Allen v New York Tr. Auth.
Annotate this CaseDecided on October 12, 2004
Supreme Court, Bronx County
Benjamin Allen & RAQUEL HALL-ALLEN, Plaintiffs,
against
New York Transit Authority, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, F&V MECHANICAL PLUMBING AND HEATING CORP. and L.K. COMSTOCK & COMPANY, INC., IMPULSE ENTERPRISES/F&V MECHANICAL, a Joint Venture and ELKCOM, INC., , Defendants.
23158/00
George D. Salerno, J.
Plaintiffs move, pursuant to CPLR §3126, for an order striking the answers of all defendants except defendants New York City Transit Authority, Bronx Surface Transit Authority, and Metropolitan Transportation Authority, (hereinafter referred to as municipal defendants) grounded on defendants failure to provide discovery previously requested by plaintiff, as set forth in the preliminary conference order and the subsequent order dated May 29, 2003. Plaintiffs' motion also requests the court to order the municipal defendants and in particular, New York City Transit Authority, to produce additional witnesses for pre-trial examination and such records or documents previously identified at said defendant's examination before trial and also the records identified in correspondence from plaintiffs' attorneys dated July 18, 2003 sent to all defendants' attorneys. [FN1]
In response to plaintiffs' motion, the non municipal defendants, F & V Mechanical Plumbing Heating Corp., Impulse Enterprises /F & V Mechanical, allegedly a joint venture including defendants, L K Comstock & Company, Inc. and Elkcom Inc. (collectively referred to as Impulse), cross move to dismiss plaintiffs' complaint. This motion by the non municipal defendants for accelerated relief, is, in the first instance, based on the alleged application of Workers' Compensation Law §11 which the moving defendants assert precludes employees, such as the injured plaintiff, from bringing personal injury actions against their employer for job related accidents. Impulse's (including all non municipal defendants) motion is premised on the factual assertion that plaintiff Benjamin Allen was employed by Impulse Enterprises which at the time of this accident allegedly entered into a joint venture agreement with F. V. Mechanical Plumbing & Heating Corp. The joint venture, was allegedly composed of two entities entitled, "Impulse Enterprises/ F&V Mechanical." [FN2]
In support of demonstrating the existence of a joint venture enterprise Impulses's counsel submits a portion of what appears to be an agreement entered into between Impulse Enterprises/F.V. Mechanical and the New York City Transit Authority.[FN3] This agreement without [*2]further identification, bears the signature of a person described as President. [FN4] No affidavit is presented by an officer of either company or by a person having personal knowledge of the facts relating to the joint venture described in the exhibit annexed in defendants' moving papers. Without the entire contents of the agreement entered into with the New York City Transit Authority this Court can not determine as a matter of Law that the agreement conclusively established the defense to the claims asserted by plaintiffs. Moreover, the party asserting the existence of a joint venture agreement is required to present sufficient proof of the relationship between the companies composing the joint venture such as payroll records or tax records that would conclusively establish the joint venture. (see, Mitchell v. AF Roosevelt Avenue Corp., 207 AD2d 388, 615 NYS2d 707. The affidavit presented by Impulse's counsel is not made from personal knowledge and therefore lacks probative value (see Castro v. New York University 5AD3d, 135).
Plaintiff Benjamin Allen sustained personal injuries on March 18, 2000 when he fell while exiting off a platform truck allegedly owned by defendant L.K. Comstock & Company (Comstock). The accident occurred at a railyard maintained by the municipal defendants. It is not contested that the injured plaintiff fell approximately 10 or 15 feet while descending. [FN5] from the lift.
Plaintiffs complaint, numbering approximately twenty seven pages, pleads causes of action, spread over one hundred five paragraphs, premised on violations of Labor Law §200 §240 and 241(b). A separate cause of action for common law negligence is pleaded against Comstock.
Paragraph 10 of the complaint refers to a joint venture allegedly formed by F.&V. Mechanical Plumbing and Heating Corp and Impulse Enterprises which became known as Impulse Enterprises/F&V Mechanical, a Joint Venture. [FN6] Notwithstanding this allegation plaintiff does not concede that his employer is one of the joint venture companies.
Plaintiffs also allege the defendant Elkcom, Inc., is a division of Comstock. Impulse's answer does not deny the allegations set forth in paragraph 10 of plaintiffs' complaint and admits that Elkcom is a division of Comstock, the owner of the vehicle from which plaintiff was descending when he fell..
The bill of particulars identifies "Impulse Electric Enterprises of New York
as the entity that employed the injured plaintiff when the accident occurred. What is at issue here, inter alia, is a factual dispute regarding whether the employer identified in the bill of particulars is one of the joint venture companies that employed the plaintiff on the day of the accident. Apart from entity identified in the Bill of Particulars as plaintiff's employer, plaintiff also provided the court with a copy of a pay stub showing that the Company who employed him is "Impulse Electric Enterprises of NY" [FN7] As previously noted Impulse's counsel has asserted that Impulse Enterprises, so identified in the cross motion, is plaintiff's employer. This factual dispute could have been resolved by the submission of an appropriate affidavit by an officer of either company having personal knowledge who could attest to the joint venture and whether Impulse, as portrayed by defendants counsel, was the injured plaintiff's employer. Instead Impulse chose to submit a few pages of their alleged joint venture agreement, the affidavit by their attorney and several deposition transcripts.
It is well settled that the grant of summary judgment is an extreme and extraordinary form [*3]of relief which is only warranted when the admissible evidence adduced leaves no unresolved question of fact in the movant's favor. (See Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986]; Rotuba Extruders v. Ceppos, 46 NY2d 223, 231, 385 NE2d 1068, 413 NYS2d 141 [1978];
More specifically, this Court recognizes the long held judicial rule that an attorney's affidavit, absent first hand knowledge of the facts argued, is not admissible evidence. The First Department, Appellate Division, stated that rule of law in Sun Yau Ko v. Lincoln Sav.Bank 99 AD2d 943, 473 NYS2d 397 [1st Dept.,1984]) and it has repeatedly been held in this Judicial Department, and other, that an affirmation of an attorney who has no personal knowledge of the facts does not constitute admissible evidence (See, e.g. Castro v. New York University, supra , 658 NYS2d 429 5 A.D.3d 135, 136 [1st Dept. 2004] Clark v. Foley, 240 AD2d 458 [2nd Dept.1997], lv. dismissed 91 NY2d 921 [1998]; Saxon v. Tung Foon Ong, 87 AD2d 867 [2d Dept. 1982]; 449 NYS2d 307; Davidowitz v.Dixie Associates, 59 AD2d 659 [1ST Dept.1977]) 398 NYS2d 284. Impulse's failure to submit sufficient evidence to support its contention that plaintiff's employment with a company engaged in a joint venture bars the plaintiff from pursuing a personal injury action against both joint venture companies (See, Mitchell v. AF Roosevelt Avenue Corp, Supra, 207 AD2d 388, 615 NYS2d 707) is therefore unavailing. Impulse cites the unanimous opinion rendered by the Court of Appeals in Felder v. Old Falls Sanitation Co. 39 NY2d 855, 386 NYS2d 214 in support of the argument that plaintiff's employment by one of the joint venture companies precludes plaintiffs from bringing this lawsuit. However, the evidence presented in Felder, supra , unlike the case at bar were "admissions in pleadings and facts stated in affidavits" warranting the conclusion that two defendant corporations were engaged in a joint venture which relegated plaintiff to pursuing a remedy under the Worker's Compensation Law.
Thus, in order to sustain the contention that Impulse and F&V Mechanical had entered into a joint venture regarding the construction work undertaken at the site where plaintiff was injured, Impulse is required to submit evidence such as payroll records, tax statements, the deposition testimony of one of the principals of the joint venture or indeed an affidavit by a principal of the joint venture or partnership. (see Mitchell v. A.F. Roosevelt Avenue Corp., Supra,) No such proof has been offered. The burden of proof is upon the party asserting the existence of joint venture (see Mertz v. Seibel Realty Inc., 265 AD2d 925, 696 NYS2d 598) and this burden has not been met by Impulse.
The witness Victor Vaccariello, who appeared on behalf of Impulse provided no insight regarding the relationship between the alleged joint venture or the joint venture companies.[FN8] This witness stated he was employed by Comstock as a quality engineer and that Comstock is engaged in the business of installing signal equipment. He also testified that he was previously employed by "Impulse/F&V" and that another company called Railworks "bought out L.K.Comstock and Impulse/F&V and referred all questions concerning Impulse and F&V to Ben Alessandro the President of Comstock. Ben Allessandro has yet to be deposed. No effort has been made by Impulse to set the record straight regarding the interplay of the corporate entities by the one person who possesses the requisite knowledge regarding Impulses contentions.
The remaining argument made by the non municipal defendants is addressed to dismissing plaintiffs cause of action against Comstock. Labor Law §200 is a codification of the Common Law and imposes a duty upon the employer to provide a safe place to work (see, Rusin v. Jackson Heights Shopping Center Inc., 27 NY2d 103, 313 NYS2d 715. However, where a construction worker is injured at a job site he can not pursue a claim against his employer premised on a violation of section 200 unless the injury was caused by an intentional tort perpetrated by the employer or at the employer's direction (see Acevedo v. Consolidated Edison of NY 189 AD2d 497, 500, 596 NYS2d 68, lv dismissed, 82 NY2d 748, 602 NYS2d 806). It is also well-established that: "An implicit precondition to this duty to provide a safe place to work [*4]is that the party charged with that responsibility has the authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition." [emphasis added] (Russin v. Louis N. Picciano and Son, 54 NY2d 311, 317 (1981).445 NYS2d 127.) Whether plaintiff, in the case at bar, can pursue his claim under Labor Law §200, depends upon a finding in the first instance who is his employer. The record here is unclear regarding plaintiff's employment status and therefore this Court will not dismiss plaintiff's claim since the Worker's Compensation Law does not bar a plaintiff from maintaining an action against a company who is not his employer. Moreover, plaintiff's negligence claim as set forth in the third cause of action against Comstock will provide a basis for the jury to impose liability on Comstock upon a showing at the trial that Comstock caused or created the condition which caused plaintiff's injury. Manifestly, whether the wooden rails were properly constructed represents a question of fact.
With respect to plaintiff's claims raised under Labor Law §240, it is well settled that when a violation of Section 240 is a contributing cause of the injury sustained by the plaintiff absolute liability is vicariously imposed upon all contractors, owners and their agents [FN9] (see Zimmer v. Chemung County 65 Performing Arts NY2d 513, 524.493 NYS2d 102; Rizzuto v. L.A. Wenger Constracting Co., Inc. 91 NY2d 343, 670 NYS2d. 816. The duty imposed by Section 240 is to afford the worker proper protection and the duty imposed by Section 240(1) is non delegable. Thus a violation of the duties prescribed by that statute imposes absolute liability upon owners and general contractors whether or not they exercised supervision or control over the work. (Buckley v. Radovich 211 AD2d 652; 621 NYS2d 638). In circumstances where the work has been delegated to a third party who also possesses the authority to supervise and control that work liability under Sections 240, 241 will attach to the third party as the statutory agent of the owners the general contractor. (See McGurk v. Turner Construction Co. 127 AD2d 526, 512 NYS2d 71.)
Also at issue, in the instant action, is whether the injured plaintiff falls within the class of persons protected by Section 240 which, inter alia, refers to all contractors and owners and their agents. The non-municipal defendants were deposed on July 16, 2003. Their witness Victor Vaccariello appeared on behalf of all the non-municipal defendants, but stated that he is currently employed by Comstock. He also testified that he previously worked for "Impulse"/F.V." for approximately seven years and in March of 2000 he was employed by Impulse/ F.V. He referred all questions regarding the relationship between the various non- municipal entities to his brother who he said was President of Comstock. His testimony included a description of several workers at the job site including the general foreman who was employed by Comstock. He, specifically acknowledged the presence of platform trucks at the job site, admitted that "Comstock owned one of them", described the railings that existed on platform trucks and that the general foreman was responsible for obtaining platform trucks. The testimony provided by this witness failed to establish evidence warranting the court to dismiss plaintiff's claims against Comstock. Questions of fact exist regarding Comstock's, role at the time of this accident such as who specifically requested and delivered the platform truck from which plaintiff fell, whether Comstock employees at the job site had the authority to supervise and control the work making Comstock an agent of the owner and general contractor, and who maintained the platform truck from which plaintiff fell.
Moreover, unlike the Labor Law causes of action, a separate cause of action is set forth against Comstock for negligence in that Comstock failed to properly maintain the platform truck. The affidavit submitted by plaintiff's expert refers to the construction of the lift as a scaffold and opines that the manner in which the platform was constructed including the protective railings created an unsafe condition. It is axiomatic that notice requirements are unapplicable where the defendant affirmatively caused or created the condition which led to plaintiff's injury see [*5]Amabile v. City of Buffalo 93 NY2d 471, 474. Miller v. City of NY 225 AD2d 396; Piacquardeo v. Recine Realty Corp., 84 NY2d 967, 969. In view of the need for completion of discovery in the case at bar and the unresolved issues of fact presented by the current state of the record including when the platform on Comstock's truck was constructed and the maintenance of the railings that were placed around the wooden platform require resolution at a trial. For the reasons stated defendant Impulse's motion is denied.
Plaintiff's cross motion to strike the defendant's answers except the municipal defendants is granted to the extent of directing the non-municipal defendants to produce such records previously identified and requested by plaintiff including such items as identified in correspondence dated July 18, 2003 sent by plaintiffs' attorneys. All defendants are directed to comply with the preliminary conference order with respect to providing plaintiffs with the items identified in paragraph 5 of the affirmation submitted by plaintiffs'attorney in support of plaintiffs' motion in chief. The opposition submitted by the municipal defendants is without merit. Plaintiff may identify such other witnesses in the employ of the defendants who shall submit to pretrial examinations within twenty days after the documents directed by this order have been sent to plaintiffs' attorneys.
The depositions shall be held day to day until completed. It is time for discovery to be completed (see 22 NYCRR 202.19.
This constitutes the decision and order of the Court.
Dated: October 12, 2004
J.S.C.
Footnotes
Footnote 1: Exhibit E, Plaintiffs Notice of Motion
Footnote 2: Impulse counsel's Aff'd ¶ 4 & ¶ 17
Footnote 3: Exhibit H, Defendant Impulses Cross Motion
Footnote 4: Exhibit, id
Footnote 5: Impulse Counsels Aff'd ¶ 15
Footnote 6: Exhibit A, Impulse's Cross Motion, ¶ 5 & ¶ 10
Footnote 7: Exhibit F, Plaintiff's Affirmation in opposition to Cross Motion.
Footnote 8: Exhibit F, Impulse's Cross Motion
Footnote 9: Labor Law §240(1) specifically refers to
"All contractor and owners and their agents..."
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
