Opinion
# 2016-029-018 Claim No. 121254
02-29-2016
PAULO SUAREZ, A PERSON UNDER A DISABILITY, BY ROBERTO SUAREZ, HIS COURT APPOINTED GUARDIAN v. THE STATE OF NEW YORK
KEEGAN, KEEGAN & STRUTT, LLP By: Barry R. Strutt, Esq. FABIANI, COHEN & HALL, LLP By: Kevin B. Pollak, Esq.
Synopsis
The court denied defendant's application to confirm CPLR 5519(a)(1) automatic stay of damages trial pending appeal from liability decision and order. The court's statement in the decision and order, that it would schedule a damages trial, is not a proceeding to enforce the judgment or order.
Case information
| UID: | 2016-029-018 |
| Claimant(s): | PAULO SUAREZ, A PERSON UNDER A DISABILITY, BY ROBERTO SUAREZ, HIS COURT APPOINTED GUARDIAN |
| Claimant short name: | SUAREZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121254 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | KEEGAN, KEEGAN & STRUTT, LLP By: Barry R. Strutt, Esq. |
| Defendant's attorney: | FABIANI, COHEN & HALL, LLP By: Kevin B. Pollak, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | February 29, 2016 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant, State of New York, has made an application to this court for a determination that CPLR § 5519 requires that the damages trial, scheduled for March 22, 2016, be stayed. It is defendant's position that the upcoming damages trial and pretrial conference were automatically stayed on October 13, 2015, when defendant filed a Notice of Appeal from the court's decision and order granting claimant partial summary judgment as to liability under Labor Law § 240(1). Defendant relies on CPLR 5519(a)(1) for this proposition. Claimant opposes the application and argues that the damages phase and the pretrial conference in this five-year old claim go forward. The court directed briefing on the issue, and having now received and read the parties' briefs, the court finds that the automatic stay effected by CPLR 5519(a)(1) does not apply in this instance. Before discussing the reasons for that decision, a brief recap of the underlying facts and procedural history is necessary to place the current dispute in the proper context.
The claim was filed in 2011 by the court appointed guardian of a then 19-year-old newly-hired laborer working on a bridge rehabilitation project involving replacement of the steel bearing plates on an I-287 overpass in Rye. The damages claimed were for injuries resulting from the work site owner's violations of Labor Law Sections 200, 240(1) and 241(6). Claimant was seriously injured when he was hit in the head by a lever operated cable hoist, the cart it was towing up a slope, and the steel plate it was carrying. The court granted claimant's motion for partial summary judgment finding defendant 100% liable under the absolute liability provisions of Labor Law § 240(1) because the incident occurred as the direct result of the failure to provide proper protection against risks occasioned by a significant elevation level. The extent of the language in that order that concerned the damages phase of the trial were the words "the court will schedule a trial on damages."
The court also granted, in part, defendant's cross-motion for summary judgment and dismissed the causes of action under Labor Law § 200 and for common law negligence because there was no proof of defendant's control over or notice of the unsafe activity, and the cause of action under section 241(6) because that section did not apply to the facts of this case. --------
That decision and order was filed on September 10, 2015, and defendant's notice of appeal was stamped as filed in the Court of Claims on October 13, 2015. Claimant's notice of cross-appeal from that same decision was stamped as filed by the Court of Claims on October 23, 2015. An amended decision and order was filed on January 29, 2016, and defendant's notice of appeal from the amended decision and order was stamped as filed in the Court of Claims on February 22, 2016.
On February 22, 2016, claimant's and defendant's counsel appeared in court for a brief argument on the court's decision not to sign an order to show cause submitted by defendant. The order to show cause at issue sought an expedited briefing schedule on a motion for an adjournment of the damages trial pending completion of certain proceedings in other, related lawsuits being prosecuted in Supreme Court. The court had denied an identical defense request made by letter in December 2015. There was no mention of an automatic stay or of CPLR 5519(a)(1) in either the December 2015 defense letter, in defendant's February 2016 order to show cause, in response to the court's written notice of the date for the pretrial conference, or when defense counsel requested (and received) a brief adjournment of that conference. It was not until the end of his brief argument on February 22 that defense counsel first indicated possible reliance on the automatic stay provided by CPLR 5519(a)(1).
The damages phase of the trial is scheduled to begin on March 22, 2016, and the pretrial conference is scheduled for February 29, 2016.
Discussion
CPLR 5519(a)(1) provides, in pertinent part, that where the appellant is the state, service upon the adverse party of a notice of appeal "stays all proceedings to enforce the judgment or order appealed from pending the appeal." The reach of this language has been the subject of debate among the Appellate Division departments, and is yet to be resolved by the Court of Appeals. Defendant argues that the damages trial scheduled to begin March 22 is a proceeding "to enforce" the court's decision and order finding the state absolutely liable under Labor Law § 240(1), so the damages phase is stayed. The court disagrees with defendant.
On its face the statutory language does not encompass the mere scheduling of the damages phase of a trial, which is the natural consequence of an order finding liability. Such a ministerial act by the court, and in this instance simply a statement by the court that it would schedule the trial, does not change the damages phase into a "proceeding[ ] to enforce the judgment or order appealed from." The court's conclusion is based on a plain reading of the statute, as well as the case law interpreting it. The Second Department has restricted the automatic stay by applying it only to express, executory directives in the order or judgment appealed from, staying only the enforcement of those directives and not self-executing provisions. For instance, in Matter of Pickerell v Town of Huntington, 219 AD2d 24 (2d Dept 1996), the court concluded that an appeal from an order denying the governmental entity summary judgment and granting parts of appellees' cross-motion for summary judgment did not automatically stay all proceedings. However, the court applied the automatic stay to the part of the trial order that granted appellees' request for an immediate trial on the issue of damages, and within that order setting the matter down for a trial date (id.). The court distinguished between self-executing provisions of the order (dismissing an affirmative defense, granting partial summary judgment), and executory (directing that the matter proceed to trial) (id.).
The distinction drawn by the Second Department, between executory directives and self-executing provisions, was explained further in a case decided by the Second Department the same day as Pickerell:
[T]he scope of the automatic stay of CPLR 5519(a) is restricted to the executory directions of the judgment or order appealed from which command a person to do an act, and that the stay does not extend to matters which are not commanded but which are the sequelae of granting or denying relief.
(Matter of Pokoik v Department of Health Servs. of County of Suffolk, 220 AD2d 13, 15-16 [2d Dept 1996]; see Shorten v City of White Plains, 216 AD2d 344 [2d Dept 1995] [trial was natural consequence of order, and not directed by order]; see also Schwartz v New York City Hous. Auth., 219 AD2d 47 [2d Dept 1996].
This court's decision and order does not "command a person to do an act" (Matter of Pokoik v Department of Health Servs. of County of Suffolk, 220 AD2d at 15-16). The words "the court will schedule a trial on damages" was a statement, not a directive, regarding scheduling of the damages phase, which is the sequella, or the naturally occurring consequence of the order finding defendant 100% liable. Bifurcated trials in the Court of Claims, where only bench trials occur, are common practice, and the scheduling of the damages phase after a finding of liability happens as a matter of course. Of great importance here, it is also mandated by the applicable court rule, which provides that in "[t]he event of a claimant's judgment on the issue of liability [. . .] the damage phase of the trial shall be conducted as soon as possible" (Rule 206.19[c] of the Uniform Rules of the Court of Claims [emphasis added]). The court's comment that it would set a date does not change the self-executing character of the order.
Defendant argues that the court's order is executory because, like the situation in Pickerell, claimant requested a trial date for the assessment of damages (Notice of Motion for Summary Judgment, Exh A). However, the two orders and the issues they resolve are quite different, and the prior decisions relied on by the Court in Pickerell show why that decision does not support applying the automatic stay provision to prevent the assessment of damages simply because the State has filed a notice of appeal from the order finding liability.
The Second Department describes the lower court's order in Pickerell as granting the appellees' request "for an immediate trial on the issue of damages," and as having "set the matter down for an immediate trial" (Pickerell v Town of Huntington, 219 AD2d 24, [emphasis added]). Here claimant's request for a damages trial date was superfluous, there was no request to expedite the schedule, and the court did not set a date. Indeed, the court in Pickerell cites with approval the Fourth Department case of Young v State of New York, 213 AD2d 1084, 1084 (4th Dept 1995), in which the court held that, "CPLR 5519 does not automatically stay a determination of the claimant's damages upon an appeal from a judgment on liability."
Defendant also relies on a Court of Claims decision in 2004 that applied the automatic stay simply because "the denial of defendant's motion for summary judgment has the effect of ordering this matter to trial" (Cab Associates v State of New York, UID No. 2004-033-056 [Ct Cl, Lack, J., March 31, 2004]). This court is not bound by the decision and declines to follow the reasoning and result therein.
Although not controlling in this Department, it is interesting to note that since Pickerell, the Fourth Department has taken a more narrow approach than the Second Department to automatic stays under 5519(a)(1) when a lower court directs the parties to trial. In Matter of White v City of Jamestown, 242 AD2d 979, 980 (4th Dept 1997), the court found the fact that "the order, as an incident to other relief, directs the parties to proceed to trial does not make the trial a proceeding to enforce the order" (see Lopez v New York City Hous. Auth., 178 Misc2d 719 [Civ Ct, New York County 1998] [discussing pertinent case law]).
The court also rejects defendant's unsupported argument that the pretrial conference is stayed. The conference was ordered and scheduled pursuant to a separate order issued routinely by the court, and that order is not the subject of defendant's motion.
While not in any way dispositive of the court's decision, this application, made less than thirty days prior to the commencement of trial, as well as days before the adjourned date for the pretrial conference, causes the court to question defendant's motivations. Having been denied the exact relief in December and again in February, the current application, while not frivolous per se, certainly appears dilatory as yet another desperate attempt to delay this litigation and to drag out the ultimate resolution as long as possible. Given the age of this matter and the absolute liability of the State pursuant to Labor Law § 240(1), the court is reminded of the axiom "justice delayed is justice denied."
Accordingly, the court denies defendant's request to confirm application of the CPLR 5519(a)(1) automatic stay to the damages trial and the pretrial conference.
February 29, 2016
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims