PATRICK O'FLAHERTY v. TURNER CONSTRUCTION COMPANY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5124-08T3

A-5143-08T31

PATRICK O'FLAHERTY,

Plaintiff-Appellant,

v.

TURNER CONSTRUCTION COMPANY,

Defendant-Respondent.

________________________________

WILLIAM MICHAEL MOORE,

Plaintiff-Appellant,

v.

TURNER CONSTRUCTION COMPANY,

Defendant-Respondent.

________________________________

October 6, 2010

 

Submitted: July 20, 2010 Decided:

 

Before Judges R.B. Coleman and C.L. Miniman.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-6023-07 and L-5086-07.

 

Byrnes Kirkwood LLP, attorneys for appellants Patrick O'Flaherty and William Michael Moore (Sean F. Byrnes, on the brief).

Scott M. Shapiro (London Fischer LLP), attorney for respondent (Mr. Shapiro, on the brief).

PER CURIAM

Plaintiffs William Michael Moore (Moore) and Patrick O'Flaherty (O'Flaherty) appeal the dismissal of their claims against defendant Turner Construction Company (Turner) as barred by the statute of limitations. Because the extraordinary circumstances surrounding the inception of their employment relationship with Turner do not toll the applicable statutes of limitations, and because there is no basis for invoking the doctrine of equitable estoppel to toll those statutes, we affirm.

On September 11, 2001, Moore, a volunteer firefighter and a Master Sergeant with the United States Air Force Reserve, and O'Flaherty, his friend, responded to the disaster at the World Trade Center and volunteered to assist in the rescue and recovery effort. Moore immediately took an active role in coordinating those efforts and controlling the site of the disaster. O'Flaherty was put to work in the clean-up effort. As time went on and volunteers began to leave the site, Moore and O'Flaherty were asked to stay and were incorporated into the Joint Task Force (JTF) operated by the Office of Emergency Management (OEM) for the City of New York. Moore was given the position of Branch Chief of the JTF and was sponsored for that position by his union, Teamsters Local 469.

On September 21, 2001, Lillian Fernandez, Chief of Staff for the OEM, wrote to Michael Burton, the Executive Deputy Commissioner for New York City's Department of Design and Construction (DDC). She expressed that it was in the interest of the OEM to retain Moore, O'Flaherty, and others as staff members. She explained that they would continue to act as military liaisons for the OEM and would "have increased responsibilities to act as a team for expediting and coordinating the concerns [about] matters between public safety and construction." She continued:

To all concerned, it will be noted that this team will not be employees of the City of New York, rather sponsored or employed by thecontractor or uniontasked to thework . . . and relief effort for the World Trade Center Disaster.

 

Assets and equipment/supplies for this team may not be available through the Mayor[']s Office, therefore, subsist[ence] may be required via contractors or unions.

 

It is understood that these individuals will fall into the supervision of the OEM and not the contractors or unions.

 

O'Flaherty signed a W-4 Employee's Withholding Allowance Certificate on September 11, 2001, and on September 24, 2001, he filled out a New York State Employee's Withholding Allowance Certificate. Neither document identifies the employer. O'Flaherty also completed another form in which he supplied his employee information and verification; Turner Construction Company, 375 Hudson Street, New York City 10014, was listed as the business name of O'Flaherty's employer. In dating the document, O'Flaherty accidentally inserted his birth date rather than the date of his signature. He also signed an undated disclaimer in which he expressed that he understood and agreed that his employment with Turner "is for no definite duration, and is on a per diem basis, not to exceed the duration of the project."

Although both Moore and O'Flaherty had been listed on the OEM roster and had been issued photo identification cards, on September 29, 2001, Louie Rueda, R.A., Assistant Commissioner, DDC, issued the following letter:

Please be advised that the Department of Design and Construction (DDC) has engaged the following individuals, William Michael Moore and Adrian Carlotta Dicker to act as consultants to the World Trade Center 2001 rescue, recovery and reconstruction operation.

 

Both individuals have been issued photo identification cards already. Please change the name of the agency for each from "JTC Military Liaison" or "OEM/JTF" to ["]DDC/Turner" for both Mr. Moore and Ms. Dicker.

 

Presumably, those instructions were followed, and Moore received a new identification badge affiliating him with Turner. He has not denied that fact.

Finally, on October 15, 2001, O'Flaherty executed an Employee Sign-Up Sheet for Turner Construction Company field payroll. He indicated that his date of hire was September 11, 2001, and stated that his position with Turner was military liaison. Despite the date on this document, O'Flaherty's last date of work at Ground Zero was October 11, 2001. Mr. Moore's last day of work was October 9, 2001.

O'Flaherty apparently never pursued any effort to collect his unpaid wages until he filed his complaint on December 21, 2007. Moore, on the other hand, did take some action with respect to being paid for his efforts. On February 8, 2002, William O'Keefe, secretary-treasurer and business agent for Teamsters Local 469, wrote to Louis Rueda, Deputy Director, DDC, and advised him that Moore's total wage package was $52 per hour, which included the wage rate, health and welfare rate, annuity rate, and pension rate.

On June 7, 2006, Moore's retained counsel wrote to the New York City Office of the Comptroller. His counsel advised that Moore had responded to the events of September 11, 2001, and had worked closely with the DDC and Louis Rueda, in particular. Counsel submitted a copy of the Teamster's letter to Mr. Rueda as well as Moore's "Notice of Claim" seeking compensation for his time at Ground Zero. In that Notice of Claim, Moore represented that he worked from September 11, 2001, through October 9, 2001.

On August 25, 2006, Moore's counsel wrote a letter to the Office of the Comptroller, addressing it "To Whom It May Concern," in which he detailed Moore's contributions to the recovery effort. Included with counsel's letter was a copy of the September 21, 2001, letter from Lillian Fernandez in which she clearly stated that Moore would not be an employee of the City of New York. On November 16, 2006, Moore's counsel again wrote to the Office of the Comptroller seeking a response to his two prior letters.

At some point in time, Moore was told that his claim against the City had been rejected. It was only at that point that Moore decided to pursue his claim with Turner Construction Company. As stated in their appellate briefs, "[s]ince Turner was being paid by the City of New York for the hourly efforts of laborers like Mr. Moore and Mr. O'Flaherty, Appellants filed suit against Turner for their unpaid wages." Moore's complaint was filed on October 23, 2007. O'Flaherty's complaint was filed on December 21, 2007.

In late 2008, Turner filed two Notices of Motion for judgment on the pleadings in the two cases, seeking dismissal of plaintiffs' complaint for failure to state a claim on which relief could be granted and alleging that the complaints were barred by the statute of limitations. Plaintiffs, on the other hand, contended that the statute must be equitably tolled, that their cause of action did not arise until their demand for payment was refused by Turner, that the pendency of Moore's administrative claims with New York City tolled the statute of limitations, and that they were entitled to equitable tolling as a result of misrepresentations allegedly made by the City. Judge Paul A. Kapalko found the facts, stated his legal conclusions citing controlling case law, and concluded that the motions to dismiss should be granted. After finding that New York and New Jersey law were in accord with respect to the accrual of a cause of action and a six-year statute of limitations, the judge addressed the merits of the motion.

He found the laws of New York and New Jersey both provide that a cause of action in an employment context accrues on the last date of employment. Further, both states require commencement of suit within six years after final services have been rendered. He found that both plaintiffs had definitely stated their date of termination of employment Mr. Moore on October 9 and Mr. O'Flaherty on October 11, 2001. As a result, he found that Moore would have had to file his complaint on or before October 9 and O'Flaherty no later than October 11, 2007. He further found that Moore's complaint was not filed until October 23, 2007, and O'Flaherty's not until December 21, 2007. Thus, "[t]he complaints of both plaintiffs were therefore filed outside the statutory period if it runs from the dates the last work was performed."

The judge rejected plaintiffs' argument that the statute of limitations did not run until the plaintiffs demanded payment from Turner and Turner refused. He noted that this very argument had been rejected in Metromedia Co. v. Hartz Mountain Associates, 139 N.J. 532, 535 (1995), where the Supreme Court found that the statutory period began to run when an enforceable right accrued. The judge also found that such a right accrues upon the completion of services, citing ibid. and Andreaggi v. Relis, 171 N.J. Super. 203, 235-36 (Ch. Div. 1979).

With respect to tolling of the statute of limitations, the judge observed that the discovery rule was "not a substitute for diligent pursuit of a claim," citing Lopez v. Swyer, 62 N.J. 267, 274 (1973), and found that it did not apply to this contract action, citing County of Morris v. Fauver, 153 N.J. 80, 110 (1998). The only exception to that rule, he found, was where there had been a misrepresentation, as in Gibbins v. Kosuga, 121 N.J. Super. 252 (Law Div. 1972). He noted that New York law, too, would not apply the discovery rule to the facts in this case.

Furthermore, the judge noted that the alleged misrepresen tation was by the City of New York, not by Turner. The judge found that "[i]t would be inequitable to prejudice the defendant in this instance by demanding that they account for any alleged wrongs on the part of an unrelated party in the name of equity." Thus, he rejected any reliance on the discovery rule as a basis for tolling the statute of limitations.

The judge then turned to the issue of equitable tolling. He found that equitable estoppel did not apply because defendant did not "engage[] in any misrepresentation or in any other way attempt[] to frustrate" plaintiffs' efforts to receive compensation. He also found that Moore's pursuit of claims against the City of New York through administrative channels did not toll the statute of limitations. He noted, "[a]s a general rule, a statute of limitations governing the time limits of an action will not be tolled for a pending determination in another tribunal unless there is an exhaustion requirement," citing W.V. Pangborne & Co. v. New Jersey Department of Transportation, 116 N.J. 543, 556 (1989). He found that the claims against the City did not prevent enforcement against the employer and thus had no tolling effect, citing Frapaul Construction Co. v. State of New Jersey, Department of Transportation, 175 N.J. Super. 84, 92 (App. Div. 1980), and Nix v. Spector Freight Systems, Inc., 62 N.J. Super. 213, 223 (App. Div. 1960).

The judge found that Moore was not pursuing an administrative remedy against defendant because the claims he was making were against the City of New York. Because there was no impediment preventing plaintiffs from instituting their actions against Turner, he found that the statute of limitations could not be tolled. He concluded:

It is apparent that plaintiffs were aware within the statutory period that they had an enforceable right. However, there is no reason expressly or impliedly stated in the complaints that provided this [c]ourt with any reason to believe plaintiffs engaged in a diligent inquiry within that period or that such inquiry was in any manner frustrated by the defendant.

 

Indeed, the [c]ourt, during the course of colloquy has already pointed to several documents in the possession, certainly of Mr. O'Flaherty, well in advance to institute the necessary litigation. He signed up at the commencement on a document from Turner indicating that he thought it was an employee sign up sheet. And he had a note from the City, from New York indicating that he was not an employee of the City. Thus, he certainly well had reason to know who he was working for.

 

He knew that he was entitled to compensation, he was not doing it on a purely volunteer basis. And therefore, as of that time, he knew once the work was done that he had an entity that he could look to for payment and that he had a right to receive compensation. And had he made demands and had he been refused, he would certainly have the right to institute action to recover same[, e]ven on a quantum meruit basis if there was some question as to the amount of wages to be paid.

 

When the court evaluates all of these circumstances, the [c]ourt can construe [sic] no basis on which to toll, equitably or otherwise, the statute of limitations applicable in this case. And the motion filed on behalf of the defendants must be granted.

 

This appeal followed. Plaintiffs raise only two points on appeal. The first is a claim that the extraordinary circumstances surrounding the attacks on the World Trade Center caused such confusion about the identity of the entity employing the plaintiffs that the statute of limitations should be tolled to permit them to recover compensation for the laudable work they did in the month following September 11, 2001.

However, it is clear that by September 21, 2001, the plaintiffs knew that they were not going to be employed by the City of New York. Rather, they would be compensated either by their union or by one of the contractors that had been hired to clear the World Trade Center site and search for victims' remains. O'Flaherty clearly admitted in his certification that he learned he would be hired by Turner Construction Company. He admitted that he completed and submitted an Employee Sign-Up Sheet for Turner and filled out an I-9. Although Moore never disclosed in his affidavit when he learned he had a claim against Turner, nor did he admit being aware of working for them, he was copied on the letter from Rueda to the DDC asking the agency to issue new photo identification cards for him indicating that his agency was "DDC/Turner" rather than "JTC Military Liaison" or "OEM/JTF." That letter was issued eight days after Fernandez clearly stated that Moore would not be an employee of the City of New York but would rather be employed by a contractor or sponsored by a union. Rueda's letter thus identified the contractor to whom Moore was assigned. In any event, the chaos of September 11, 2001, and its aftermath provide no basis for tolling a statute of limitations that began to run after plaintiffs' employment and work at the World Trade Center ended, giving them every opportunity to identify their employer free from the chaos of the work site.

Plaintiffs next contend that the doctrine of equitable estoppel should be used to toll the statute of limitations. Specifically, plaintiffs contend that Turner failed to take steps to assist employees like plaintiffs to get paid for their efforts. They urge that their addresses and phone numbers were plainly available to Turner and that fairness calls for application of an estoppel.

First, we find no evidence in the record supporting the contention that Turner took no steps to assist employees in getting paid for their efforts following the September 11, 2001, attack. Even if there were evidential support for this proposition, it would not give rise to an estoppel because there is no showing at all that Turner actively misled the plaintiffs or prevented them in some extraordinary way from asserting their rights. Kocian v. Getty Ref. & Mktg. Co., 707 F.2d 748, 753 (3d Cir.), cert. denied, 464 U.S. 852, 78 L. Ed. 2d 150, 104 S. Ct. 164 (1983). We find no basis for its application here and affirm substantially for the reasons expressed by Judge Kapalko.

Affirmed.

 

1 These are back-to-back appeals, consolidated for purposes of this opinion.