Gotlin v City of New York

[*1] Gotlin v City of New York 2006 NY Slip Op 50499(U) Decided on February 21, 2006 Supreme Court, Richmond County Mega, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2006
Supreme Court, Richmond County

Gary Gotlin, Public Administrator of Richmond, as Administrator of the Estate of LORENZO PAVIA a/k/a LORENZO FAUSTO PAVIA GUZMAN, deceased, Plaintiff,

against

THE City of New York, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, THE NEW YORK CITY BUILDING DEPARTMENT, TRISTAR MORTGAGE CORP., ROSEBANK REPIPING & HEATING CORPORATION, WILLIAM J. O'ROURKE, INC., FLAG CONTAINER SERVICES, INC., FORMICA CORPORATION, KENNETH FORMICA and WILLIAM FORMICA, Defendants.



11770/04

Christopher J. Mega, J.

Upon the foregoing papers, defendant City of New York's motion (No. 3229) seeking leave to renew and reargue its prior motion for summary judgment is denied and plaintiff's cross motion (No. 3854) for summary judgment is granted.

This is an action to recover compensatory damages on behalf of decedent's estate, arising from fatal injuries allegedly incurred by decedent while employed at a construction site on Staten Island. The Complaint alleges that decedent was killed when the walls of the trench in which he was working collapsed due to the willful and/or negligent failure of the defendants to properly shore them.

By Decision and Order dated August 17, 2005, this Court (1) denied the motion of

the City of New York for summary judgment dismissing the Complaint as to defendants City of [*2]New York, New York City Department of Transportation, New York City Department of Environmental Protection, New York City Building Department (hereinafter the "City"); (2) denied plaintiff's cross motion to strike the City's Reply Affirmation; (3) granted the cross motions for summary judgment of defendant Flag Container Services, Inc., defendant Tristar Mortgage Corp (No. 1270) and defendants Formica Corporation, Kenneth Formica and William Formica; (4) denied as moot plaintiff's cross motion to strike the respective Answers of defendant Flag Container Corp, and the Formica defendants; and (5) further ordered that the Complaint and all cross claims asserted against defendants Flag Container Services, Inc., Tristar Mortgage Corp., Formica Construction, Inc., Kenneth Formica, and William Formica be severed and dismissed.

In Motion No. 3229, defendant City of New York now moves for leave to renew and reargue its motion for summary judgment, and upon renewal or reargument, for an Order pursuant to CPLR §3211(a)(7) and/or CPLR§3212 dismissing plaintiff's

complaint against the City and all cross claims against it and/or granting

summary judgment to the City upon grounds that the City should not be

considered an owner of the roadway for purposes of the Labor Law pursuant

to a Court of Appeals decision dated July 6, 2005 [Albanese v. City of New

York] since the City's prior motion was dated March 2, 2005 and its papers

were fully submitted as of May 16, 2005.[FN1]

In the alternative, the City asks for clarification of the Court's Decision and Order to the extent that it appears inconsistent with a prior order of this Court rendered from the bench on July 20, 2005. The prior order had granted, without opposition, the City's motion to convert its crossclaims against the co-defendants into a third-party action.

In Motion No. 3854, plaintiff cross moves for summary judgment against the City defendants pursuant to CPLR 3212 and Labor Law §241(6).

Motion 3229.

In seeking reargument, the City's reliance on the recent decision of the Court of Appeals in Albanese v. City of New York, 5 NY3d 217 [2005] is misplaced.

The Albanese decision is limited to a specific fact pattern involving the respective liability of the state and city pursuant to the Highway Law. In Albanese, the court held that a municipality cannot be held strictly liable to a worker injured during a state construction project involving the rehabilitation of an arterial highway pursuant to Highway Law Article XII-B. On the date of the accident, the highway was under construction as part of a two-year New York State-initiated project. As explained by the Court, such highways by definition implicate both state and local interests, but once the state's work is complete, jurisdiction is transferred to the city (5 NY3d at 220; see also Nowlin v. City of New York, 81 NY2d 81 [1993]). The rehabilitation project was initiated by the State, the State was in charge of the construction project, the project was ongoing at the time of the accident, the city had no input into the contractors or consultants hired, and the city did not perform any of the work or activity that caused the condition that led to the accident. Under the limited circumstances presented in Albanese, where unlike Nowlin, state construction was ongoing at the time of plaintiff's accident [*3]and jurisdiction had not been transferred to the city, the city's role was largely confined to its regulatory responsibilities arising out of its work permits, and it would not be subject to absolute liability under the Labor Law for an injury allegedly caused by the state contractors.

The decision of the Court of Appeals in Albanese therefore does not form the basis for either reargument or renewal in the present action. As the court observed in the seminal case of Foley v. Roche (68 AD2d 558, 567-568 [1st Dept 1979]), a motion for reargument is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Mangine v. Keller, 182 AD2d 476 [1st Dep't 1992]). Similarly, an application for leave to renew must be based upon either additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew (and therefore not made known to the court), or a change in the law that would alter the prior determination (CPLR 2221). None of these conditions are present here. Therefore, so much of the City's motion as seeks leave to reargue or renew its motion is denied.

Nor will the City be heard to seek "reconsideration" of the Court's decision on the basis that the Court did not consider all the City's arguments in support of its motion. No such motion lies under the Civil Practice Law and Rules. Moreover, to the extent such an application may be read as a motion for leave to reargue, it does not establish that the Court overlooked or misapprehended the relevant facts or misapplied existing law in rendering its decision. Here, the Affirmation of the Corporation Counsel submitted in support of the original motion succinctly sets forth the City's argument at that time as follows:

Apparently, the City's only connection to this lawsuit is that

it issued a permit for Formica Construction to open the roadway.

That ministerial act cannot form the basis for liability against the

City of New York. Accordingly, the complaint should be dismissed.

That argument was considered and rejected by the Court, and "reconsideration" of the Court's Decision and Order does not lie.

Finally, to the extent that the City seeks "clarification" of the prior Decision and Order, the Court notes the following. On the return date of the six motions presented to the Court on July 20, 2005, the Court entertained oral argument and granted from the bench the City's cross motion (dated May 16, 2005) for an order converting its cross claims against the co-defendants into third-party actions. That cross motion therefore was not submitted to the Court with the remaining motions and formed no part of the Court's later, written Decision and Order dated August 15, 2005. Accordingly, the prior order granting the relief stands unaffected by the subsequent independent Decision and Order, which by its terms was addressed solely to the then-extant cross claims.

Motion No. 3854

In Motion No. 3854, plaintiff cross moves for summary judgment against the City defendants pursuant to CPLR 3212 and Labor Law §241(6).

In support of the motion, plaintiff alleges that (1) decedent was working in a trench that was required by the Labor Law to be shored with steel or timber for the protection of the workers; (2) that the City has conceded that it owns the roadway where the trench was cut; (3) [*4]that decedent's employer concedes that the trench should have been shored, and was cited by the City for having failed to do so; and (4) as a result of the lack of shoring, the trench collapsed and decedent asphyxiated.

In further support of the motion, plaintiff submits the affidavit of Kathleen V. Hopkins, a New York City-Certified Site Safety Manager. According to Hopkins, the failure to sheet, shore and brace the trench violated sections 23-4.2 and 23-4.4 of the Industrial Code and was the cause of decedent's death.

In opposition to the motion, the City argues that plaintiff has not set forth a prima facie case. Specifically, the City argues that (1) although a statutory owner, it should not be deemed an owner under Labor Law section 241(6) since it did not direct or control the work at the location; (2) plaintiff has failed to submit proof in admissible form establishing a violation of an applicable section of the Industrial Code; (3) even assuming plaintiff's submissions admissible, there are questions of fact as to whether a violation of the code had been established; and (4) such a violation does not constitute negligence as a matter of law under Labor Law section 241(6), nor does it establish proximate cause as a matter of law.

The nondelegable statutory duty of reasonable care imposed upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed is absolute, and it imposes liability on an owner or a general contractor even in the absence of supervision or control of the worker (Labor Law § 241[6]). It is well-settled that a violation of an administrative regulation is a threshold to liability under the statute (Ross v. Curtis-Palmer Hydro-Electric Co, 81 NY2d 494, 501 [1993]), and to prevail on a motion for summary judgment, the plaintiff must establish the violation of an Industrial Code provision which sets forth a specific standard of conduct (Paladino v. Soc. of New York Hosp., 307 AD2d 343 [2nd Dep't 2003]).

The standards applicable on a motion for summary judgment are similarly well-established. Summary judgment should be granted when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law (CPLR 3212). The moving party bears the initial burden of demonstrating that the relevant facts are undisputed and that, given those facts, he is entitled to summary judgment as a matter of law. Once the movant has met his initial burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial (Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Here, plaintiff has presented a prima facie case of liability against the City, thereby shifting the burden to the City to come forward with evidence refuting the movant's evidence, or, at the least, raising a question of fact. This it has failed to do. It is well-settled that the affirmation of an attorney who is without personal knowledge of the facts is insufficient for these purposes. Rather, the opposing party must assemble, reveal and lay bare its proofs.

Finally, the City's assertion that they need additional discovery to properly oppose

Frommer's motion is without merit. CPLR 3212(f) provides that summary judgment may be denied where "... facts essential to justify opposition may exist but cannot then be stated." In such a case, the court may either deny the motion or direct further discover so that the evidence needed to oppose summary judgment can be obtained. However, mere speculation or hope that [*5]discovery will reveal material or relevant information necessary to defeat the motion is insufficient. Rather, the party asserting that evidence could be obtained through discovery which would defeat the motion must demonstrate to the court a good faith factual basis for that belief (Connecticut Indem Co v. Travelers Ins Co, 300 AD2d 530 [2nd Dept 2002]) Defendant has failed to do so here.

Accordingly, it is

ORDERED that defendant City of New York's motion (No. 3229) seeking leave to renew and reargue its prior motion for summary judgment is denied; and it is further

ORDERED that plaintiff's cross motion (No. 3854) for summary judgment on the issue of liability as against defendants City of New York, New York City Department of Transportation, New York City Department of Environmental Protection, New York City Building Department pursuant to Labor Law Section 241(6) is granted; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

ENTER

Dated:February 21, 2006/s/____________________________

HON. CHRISTOPHER J. MEGA

J.S.C. Footnotes

Footnote 1: The Court file indicates that the motions were argued and submitted on July 20, 2005.