Opinion
18924/06
03-16-2012
Segundo Paredes, Plaintiff, v. 1668 Realty Associates LLC, L & B CONSTRUCTION NY INC., H & H BUILDING CONSULTANTS INC., P & C PAINTING CORP. and YOUR CHOICE CONTRACTING CO., Defendants. 1668 REALTY ASSOCIATES LLC, Third-Party Plaintiff, REGAL CONTRACTING AND PAINTING, INC., YOUR CHOICE CONTRACTING CO. and P & C PAINTING CORP., Third-Party Defendants.
Plaintiff was represented by Brian J. Vanella, Esq. of Dinkes & Schweitzer. Defendant/third-party plaintiff 1668 Realty Associates, LLC was represented by Scott A. Brody, Esq. of Brody, O'Connor & O'Connor. Defendant L & B Construction NY Inc. was represented by Darmin T. Bachu, Esq. of Bachu & Associates, Esqs. Third-party defendant Regal Contracting and Painting, Inc. was represented by Vanessa Keegan-Natola, Esq. of Wilson, Elser, Moskowitz, Edelman & Dicker LLP.
, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on plaintiff Segundo Paredes's motion for an order, pursuant to CPLR 3212, granting him summary judgment on the issue of liability on his Labor Law § 240(1) cause of action as against defendants 1668 Realty Associates, LLC and L & B Construction NY Inc.; on third-party defendant Regal Contracting and Painting, Inc.'s motion seeking leave to amend its answer to include an affirmative defense of the exclusivity of workers' compensation, and for an order, pursuant to CPLR 3212, granting it summary judgment dismissal of defendant/third-party plaintiff 1668 Realty Associates LLC's third-party complaint and all cross-claims as against it; on defendant/third-party plaintiff 1668 Realty Associates, LLC's motion for leave to serve an untimely motion/cross-motion, and for an order, pursuant to CPLR 3212, granting it summary judgment dismissal of Plaintiff's Labor Law § 200 and common law negligence causes of action as against it and precluding Plaintiff from offering evidence that he is disabled from working due to a traumatically-induced brain injury or cognitive medical condition; and on defendant/third-party plaintiff 1668 Realty Associates, LLC's cross-motion for an order granting it leave to serve an untimely motion/cross-motion and for an order, pursuant to CPLR 3212, granting it summary judgment for indemnification as against third-party defendant Regal Contracting and Painting, Inc.:
-Notice of Motion (Cal. No. 18)Defendant/third-party plaintiff 1668 Realty Associates, LLC was represented by Scott A. Brody, Esq. of Brody, O'Connor & O'Connor. Defendant L & B Construction NY Inc. was represented by Darmin T. Bachu, Esq. of Bachu & Associates, Esqs. Third-party defendant Regal Contracting and Painting, Inc. was represented by Vanessa Keegan-Natola, Esq. of Wilson, Elser, Moskowitz, Edelman & Dicker LLP.
Affirmation
Plaintiff Affidavit
Expert Affidavit
Exhibits A-H
-Notice of Motion (Cal. No. 19)
Affirmation in Support
Exhibits A-P, R
-Memorandum of Law in Support of Defendant Regal Contracting and Painting, Inc.'s Motion for Summary Judgment
-Notice of Cross-Motion (Cal. No. 20)
Affirmation in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Cross-Motion
Exhibits A-H
-Amended Notice of Cross-Motion (Cal. No. 21)
Notice of Cross-Motion
Affirmation and Statement of Law in Opposition to Motion of Regal Contracting and Painting, Inc., and in Support of Cross Motion [sic]
Exhibits A-F
-Affirmation in Opposition/Reply Affirmation
Exhibit A
-Affirmation in Reply/Opposition to 1668 Realty's Cross-Motion
Exhibit R
-Affirmation in Reply on 1668 Realty Associates, LLC's Motion for Indemnification Against Regal Contracting and Painting, Inc.
-Affirmation in Opposition (not considered)
Exhibits A-C
-Short-Form Order dated December 19, 2011
Plaintiff was represented by Brian J. Vanella, Esq. of Dinkes & Schweitzer.
On August 22, 2005, plaintiff Segundo Paredes allegedly sustained personal injuries when he was "struck by plastic bucket of debris being lowered from an elevated worksite", while he was performing demolition work at a site located at 1668-1684 W. 6th Street in Brooklyn ("the premises"). (See Verified Complaint, ¶ 25.)
Plaintiff's Motion (Cal. No. 18)
In his motion, Plaintiff contends that he is entitled to summary judgment on his Labor Law § 240(1) cause of action as against defendants 1668 Realty Associates, LLC ("1668 Realty") and L & B Construction NY, Inc. ("L & B"). Labor Law § 240 (1) provides:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoist, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
"To prevail on a claim under Labor Law § 240(1), a plaintiff must prove that the statute was violated and that such violation was a proximate cause of the resulting injuries." (Kretowski v Braender Condominium, 57 AD3d 950, 951 [2d Dept 2008]; see also Blake v Neighborhood Hous. Servs. Of New York City, 1 NY3d 280, 287 [2003].) "The statute is . . . designed to minimize injuries to employees by placing ultimate responsibility for safety practices on owners and contractors, rather than on the workers, who as a practical matter lack the means of protecting themselves from accidents." (Martinez v City of New York, 93 NY2d 322, 325 [1999]; see also Balbuena v IDR Realty LLC, 6 NY3d 338, 359 [2006].)
In support, Plaintiff submits, among other things, a copy of defendant 1668 Realty's answer, which admits ownership of the premises. (See Answer to Amended Complaint, Cross-Complaint Demand for Verified Bill of Particulars and Combined Demand for Discovery and Inspection, ¶ 2.)
Plaintiff also points to his own affidavit, to the effect that, at the time of the accident, he was employed by third-party defendant Regal Contracting and Painting Inc. ("Regal") as a construction worker on a demolition job at the premises. Plaintiff also proffers his own deposition testimony that he was employed by "Richard"; that "Regal" was the name of the company who employed him; that "Richard" was his "boss"; that he was paid $400 per week; that he got the job with Regal by "standing in the corner [on 65th and Newtrik] and they picked me up"; and that he was told by others standing on the corner that he could get work by standing on that corner. Specifically, according to his affidavit, his job "was to receive demolition debris that was being lowered from the roof to the ground in a bucket attached to a steel wire rope hoisting cable, and to separate the debris for disposal." (See Plaintiff Affidavit, ¶ 4.) Plaintiff avers that as he was "on the ground picking up bricks in order to separate them from the other debris", the "cable attached to the bucket snapped and the bucket full of debris fell from the 4th floor hitting me." (See id. at 5.)
Plaintiff's affidavit and testimony that the cable that supported the bucket snapped, which caused Plaintiff to be struck by the bucket of debris, establishes his prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action as against the owner of the premises, defendant 1668 Realty. (See Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071-72 [3d Dept 2009]; Kretkowski v Braender, 57 AD3d at 951 [plaintiff established Labor Law § 240(1) violation based upon testimony that a brick fell on him while it was being hoisted]; Moller v City of New York, 43 AD3d 371, 372 [1st Dept 2007] [plaintiff awarded summary judgment on Labor Law § 240(1) cause of action where "hoisting mechanism failed, causing injury to the worker"].)
In opposition to the motion, defendant 1668 Realty points to the deposition transcript of Mojahed Bhutta, the president and owner of third-party defendant Regal, that Plaintiff was not an "employee" of Regal; that Regal was not performing any work at the premises on August 22, 2005; that Regal had finished its work by that time; that he had never seen Plaintiff at the work site; that he did not employ anyone by the name of "Richard"; that he did not see Plaintiff until the Workers' Compensation Board hearing; that he hired all of Regal's workers; and that he hired only four workers at the subject premises, and neither Plaintiff nor a person named "Richard" was one of those four workers.
Based upon Mr. Bhutta's testimony, 1668 Realty contends that there exists an issue of fact as to whether Plaintiff was employed by third-party defendant Regal on the date of the accident. In this regard, 1668 Realty contends that this Court is not bound by a determination by the Workers' Compensation Board that Plaintiff was employed by Regal.
Even assuming that Mr. Bhutta's testimony establishes the existence of an issue of fact as to who employed Plaintiff at the time of the accident, 1668 Realty fails to show how that issue bears on its liability pursuant to Labor Law § 240(1). 1668 Realty does not point to any evidence demonstrating an issue of fact as to whether Plaintiff was a "person so employed" (see Labor Law § 240[1]) in demolition at the construction site on the date of the accident. Labor Law § 2(7) defines "employed" as "permitted or suffered to work". (See Baker v Muraski, 61 AD3d 1373, 1374 [4th Dept 2009] [holding that a determination of the Workers' Compensation Board that the plaintiff was not employed by the defendants is not entitled to collateral estoppel effect "in view of the different definitions of employee', employer' and employed' contained in Labor Law . . . and those of employer', employee', and employment' in Workers' Compensation Law"].)
Mr. Bhutta testified that he was not on the premises on the date of the accident, and, therefore, he has no personal knowledge that Plaintiff was not performing demolition work on the date of the accident. 1668 Realty does not point to any evidence or testimony from a person with knowledge, such as from any contractor that was engaged in work at the premises on the date of the accident, establishing, or creating an inference, that Plaintiff did not sustain injuries while performing demolition work on the premises on August 22, 2005.
For purposes of determining the liability of an owner, such as 1668 Realty, under Labor Law § 240(1), the issue of whether Plaintiff was employed by Regal or some other entity is of no moment, as long as it is undisputed that the plaintiff was "permitted or suffered to work" on the premises on the date of the accident. (See e.g. Knauer v Anderson, 299 AD2d 824, 825 [4th Dept 2002].) Again, the purpose of Labor Law § 240(1) is "to minimize injuries to employees by placing ultimate responsibility for safety practices on owners and contractors, rather than on the workers, who as a practical matter lack the means of protecting themselves from accidents." (Martinez v City of New York, 93 NY2d at 325.) Here, 1668 Realty fails to point to any evidence demonstrating that Plaintiff was not "employed" on the premises on the date of the accident, and, therefore, fails to raise a triable issue of fact.
Accordingly, the branch of Plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action against defendant 1668 Realty Associates, LLC is GRANTED.
Plaintiff fails to make any prima facie showing that defendant L & B was an owner's agent (see e.g. Guclu v 900 Eighth Avenue Condominium, LLC, 81 AD3d 592, 593 [2d Dept 2011] ["A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has the ability to control the activity which brought about the injury"]), or to make any other prima facie showing that it is entitled to summary judgment on his Labor Law § 240(1) cause of action as against L & B.
Accordingly, the branch of Plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action against L & B Construction NY Inc. is DENIED.
It should be noted that this Court did not consider L & B's Affirmation in Opposition, which was submitted on the adjourned return date and in violation of this Court's short-form scheduling order dated December 19, 2011.
Regal's Motion (Cal. No. 19)
In its motion, Regal first seeks to amend its third-party answer to include an affirmative defense of the exclusivity of workers' compensation pursuant to Workers' Compensation Law § 11. "It is well settled that leave to amend a pleading should be freely given absent a showing of prejudice or surprise to the non-moving party, or that the amendment plainly lacks merit." (McDermott v Presbyterian Congregation of Bethlehem, 275 AD2d 305, 308 [2d Dept 2000].) Here, there is no prejudice or surprise in light of Plaintiff's allegation and testimony that he was employed by Regal. The finding of the Workers' Compensation Board, as well as Plaintiff's affidavit and deposition testimony, sufficiently establish that the amendment does not plainly lack merit. Moreover, the fact that Regal did not assert the affirmative defense until after the Note of Issue was filed is of little consequence since "[t]he affirmative defense of workers' compensation may be waived only by a defendant ignoring the issue to the point of final disposition itself.' " (See Goodarzi v City of New York, 217 AD2d 683, 684 [2d Dept 1995][quoting Murray v City of New York, 43 NY2d 400, 407 (1977)]; see also Singh v Shafi, 252 AD2d 494, 495 [2d Dept 1998].)
In opposition,1668 Realty contends, among other things, that the doctrine of inconsistent positions or judicial estoppel precludes Regal from taking the position that Plaintiff was its employee, since Regal took the position that Plaintiff was not its employee in a hearing held before the Workers' Compensation Board. The doctrine of inconsistent positions or judicial estoppel "applies when a party has assumed a certain position in a prior legal proceeding and secured a favorable judgment therein, which thereby precludes that party from assuming a contrary position in another action simply because its interests have changed." (See Rosario v Montalvo & Son Auto Repair Center, Ltd., 76 AD3d 963, 964 [2d Dept 2010].) Here, it is undisputed that the Workers' Compensation Board determined that Plaintiff was Regal's employee, and, therefore, Regal did not secure a favorable judgment before the Workers' Compensation Board. As such, 1668 Realty's contention is without merit.
Accordingly, the branch of Regal's motion seeking to amend its answer, pursuant to CPLR 3025, to assert the affirmative of defense of the exclusivity of Workers' Compensation Law § 11 is GRANTED, and the Amended Verified Answer attached as Exhibit "R" to Regal's motion is deemed served upon all parties.
Regal also contends that it is entitled to summary judgment dismissal of 1668 Realty's third-party action against it based upon the affirmative defense of the exclusivity of Workers' Compensation Law § 11, which "bars a third-party action for contribution and indemnification against an employer whose employee is injured in a work-related accident" (see Baginski v Queen Grand Realty, LLC, 68 AD3d 905, 907 [2d Dept 2009]) except for, among other things, where the employee sustained a "grave injury" as that term is defined in Workers' Compensation Law § 11. (See Soto v Alert No. 1 Alarm Systems, Inc., 272 AD2d 466, 468 [2d Dept 2000].)
An employer may also be held liable pursuant to contract "where there is a provision in a written contract entered into prior to the accident or occurrence, pursuant to which the employer expressly agreed to contribution or indemnification with respect to the person or entity asserting a right to contribution or indemnification" (See Mantovani v Whiting-Turner Contracting Company, 55 AD3d 799, 800 [2d Dept 2008]; see also Baginski v Queen Grand Realty, LLC, 68 AD3d at 907).
In support, Regal assumes, without making any type of showing, that the Workers' Compensation Board's determination that Regal was Plaintiff's employer is binding in this action as against defendant/third-party plaintiff 1668 Realty, who was not a party to the Workers' Compensation Board proceedings. In opposition, 1668 Realty contends that the Workers' Compensation Board determination that Regal was Plaintiff's employer does not have preclusive effect in this action. "Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity with it." (Baten v Northfork Bancorporation,85 AD3d 697, 698 [2d Dept 2011] [internal quotation marks and citations omitted].)
A recent case, Baten v Northfork Bancorporation (85 AD3d 697), is factually similar. After a hearing before a Workers' Compensation Law Judge, it was determined that the plaintiff was an employee of the defendant construction company, and that the plaintiff was entitled to Workers' Compensation benefits from that defendant. (See id. at 697.) The determination was upheld on appeal to the Workers' Compensation Board. (See id.) Thereafter, in a subsequent personal injury action premised upon alleged violations of Labor Law §§ 240 and 241, the defendant construction company moved for summary judgment dismissal of the plaintiff's complaint, as well as dismissal of the cross-claims of the co-defendant, presumably the owner of the premises. (See id. at 698; see also Baten v Northfolk Bancorporation, Inc., Sup Ct, Kings County, December 17, 2009, Knipel, J., Index No. 6462/08 [noting that the action was a Labor Law case, and that the plaintiff was injured while working at a bank].) Even though the codefendant was not a party to the Workers' Compensation proceedings, Supreme Court "gave preclusive effect to the Workers' Compensation Board's determination" and granted the defendant construction company's motion in its entirety. (See Baten v Northfork Bancorporation,85 AD3d at 698.) In so doing, Supreme Court found that there was privity of interest between the construction company and owner, and, therefore, the owner was bound by the determination of the Workers' Compensation Board that the construction company was the plaintiff's employer. (See id.)
In its reversal of the Supreme Court decision, the Second Department held as follows:
"Under the particular circumstances of this case, Capital One [the owner] should not have been precluded from litigating the issue of whether Riggs [the construction company] was the plaintiff's employer. While Capital One is now taking the same position advanced by Riggs in the former proceedings, i.e., that Riggs was not the plaintiff's employer, nothing in the relationship between Riggs and Capital One, who are adversaries in the current proceeding, supports the Supreme Court's conclusion that Capital One's interests here are conditioned on, or derivative of, Riggs's interests in the workers' compensation proceedings. Thus, since Capital One is not in privity with Riggs, and Capital One was not afforded an opportunity to cross-examine witnesses and present evidence at the prior hearings, the workers' compensation determination should not have been given preclusive effect as to Capital One in the current action." (Id. at 698] [internal quotation marks and citations omitted].)Similarly, here, 1668 Realty now takes the position that Regal took in the Workers' Compensation proceedings, i.e., that Plaintiff was not Regal's employee. As in Baten v Northfork Bancorporation, there is no privity between 1668 Realty and Regal, and it is undisputed that 1668 Realty was not afforded an opportunity to litigate the issue of whether Plaintiff was employed by Regal in the Workers' Compensation proceedings. As such, collateral estoppel does not apply to preclude defendant 1668 Realty from contending that Regal was not Plaintiff's employer for purposes of its third-party claims in this action against Regal. (See also Tounkara v Fernicola, 63 AD3d 648, 650 [1st Dept 2009]; Falsitta v Metropolitan Life Ins. Co., 279 AD2d 879, 880 [1st Dept 2001]; Clavijo v Atlas Terminals, LLC, 2012 NY Slip Op 3034[U] [Sup Ct, New York County 2012].)
Since the Workers' Compensation Board's determination is not binding upon 1668 Realty in the third-party action, Regal must demonstrate prima facie that it was Plaintiff's employer. However, in support of its motion, Regal submits, among other things, the deposition testimony of its own principal, Mr. Bhutta, to the effect that Regal was not Plaintiff's employer. As such, since there exists an issue of fact as to whether Regal was Plaintiff's employer, it fails to demonstrate prima facie entitlement to summary judgment on its affirmative defense of the exclusivity of Workers' Compensation Law § 11.
The Court acknowledges that a determination in this action that Plaintiff was not employed by Regal would be inconsistent with the Workers' Compensation Board's determination that Plaintiff was employed by Regal, and the Court further notes that allowing a third-party action for common-law contribution or indemnification to continue against a party who has been determined to be the employer by the Workers' Compensation Board and, by reason thereof, has been required to pay Plaintiff's Workers' Compensation benefits, may be inconsistent with the purpose of the Omnibus Workers' Compensation Reform Action of 1996 (L 1996, ch 635, §§ 2-9) ("the Act"), which was to "abolish most third-party actions so as to enhance the exclusivity of the Workers' Compensation Law, thereby reducing insurance premiums and decreasing the cost of doing business in New York—an objective achieved by effectively shifting liability to third parties who, under existing law, [had been] entitled to seek equitable apportionment of liability from employers." (See Morales v Gross, 230 AD2d 7, 12 [2d Dept 1997]; see also Majewski v Broadalbin-Perth Cental School District, 91 NY2d 577, 589 [1998] [noting its agreement with the above quote].)
Even so, the parties do not cite to any authority, and the Court cannot find any authority, for the proposition that a party who has been adjudicated and determined to be an employer by the Workers' Compensation Law is statutorily immune from a third-party action for common-law contribution or indemnification even though the party or parties asserting the claim for common-law contribution or indemnification were not party or parties to the proceedings before the Workers' Compensation Board. It would appear that these third-party plaintiffs would rarely be participants in the proceedings before the Workers' Compensation Board, and, therefore, would be permitted to assert third-party claims based upon the inapplicability of the doctrine of collateral estoppel. Again, under these circumstances, the cases do not support any type of statutory immunity or bar to bringing such a third-party action by reason of the Act (Workers' Compensation Law § 11), and, rather, reinforce the rules governing the application of collateral estoppel. (See Baten v Northfork Bancorporation,85 AD3d at 698; Tounkara v Fernicola, 63 AD3d at 650; Falsitta v Metropolitan Life Ins. Co., 279 AD2d at 880; Clavijo v Atlas Terminals, LLC, 2012 NY Slip Op 30340[U]; see also generally Liss v Trans Auto Systems, Inc., 68 NY2d 15, 17 [1986] [holding, before the Act was enacted, that a "determination made in workers' compensation proceeding that a worker did not sustain injuries in the course of employment [does not bind] those defendants in a liability suit who were not parties to the compensation proceeding"].)
In any event, even assuming that Regal was Plaintiff's employer, in order to obtain summary judgment, Regal must still "meet its burden of showing, by competent admissible evidence, that plaintiff did not suffer a grave injury' pursuant to Workers' Compensation Law § 11" (See Galindo v Dorchester Tower Condominium, 56 AD3d 285, 286 [1st Dept 2008].) Workers' Compensation Law § 11 provides, among other things:
"An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a grave injury' which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability."Regal submits Plaintiff's bills of particulars and supplemental bills of particulars (see Affirmation in Support, Exhibit E), to the effect that Plaintiff sustained injuries, including, among other things, extensive fractures involving the right maxillary sinus, right orbital floor fracture, trauma to the left and right eye, acute posttraumatic stress disorder, brain damage, post concussion syndrome, neuropsychological impairment secondary to cerebral dysfunction, headaches, memory problems, nervousness, anger, aggression, disturbed sleep, and hearing loss in the right ear.
There is no dispute on this motion that Plaintiff did not sustain a "grave injury" with respect to any of his injuries except for an alleged "acquired injury to the brain caused by an external physical force resulting in permanent total disability". (See Affirmation and Statement of Law in Opposition to Motion of Regal Contracting and Painting, Inc and in Support of Cross Motion, ¶ ¶ 22-26.) Indeed, Plaintiff's bills of particulars and supplemental bills of particulars, as well as his deposition testimony, sufficiently negate claims of "grave injury" except with respect to the alleged brain injury. Even though Plaintiff has alleged injuries to his eyes and vision, as well as his hearing, there is no dispute that Plaintiff is not totally blind or totally deaf (see Workers' Compensation Law § 11.)
It should be noted that in opposition to Regal's motion, third-party plaintiff 1668 Realty concedes that "it does not believe that Plaintiff has, in fact, sustained a grave injury", and that "1668 Realty has shared in the IME's performed by Third-Party Defendant, and respectfully submits that Plaintiff has not sustained a grave injury." Such position, however, does not preclude 1668 Realty from submitting evidence tending to show "grave injury", as it does here, in opposition to Regal's motion, since there has been no determination with respect to the extent of Plaintiff's injuries, and there is no basis to preclude 1668 Realty from seeking common-law contribution or indemnification from Regal in the event that Plaintiff demonstrates that he sustained an injury that would constitute a "grave injury". (See e.g. Olszewski v Park Terrace Gardens, 18 AD3d 349, 350 [2d Dept 2005] [holding that owner is not judicially estopped from contending that a brain injury constitutes a "grave injury" for purposes of seeking common-law indemnification from an employer where it has also argued that the brain injury is "treatable, does not interfere with his daily activities, and does not render him unemployable" with respect to the plaintiff's claims].)
To obtain summary judgment, Regal must submit competent medical evidence demonstrating prima facie that Plaintiff did not sustain "an acquired injury to the brain caused by an external force resulting in permanent total disability". (See Bush v Mechanicville Warehouse Corporation, 79 AD3d 1327, 1329 [3d Dept 2010].) "[A] brain injury results in permanent total disability' under Workers' Compensation Law § 11 when the evidence establishes that the injured worker is no longer employable in any capacity." (See id. [internal citations, quotation marks, and brackets omitted]; see also Rubein v Aqua Club, Inc., 3 NY3d 408, 413 [2004]; Chelli v Banle Associates, LLC, 22 AD3d 781, 782 [2d Dept 2005].)
In support of its contention that Plaintiff did not sustain a grave injury, Regal proffers the reports of clinical psychologist Dr. Carmen Inoa Vasquez, neurologist Dr. Roger A. Bonono, otorhinolaryngologist Dr. Alvin Katz, and ophthalmologist Dr. Thomas Slavits. The reports of Dr. Vasquez and Dr. Katz are not properly affirmed or sworn, and, therefore, are not admissible evidence on this motion. (See Grasso v Angerami, 79 NY2d 813, 814 [1991]; Matter of Delgatto, 82 AD3d 1230, 1231 [2d Dept 2011]; Pagano v Kingsbury, 182 AD2d 268, 270 [2d Dept 1992].) Dr. Slamovits's affidavit relates solely to Plaintiff's vision, and does not pertain to the alleged brain injury.
Dr. Bonono, a neurologist, affirms that upon physical examination he found no "disturbance of cognition"; that Plaintiff "recalls recent and remote events well enough, even if he can recall only 2/3 objects at 3 minutes"; that he has "no difficulty understanding questions or following directions"; and that upon his own examination and review of Plaintiff's medical records and reports, there is no evidence of a neurological disability or post-concussion syndrome. Dr. Bonono's affirmation does not address Plaintiff's allegations regarding headaches, memory problems, nervousness, anger, aggression, and disturbed sleep, whether those conditions are related to a brain injury caused by the accident, and, if so, whether Plaintiff is employable in any capacity.
In fact, Dr. Bonono's affirmation does not specifically address the issue of whether Plaintiff is employable in any capacity. (See e.g. Galindo v Dorchester Tower Condominium, 56 AD3d at 286 ["The additional reports relied upon by (movant) do not offer any opinions as to plaintiff's employability nor do they suggest, in light of assertions that plaintiff exaggerated his disabilities, what plaintiff's actual abilities are or what types of jobs he could possibly perform"]; see also Olszewski v Park Terrace Gardens, Inc., 18 AD3d at 350 [summary judgment denied where "record is insufficient to determine whether plaintiff is unemployable in any capacity" as a result of brain injury]. )
As such, Regal fails to demonstrate prima facie that Plaintiff did not sustain "an acquired injury to the brain caused by an external force resulting in permanent total disability" (see Workers' Compensation Law § 11).
In any event, 1668 Realty sufficiently raises a triable issue of fact by submitting two affirmations of Dr. Aric Hausknecht, a board certified neurologist and psychiatrist. His affirmation dated November 29, 2005 indicates that Plaintiff's mood is "anxious"; that Plaintiff can repeat three items, but cannot recall three items; that his impression was a "closed head trauma with loss of consciousness, post concussion syndrome and traumatic brain injury"; and that Plaintiff is "totally disabled" with a "guarded prognosis". Nonetheless, in this affirmation, Dr. Hausknecht does not specifically attribute Plaintiff's disability to a brain injury, as opposed to some of his other alleged injuries, especially the injuries to his neck and back that are also discussed in his report.
However, Dr. Hausknecht's affirmation dated November 15, 2007 indicates that Plaintiff's "affect is blunted and his mood depressed"; that "short-term memory is impaired"; that Plaintiff complains of "frequent headaches" and has been feeling dizzy; that Plaintiff has been unable to work and has problems with daily living; that his impression included a diagnosis of "post concussion syndrome"; that Plaintiff has "significant neurocognitive and neuropsychological sequelae from his head trauma"; that he requires "outpatient cognitive rehabilitation and supportive psychotherapy"; and that he remains "totally disabled and I have advised him to restrict his activities".
The two affirmations of Dr. Hausknecht are sufficient to raise a triable issue of fact as to whether Plaintiff sustained "an acquired injury to the brain caused by an external force resulting in permanent total disability". (See e.g. Bush v Mechanicville Warehouse Corporation, 79 AD3d at 1329 [findings that a plaintiff suffers from, among other things, inability to concentrate for long periods, significant loss of short-term memory, fatigue, and depression symptoms directly resulting from a brain injury sustained in accident, and opinion that they were permanent and rendered the plaintiff totally disabled such that he be unable to maintain any type of gainful employment, were held to be sufficient to raise a triable issue of fact].)
Accordingly, the branch of third-party defendant Regal's motion seeking summary judgment dismissal of defendant/third-party plaintiff 1668 Realty's common-law contribution or indemnification causes of action as against it, is DENIED.
Regal also seeks summary judgment dismissal of 1668 Realty's contractual indemnification cause of action against it. In support, Regal submits the deposition testimony of its president Mojaheed Bhutta, and the deposition testimony of Ephraim Nierenberg who testified on behalf of third-party plaintiff 1668 Realty, to the effect that there was no written contract, and, therefore, no express agreement providing for indemnification or contribution from Regal. In opposition, 1668 Realty does not submit a copy of any contract providing indemnification or contribution from Regal.
Accordingly, the branch of third-party defendant Regal's motion for summary judgment dismissal of defendant/third-party plaintiff 1668 Realty's contractual indemnification cause of action is GRANTED.
1668 Realty's Cross-Motions (Cal. Nos. 20 & 21)
1668 Realty's cross-motions are denied as improper since they were made returnable on a date after the original return date of Plaintiff's motion and Regal's motion, and they were not served within the time required for the service of a cross-motion. (See CPLR 2215; Matter of Birch Tree Partners, LLC v Zoning Board of Appeals of Town of East Hampton, 90 AD3d 749, 750 [2d Dept 2011].) Morever, this Court's short-form scheduling order, dated December 19, 2011, provides, "The motions for summary judgment by Plaintiff and Third Party Defendant Regal are adjourned to February 6, 2012. Opposition to these motions has been served. Reply to the motions to be served by January 23, 2012". Counsel for 1668 Realty signed at the bottom of the order indicating that he appeared on the motions; however, the order does not extend the time for any party to serve a cross-motion or reflect that a cross-motion by 1668 Realty had been served.
In any event, 1668 Realty's cross-motions for summary judgment are also denied as untimely. CPLR 3212(a) provides, among other things, that the court may set a date after which no summary judgment motion may be made, such date being no earlier than thirty days after the filing of the note of issue. Part C Rule 6 of the Kings County Supreme Court Uniform Civil Term Rules provides that "motions for summary judgment may be made no later than 60 days after the filing of a Note of Issue", and that the time limitation "may only be extended by the Court upon good cause shown." "[S]ummary judgment motions should be timely made, or good cause shown." (Miceli v State Farm Mutual Automobile Ins. Co., 3 NY3d 725, 726 [2004].) "[S]tatutory time frames- like court-ordered time frames - are not options, they are requirements, to be taken seriously by the parties." (Id.; see also Popalardo v Marino, 83 AD3d 1029, 1030 [2d Dept 2011][enforcing 60-day rule].) However, "an untimely motion or cross motion for summary judgment may be considered by the court where . . . a timely motion for summary judgment was made on nearly identical grounds." (See Homeland Ins. Co. of New York v National Grange Mut. Ins. Co., 84 AD3d 737, 738 [2d Dept 2011] [internal quotation marks and citation omitted].)
Plaintiff filed the Note of Issue and Certificate of Readiness on September 12, 2011. Defendant/third-party plaintiff 1668 Realty served its cross-motion for summary judgment as against Plaintiff (Cal. No. 20) on December 16, 2011 and filed it on December 19, 2011, and served its cross-motion for summary judgment as against third-party defendant Regal on December 20, 2011 and filed it on January 10, 2012. (See CPLR 2212[a] ["A motion on notice is made when a notice of the motion or an order to show cause is served"].) 1668 Realty's cross-motions are untimely since they were served more than sixty days after the filing of the Note of Issue.
Moreover, since 1668 Realty did not file its first cross-motion until December 19, 2011, there was no way the Court could have known of the existence of its cross-motion on the first return date of the motions on December 19, 2011.
Contrary to its contentions, 1668 Realty's two cross-motions are not made "on nearly identical grounds" as Plaintiff's and Regal's motions. (See Homeland Ins. Co. of New York v National Grange Mut. Ins. Co., 84 AD3d at 738.) Plaintiff's motion relates solely to his Labor Law § 240(1) cause of action and does not address Labor Law § 200 or common law negligence. Regal's motion relates solely to the threshold issue of Workers' Compensation Law § 11, and does not address the merits of the indemnification claim as against it.
Under the facts and circumstances of this case, 1668 Realty's claim of law office failure (i.e., failure to properly diary the time to serve summary judgment motions) does not constitute "good cause" for a late summary judgment motion. (See Fofana v 41 West 34th Street, LLC, 71 AD3d 445, 448 [1st Dept 2010]; Azcona v Salem, 49 AD3d 343, 343 [1st Dept 2008]; Crawford v Liz Claiborne, Inc., 45 AD3d 284, 286 [1st Dept 2007]; Breiding v Giladi, 15 AD3d 435, 435 [2d Dept 2005]; Hope v Fortunato, 20 Misc 3d 1117(A), 2008 NY Slip Op 51384(U), *4 [Sup Ct, Kings County 2008].)
Accordingly, 1668 Realty's cross-motion for summary judgment dismissal of Plaintiff's Labor Law § 200 and common law negligence causes of action as against it is DENIED; and 1668 Realty's cross-motion for summary judgment on its third-party cause of action for common-law indemnification as against third-party defendant Regal is DENIED.
In sum, the branch of Plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action as against defendant 1668 Realty is granted, and the branch of Plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action against L & B is denied. The branch of third-party defendant Regal's motion for leave to amend its answer, pursuant to CPLR 3025, to assert the affirmative of defense of the exclusivity of Workers' Compensation Law § 11 is granted, and the Amended Verified Answer attached as Exhibit "R" to Regal's motion is deemed served upon all parties. The branch of third-party defendant Regal's motion for summary judgment dismissal of defendant/third-party plaintiff 1668 Realty's common-law contribution and indemnification causes of action as against it is denied, and the branch of third-party defendant Regal's motion for summary judgment dismissal of defendant/third-party plaintiff 1668 Realty's contractual indemnification cause of action is granted. Both of 1668 Realty's cross-motions are denied.
March 16, 2012
___________________
Jack M. BattagliaJustice, Supreme Court