Cicogna v City of New York

[*1] Cicogna v City of New York 2005 NY Slip Op 50728(U) Decided on May 12, 2005 Supreme Court, Kings County Partnow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2005
Supreme Court, Kings County

Patricia Cicogna, As the Representative of Louis Cigogna, et al., Plaintiffs,

against

City of New York, Defendant.



40246/99

Mark Partnow, J.

Upon the foregoing papers, defendant The City of New York (the City) moves for an order dismissing the complaint for plaintiffs' failure to comply with General Municipal Law § 50-e, dismissing the complaint pursuant to CPLR 3211(a) (5) and (7), or in the alternative, granting summary judgment pursuant to CPLR 3212 in favor of the City.[FN1]

[*2]BACKGROUND

In July or August of 1992, plaintiff Louis Cicogna (Cicogna) worked for the New York City Department of Transportation (DOT) as a probationary bridge repairer and riveter. For three or four days during such period, plaintiff worked on a welding project to repair a tank, located on Hamilton Avenue in Brooklyn, which was used for the production of asphalt cement. As described, the tank was approximately 12 feet in diameter, with an opening cutout at one end to provide ingress and egress, and a hatch opening at another point on the tank. As further alleged by Cicogna, the tank was unventilated.

On the last day of the project, Cicogna welded pipes inside the tank. His equipment consisted of a regular welding mask, gloves, and a welding wire.[FN2]

While Cicogna was welding, the torch which he was using ignited residual tar in the tank, creating smoke which he breathed in. He claims that in spite of advising his supervisor that he was having difficulty breathing, his supervisor compelled him to keep working. He went home that day feeling ill and thereafter continued to experience difficulty in breathing. Cicogna denies having had a breathing disorder prior to this incident.

On March 9, 1994, DOT Mobile Medical Testing Service performed a routine physical examination of Cicogna. The doctor informed Cicogna that he had significantly abnormal lung findings and advised him to file for Workers' Compensation. He further advised Cicogna to follow up with his personal physician. On March 27, 1994, Cicogna filed for Workers' Compensation. A hearing was conducted on August 3, 1998.

On October 28, 1998, the Workers' Compensation Judge found that Cicogna had an occupational disease and that there was a causal relationship between the work performed by plaintiff and his injury. The City appealed the decision and, on September 22, 1999, the Workers' Compensation Board issued a memorandum of decision, upholding the finding of the Workers' Compensation Judge, finding the reports of the doctors provided substantial evidence of a reasonable link between Cicogna's exposure to certain substances while working as a welder and his development of lung disease. Cicogna thus received, and continues to receive, compensation for his occupational injuries. [*3]

On August 13, 1999, plaintiffs filed a notice of claim with the City. Thereafter, they commenced the instant lawsuit by the filing of a summons and verified complaint on or about October 19, 1999, wherein they allege five causes of action. These causes of action respectively allege that: (1) that the City, its employees and agents intentionally deceived Cicogna concerning the safety of working conditions at the Hamilton Avenue location in order to induce him to work there, and that Cicogna reasonably and justifiably relied on such representations; (2) the City, its employees and agents intentionally interfered with Cicogna's "civil" rights to commence a products liability action, by concealing Cicogna's alleged exposure to certain toxic and hazardous products, precluding access to and destroying certain products and equipment with which he worked, and pressuring witnesses to lie about Cicogna's exposure to the aforementioned products; (3) the City, its employees and agents maliciously intended to cause harm to Cicogna; (4) the City was "negligent, grossly negligent, and reckless" in requiring Cicogna to work under such dangerous conditions and circumstances; and (5) defendant's conduct resulted in damages to Patricial Cicogna for loss of consortium of her husband.

Issue was joined by service of a verified answer on or about December 3, 1999. As represented by the City in its papers, discovery is continuing.

CONTENTIONS

a. The City

In support of its contention that the first, third and fourth causes of action must be dismissed because plaintiffs have failed to file a timely notice of claim, the City asserts that Cicogna's claims thereunder arose, at the earliest, in August 1992, when he went home with an injury (i.e., when he was first aware that he was injured), and at the very latest in March 1994, when he was diagnosed with respiratory injuries upon his medical examination by DOT. Since the notice of claim was filed more than five years after the latest date upon which his claim arguably could have arisen, defendant argues that the notice of claim was untimely.[FN3] Defendant goes on to contend that the court is without discretion to permit the filing of a late notice of claim with respect to said causes of action, since the statute of limitations, which is one year and 90 days, expired.

In support of its further contention that workers' compensation is the exclusive remedy for the subject causes of action, the City relies on the language contained in Section 11 of the Workers' Compensation Law, which provides, in relevant part, that "[t]he liability of an employer [prescribed by Section 10 of the Workers' Compensation Law] shall be exclusive and in place of any liability whatsoever, to such employee . . . or anyone otherwise entitled to recover damages at common law or otherwise on account of such injury or death." Further [*4]citing Acevedo v Consolidated Edison (189 AD2d 497, 500 [1993]), it argues that workers' compensation is the sole and exclusive remedy " for any accidental injury arising out of and in the course of employment, including diseases and infections which naturally and unavoidably result therefrom, [and] an 'accident' includes disability from an occupational disease which is separately defined as a disease resulting from the nature of employment and contracted therein." It goes on to argue that Cicogna, having already availed himself of the remedy of workers' compensation, is not entitled to a double recovery by way of an action at common-law, and while defendant acknowledges that an intentional tort would place plaintiff's injuries outside the exclusivity doctrine, it challenges Cicogna's allegations that the City committed an intentional tort, on both the grounds that plaintiffs fail to meet the rigorous threshold of establishing the commission of an intentional tort, and that any such claims are barred by the principles of res judicata.

Additionally with respect to plaintiffs' second cause of action, defendant contends, inter alia, that plaintiffs fail to identify what civil right has been offended, and have not established a duty on the part of defendant to preserve evidence.

Finally, defendant seeks dismissal of Patricia Cicogna's loss of services claim because Louis Cicogna does not have a viable cause of action against the City.

b. Plaintiffs

In addition to contending that Cicogna's lungs sustained damage as a result of the work he performed inside the tank, plaintiffs assert that commencing in the spring of 1996, his memory and cognitive ability began to deteriorate. In May 1996, Dr. Carl Bazil, following an examination, found that plaintiff was suffering from serious cognitive deficits, referred him for an EEG and MRI of the brain and for neuropsychological testing, and opined that the deficits were due to his exposure to tar fumes in an enclosed space (an opinion restated in an affirmation annexed to plaintiffs' papers).[FN4]

Due to what Cicogna characterizes as animus between himself and his foreman and co-workers, a continuing dispute regarding his claimed duties purportedly furnished the City with a basis for challenging his entitlement to workers' compensation benefits. Plaintiffs further allege that in August of 1996, following their discovery of the existence of Cicogna's brain injury, they retained an attorney who, following his investigation which included interviewing John Filosa (Cicogna's supervisor) and some co-workers all of whom alleged that Cicogna was not welding inside the tank and thus not exposed to fumes, declined to represent plaintiffs. As further averred by plaintiffs, the City did not acknowledge that Cicogna was working inside the tank on the day of the incident until a workers' compensation hearing on August 3, 1998, when Filosa changed his position and admitted that Cicogna had in fact been exposed to fumes. Thus, while plaintiffs agree that defendant provided [*5]compensation benefits for Cicogna's lung injuries, they claim that he never received any benefits for his brain injury.

Accordingly, plaintiffs contend that the defendant should be equitably estopped from raising the defense of plaintiffs' failure to file a timely notice of claim and/or the expiration of the statute of limitations, arguing that their attorney at the time was induced by the misrepresentations of Filosa and others not to commence a lawsuit prior to the expiration of the statute of limitations, and that but for the actions of the defendant's employees, plaintiffs would have still been able to file a late notice of claim before the expiration of the statute of limitations.

Plaintiffs further contend that the present claim, as it relates to Cicogna's brain injury as opposed to his lung injury, is not barred by workers' compensation or principles of res judicata, because Cicogna never received any compensation for the brain injury, nor was it ever placed in issue in any prior forum. In addition, they assert that, as a factual matter, both the brain injury and the lung injury fall within the intentional tort exception of the workers' compensation law because such injuries were intentionally caused harm by Filosa, and that in any event, a jury might determine that the lung injury is not barred by res judicata, since it would be reasonable to determine that his lung injury was caused by an intentional tort as well as being an "occupational disease" as determined by the Workers' Compensation Board. Accordingly, plaintiffs oppose the City's motion for dismissal and/or summary judgment.

In reply, the City reiterates its previously-asserted positions.

DISCUSSION

CPLR 3211 states, in applicable part, that:

"(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

***

5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds... [emphasis added]

***

7. The pleading fails to state a cause of action."

Plaintiffs' contention that the doctrine of equitable estoppel bars defendant from raising the defense of plaintiffs' failure to file a timely claim, as well as the statute of limitations, is unavailing. Although a municipality may be estopped from asserting that a claim was untimely when its improper conduct induced reliance by a plaintiff who changed his or her position to his or her detriment (see Matter of Griffith v Staten Is. Rapid Trans. Operating. Auth., 269 AD2d 596, 597 [2000]; see also Bender v New York City Health & Hosps. Corp., 38 NY2d 662 [1976]), the doctrine of estoppel will be applied against [*6]governmental agencies only in exceptional cases (see Zaiman v Metropolitan Tr. Auth., 186 AD2d 555 [1992]), and only where plaintiff demonstrates "fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon" (Yassin v Sarabu, 284 AD2d 531 [2001]; DeGori v Long Island R.R., 202 AD2d 549 [1994]).

In the instant matter, plaintiffs merely allege, without offering a shred of non-hearsay evidentiary support, that their attorney was misled by the misrepresentations of Cicogna's former supervisor and co-workers. Even if the court were to accept plaintiffs' allegations as true, plaintiffs fail to demonstrate that they reasonably relied on such misrepresentations. When viewed in the context of the operative legal standard, plaintiffs' unsupported allegation that "plaintiff[s] [were] induced by the lies of the defendant not to start a claim or lawsuit against the City of New York . . . during the time . . . such claims or lawsuits were still within the applicable statute of limitations" is insufficient to justify application of the doctrine (see Quintero v Town of Babylon Indus. Development Agency, 172 AD2d 527 [1991]; see also Bender, 38 NY2d at 668).

By extension, plaintiffs' bootstrapped contention that their causes of action accrued on August 3, 1998 (the date they assert that the City, through the testimony of John Filosa at the workers' compensation hearing, finally admitted that Cicogna had been exposed to toxic fumes inside the asphalt tank) is devoid of merit. Rather, the record establishes that Cicogna's claims arose no later than March 1994, when he was examined by DOT's Medical Testing Service and diagnosed with respiratory injuries. Under such circumstances, service of the notice of claim and the filing of the summons and complaint were clearly untimely, since the statute of limitations expired, at the very latest, in June 1995 (see Hedlund v County of Tompkins, 235 AD2d 980 [1997]). Further, this court has no authority to extend the time to file a notice of claim once the statute of limitations expires (Pierson v City of New York, 56 NY2d 950 [1982]).

Moreover, as correctly contended by defendant, plaintiffs' claims are barred by the exclusivity provisions contained in Section 11 of the Workers' Compensation Law. Plaintiffs' attempt to argue that Cicogna never sought recovery for brain or neurological injuries and therefore did not waive his right to assert an action for common-law tort, is unavailing. It is well-settled that "primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board" (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; see also Melo v Jewish Bd. of Family and Children's Services, 282 AD2d 440 [2001]). In this respect, the court notes that Dr. Bazil diagnosed Cicogna with brain disfunction and cognitive deficits in 1996, during the pendency of his workers' compensation proceeding.

Also unavailing is plaintiffs' argument that defendant committed an intentional tort, thus constituting an exception to the exclusivity of the workers' compensation system. Although it is true that the exclusivity provisions of the Workers' Compensation Law do not [*7]apply where an injury is sustained to an employee due to an intentional tort perpetrated by the employer or at the employer's direction (see Lavin v. Goldberg Bldg. Material Corp., 274 App Div 690 [1949]; De Coigne v. Ludlum Steel Co., 251 App Div 662 [1937]), "[i]n order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as the intent to cause injury" (Finch v Swingly, 42 AD2d 1035 [1973]). Cicogna's testimony, purporting to show that Filosa forced him to return to a hazardous worksite, in spite of the fact that he was clearly in distress, by observing that "there's plenty of guys in the union hall that will take this job", fails to demonstrate such intent to cause injury (see Briggs v Pymm Thermometer Co., 147 AD2d 433, 436 [1989] [where the Appellate Division, in dismissing the plaintiffs' complaint which alleged that defendants fraudulently concealed and deceptively induced the plaintiffs into working in conditions the employer knew to be hazardous, stated that "(plaintiffs') allegations to the effect that (defendants) had 'intentionally ignored' the known hazard cannot be deemed to satisfy the case-law requirement of 'specific acts' directed at causing harm to 'particular employees' necessary to bring this case within the 'intentional injury exception, and is tantamount to an allegation of gross negligence, or perhaps even reckless conduct on the part of (defendants) leading to an industrial accident."]).

Moreover, the intentional tort exception does not apply when, as here, the Workers' Compensaton Board had made a final determination regarding coverage, and the employee has accepted and retained benefits under the statute (see Martin v Casagrande, 159 AD2d 26 [1990]; Bardare v Zafir, 102 AD2d 422, 424-5 [1984], aff'd 63 NY2d 850 [1984]; see also Mondello v Dun & Bradstreet, 1995 WL 495474 [SDNY 1995]). "Once the Workers' Compensation board has determined that the injury was 'accidental' within the meaning of the statute, the doctrine of res judicata applies and an employee is barred from bringing any common law claims against the employer, including those based on the theory of intentional tort" (Mondello, 1995 WL 495474, citing O'Connor v Midiria, 55 NY2d 538, 541 [1982]; Martin v Casagrande, 159 AD2d 26, 29 [1990]; see also Mylroie v GAF Corporation, 55 NY2d 893 [1992]).

Based upon the foregoing, the court dismisses, pursuant to CPLR 3211, plaintiffs' first, third and fourth causes of action as set forth in the verified complaint.

Plaintiffs' remaining causes of action must likewise be dismissed under CPLR 3211. As correctly contended by defendant, plaintiffs, in their second cause of action, fail to identify any specific civil right which defendant violated (see Paul v Davis, 424 US 693 [1976] [where the respondent failed to identify the specific constitutional guarantee safeguarding the interest he asserted had been invaded, the United States Supreme Court held that the Fourteenth Amendment's Due Process Clause does not ex propro vigore extend to a person the right to be free of injury whenever the state may be characterized as the tort-feasor]). Moreover, while New York recognizes a cause of action for impairment by an employer of an employee's legal rights against a third party by spoliation of evidence, [*8]plaintiff, in order to sustain such a claim, must show that the employer was under a duty to maintain the evidence (see Coley v Arnot Ogden Mem. Hosp., 107 AD2d 67, 69 [1985]). Plaintiffs have failed to demonstrate that defendant was under such a duty (see Conderman v Rochester Gas and Elec. Co., 262 AD2d 1068, 1070 [1999] ["In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices"]; see also Monteiro v R.D. Werner Co., Inc., 301 AD2d 636 [2003]), and thus fail to state a cause of action. Finally, since the court has dismissed the substantive causes of action, Patricia Cicogna's loss of services claim is dismissed, since, as a derivative claim, its viability rests upon the validity of the primary action (see Maidman v Stagg, 82 AD2d 299 [1981]).

Accordingly, defendant's motion is granted, and plaintiffs' complaint is dismissed.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1:Plaintiffs' motion to vacate the Court's May 21, 2004 order, granting defendant's motion for summary judgment on default, was conditionally granted by this court by short-form order dated December 3, 2004, wherein the court permitted defendant to submit reply papers for the purpose of considering defendant's motion for summary judgment on the motion.

Footnote 2:Through his attorney's affirmation, Cicogna alleges that his supervisor, John Filosa, refused his request to be provided with a respirator.

Footnote 3:Section 50-e (1) (a) of the General Municipal Law establishes the time limits within which a plaintiff must file a notice of claim when asserting a tort action against a municipality. Claims such as those in issue herein must be filed within 90 days after the claim arises (GML 50-e(1)(a); Donovan v County of Niagara, 64 NY2d 973, 974 [1985]).

Footnote 4:Although Dr. Bazil's affirmation states that he is licensed to practice law in the State of New York, the court will deem this to be a draftsman's error.