so as to fall under this exception to the exclusivity provision of the Workers' Compensation Law ( see Fucile v. Grand Union Co, 270 AD2d 227, 228 [2nd Dept 2000]
Accordingly, the cross motion of defendants Formica Construction, Inc (sued here as Formica Corporation), Kenneth Formica, and William Formica for summary judgment dismissing the complaint as against them is granted.
Motion No. 1270.
Defendant Tristar Mortgage Corp. cross moves for summary judgment dismissing the Complaint and all cross claims against it on the ground that it had no ownership interest in the premises and no connection with the direction, management, performance, supervision, operation, control or maintenance of the construction work being done at the premises. According to the affidavit of David Saraff, Tristar's president, its sole connection with this action is its capacity as "a mortgage lender available to prospective home owners who elected to purchase any of the one- or two-family homes after they were built."
In opposition to the cross motion, plaintiff argues that "[w]hile on its face if Tristar's contentions are true they would likely be entitled to summary judgment . . ., at this stage it is impossible for plaintiff to know if, as financier, they had any legal ownership interest in the property" (Affirmation in Opposition, dated May 13, 2005, ¶ 5).
As with plaintiff's contentions in opposition to the cross motion of Flag Container Services, supra, this argument is unavailing. Here, Tristar has presented a prima facie defense to the allegations asserted against it, demonstrating through the uncontradicted affidavit of its principal that its sole connection with the project was to provide mortgages for prospective purchasers. Defendant having met its burden on its cross motion, it falls to plaintiff to demonstrate that genuine issues of fact exist to preclude summary judgment (Zuckerman v. City of New York, 49 NY2d at 562). Here, plaintiff points to no connection between Tristar and decedent's injuries, and any suggested link is speculative, at best. Nor has he established beyond a hopeful surmise that evidence of such a link might be obtained through discovery.
Accordingly, the cross motion of Tristar Mortgage Corp. is granted.
Motion No. 1326.
In Motion No. 1326, plaintiff cross moves to strike the separate Answers of defendant Flag Container Services, Inc., and of the Formica defendants.
The cross motion is denied as moot, as these defendants now have been granted summary judgment dismissing the Complaint as against them.
Accordingly, it is
ORDERED that the motion (No. 260) of the City of New York for summary judgment dismissing the Complaint as to defendants City of New York, New York City Department of Transportation, New York City Department of Environmental Protection, New York City Building Department (hereinafter the "City") is denied; and it is further
ORDERED that plaintiff's cross motion (No. 1932) to strike the City's Reply Affirmation is denied; and it is further
ORDERED that the cross motions for summary judgment by defendant Flag Container Services, Inc (No. 1107) and by defendant Tristar Mortgage Corp (No. 1270) each is granted; and it is further
ORDERED that the cross motion (No. 1127) of defendants Formica Corporation, Kenneth Formica and William Formica, for summary judgment dismissing the complaint as to each is granted; and it is further
ORDERED that plaintiff's cross motion (No. 1326) to strike the respective Answers of defendant Flag Container Corp, and of the Formica defendants is denied; and it is further
ORDERED that the Complaint and all cross claims asserted against defendants Flag Container Services, Inc., Tristar Mortgage Corp., Formica Construction, Inc., Kenneth Formica, and William Formica are severed and dismissed; and it is further
ORDERED that the Clerk shall enter judgment and amend the caption accordingly.