DAVID VAN WINKEL v. LEFRAK NEWPORT REALTY CORP
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5398-08T1
DAVID VAN WINKEL,
Plaintiff-Appellant,
v.
LEFRAK NEWPORT REALTY CORP.
and/or LEFRAK ORGANIZATION,
RIVERSIDE REINFORCED CONCRETE CORP.
and/or ICC CONSTRUCTION CORP. and/or
SHORE CONDO CONSTRUCTION COMPANY
f/k/a SHORE CLUB CONSTRUCTION COMPANY, LLC,
Defendants-Respondents.
___________________________________________
Submitted: May 26, 2010 - Decided: September 8, 2010
Before Judges Stern, Graves and Sabatino.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-4005-07.
Davis, Saperstein & Salomon, PC, attorneys
for appellant (Marc C. Saperstein, Kristina
C. Ivtindzioski and Raymond Carroll, on the
brief).
Tompkins, McGuire, Wachenfeld & Barry, LLP,
attorneys for respondents Riverside
Reinforced Concrete Corp. d/b/a ICC
Construction Corp. and Shore Condo
Construction Company f/k/a Shore Club
Construction Company, LLC (Joseph K.
Cobuzio, of counsel; Jared P. DuVoisin, on
the brief).
PER CURIAM
Plaintiff, David Van Winkel, appeals from orders granting
summary judgment to the defendants resulting in a final judgment
and from an order of June 16, 2009, denying reconsideration.
Plaintiff challenges the grant of summary judgment to defendants
Shore Condo Construction Company (SCCC) and ICC Construction
Corp., and contends that the trial judge abused his discretion
in granting SCCC's motion to bar his expert report.
I.
Plaintiff sustained injuries while working on a high-rise
construction project for the Lefrak Newport Realty Corp.1 He was
employed as an ironworker by defendant Riverside Reinforced
Concrete Corp., a subcontractor of SCCC, the general contractor.
Plaintiff fell through plywood flooring that had been
temporarily installed to cover a hole purposely left in the
concrete flooring during construction.
After interrogatories were answered and the discovery end
date passed, plaintiff unsuccessfully moved to permit the
submission of an expert report designed to show that SCCC
breached a duty to protect plaintiff from injuries and that the
plywood covering the purposely laid hole in the concrete floor
constituted negligence by SCCC. Plaintiff further challenges
the summary judgment to ICC, which was granted on the basis that
1
Plaintiff voluntarily dismissed his complaint against Lefrak.
A-5398-08T1
2
it and plaintiff's employer, Riverside, had identical ownership
and management, so that ICC was, in fact, the subcontractor, or
an "alias," which employed plaintiff and suit against it was
therefore barred by the Workers' Compensation Act, N.J.S.A.
34:15-8.
On August 29, 2008, the Law Division granted summary
judgment to both ICC and Riverside (except for SCCC's cross-
claim against it). Judge Alvaro L. Iglesias found that
plaintiff had not included a "Laidlow"2 claim in his complaint
and there were no facts in the record to support such a claim.
On that basis, the court determined that no genuine issue of
material fact existed to preclude ICC's and Riverside's
entitlement to immunity from a personal injury action by
plaintiff as set forth under N.J.S.A. 34:15-8.3 In addition, the
judge found that ICC and Riverside were the same corporate
entity and that "ICC" was simply a "trade name" used by
Riverside. The court stated its reasoning as follows:
The fact that ICC is the party that is
named and who signed the contract, doesn't
necessarily establish that there is a
2
See Laidlow v. Hariton Machinery Co.,
170 N.J. 602, 606 (2002)
(stating that an employer who causes the death or injury of an
employee by committing an intentional wrong will not be
insulated from common-law suit).
3
The order granted summary judgment and dismissed the complaint
as to "Riverside Reinforced Concrete Corporation, d/b/a ICC
Construction Corporation."
A-5398-08T1
3
separate entity. If we were to look at the
facts of this case and conclude that because
the contract was signed by ICC, because
payments were received by ICC and then
deposited in its joint account with
Riverside, and the other information that we
had, if we concluded that that establishes a
separation of identity, then we would never
be able to use trade names because that's
what businesses do when they are using a
name to trade under. . . . Mr. B[a]letto
[is] operating the business and that . . .
is consistent with his own sworn testimony
and with what Mr. Jenkins has to say. . . .
[E]ven the insurance policy covers both
names[.] I don't really see anything based
on this motion record that leads me to
believe that there is a genuine issue of
material fact with regard to the identity or
the separate identity of these companies, or
as to the Laidlow claim.
On September 29, 2008, plaintiff filed a Notice of Appeal
from the order granting the Riverside-ICC motion for summary
judgment, but did not file a motion for leave to appeal the
interlocutory order. On November 25, 2008, we dismissed
plaintiff's appeal as interlocutory. Plaintiff argues in his
brief that "formal discovery was effectively stayed while the
Appellate Division reviewed and decided the issues raised by
[p]laintiff on appeal." However, notwithstanding plaintiff's
claim that discovery had been stayed upon his filing of the
Notice of Appeal, on October 17, 2008, defendant sought
plaintiff's medical records from Dr. Michael DiStefano and
A-5398-08T1
4
Valley Hospital in Ridgewood, and received those records on or
about November 18, 2008.
Plaintiff then served on defendants the expert report of
Vincent A. Gallagher, a professional engineer, on or about
December 4, 2008. In response, on December 10, 2008, SCCC filed
a motion seeking to prohibit Gallagher from serving as an expert
witness, based on the fact that Judge Bariso's order dated July
18, 2008, required plaintiff to serve his expert report by
September 30, 2008, and also provided that the discovery period
("DED") would expire on November 14, 2008. Plaintiff submitted
opposition on December 29, 2008, arguing that his filing of the
Notice of Appeal on September 29, 2008, had effectively stayed
discovery in the matter. However, the trial court rejected that
argument and on January 12, 2009, entered an order barring
Gallagher from serving as an expert witness. Specifically,
Judge Iglesias did "not accept the appeal of a summary judgment
order as justification for [a] late amendment."
On January 19, 2009, plaintiff served a supplemental report
from Michael Natoli, a professional engineer who had prepared a
report before the discovery end date. On January 26, 2009, SCCC
filed a motion seeking to preclude consideration of Natoli's
supplemental report, which SCCC alleges was time-barred because
of the September 30, 2008, discovery deadline and was a
A-5398-08T1
5
reiteration of the Gallagher report, and "flagrant attempt" to
"end run" the order barring Gallagher's report. On February 20,
2009, Judge Barry P. Sarkisian granted SCCC's motion and barred
plaintiff "from amending his answers to Interrogatories to
include the January 16, 2009 report" of Natoli and barred him
from testifying as to the opinions or his report dated January
16, 2009. Judge Sarkisian found that plaintiff's attempt to use
the Natoli report "incorporate[d] essentially the same
information" as the prior Gallagher report and was "a violation
of a prior order" by Judge Iglesias, and plaintiff had not shown
any "exceptional circumstances . . . to allow this amendment of
the report to go before this jury."
On February 24, 2009, defendant SCCC filed a motion for
summary judgment. SCCC contended that it did not owe a duty to
plaintiff in the circumstances under which his injuries
occurred, because "Riverside was delegated exclusive
responsibility for safety and bore the risk for any injuries
that might occur." SCCC also argued plaintiff had not presented
sufficient competent expert evidence to establish a prima facie
claim of negligence.
After denial on March 1, 2009, of plaintiff's motion for
reconsideration of the order excluding the Natoli report,
plaintiff filed an opposing brief in response to SCCC's summary
A-5398-08T1
6
judgment motion. Plaintiff argued SCCC had a non-delegable duty
to all workers at the construction site to maintain a safe
working environment free from hazardous conditions and had
breached that duty, proximately causing plaintiff's injuries.
On April 21, 2009, Judge Iglesias granted SCCC's motion for
summary judgment and dismissed plaintiff's complaint against it.
Plaintiff's motion for reconsideration was denied, and plaintiff
now appeals from the final judgment which dismissed his
complaint.
II.
On November 30, 2005, plaintiff was employed by defendant
Riverside as a crane signalman and was working construction at a
"multi-storied, high rise construction site" located in Jersey
City known as the Newport Project. At approximately 3:20 p.m.,
he suffered serious injuries when a piece of plywood on which he
was standing gave way and he fell through the ninth floor of the
high rise building. According to plaintiff, as he stepped onto
the edge of the piece of plywood, "it sprang upwards and caused
him to plummet down one story."
Plaintiff fell one floor down through what, for present
purposes, we understand to have been a "purposefully created
opening in the concrete floor," or "hidden 'trap door,'" which
he claims was created "because the plywood covering the opening
A-5398-08T1
7
was improperly secured" to the floor. He alleges that the
opening, which was covered by plywood, was "supposed to be
covered and secured by 4x8 plywood sheets, secured to stringers
to prevent shifting." Plaintiff also alternatively claims that
the plywood may have been "inadequately secured to the . . .
stringer beams."
As already noted, the general contractor for the project
was SCCC, while ICC was a subcontractor hired to provide
structural concrete under a written construction agreement that
included an indemnification clause which provided that ICC would
be responsible for indemnifying SCCC for any legal claims
arising out of the project. The agreement between SCCC and ICC
required ICC to employ a health and safety officer properly
trained to protect workers employed at the project, and stated
that "[a]ll labor and materials . . . shall be provided by this
Subcontractor [ICC] for temporary safety protection and
perimeter protections, in accordance with State, Local and
Federal Agencies having jurisdiction, including [the
Occupational Safety and Health Administration (OSHA)]. This
openings."4
shall include, but not be limited to floor In
addition, the agreement provided that SCCC would retain full
4
This is how the provision reads after being amended and
initialed by the parties.
A-5398-08T1
8
supervisory authority over ICC's work, stating that the
"Contractor [SCCC], in writing, may at any time for any reason,
direct Subcontractor [ICC] to suspend, stop or interrupt the
Work or any part thereof for a specified period of time."
According to plaintiff, the accident occurred while he was
walking across the plywood deck of the ninth floor of the
building. As he walked directly on one of the column
penetrations, a piece of plywood gave way and "fell from
underneath" him. Plaintiff stated that he fell through a
penetration located on the northeast corner of the ninth floor.
Plaintiff also testified that his fall was caused by the
improper securing of a piece of plywood to the "stringers"
underneath the plywood, and that Riverside was responsible for
securing the plywood to the stringers.
Plaintiff claimed he had reported Riverside's system of
using plywood in the way that it did as dangerous, because he
felt that the system was unsafe and posed a danger to the
project's construction workers. However, plaintiff made those
reports to Riverside employees only. As a result of plaintiff's
report of an unsafe condition, his superiors at Riverside
informed him that this system could not be changed.
John Balleto, sole shareholder and owner of Riverside,
testified in depositions that SCCC was primarily responsible for
A-5398-08T1
9
general workplace safety and for the safety of the construction
workers at the project. However, Balleto explained that when
Riverside performed work on a particular floor of the building,
ICC assumed responsibility for the safety of the construction
site and its workers.
Balleto further testified that it was "[c]ommon
practice . . . to throw plywood where people are walking over a
penetration." He also explained that SCCC employees informed
him that "they had an argument over trying to prevent falls from
happening." According to Balleto, it was the responsibility of
Riverside's deck foreman to ensure that the plywood was properly
secured.
In addition, Balleto testified that other construction
workers at the project had nearly fallen through pieces of
plywood position in this manner, stating that there were "prior
near misses" with respect to construction workers falling
through a piece of plywood, meaning that SCCC had previously
experienced issues with "people almost falling into these
holes." However, Balleto testified that Riverside's use of its
plywood coverings over the penetrations in the building's floors
could not be changed because a perimeter guard around the pieces
of plywood would not allow for the installation of the steel
cage which forms the wall. Finally, Balleto claimed that SCCC
A-5398-08T1
10
as the general contractor maintained a supervisory role over the
project and would regularly "inspect for safety issues" in an
effort to prevent "[a]n obvious safety hazard."
On August 12, 2008, David Jenkins, SCCC's "general
superintendent of construction" testified at a deposition.
According to Jenkins, SCCC entered into a construction contract
with ICC only, and not with Riverside. Jenkins explained that
his role in the project was to "coordinate the flow of work, the
. . . job schedule, which would entail procedural operations,
seeing that the contractor is erecting the building on time, and
that the other trades are following behind in sequential
manner."
Jenkins further testified that SCCC had four or five
employees working at the project on the day plaintiff was
injured, including two superintendents and three or four local
laborers. He also confirmed that when ICC performed work on a
particular floor of the building, ICC was "responsible" for
inspecting that floor including for "floor penetrations" for the
purpose of insuring the safety of the project and its workers.
However, he claimed that when ICC finished working on a floor,
that area would return to SCCC's control and responsibility.
Jenkins additionally explained that ICC was responsible for
"fall safety protection, perimeter protection coverings,
A-5398-08T1
11
covering the floor penetrations on the working deck, any floors
that still have form work and any floors that are still stacked
with material." Finally, at his deposition Jenkins initially
testified that he was not aware whether ICC had a "health and
safety officer," but he "assume[d]" that "Charlie Metaxis, who
was their general superintendent, [who] would bring [him] safety
concerns . . . . was the safety officer."
III.
In an appeal of a grant of summary judgment, we use the
same standard as the trial court and decide whether there is any
genuine issue of material fact in dispute between the parties.
If there is no genuine issue of material fact in dispute, we
must decide whether the trial court's ruling on the law was
correct and if summary judgment is warranted. Prudential Prop.
& Cas. Ins. Co. v. Boylan,
307 N.J. Super. 162, 167 (App. Div.),
certif. denied,
154 N.J. 608 (1998). Even if allegations of the
pleadings appear to raise an issue of fact, if the other papers
show that, in fact, there is no real material issue, the trial
court may grant a motion for summary judgment, and disputed
factual issues that are "of an insubstantial nature" are
insufficient to defeat a motion for summary judgment. Brill v.
Guardian Life Ins. Co. of Am.,
142 N.J. 520, 530 (1995) (quoting
Judson v. Peoples Bank & Trust Co.,
17 N.J. 67, 75 (1954)).
A-5398-08T1
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"An issue of fact is genuine only if, considering the
burden of persuasion at trial, the evidence submitted by the
parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require
R. 4:46-2(c).
submission of the issue to the trier of fact."
Moreover, while the trial court must accord all favorable
inferences to the non-moving party, if the court finds no
material disputes of fact, it may render a judgment as a matter
of law in favor of either the moving or non-moving party. Ibid.
In considering whether the defendant general contractor
owed the plaintiff a duty in a personal injury matter, the court
will consider several factors, including "the relationship of
the parties, the nature of the attendant risk, the opportunity
and ability to exercise care, and the public interest in the
proposed solution." Alloway v. Bradlees,
157 N.J. 221, 230
(1999) (quoting Hopkins v. Fox & Lazo Realtors,
132 N.J. 426,
439 (1993)). Moreover, a general contractor may be held liable
for the plaintiff's personal injuries where it retains control
over the manner of the worker performed, the general contractor
knowingly hires an incompetent subcontractor, or the work
performed by the subcontractor is inherently dangerous. Id. at
229.
A-5398-08T1
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The contractual obligations between the contractor and the
subcontractors are important in assessing the issues before us
as well as ultimate liability. Here, under the indemnification
provisions of the agreement ICC assumed SCCC's defense.
Plaintiff argues that SCCC violated a federal regulation
promulgated by the Occupational Safety and Health Administration
(OSHA), specifically
29 C.F.R. 1926.16. This court has held
that a "violation of the obligations imposed by the federal
regulations supports a tort claim under state law." Meder v.
Resorts Int'l Hotel, Inc.,
240 N.J. Super. 470, 477 (App. Div.
1989), certif. denied,
121 N.J. 608 (1990). Nevertheless, we
have also expressly stated that "the finding of an OSHA
violation does not ipso facto constitute a basis for assigning
negligence as a matter of law; that is, it does not constitute
negligence per se." Kane v. Hartz Mountain Indus., Inc.,
278 N.J. Super. 129, 144 (App. Div. 1994), aff'd o.b.,
143 N.J. 141
(1996). See also Alloway, supra,
157 N.J. at 236-37 (holding
that "violation of OSHA regulations without more does not
constitute the basis for an independent or direct tort remedy"
and that "non-compliance with an OSHA regulation does not, as
such, preclude a finding that there was no negligence"); Van
Dunk v. James Constr. Co., __ N.J. Super. __ (App. Div. 2010)
A-5398-08T1
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(applying same rule where OSHA found a "willful" violation and
plaintiff sought the right to sue his employer).
Plaintiff attempts to support his argument that the trial
court improperly granted summary judgment to SCCC by citing to
the requirement of
29 C.F.R. 1926.16 that general contractors
have "joint responsibility" with subcontractors. This argument
is flawed because the regulation is inapplicable. As SCCC
points out in its brief,
29 C.F.R. 1926.16 implements part of
the Contract Work Hours and Safety Standards Act (CWHSSA), 40
U.S.C.A. ยงยง 3701-3708 (2010), which applies to certain federal
projects. See
29 C.F.R. 1910.12(c). Plaintiff has not
identified any other OSHA regulation which SCCC violated in this
case, or how that violation interacts with SCCC's duty or
alleged breach of duty as it relates to plaintiff's injuries.
Plaintiff contends that the trial court also erred in
granting defendant SCCC's motion for summary judgment because
"whether SCCC met its obligation to maintain a safe work
environment is a question for the jury; yet Judge Iglesias
improvidently assumed the role of the jury and decided that
question as a matter of law." According to plaintiff, summary
judgment was inappropriate because "[i]f SCCC allowed a
hazardous condition to exist and said condition caused
[p]laintiff's injuries, SCCC, as the acknowledged [g]eneral
A-5398-08T1
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[c]ontractor for this construction site, is legally liable and
responsible to the [p]laintiff for those injuries."
Furthermore, plaintiff relies upon Alloway, supra,
157 N.J. at
238, in contending that the general contractor has a "duty to
protect all onsite workers, whether within the general
contractor's or the subcontractor's employ, by requiring through
agreement or operation of law, the designation of a single
person whose ultimate responsibility is to safeguard the
worksite and to ensure overall safety for each and every onsite
laborer."
Judge Iglesias concluded that plaintiff failed to provide
the following information in his complaint and other submissions
to the court:
The problem that I have, and the reason
why I'm granting this motion is because I
don't know what caused this accident in
terms of what duty was violated and by whom.
Who was it that did something wrong
here? . . . And . . . whatever it was
that . . . caused the plaintiff to fall and
injure himself. I don't know that, and I
can't allow the motion record to be
supplemented by the arguments of counsel in
that regard. . . . I have to make my fact
findings based on the motion record, and
when it comes to what was the specific duty
that was violated, who was it that did
something wrong that led to the accident and
the injuries here, I don't have anything to
hang my hat on.
And I am left with . . . the [Natoli
report, which] tells me about the hazard.
A-5398-08T1
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It describes what the hazard was, and it
describes the hazard being the reason why
this accident unfortunately happened. But,
it doesn't tell me anything about who was
responsible. How was the person
responsible. What was the specific nature
of the responsibility that contributed to
the happening of the accident, and whether
or not any of that actually caused this
hazard to exist. I don't have any
information on that. I don't have anything
that I can look to that [could] satisfy the
requirements of what was the specific duty
that was violated, and how was that
violation the proximate cause of the
injuries; the accident and the injuries that
followed. I don't have anything in this
motion record, aside from the arguments of
counsel, that allows me to find that there
is a genuine issue of material fact as to
those items, namely[:]
What was the specific duty that was
violated? . . . [W]ho did something wrong
here, and how is that the proximate cause of
this accident?
So, that's how I see it, and those are
the reasons why I am granting this motion
for summary judgment.
Given ICC's contractual relationship with SCCC, and ICC's
obligations with respect to this project, we are compelled to
agree with Judge Iglesias. We add only that the filing of an
inappropriate appeal when there is no final judgment, or even an
unsuccessful motion for leave to appeal, does not toll the
discovery end date, and even if it did, there was no tolling
given the relevant dates involved. The improper notice of
appeal was filed on September 29, 2008, one day before the
A-5398-08T1
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plaintiff's expert report was to be served, but the Gallagher
and Natoli supplementary reports were not served one day after
the appeal was dismissed. Thus, the Gallagher and Natoli
supplementary reports were out of time even under plaintiff's
theory. Moreover, plaintiff did not merely seek to supplement
Natoli's report, which might have led to a different result.
Rather, he tried to present Gallagher's report and then to
supplement his original report only after Gallagher's report was
time barred.5
Finally, plaintiff's interrogatory answers refer to
Natoli's original report, but it is not attached. Plaintiff's
brief refers only to the interrogatories when pointing to that
report. If the original report is the letter dated January 12,
2006, it is insufficient to hold SCCC as responsible for the
5
We are told that an arbitration had already occurred in the
matter and trial had already been scheduled by the time
plaintiff attempted to serve the supplemental Natoli report
(served on SCCC in January 2009), after the Gallagher report
(served on SCCC in December 2008) had already been barred under
Judge Bariso's order of July 18, 2008, which required plaintiff
to serve expert reports by September 30, 2008, and set a
discovery expiration date of November 14, 2008. The parties
also did not agree "prior to the expiration of the discovery
period" to a consensual extension of discovery under Rule 4:24-
1(c). Based on those circumstances, because the parties had
already participated in an arbitration and a trial date had been
fixed, the court could have allowed Natoli's report as evidence
only if plaintiff could satisfy the requirements of Rule 4:24-
1(c) by showing "exceptional circumstances."
A-5398-08T1
18
accident, and plaintiff in seeking to use the supplementary
report does not seem to argue otherwise.
We therefore affirm the summary judgment granted to SCCC.
IV.
Plaintiff argues the trial court erred in granting summary
judgment in favor of defendant ICC because "ICC failed to
establish, as a matter of law, that ICC and Riverside were, in
fact, one in [sic] the same entity." He adds that "the evidence
shows that Riverside and ICC were separate corporate entities
which were acting independently during the construction
project." Based on that argument, plaintiff apparently asserts
that ICC can be held liable for his injuries because the
applicable statute only precludes a plaintiff from recovering
damages on a negligence claim against his own employer ("except
for intentional wrong"), and that ICC can be held liable for his
injuries in this case because Riverside was his employer, not
ICC.
As already noted, Judge Iglesias found that plaintiff had
failed to demonstrate any genuine issue of material fact with
respect to ICC's and Riverside's entitlement to immunity from
plaintiff's negligence action provided in N.J.S.A. 34:15-8. The
court also determined that Riverside and ICC were the same
entity and Riverside was merely a "trade name." We agree and
A-5398-08T1
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affirm substantially for the reasons expressed by Judge
Inglesias. We add only that the SCCC subcontract was with ICC,
and it was not disputed that "ICC and Riverside shared a joint
bank account into which payments for the subject project were
deposited"; "Riverside hired and paid all of the ICC workers and
carpenters for the project"; and "Riverside's sole principal,
John Balletto, explained [at his deposition] that . . . ICC was
created as an alternate name for Riverside because he previously
did business under the name Interborough Construction
Corporation, which some in the business still associate him
with, rather than Riverside." Furthermore, the failure of a
corporation to register a trade name "shall not impair the
validity of any contract or act of such corporation and shall
not prevent such corporation from defending any action or
proceeding in any court of this State." N.J.S.A. 14A:2-2.1(6).
We therefore reject plaintiff's contention that summary judgment
was inappropriately granted.
Moreover, even if the court had found that plaintiff had
presented a genuine issue of material fact regarding whether ICC
was or was not plaintiff's employer, the order dismissing
plaintiff's claims against ICC ultimately could have been
granted on the same grounds as the subsequent order granting
Assuming separate entities existed,
summary judgment to SCCC.
A-5398-08T1
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plaintiff failed to demonstrate how ICC, as opposed to his
employer Riverside, violated a duty owed to him or breached that
duty by failing to use the proper standard of care.
Accordingly, the judgment is affirmed in all respects.
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