Urena v KIEWIT CONSTRUCTORS Inc.
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Urena v KIEWIT CONSTRUCTORS Inc. 2017 NY Slip Op 30541(U) March 27, 2017 Supreme Court, Bronx County Docket Number: 309944/10 Judge: Ben R. Barbato Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------x JOSE URENA, JOHNNY BODY REPAIR, INC., PENA AND M&M TRUCK & DECISION AND ORDER Plaintiff(s), Index No: 309944/10 - against KIEWIT CONSTRUCTORS INC., KIEWIT INFRASTRUCTURE CO. , WEEKS MARINE, INC. , INC./WEEKS MARINE, KIEWIT CONSTRUCTORS INC. , A JOINT VENTURE THE CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MIRTON BAEZ-PENA, AND ANDRES GUZMAN, Defendant(s). ----------------------------------------x In this alia, action for personal injuries stemming negligence in the performance of construction, from, inter defendants KIEWIT CONSTRUCTORS INC., KIEWIT INFRASTRUCTURE CO., WEEKS MARINE, INC., and KIEWIT CONSTRUCTORS VENTURE (hereinafter "Kiewit"), summary judgment. INC. /WEEKS MARINE, INC., A JOINT move for an order granting them Kiewit avers that inasmuch as the work they performed near the situs of the instant accident did not reduce the height of traveling the overpass thereunder negligent and, thus, below allowed the by maximum law, bear no liability. height they cannot of be vehicles deemed Plaintiffs oppose the instant motion as untimely because it was allegedly made more than 120 days from the filing of the note of issue. Plaintiffs also contend that questions of fact with respect Kiewit's negligence Page 1 of 18 [* 2] preclude summary judgment. For the reasons that follow hereinafter, Kiewit's motion is granted. The instant action is for alleged personal injuries allegedly sustained as a result of defendants' and maintenance of a plaintiffs JOSE URENA (M&M) highway (Urena) and an overpass. 2009, Urena, struck an overpass (Pena) alleges that on December 11, INC. while operating a located on the Maj or Deegan Expressway near the Willis Avenue Exit. PENA Specifically, and M&M TRUCK & BODY REPAIR, allege that on December 7, vehicle owned by M&M, negligence in the ownership Plaintiff JOHNNY 2009, while operating another vehicle owned by M&M, he struck the foregoing overpass and was thereafter struck by a vehicle owned by defendant ANDRES GUZMAN (Guzman) and operated by defendant MIRTON BAEZ-PENA (Pena). Plaintiffs allege that all defendants except Guzman and Baez-Pena owned, maintained, negligent in possessed, failing to and maintain controlled the overpass, were the same in reasonably safe condition; such negligence causing the foregoing accidents and the injuries resulting therefrom. Pena further alleges that Guzman and Baez-Pena were negligent in the ownership and operation of their vehicle, said negligence causing the instant accident and injuries resulting therefrom. Kiewit's motion is decided on the merits because contrary to Page 2 of 18 [* 3] plaintiffs' assertion, it was timely made. Significantly, under prevailing First Department case law, the instant motion was made within 123 days of service of the note of issue such that it was timely. CPLR § 3212 (a) prescribes the time within which summary judgement motions may be made and states that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. Absent a showing of "good cause" for the delay in timely filing a motion for summary judgment, a court cannot consider such a motion on the merits and must instead decline to hear the motion outright (Brill v City of New York, 2 NY3d 648, 652 [2004]; Miceli v State Farm Mutual Automobile Insurance Company, 3 NY3d 725, 727 [2004]; Glasser v Ibramovitz, 37 AD3d 194, 194 [1st Dept 2007]; Rocky Point Drive-In, 2007]) . action L.P. v Town of Brookhaven, Accordingly, is meritless, 37 AD3d 805, whether a motion has merit, summary judgment is in the 808 [2d Dept the cause of interest of judicial economy, or that the opponent will not be prejudiced by the court's consideration of the motion, the foregoing shall not, absent a showing of good cause, be sufficient grounds for the court Page 3 of 18 [* 4] to hear a belated motion for summary judgment (Brill at 653). This is because "statutory time frames - like court-ordered time frames - are not options, they are requirements, to be taken seriously" (Miceli at 727). For purposes of CPLR § 3212, good cause means a good excuse for the delay in filing the motion, meaning explanation for the delay (Brill at 652). a satisfactory More specifically, [g]ood cause is written expression or explanation by the party or his legal representative evincing a viable, credible reason for the delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement (Bruno Surace v Diane Lostrappo, 176 Misc2d 408, 410 [Supreme Court Nassau County 1998]). Ultimately, what constitutes good cause has less to do with the merits of the actual motion and more to do with reason for Services, the Inc., (Luciano untimeliness 289 AD2d 90, 91 provided that good cause is shown, [1st v Apple Dept Maintenance 2001]), and, & thus, a court is always within its discretion to hear a motion for summary judgment regardless of the delay in making the same (id.). It is well settled that law office failure, or ignorance, does not constitute good cause warranting consideration of a belated motion for summary judgment (Giudice v Green 292 Madison, LLC, 50 AD3d 506, 506 [1st Dept 2008] ["Nor are we persuaded by USADATA's Page 4 of 18 [* 5] argument, existed raised for the first by preliminary reason of compliance the order time on appeal, ambiguity and created compliance that good cause by the court's conference orders. USADATA's failure to appreciate that its motion was due within 45 days after the filing of the note of issue is no more satisfactory than a perfunctory claim of law office failure" (internal quotation marks omitted).]; Azcona v Salem, 49 AD3d 343, 343 [1st Dept 2008] [Defendant's motion for summary judgment was denied as untimely because court held that defendant's failure to learn that new note of issue had been filed, which started the clock on the time within. which to make such motion, constituted law office failure and was, thus, not tantamount to good cause.]; Inc., 45 AD3d 284, 286 Crawford v Liz Claiborne, [1st Dept 2007] [Defendant's motion for summary judgment denied when made after the deadline set by the court. Court held that defendant's failure to be aware that the court had shortened the time to make motion was tantamount to law office failure, which does not constitute good cause], revd on other grounds 11 NY3d 810 [2008]; Farkas v Farkas, 40 AD3d 207, 211 [1st Dept 2007] [Court held that plaintiff's failure to abide by statutory time frame due to oversight was tantamount to law off ice failure, which does not amount to good cause], revd on other grounds 11 NY3d 300 [2008]; Breiding v Giladi, 15 AD3d 435, 435 [2d Dept 2005] [Court held that clerical inadvertence and reassignment of counsel were not tantamount to good cause so as Page 5 of 18 to warrant [* 6] consideration of a belated motion for summary judgment.]). The First Department holds that the time period within which to make motions for summary judgment, as prescribed by CPLR § 3212(a), is triggered not from the date the note of issue is filed, but rather from the date that said note is mailed to the defendant (Szabo v XYZ, Two Way Radio Taxi Ass'n, Inc., [1st Dept 1999]). 267 AD2d 134, 135 On this issue the court in Szabo stated the 60-day period [within which to make motions for summary judgment] cannot be construed to run from the date of the unilateral act of filing a note of issue where, as here, defendants, by virtue of plaintiff's service of the notice by mail, cannot be charged with knowledge of the triggering event commencing the 60 days, i.e., the filing of the note of issue, until the service by mail is completed (id. at 135). Thus, the First Department holds that when plaintiff serves the note of issue by mail, pursuant to CPLR § 2103 (b) (2), the time within which to make motions for summary judgment prescribed by the CPLR or court order is increased by five days, measured from the date note of issue is served by mail (id.; Krasnow v. JRBG Management Corporation, 25 AD3d 479, 480 [1st Dept 2006]; Luciano v Apple Maintenance & Services, Inc., 90 [1st Dept 2001]). 289 AD2d 90, The Second and Third Departments are at odds with the First, holding that the time period prescribed by CPLR 3212 (a) runsm without extension, § from the date plaintiff files Page 6 of 18 [* 7] his/her note of issue 59 A.D.3d 502, (Mohen v Stepanov, 503 [2d Dept 2009]; Coty v County of Clinton, 42 AD3d 612, 613-614 [3d Dept 2007]). As such the Second and Third Departments hold that CPLR § 2103(b) (2) does not apply to the time period prescribed by CPLR § 3212(a) (Mohen at 503; Coty at 613-614). CPLR § 2211 states that "[a] motion on notice is made when a notice of the motion or an order to show cause is served." Thus, a motion is deemed made when served, not when filed (Ageel v Tony Casale, Inc., 44 AD3d 572, 572 [1st Dept 2007]; Gazes v Bennett, 38 AD3d 287, 288 [1st Dept 2007]; Rivera v Glen Oaks Village Owners, 29 AD3d 560, Inc., Corp., 561 256 AD2d 566, settled that [2d Dept 2006]; Russo v Eveco Development 566 [2d Dept 1998]). service by mail Moreover, is deemed complete, it is well regardless of delivery to the intended recipient upon the mailing of the papers being served (Engel v Lichterman, M.D., 95 AD2d 536, 538 [2d Dept 1983]; Vita v Heller, [2d Dept 1983]; DeForte v 97 AD2d 464, 464 Doctors Hospital of Staten Island, 66 AD2d 792, 792 [2d Dept 1978]; 14 Second Ave Realty Corp. v Szalay, 16 AD2d 919, 919 [1st Dept 1962 J) • Here, a review of the note of issue indicates that it was served upon all parties on January 8, 2016. A review of the affidavit of service for the instant motion establishes that it was served upon all parties on May 10, 2016, 123 days after the note of Page 7 of 18 [* 8] issue was served upon them. holds that pursuant to when CPLR plaintiff Thus, serves 2103 (b) (2), § because the First Department the the note time of within issue which by mail, to make motions for summary judgment is increased by five days, measured from the date note of issue is served by mail (Szabo at 135; Krasnow at 480; Luciano at 90), Kiewit had 125 days from January 8, 2016 to make the instant motion or until May 12, 2016. Since a motion is made when served (Ageel at 572; Gazes at 288; Rivera at 561; Russo at 566), Kiewit made the instant motion when it served the same on May 10, 2016, before the time to make the sane expired. Kiewit's motion for summary judgment is granted insofar as it demonstrates that while they had been retained to replace the overpass prior to the instant accidents, they had not yet done so and while they had re-paved the road under the overpass, such work did not reduce the height of the overpass below 13 feet, 6 inches, the maximum height of any vehicles traveling thereunder allowed by law. Thus, plaintiffs' not having created the condition alleged have caused accident, Kiewit cannot be deemed negligent and, therefore bears no liability. Before a defendant can be held liable for negligence, it must be shown that the defendant owed a duty to the plaintiff (Pulka v Edelman, 40 NY2d 781, 783 [1976]). Where defendant owes no duty to Page 8 of 18 [* 9] plaintiff, there can be no breach, negligence, and, thus, plaintiff a duty, no liability therefore there can be no (id.). When defendant owes negligence then turns on proof that defendant breached that duty, and liability requires proof that as a result of the breach, plaintiff was in fact injured (Atkins v Glen Falls City School District, 53 NY2d 325, 333 [1981]. owed, said duty is breached when defendant Assuming a duty is fails to "do what a reasonable and prudent man would have done or would have omitted to do in the exercise of ordinary care under all circumstances" (Sadowski v Long Island Railroad Company, 292 NY 448, 454 [1944]). Accordingly, a defendant who establishes that it was free from negligence, establishes prima facie entitlement to summary judgment (see generally, [2d Dept 226 AD2d 571, 571 Cahill v County of Westchester, 1996] ["The evidence submitted by the defendants in support of their motion for summary judgment established a prima facie case negligent, injuries."]; that and treatment that the of infant Dinham v Wagner, the infant plaintiff was not suffer any plaintiff did not 48 AD3d 349, 350 [1st Dept 2008] [defendant established entitlement to summary judgment by negating negligence]; [same]). Cerda v Parsley, 273 AD2d 339, 339 [2d Dept 2000] A defendant can also establish prima facie entitlement to summary judgment by negating proximate causation (Espinoza v Loor, 299 AD2d 167, 168 [2d Dept 2002]; Borges v Zukowski, 439 [2d Dept 2005]). Page 9 of 18 22 AD3d 439, [* 10] Unlike the owner of real property, a contractor hired to perform work at a premises is not generally liable to a third-party - such as a plaintiff who sustains injuries within the premises either in tort or for the breach of an underlying contract which injures a third party (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 139 [2002] obligation, ["Under our decisional law a contractual standing alone, will generally not give rise to tort liability in favor of a third party."]); Moch v Rensselaer Water Co., 247 NY 160, 161 [1928]; Bugiada v Iko, 274 A.D.2d 368, 368-369 [2d Dept 2000]) . who hired him, Thus, while a contractor is liable to the person the owner of premises, e.g., causes injury to a third-party, for a breach which the contractor is not generally liable to third-party whose injured by the contractor's breach of his contractual obligation unless failing duties, to exercise creates detrimentally contracting the contracting party, reasonable relies care dangerous a party's ( 1) condition; on the duties; in the ( 3) the the (2) continued or performance of his plaintiff performance contracting in of party the has entirely displaced the other party's duty to maintain the premises safely (Espinal at 140; Moch at 168; Eaves Brooks Costume Company, Inc. v. Y.B.H. Realty Corp., Servicemaster Management 76 NY2d 220, 226 Services Corporation, [1990]; Palka 83 NY2d 579, v 587 [ 19 9 4 ] ; Bug i a da 3 6 8 - 3 6 9 ) . In support of their motion, Page 10 of Kiewit 18 submits Urena' s 50-h [* 11] hearing transcript wherein he follows: On December 7, testified, 2 0 0 9, in pertinent part, Urena was as involved in a motor vehicle accident while operating a tractor trailer in the course of his employment with GM Transfer, a demolition company. Immediately prior to the accident, Urena was operating the tractor trailer on the southbound Maj or Deegan Expressway. As he approached the overpass located just north of Exit 2 at or near Willis Avenue, an area on which he drove regularly, he was traveling at approximately 45 miles per hour in the right lane. the overpass, a portion of the As his truck traveled under trailer impacted the causing a portion of the trailer to break off. day, overpass, At the start of his Urena performed his usual pre-trip inspection on his truck. The inspection entailed checking the air in the tires, checking the pressure of the air brakes and ensuring that the truck's lights were working. Kiewit also submits Pena's deposition transcript wherein he testified, Pena was in pertinent part, involved in an accident container truck owned by M&M. Pena was operating Expressway. Exit 1 at the as follows: truck while On December 9, operating a 2009, removable Immediately prior to the accident, on the southbound Maj or Deegan As he approached the overpass located just north of or near Willis Avenue, an area on which he drove regularly, he was traveling at approximately 45 miles per hour and in the right lane. As his truck traveled under the overpass, Page 11 of 18 a [* 12] portion of the container struck the overpass, bringing his truck to a stop. At the start of his day, Pena performed his usual pre-trip inspection on his truck. The inspection entailed checking the air in the tires, checking the pressure of the air brakes and 'ensuring that the truck's lights were working. his truck was 13 feet tall, same's height. Although he testified that he noted that he never measured the After exiting his truck, Pena became aware that another vehicle had also impacted his truck in the rear. Kiewit submits an affidavit from Corey Hopper Superintendent of Operations for Kiewit in 2009, following: In 2009, (Hopper), who states the he was employed bu Kiewit in relation to a construction project at or near the Willis Avenue Bridge. Kiewit had been retained by the New York City Department of Transportation (NYCDOT) to, inter alia, replace the Willis Avenue Bridge, replace the roadway on the Major Deegan Expressway between Exits 1 and 2, and replace the overpass located thereat. Hopper's responsibilities in relation to the foregoing project included the investigation of any accidents related to the construction. On December 7, 2009, as a result an accident where a truck driven by Urena impacted the overpass at or near the Exits 1 and 2, Hopper measured the distance between the bottom of the overpass and the roadway. He noted that the distance was 13 feet, 9 inches. On December 9, 2009, as a result an accident where a truck driven by Pena impacted the overpass at or near the Exits 1 and 2, Page 12 of 18 Hopper [* 13] measured the distance between the bottom of the overpass and the roadway. He noted that the distance was 13 feet, 9 inches. states that because NYCDOT restricts Hopper the height of any vehicle traveling on roadways to 13 feet, 6 inches, the foregoing vehicles exceeded the maximum height prescribed by law. In fact, given that the distance between the overpass and the roadway was 13 feet, 9 inches on the dates of the respective accidents, the heights of the vehicles exceeded 13 feet, 9 inches. On the date of the foregoing accidents, Kiewit had completed all paving work on the roadway near the underpass, and had not yet performed any work on the underpass. Based on the foregoing, Kiewit establishes prima entitlement to summary judgment insofar as the evidence tendered demonstrates that prior to the instant accidents they performed no work on the overpass so as to affect its height and because any paving work performed by Kiewit bottom of the did not underpass diminish and the the roadway distance beyond between the the legally allowable maximum height for vehicles traveling on the highways within this City and State. not create accident. the condition Thus, Kiewit establishes that it did alleged to have caused the instant When defendant owes plaintiff a duty, negligence turns on proof that defendant breached that duty, and liability requires proof that as a result of the breach, plaintiff was in fact injured (Atkins at 333). A duty is breached when defendant fails to "do what a reasonable and prudent man would have done or would have Page 13 of 18 [* 14] omitted to do in circumstances" the exercise at (Sadowski of 454), ordinary and, thus, establishes that it was free from negligence, facie entitlement to summary judgment 571; Dinham at 350; Cerda at 339). (see care who establishes prima generally, As relevant, Kiewit had been retained by the NYCDOT, all defendant a under Cahill here, at because presumably the oowner of the highway and overpass, its liability can only stem from Kiewit's creation of the hazard alleged to have caused plaintiffs' accident. To be sure, unlike the owner of real property, a contractor hired to perform work at a premises is not generally liable to a thirdparty, unless reasonable the care contracting in dangerous condition Costume Company, Inc. the party, performance (Espinal at 140; in of failing his Moch to duties, at 168; exercise creates Eaves a Brooks at 226; Palka at 587; Bugiada 368-369). Here, as per Hopper's affidavit, Kiewit's only connection with the overpass and roadway in question was that it was retained to replace the overpass and re-pave the road thereat by the NYDOT, owner of the highway and overpass. Thus, with respect to plaintiffs' claims that Kiewit failed to maintain the overpass in a reasonably safe condition, the evidence establishes that it had no such responsibility since it did not own it. With respect to plaintiffs' contention that Kiewit created the condition alleged to have caused the accidents - diminishing the height of the underpass - the evidence establishes that Kiewit had not yet performed work Page 14 of 18 [* 15] on the underpass such that it could not have created the condition alleged by working on the underpass. as averred that Kiewit' s Moreover, while it is true - re-paving work on the road below the overpass could have created the condition alleged by diminishing the distance between the roadway and the bottom of the overpass, Kiewit' s evidence belies such assertion. To be sure, Hopper indicated that when the distance between the bottom of the overpass and the roadway thereunder was measured accidents, the same measured 13 feet, above the maximum height prescribed Accordingly, by VTL § 9 inches. for vehicles 385(2) 1 and immediately - 13 by 34 after the Such distance is feet, RCNY six inches 4-15 (b) (2) 2 • even if the re-paving work diminished the distance between the overpass and the roadway thereunder, Kiewit could not 1 VTL § 385 states that "[e]xcept as otherwise specifically provided in subdivision fifteen of this section, no person shall operate or move, or cause or knowingly permit to be operated or moved on any highway or bridge thereon, in any city not wholly included within one county, any vehicle or combination of vehicles of a size or weight exceeding the limitations provided for in the rules and regulations of the city department of transportation of such city adopted pursuant to section sixteen hundred forty-two of this chapter." VTL § 385(2) states that "[t]he height of a vehicle from under side of tire to top of vehicle, inclusive of load, shall be not more than thirteen and one-half feet." 2 34 RCNY 4-15(b) states that "[n]o person shall operate or move, or cause or knowingly permit to be operated or moved on any highway or bridge any vehicle or combination of vehicles of a size or weight exceeding the limitations provided for in this subdivision (b)." 34 RCNY 4-15 (b) (2) states that "[t] he height of a vehicle from underside of tire to top of vehicle, including its load, shall not be more than 13 1/2 feet." Page 15 of 18 [* 16] be deemed negligent because the foregoing distance was above a vehicles' maximum height as prescribed by law. Nothing sufficient submitted to by preclude plaintiff summary raises an issue judgment. of fact Significantly, plaintiff's reliance on this Court's decision in a related case, dated January 8, January 2016 is misplaced. decision, the related involving Pena and Baez-Pena, As evinced by the Court's action stems from the accident in which Pena was allegedly rear- ended by Baez-Pena after Pena's truck came to a stop upon striking the overpass. Baez-Pena sued, inter alia, Pena, M&M, and Kiewit asserting that the collision between Pena and Baez-Pena was the result of, inter alia, Pena's negligence. Upon a motion by Pena and M&M, the Court granted them summary judgment, dismissing that action against them on grounds that the cause of the Pena/BaezPena' s between accident was itself constitutes assertion, and Baez-Pena's Pena's negligence nothing summary judgment. in failure vehicle, which by Baez-Pena. the Court's to place more distance under Contrary, January prevailing law to plaintiffs' decision precludes Significantly, this Court is not bound by the assertion within the January decision - that a report submitted by Pena and M&M noted the height of Pena's truck as 13 feet, 5 inches - because it finds no competent support in the record for crediting such assertion. Page 16 of 18 [* 17] To be sure, plaintiffs submit the report referenced by the Court in its (Szymanski), earlier decision, and employee of M&M, wherein Michael Szymanski states that he reported to the scene of Pena's accident on the date it occurred. Szymanski states that the height of the container atop the Pena's truck measured 13 feet, 5 inches and "that is the height all my trailers are [sic]." Plaintiffs aver that the foregoing statement raises an issue of fact with respect to whether the overpass was lower than asserted by Hopper and lower than the maximum vehicle height allowed by law. To the extent that the foregoing statement is bereft of any evidence that Symanski actually measured the trailer's height at the scene of the accident, it is conclusory, cannot establish the height of the trailer on the date of the accident, let alone at the scene, and therefore cannot raise an issue of fact sufficient to preclude summary judgment (Zuckerman at 562 ["We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse requirement of in tender for his admissible failure form; mere to meet the conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient."]). ORDERED that the It is hereby complaint and all cross-claims against Kiewit be dismissed, with prejudice. Page 17 of 18 asserted It is further [* 18] ORDERED that Kiewit serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty hereof. This constitutes this Court's decision and Order. Dated February 2~, 2017 Bronx, New York Ben Page 18 of 18 ( 30) days
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