Pantelis v Skanska
2012 NY Slip Op 31080(U)
April 17, 2012
Supreme Court, New York County
Docket Number: 401598/2009
Judge: Michael D. Stallman
Republished from New York State Unified Court
System's E-Courts Service.
Search E-Courts (http://www.nycourts.gov/ecourts) for
any additional information on this case.
This opinion is uncorrected and not selected for official
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
MICHAEL D. $ T U MAN
Index Number : 401 59812009
SEQUENCE NUMBER : 004
MOTION SEQ. NO.
The followlng psperr, numbered I o 9 were read on thls motlon and cross rnotlon to reargue: croms rnotlon for
- Exhibit8 A-E
Notlce of Cross Motlon-Afflmatlon - Exhlblta A-B
- Exhlbltn 1-6
Notlce of Motlon; Afflrmatlon
Notlce of Cross Motion-Afflnnatlon
Afflrmatlon In Opposltlon-
Afflrmatlon In Oppoaltlon-
Reply Afflrmatlon- Exhlbltn A X
Uponthe foregoing papers, it is orderedthat this motionand cross motions are
decided in accordance with the annexed memorandum decision and order.
APR 20 2012
COUNlT CLERgS OFFICE
2. Check Ifapproprlate: ............................
3. Check If approprlate: ................................................
W NON-FINAL DISPOSITION
GRANTED 0DEN!ED 0GRANTED IN PART
DO NOT POST 0
FIDUCIARY APPOINTMENT 0
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 21
Index No. 401 598/09
- against KOCH SKANSKA and TRIBOROUGH BRIDGE
AND TUNNEL AUTHORITY,
Decision and Order
- against LIBERTY MAINTENANCE, INC.,
APR 20 2012
In this action alleging, among other things, violation of Labor Law 5 240 (I),
defendants and third-party defendant move and cross-move, respectively, to reargue
this Court's prior decision and order dated November 23, 201 1, and to compel
plaintiff to submit to a further post-note of issue deposition.
Plaintiff opposes the motion and cross motion and cross-moves for sanctions
This Labor Law
240 action arises from a workplace accident on May 28,
2008 when plaintiff, a painter-sandblaster allegedly fell from an unsecured scaffold
during work on the Triborough Bridge-Wards Island Viaduct. In a prior motion
(Motion Seq. No. 002), plaintiff sought, among other things, an order precluding
defendants and third-party defendant from offering any evidence, photographs, or
testimony regarding the condition of plaintiffs work-site at the time of his alleged
By decision and order dated November 23,20 1 1, the Court granted plaintiffs
motion to the extent that
“[Dlefendants should be precluded from introducing any photographs
not disclosed (and from testifying as to the specific contents of any such
non-disclosed photos). Moreover, both sides should be prepared to offer
testimony about the taking and storagehetentiodsafeguarding of photos.
Plaintiff has demonstrated entitlement to a missing documents/evidence
charge; accordingly, the circumstances are properly brought to the jury‘s
attention via competent testimony. For the same reasons, any photos (or
other evidence) not disclosed, would not be admissible on a motion for
summary judgment .”
(Ostrover Affirm., Ex A.)
Defendants now move to reargue the Court’s prior decision and order, arguing
that plaintiff should not be entitled to a missing documents/evidence charge when he
had not requested such relief in his motion. Defendants also argue that they should
not be penalized for not producing photographs that were not in their possession or
control. According to defendants, third-party Liberty Maintenance, Inc. (Liberty) was
in total charge of the containment area and photographed the interior of the
containment area during the course of its work.
Defendants also seek an order
compelling plaintiff to appear for a further deposition with respect to six photographs
produced on May 13,20 11.
Liberty cross-rnoves to reargue the Court’s prior decision and order, in that
Liberty seeks clarification that the prior decision and order does not preclude
testimony on a motion for summary judgment or at trial as to any witness’s
observations at the work site, so long as it is based on the witness’s memory and not
on photographs, or memory of photographs. Liberty also seeks to compel a further
deposition of plaintiff as to the six photographs, joining in defendants’ arguments.
Plaintiff opposes both the motion and cross motion, and cross-moves for
sanctions against defendants. Plaintiff argues that defendants’ application for a
further deposition of plaintiff is frivolous because, by decision and order dated July
7, 20 11, Justice Wilkins denied the branch of defendants’ prior motion “seeking
authentication of said photographs.” (Mandel Affirm., Ex 1.) Plaintiff also argues
that the application for plaintiffs further deposition is untimely because it was not
sought within 20 days after service of the note of issue, citing 22 W C R R 202.2 1 (e).
Reargument is granted. As stated in the prior decision and order, Joshua
Bowley testified that he took photos inside and outside the containment area, and that
specific accident site photos, post-accident, were supposed to be taken, and that
progress photos or completed work photos, were taken at the end of every work day.
However, the Court overlooked that Bowley was a Liberty employee, not an
employee of defendants. The Court also incorrectly granted plaintiff both a missing
documents charge and an order of preclusion, which are mutually exclusive remedies
for the losshon-disclosure of evidence. It would be unjust to preclude defendants
and third-party defendant fiom introducing documents into evidence, and then to
charge a jury that it may draw a negative inference from their non-introduction.
Therefore, upon reargument, plaintiffs motion is granted to the extent that
Liberty is precluded from offering, both on summary judgment and at trial, any
progress photographs, completed work photographs or accident site photographs not
previously exchanged during discovery. Defendants are also precluded, both on
summary judgment and at trial, from offering any progress photographs, completed
work photographs or accident site photographs that they received from Liberty that
were not previously exchanged during discovery.
The Court rejects Liberty’s contention that preclusion should not have been
granted because “there is absolutely no evidence that any photographs were taken
during the day prior to plaintiffs accident, May 17, 2008, or the day of plaintiffs
accident that would have actually depicted the safety line or the plaintiffs specific
work area.” (Demetri Affirm. T[ 25.) This contention actually begs the question of
what the progress photographs would have depicted had they been disclosed.
Manolakos testified at his deposition that, in May 2008, it would take one day for a
section of containment to be completed, and that photographs, which he referred to
as “completed work photos” would be taken every day. (Ostrover Affirm., Ex D
[Manolakos EBT], at 168- 169). His deposition testimony would suggest that
‘(completedwork photos’’ of the containment area where plaintiff was working on the
day of his accident would have been taken, because it would have taken only one day
to complete work in that section of the containment area, Because such a “completed
work photo” for the accident date was not produced in discovery, it cannot be known
whether that photograph would have actually depicted any safety cables onto which
plaintiff could have tied himself.
Reargument is also granted to clarify that Liberty is precluded from testifying,
either on summary judgment or at trial, as to what the photographs themselves had
depicted, i.e., the contents of the photographs. However, Liberty is not precluded,
either on a motion for summary judgment or at trial, from offering testimony from
witnesses as to their observations of the worksite, so long as these observations are
based on the witnesses’ independent recollections, and not based on a review of any
photographs not previously exchanged during discovery.
In the Court’s discretion, defendants and third-party defendant’s application
to compel a further deposition fo plaintiff is granted.
Contrary to plaintiff’s
argument, the 20-day deadline in 22 NYCRR 202.2 1 (e) is the deadline for a motion
to vacate the note of issue, not a deadline for a motion seeking post-note of issue
The Court is not persuaded that Justice Wilkins’s prior ruling necessarily
decided the issue of whether defendants should be entitled to question plaintiff as to
the identity of the photographer, or as to when each photograph was taken. Several
of these photographs were apparently produced by plaintiffs counsel and shown to
a witness for Liberty at a deposition on May 13, 20 11. Based on the deposition
excerpts, this witness apparently did not testify that he took the photographs, but did
testify (over objection) that the photographs show the containment area. (Mandel
Affirm., Ex 3.) However, the witness was asked, “Can you tell us if it shows the
containment area where Mr. Pantelis had his accident that morning or you can’t tell
one-way [sic]or the other?” The witness answered, “I can’t tell.” (Id. at 200.)
Therefore, defendants and third-party defendant are entitled to a limited
deposition of plaintiff regarding plaintiffs knowledge, if any, of the name of the
photographer who took each of the six photographs that plaintiff produced on May
13,2011,the date each photograph was taken, and where each photograph was taken.
Because plaintiff has not demonstrated that Justice Wilkins’s prior ruling
necessarily decided the issue of a further deposition of plaintiff with respect to the six
photographs exchanged in May 20 11, defendants’ motion was not frivolous.
Therefore, plaintiffs cross motion is denied.
Accordingly, it is hereby
ORDERED that this motion to reargue and to direct a further deposition of
plaintiff by defendants Skanksa Koch, Inc. fAda Koch Skanksa, Inc., sued herein as
“Koch Skanksa” and the Triborough Bridge and Tunnel Authority is granted; and it
ORDERED that the cross motion to reargue and to direct a further deposition
of plaintiff by third-party defendant Liberty Maintenance, Inc. is granted; and it is
ORDERED that, upon reargument, the Court’s prior decision and order is
amended only to extent that the portion of the decision and order granting preclusion
and a missing documentslevidence charge is amended as follows:
Liberty is precluded from offering, both on summary judgment and at
trial, any progress photographs, completed work photographs or
accident site photographs not previously exchanged during discovery.
Defendants are also precluded, both on summary judgment and at trial,
from offering any progress photographs, completed work photographs
OF accident site photographs that they received from Liberty that were
not previously exchanged during discovery.
and it is further
ORDERED that the Court’s prior decision and order is amended to clarify that
Liberty is precluded from testifying, either on summary judgment or at trial, as to
what the photographs themselves had depicted, i.e., the contents of the photographs.
However, Liberty is not precluded, either on a motion for summary judgment or at
trial, from offering testimony from witnesses as to their observations of the work site,
so long as such testimony is based on each witness’s own observations and
independent recollection, and not based on a review of any photographs not
previously exchanged during discovery; and it is further
ORDERED that plaintiff shall appear for a further deposition on or before May
23, 20 12 limited to questioning about plaintiffs knowledge of six photographs
produced on May 13, 201 1. The questioning shall be limited to plaintiff‘s
knowledge, if any, of the name of the photographer who took each photograph, the
date each photograph was taken, and where each photograph was taken; and it is
ORDERED that plaintiffs cross motion for sanctions pursuant to NYCRR 1301.1 (a) and CPLR 3 126 against defendants is denied.
Dated : April / P O 1 2
New York, New York
comfyC E l s r n C E