Powell v City of New York

[*1] Powell v City of New York 2005 NY Slip Op 50282(U) Decided on March 1, 2005 Supreme Court, New York County Kornreich, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2005
Supreme Court, New York County

GARY POWELL and DENISE RUFFIN, Plaintiffs,

against

THE CITY OF NEW YORK, NY/ENTERPRISE CITY HOME, HOUSING DEVELOPMENT FUND CORPORATION, WAGMAN CONSTRUCTION CO., INC., and FALCO CONSTRUCTION OF NEW YORK, INC., Defendants.



120431/00

Shirley Werner Kornreich, J.

This is an action to recover for work-related injuries in connection with an accident that occurred at a construction project at 4 West 128th Street in New York City on September 30, 1997. Plaintiffs' complaint, dated September 27, 2000, alleges that while working as an employee of construction subcontractor Falco Construction of New York, Inc. ("Falco"), plaintiff Powell "fell from the unrailed stoop of the outside stairway of the building into an opening which lead [sic] to the basement of said premises."[FN1] The complaint alleges that Falco failed to secure worker's compensation benefits on Powell's behalf, and asserts causes of action under Labor Law sections 200, 240 and 241, and common law negligence.

Falco filed two separate Verified Answers. The first, dated December 7, 2000, was submitted on Falco's behalf by the law firm of Fischetti & Pesce, LLP. The second, dated December 21, 2000, was submitted by Jones Hirsch Connors & Bull P.C. Apparently, the reason for Falco's duplicative answers was that Falco's general liability and worker's compensation carriers did not come to an arrangement as to Falco's defense. See Affirmation of T. Salotollo, p. 2. In any event, both answers denied that plaintiff was Falco's employee and that he was working for Falco when the accident occurred. Both answers also denied plaintiff's allegation that Falco failed to secure worker's compensation benefits on his behalf.

Defendant Wagman Construction Co., Inc. ("Wagman"), the general contractor on the project, asserted cross-claims against Falco for contractual and common law indemnification. Defendant NY/Enterprise City Home Housing Development Fund Corporation [*2]("NY/Enterprise"), the owner of the premises where the accident occurred, asserted cross-claims against Falco and Wagman for contractual and common law indemnification.

I.Motions

Falco now moves (by two separate sets of papers submitted by different attorneys)[FN2] for: (1) leave to amend its answer to include the affirmative defense that plaintiff's exclusive remedy lies under the Worker's Compensation Law; and (2) summary judgment dismissing the complaint as against it. In support of its motion, Falco submits the affirmations of its attorneys Heidelind M. Semmig, Esq. and Peter A. Saad, Jr., together with documentary evidence. In addition to opposing Falco's motion, plaintiff, Wagman and NY/Enterprise cross-move against Falco as follows: (a) plaintiff seeks an order directing Falco to designate one of the two firms now representing it as its sole counsel; and (b) Wagman and NY/Enterprise seek summary judgment dismissal on the basis of contractual indemnity.[FN3] Cross-movants submit their respective attorneys' affirmations along with documentary evidence.

II.Factual Background

Preliminarily, the Court notes that the record submitted by the parties is significantly incomplete. Although some depositions have been conducted, no complete EBT transcripts have been submitted, so the Court must reconstruct the factual background from a few relatively short deposition excerpts, together with copies of various documents.

Plaintiff Powell testified that he lived near the construction site where the accident occurred, and got a job by walking onto the site and inquiring about work. EBT of J. Powell, p. 21. In this way, Powell was hired consistently as a day laborer on the project (and was paid daily in cash) by a "gentleman" whose name he did not recall. EBT of J. Powell, p. 26. Powell did recall that the gentleman who hired him drove a truck with the name "Falco" printed on its side. Id. On the day of the accident, Powell reported for work to the gentleman and received instructions from him. Id. at 29. He was told to help some other workers who were doing demolition work on the building. Id. Powell's work consisted of "carrying what had been torn down already out in the big buckets." Id. at 30. While lifting a bucket of debris, Powell slipped off of the front stoop and fell into the basement. Id. at 35.

Plaintiff Denise Ruffin (apparently, the woman with whom Powell was then living)[FN4] [*3]avers that "several days after the accident, [she] went to the accident site and advised the gentleman that appeared to be supervising the project that Gary Powell had broken his leg and asked who [she] would need to speak to in order to get his medical expenses paid. The man was very rude to [her], denied that Gary had ever worked there, said that there was no way he could prove otherwise and made it clear that he had no intention of paying Gary anything." Id., Ex. H.

Falco's president, Ramesh Nath, testified that he did not recall whether there were any workers on the job except Bengali or Jamaican workers [FN5]. EBT of R. Nath, p. 15. In an affidavit dated October 5, 2003, Nath averred that there were no records available to determine who was working for Falco on the date of plaintiff's accident. See Salotollo Aff., Ex. F.

Falco submits a copy of a C-2 form,[FN6] which, according to its attorneys Goldstein & Tannenbaum, LLP, was filed on November 3, 2000, more than three years after the accident, on behalf of Mr. Powell. See Saad Aff., ¶ 8 & Ex. E. The C-2, which lists Falco as employer, and Reliance Insurance Co. (Falco's Worker's Compensation carrier) as the insurer, indicates that an accident occurred at 12:00 p.m. on September 30, 1997 at the project site. Gary Powell is listed as the injured person. The cause of the accident is indicated as follows: "The EE states he was performing construction services and fell. Injury specifics unknown." The "date employer/supervisor first knew of injury" is indicated as 11/03/2000, which is also the report date.

Under the contract dated November 8, 1996, between Wagman and Falco, Falco agreed: [to] indemnify and hold [Wagman and NY/Enterprise] harmless from any liability, loss, expense or damage deriving from any action or proceeding against [Falco] to recover damages for personal injuries or death or for property damage in which [Wagman, NY/Enterprise] or both are named as co-defendents [sic] based in part on the alleged negligence of [Falco] and in part on the alleged negligence (either "active" or "passive" in nature) of [Wagman or NY/Enterprise] in connection with [Falco's] work hereunder ...Any and all liability, claims and damages, direct or indirect, of whatever nature, asserted to be based upon the work performed by or labor, materials and equipment supplied or [*4]installed by [Falco] hereunder. ...As part of the foregoing indemnity by [Falco], it shall at its own cost and expense defend any suit, action, or other legal proceeding based upon or arising out of any and all of the above-described liabilities and claims. If [Falco] does not do so, [Wagman] may itself defend any such suit, action, or other legal proceeding and the reasonable cost and expense theroff [sic] (including reasonable attorneys' fees) shall be included as part of the loss, damages, or expense covered by [Falco's] indemnity.

Kramer Aff., Ex. A at ¶ 24.

III.Conclusions of Law

To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, and do so by tender of evidentiary proof in admissible form. Zuckerman v. City of NY, 49 NY2d 557 (1980). If the movant makes out a prima facie case, the opponent must come forward and "lay bare his proofs" of any alleged triable issues of fact. See In re Dissolution of Rencor Controls, Inc., 263 AD2d 845 (3rd Dept. 1999) citing Hanson v. Ontario Milk Producers Coop., Inc., 58 Misc 2d 138 (Sup.Ct. Oswego County 1968)(Aronson, J.). Meanwhile, requests for amendment of pleadings shall be freely granted absent a showing of prejudice. CPLR 3025; Valdes v. Marbrose Realty Inc., 289 AD2d 28 (1st Dept. 2001). For the reasons set forth below, the Court: (1) grants Falco's motion to amend its answer; (2) grants Falco's motion for summary judgment and dismisses the action as against Falco; (3) denies as moot plaintiff's request for an order requiring Falco to identify its counsel; (4) denies the summary judgment cross-motions of co-defendants Wagman and NY/Enterprise and grants their cross-motions to deem their counter-claims as third-party claims against Falco. In addition, the Court notes that the record submitted suggests that Falco may well have improperly and illegally delayed reporting plaintiff's accident to the Worker's Compensation Board, thus subjecting Falco to fines. Therefore, the Court will refer this matter to the Chair of the Worker's Compensation Board, for a hearing on this issue.

Falco's Motions

Under Worker's Compensation Law (hereinafter "WCL") Section 10, every employer (with exceptions not applicable here) is required to "secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury ... ." Id. "The liability of an employer prescribed by [Section 10] shall be exclusive and in place of any other liability whatsoever ... except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee ... may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury... ." WCL § 11. "If a court action is commenced, the employee must prove the exception, that the employer did not maintain coverage as required by Sections 10 and 50 WCL." Minkowitz, Practice Commentaries, McKinney's Cons Laws of NY (1994), Book 64, Worker's Compensation Law § [*5]11 at 344 (emphasis added). "There are three methods of providing coverage to employees for Worker's Compensation benefits [nder WCL § 50]. An employer may: (1) purchase a Worker's Compensation Insurance policy from an insurance company authorized to provide such coverage by the New York Superintendent of Insurance; (2) purchase a policy from the State Insurance Fund... or (3) self insure with the permission of the Chair of the Worker's Compensation Board... ." Minkowitz, Practice Commentaries, McKinney's Cons Laws of NY (1994), Book 64, Worker's Compensation Law § 50 at 21-22.

The record shows, and plaintiffs do not dispute, that Falco maintained Worker's Compensation coverage through a policy with Reliance Insurance Co. Plaintiffs argue that because Falco refused to provide compensation to Powell and did not even acknowledge that Powell was its employee until after the two-year limitation period for filing a Worker's Compensation claim had expired plaintiffs are entitled under the Worker's Compensation Law to sue Falco directly. The Court disagrees. The relevant WCL sections make clear that an injured employee may only elect to sue the employer directly if the employer fails to "secure the payment of compensation for his or her injured employees... ." WCL § 11 (emphasis added). Falco did so by procuring a worker's compensation policy, one of the three methods of securing payment of compensation authorized by WCL § 50. Because a worker's compensation policy existed, plaintiff could have filed for benefits rather than bring this action. See WCL 11. Having chosen instead to bring this action, plaintiff bore the burden of proving "that the employer did not maintain coverage as required by Sections 10 and 50 WCL." See Minkowitz, Practice Commentaries, supra. Plaintiffs have failed to meet this burden; therefore, their judicial remedy is foreclosed. Thus, Falco's motion to amend its pleadings and its motion for summary judgment are granted, and the action is dismissed as against Falco. As a result, plaintiff's request for an order requiring Falco to name its counsel is rendered moot, and denied as such.

While granting Falco's summary judgment motion, the Court does not take lightly the averments of plaintiffs regarding Falco's conduct in the aftermath of Powell's accident. It is the obligation of employers under WCL § 110 to report accidents to the Worker's Compensation Board, or face fines. Failure to comply constitutes a misdemeanor. See id. Under the circumstances, it appears that Falco did not comply with its obligations, and fines may be appropriate. Also, the Court notes that Powell was represented by counsel when he instituted an action against defendants in 1998, at which point, he still had a valid claim which could have been made directly to the Worker's Compensation Board. See WCL § 20 ("...a claim for compensation may be presented to the employer or the Chairman") (emphasis added). That plaintiffs' attorneys agreed to represent them in a legal action under the circumstances is a matter of serious concern to the Court.

In keeping with the purpose of the Worker's Compensation Law "to provide an exclusive remedy for all accidental injuries suffered by employees arising out of and in the course of employment," (see Doca v. Federal Stevedoring Co., 284 A.D. 46, 49 (3rd Dept. 1954)), fairness militates in favor of allowing plaintiffs to proceed with a claim before the Worker's Compensation Board. Indeed, under CPLR 205(a), which is made applicable to actions brought under the WCL by CPLR 205(c)), plaintiffs may proceed with their worker's compensation claim before the board for a period of six months after the termination of any action "in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the [*6]defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits," so long as the action was brought prior to the expiration of the two-year limitation period under WCL § 28. Because plaintiffs brought their original action against these defendants in 1998, plaintiffs may proceed with their claim against Falco before the worker's compensation board for a period of six months from the date hereof.

Cross-Motions of Wagman and NY/Enterprise

The cross-motions of Wagman and NY/Enterprise for indemnity as against Falco are denied as premature because the record is insufficient to establish whether, and to what extent, Wagman and/or NY/Enterprise may have been contributorily negligent, and therefore, barred from indemnification to the extent of their negligence. See Zarem v. City of New York, 6 AD3d 276 (1st Dept. 2004). Moreover, the request of Wagman and NY/Enterprise to deem their cross-claims against Falco as third-party complaints is granted, and the caption shall be amended to reflect same. Accordingly, it is

ORDERED that the motion of defendant Falco Construction of New York, Inc., for leave to amend its pleadings, is granted; and it is further

ORDERED that the motion of defendant Falco Construction of New York, Inc., for summary judgment is granted, and plaintiff's complaint is dismissed as against said defendant; and it is further

ORDERED that the motion of plaintiffs for an order requiring defendant Falco Construction of New York, Inc. to identify its legal representative is denied as moot; and it is further

ORDERED that the cross-motions of defendants NY/Enterprise City Home and Wagman Construction Co., Inc. for summary judgment dismissing the action against them are denied; and it is further

ORDERED that the motion of defendants NY/Enterprise City Home and Wagman Construction Co., Inc. for an order deeming their cross-claims against defendant Falco Construction of New York, Inc. as third-party complaints against Falco Construction of New York, Inc. are granted, the third-party complaints shall be deemed served upon Falco Construction of New York, Inc., and the caption shall be amended, and the new caption shall be as follows: -

X

GARY POWELL and DENISE RUFFIN,

Plaintiffs, Index No.:120431/00

-against-

THE CITY OF NEW YORK, NY/ENTERPRISE CITY HOME,

HOUSING DEVELOPMENT FUND CORPORATION,

WAGMAN CONSTRUCTION CO., INC., [*7]

Defendants. -

X -

X

NY/ENTERPRISE CITY HOME and

WAGMAN CONSTRUCTION CO, INC.,

Third-Party Plaintiffs,

-against-

FALCO CONSTRUCTION OF NEW YORK, INC.,

Third-Party Defendant. -

X

; and it is further

ORDERED that plaintiffs shall serve a copy of this decision and order, with notice of

entry, upon the Clerk of the Trial Support Office and the County Clerk within 7 days, so that their records may be altered to reflect the new caption.

The foregoing constitutes the decision and order of the Court.

Date: March 1, 2005 _____________________________________

New York, New York SHIRLEY WERNER KORNREICH Footnotes

Footnote 1:Plaintiff first instituted an action against these same defendants in connection with this accident in 1998. That action, Index No. 119998/98, was consolidated with the instant action by Order dated September 6, 2001 (Solomon, J.S.C.). See Affirmation of P. Saad, Jr., Exhibit D.

Footnote 2:One set of papers is submitted by Fischetti & Pesce, LLP, one of the firms which had submitted an answer for Falco. The other set of papers is submitted by Goldstein & Tannenbaum, LLP.

Footnote 3:Alternatively, Wagman and NY/Enterprise seek an order deeming their cross-claims against Falco as part of a third-party complaint against Falco.

Footnote 4:The complaint asserts causes of action for loss of consortium, alleging that Denise Ruffin was Powell's wife at the time of the accident. The Court notes that in his affidavit, Powell refers to Ruffin as "the woman with whom [he] was living at the time [of the accident]," and Ruffin, in her affidavit, avers merely that she was "living with Gary Powell when he was injured... ." Under New York law, the right to recovery for loss of consortium derived from personal injury is granted to the victim's spouse. Quinto v. NY City Transit Auth., 7 AD3d 689 (2nd Dept. 2004). Here, there is no evidence that Ruffin was, or is, Powell's spouse.

Footnote 5:The record does not make clear whether Mr. Powell is either "Bengali" or "Jamaican." However, Powell avers that one of his co-workers was Jamaican. Solottolo Aff., Ex. G.

Footnote 6:According to a legend which appears at the top of the C-2 form, it appears to be a written accident report to be submitted directly to the Chair of the Worker's Compensation Board pursuant to Worker's Compensation Law § 110. The form includes a prominently displayed warning that "[a]ny employer who fails to timely file Form C-2, as required by Section 110 of the Worker's Compensation Law, is subject to a fine of not more than $1,000. In addition, the Board or Chair may impose a penalty of up to $2,500."