Taylor v Williams Communications, Inc.

[*1] Taylor v Williams Communications, Inc. 2004 NY Slip Op 51930(U) [20 Misc 3d 1133(A)] Decided on October 22, 2004 Supreme Court, Monroe County Galloway, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2004
Supreme Court, Monroe County

William Taylor and June Ann Taylor, Plaintiffs,

against

Williams Communications, Inc.; Town of Henrietta, New York; City of Rochester, New York; County of Monroe, New York; Monroe Industrial Development Agency; Neil Silvarole and Silvarole Trucking, Inc., Defendants. Julie Ann Taylor, Individually and as Administratrix of the Estate of William J. Taylor, Deceased, Plaintiff, Suburban Pipe Line Co., Inc., Defendant. Julie Ann Taylor, Individually and as Administratrix of the Estate of William J. Taylor, Deceased, Plaintiff, Timothy J. Orlando, LaBarge Bros. Co., Inc. And Q.I.S., Inc., Defendants.



Julie Ann Taylor, Individually and as Administratrix of the Estate of William J. Taylor, Deceased, Plaintiff, v

against

Suburban Pipe Line Co., Inc., Defendant.



Julie Ann Taylor, Individually and as Administratrix of the Estate of William J. Taylor, Deceased, Plaintiff, v

against

Timothy J. Orlando, LaBarge Bros. Co., Inc. And Q.I.S., Inc., Defendants.



02-02011



Appearances:

Brindisi Murad & Brindisi-Pearlman, LLP

Anthony A. Murad, Esq. and Stephanie Palmer, Esq., of counsel

Attorneys for Plaintiffs

2713 Genesee Street

Utica, New York 14607

Culley, Marks, Tanenbaum & Pezzulo, LLP

Frank G. Montemalo, Esq., of counsel

Attorneys for Defendants Williams Communications, Inc.,

Suburban Pipe Line Co., Inc, Timothy J. Orlando and LaBarge Bros. Co., Inc.

36 West Main Street, Suite 500

Rochester, New York 14614

Harris Beach LLP

Michael J. Townsend, Esq., of counsel

Attorneys for Defendant County of Monroe Industrial Development Agency

99 Garnsey Road

Pittsford, New York 14534

City of Rochester Law Department

Michele DiGaetano, Esq., of counsel

Attorneys for Defendant City of Rochester

30 Church Street, Room 400A City Hall

Rochester, New York 14614

Brown & Kelly, LLP

Nicole B. Palmerton, Esq., of counsel

Attorneys for Defendants Neil Silvarole and Neil Silvarole Trucking

1500 Liberty Building

Buffalo, New York 14202

Grosso Martinez & McCarthy

James C. Grosso, Esq., of counsel

Attorneys for Defendant Q.I.S. Inc.

P.O. Box 40470

Rochester, New York 14604

Harold Galloway, J.

The motion of defendants Neil Silvarole and Neil Silvarole Trucking, Inc. ("Silvarole defendants") for summary judgment dismissing all of plaintiff's claims against them is granted [*2]with respect to plaintiff's Labor Law § 200 and common-law negligence claims, but denied as to plaintiff's Labor Law § 240 and § 241(6) claims. The motion of defendant Q.I.S., Inc. ("Q.I.S.") for summary judgment dismissing plaintiff's claims against it on the asserted ground that plaintiff failed to comply with the requirements of CPLR 1024 is denied. The motion of defendants LaBarge Bros. Co., Inc. ("LaBarge") and Timothy J. Orlando ("Orlando") for summary judgment dismissing plaintiff's claims against them on the same ground is granted. Finally, plaintiff's cross motion to amend the caption of Action No. 1 to substitute William Taylor's estate as plaintiff and to consolidate all three actions is granted.

IThe Silvarole Defendants' Motion for Summary Judgment

Defendant Williams Communications, Inc. ("Williams") contracted with defendant Suburban Pipe Line Co. Inc. ("Suburban") to bury fiber optic cable to connect downtown Rochester with Williams' main communication backbone near the New York State Thruway. Williams supplied the fiber optic cable, and Suburban provided the other equipment, including backhoes, chains, hoists, and "road plates", which were steel plates measuring about an inch thick and six to sixteen feet long. Defendant Neil Silvarole owned a piece of property consisting of 40 acres of vacant industrial land that was located near the work site. Mr. Silvarole spoke with a Suburban supervisor on the project, Ernie Pyle, and agreed that his trucking company would haul stone from a quarry and dump it on the vacant land so that Suburban could have access to it after hours and on weekends. He later agreed to allow Suburban to store some of its equipment and materials at this off-site location.

On December 31, 2000, Mr. Pyle instructed plaintiff's decedent and defendant Orlando to take a dump truck to Mr. Silvarole's land, load the truck with road plates, and bring them back to the work site for the purpose of covering holes at the site. Plaintiff's decedent was injured during the course of loading the plates into the truck.

On this motion, the Silvarole defendants argued that they are entitled to summary judgment on plaintiff's Labor Law § 240 and § 241(6) claims because they are not "owners" within the meaning of the Labor Law. On this point, they emphasize that they did not contract for or benefit from the work being performed by plaintiff's decedent. They also argue that the Silvarole land was not part of the construction site and was being used for mere storage, such

that the Labor Law is inapplicable to the accident. (It should be noted that the Silvarole defendants briefly alluded in their moving papers to arguments that Labor Law § 240 did not apply because the injuries sustained by plaintiff's decedent did not result from any elevation-related hazard, and because the actions of plaintiff's decedent were the sole proximate cause of his injuries. These arguments were not fully developed in the papers and the supporting memorandum of law did not list these arguments in its headings. Plaintiff did not respond to these arguments in her responding papers. At oral argument, counsel for the Silvarole defendants agreed to withdraw these arguments from consideration on this motion with leave to renew them at a later time). Finally, the Silvarole defendants argued that plaintiff's Labor Law § 200 and common-law negligence claims should be dismissed because they did not control or supervise the work activities of plaintiff's decedent that resulted in the accident.

It is well established that liability under Labor Law §240 and § 241(6) rests on the fact of ownership, and that the question of whether the fee holder contracted for or benefitted from the work is legally irrelevant. See Spagnuolo v Port Authority of NY & N.J., 8 AD3d 64; Silk v [*3]Turk, 294 AD2d 896; Celestine v City of New York, 86 AD2d 592, affd 59 NY2d 938. Consequently, the Silvarole defendants are not entitled to dismissal of these claims on that basis. Furthermore, the fact that the accident of plaintiff's decedent occurred away from the excavation site itself does not remove the accident from within the ambit of the Labor Law. See Joblon v Solow, 91 NY2d 457, 463-466. Areas where materials are stored are considered part of the construction site. See Rossi v Mount Vernon Hosp., 265 AD2d 542. While the particular actions performed by plaintiff's decedent at the time he sustained injuries may not have constituted construction, the loading of road plates to take back to the work site and cover holes was integral to the ongoing contract between Williams and Suburban. See Shields v General Elec. Co., 3 AD3d 715; Danielewski v Kenyon Realty Co., 2 AD2d 666; cf. Peterkin v City of New York, 5 AD3d 652. Thus, the Silvarole defendants are not entitled to dismissal of plaintiff's Labor Law §240 and § 241(6) causes of action based on the limited arguments they made on this motion.

However, the testimony of Neil Silvarole and Mr. Orlando established that the Silvarole defendants did not have authority to supervise or control the work being performed by plaintiff's decedent at the time of the accident, that they lacked actual or constructive notice of any defect or dangerous condition at the site, and the accident did not occur as a result of any equipment provided or methods imparted by the Silvarole defendants. See Bald v Westfield Academy, 298 AD2d 881. Contrary to plaintiff's contention, further discovery is not required on this issue, as the depositions of both Neil Silvarole and Orlando have been conducted, and plaintiff has not indicated that anyone else would have better knowledge of the Silvarole defendants' relationship to the work being performed at the site. Accordingly, dismissal of plaintiff's Labor Law § 200 and common-law negligence claims against the Silvarole defendants is warranted.

IIThe CPLR 1024 Motions in Action No. 3

The issue presented in these motions is whether plaintiff's filing of a complaint against "John Doe" defendants was jurisdictionally defective because of plaintiff's failure to make genuine and timely pre-action efforts to ascertain such defendants' actual names and identities. Significantly here, Action No. 3 was commenced two days prior to the expiration of the three-year statute of limitations, and plaintiff personally served the defendants prior to the 120-day service period afforded by CPLR 306-b. Thus, service upon the defendants would be timely and jurisdictionally valid unless the initial filing of the "John Doe" complaint was determined to be jurisdictionally defective for the reason abovementioned.

A.Q.I.S.'s Motion

CPLR 1024 allows the use of a "John Doe" summons by "a party who is ignorant * * * of the name or identity of a person who may properly be made a party." Although not specifically required by CPLR 1024, courts have held that a plaintiff cannot utilize this statute unless he or she makes genuine, diligent efforts to ascertain such would-be defendants' names and identities before the running of the applicable statute of limitations. See Luckern v Lyonsdale Energy Limited Partnership, 229 AD2d 249, 253. Essentially, plaintiff must show that "the persons named as unknown were actually unknown." Id.

Here, plaintiff's counsel demonstrated in detail that his office made diligent efforts to ascertain the identity of Q.I.S. before commencing the "John Doe" action on December 29, 2003. As described by plaintiff's counsel, after extensions of time to answer were provided out of courtesy to the defendants in Action No. 1 and counsel began responding to the initial discovery [*4]demands served with the answers, it was July of 2002. Plaintiff's counsel also began sending out discovery demands, including a Notice to Produce to defendant Williams in July of 2002, which included demands for contracts between Williams and other entities concerning the fiber optic cable project plaintiff's decedent was working on when he was injured. The exhibits attached to plaintiff's papers show that plaintiff was actively engaging in paper discovery to ascertain the identities of other potential defendants throughout 2002 and early 2003. Plaintiff's counsel also asserts in his affidavit that his office suggested specific dates for depositions on no less than three occasions beginning in June of 2003, but that the arrangements fell through due to scheduling conflicts among the numerous attorneys involved in this action. Plaintiff's counsel has attached to her papers the various letters that went back and forth between attorneys in attempting to secure dates for the depositions. Indeed, plaintiff's counsel had set dates for October of 2004 when an attorney for two of the named defendants backed out due to scheduling conflicts. Due to the history of scheduling problems, counsel reasonably filed the "John Doe" complaint near the expiration of the statute of limitations and made a motion to compel the depositions in January of 2004.

Notably, plaintiff's counsel has shown that it was not until the depositions occurred in March of 2004 that plaintiff became aware that Q.I.S. had been involved as an inspector on the project. None of the contract documents supplied by defendant Williams contained this information. Thus, this defendant was "unknown" to plaintiff when the "John Doe" complaint was filed, despite plaintiff's diligent efforts. Also, as previously stated, plaintiff served Q.I.S. within 120 days of filing the "John Doe" complaint. Accordingly, the motion of Q.I.S. to dismiss plaintiff's complaint in Action No. 3 on the ground that plaintiff failed to comply with the requirements of CPLR 1024 is denied.. See Luckern v Lyonsdale Energy Ltd. Partnership, supra; cf. Tucker v Lorieo, 291 AD2d 261.

B.LaBarge and Orlando

As previously noted, the procedural mechanism of CPLR 1024 is available to a plaintiff only where the name or identity of a potential defendant is actually unknown. This statute is "applicable to a case where a cause of action is known to exist against one whose name only is unknown, and not to a situation where a cause of action is not known to exist against a person whose name and identity are known". Matthews v Schusheim, 42 Misc 2d 176, 177 (Nassau County Sup Ct 1964); see Orchard Park Cent. Sch. Dist. v Orchard Park Teachers Ass'n., 50 AD2d 462.

With respect to LaBarge, plaintiff's counsel indicated that, prior to filing the "John Doe" complaint, her office had believed that this entity was the employer of plaintiff's decedent, and that as such, suit against LaBarge was barred by the Workers' Compensation Law. This belief was based on the fact that plaintiff's decedent listed LaBarge Brothers as his employer, and that his Workers' Compensation insurance carrier listed LaBarge as its insured. Counsel had also assumed that when he was injured, plaintiff's decedent was with a co-employee against whom suit would also be barred, and thus did not endeavor to find out Orlando's name prior to commencing the "John Doe" action.

During depositions that occurred after Action No. 3 was commenced, plaintiff alleges that she learned for the first time that: the employer of plaintiff's decedent was in fact Suburban; that LaBarge, Suburban, and LaBarge Mid-Atlantic were all "LaBarge Companies"; that LaBarge [*5]Mid-Atlantic was a wholly owned subsidiary of Suburban; that LaBarge and Suburban had common ownership but were separate companies; the name of the individual working with plaintiff's decedent when he was injured was Timothy J. Orlando; Orlando was employed by LaBarge and thus arguably was not the co-employee of plaintiff's decedent; and that Orlando's conduct was arguably negligent.

When plaintiff filed the "John Doe" complaint, she knew the name of LaBarge, but apparently believed that this entity was exempt from suit by Workers Compensation Law § 11. Furthermore, at that time, plaintiff also believed that the individual with whom plaintiff's decedent was working when he was injured was his co-employee. If plaintiff believed, albeit mistakenly, that LaBarge and Orlando were exempt from suit, she had no reason to attempt to seek their names and identities prior to commencing the "John Doe" complaint, and could not have intended the complaint to designate them as defendants. Indeed, at that point, she already knew the name of LaBarge, and could have easily discovered Orlando's name. Significantly, she did not make any further identification efforts with respect to these two defendants because she believed that she did not have a cause of action against them. It was only after filing the "John Doe" complaint that plaintiff learned that LaBarge was not her decedent's employer and that Mr. Orlando was not his co-employee. Plaintiff's counsel also states that it was not until after the depositions in March of 2004 that her office learned that Orlando may have been negligent. In other words, it was only after the filing of the "John Doe" complaint that plaintiff learned that she had a cause of action against these defendants; they could not have been within her contemplation when the "John Doe" complaint was filed. Accordingly, the use of CPLR 1024 was jurisdictionally defective as to these two defendants, and their motion to dismiss plaintiff's claims against them is granted.

Plaintiff's Cross Motion

Plaintiff's cross motion to substitute the estate of her decedent as plaintiff in Action No. 1 and to consolidate all three actions was not opposed by any of the other parties and is granted.

Now, therefore, upon due consideration it is hereby

ORDERED, that the summary judgment motion of defendant Neil Silvarole and Neil Silvarole Trucking, Inc. is granted with respect to plaintiff's Labor Law § 200 and common-law negligence claims, but denied with respect to plaintiff's Labor Law §§ 240(1) and 241(6) claims;

ORDERED, that the summary judgment motion of defendant Q.I.S., Inc. is denied;

ORDERED, that the summary judgment motion of defendants LaBarge Bros. Co., Inc. and Timothy J. Orlando is granted; and

ORDERED, that the cross motion of plaintiff is granted.

DATED:October 22, 2004/s/______________________________

Rochester, New YorkHAROLD L. GALLOWAY, J.S.C.