Sturce v Das

[*1] Sturce v Das 2006 NY Slip Op 51821(U) [13 Misc 3d 1214(A)] Decided on September 25, 2006 Supreme Court, Richmond County Maltese, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2006
Supreme Court, Richmond County

Dhurata Sturce, as Administratrix of the Estate of ISMAIL STURCE, deceased, and DHURATA STURCE, Individually, Plaintiff

against

Sanjiv Das, KUSUM DAS, BRINDISI & YAROSCAK CUSTOM BUILDERS, LLC, a/k/a YAROCAK CUSTOM BUILDERS, LLC, a/k/a BRINDISI & YAROSCAK, LLC, a/k/a BRINDISI & YAROCAK, LLC, BRINDISI & YAROSCAK CUSTOM BUILDERS, INC., a/k/a BRINDISI & YAROCAK CUSTOM BUILDERS, INC., BRINDISI & YAROSCAK CUSTOM BUILDERS, a/k/a BRINDISI & YAROCAK CUSTOM BUILDERS, GRID MANAGEMENT CORPORATION, GRID MANAGEMENT CORP., and DOVOLJANI MASONRY, LLC, , Defendants



Index No.: 103738/2005

Joseph J. Maltese, J.

In motion number 1 the defendants, Sanjiv Das and Kusum Das, seek an order pursuant to CPLR § 3211(a)(7), § 3211(a)(8), or § 327(a) dismissing the complaint.In motion number 2, the defendant Dovoljani Masonry, LLC moves for an order pursuant to CPLR § 3211(a)(8) and § 3211(a)(7) dismissing the complaint. In motion number 3, the plaintiff opposes the defendants' motions and moves for leave to amend the complaint. [*2]

This is an action brought under New York's Labor Law to recover for the personal injuries and wrongful death of Ismail Sturce resulting from an occurrence at a job site at the house of defendants, Sanjiv Das and Kunsum Das, located in Connecticut. On July 14, 2005, the deceased plaintiff, Ismail Sturce, a mason, was constructing a chimney at the defendants' home located at 31 Deacon's Way in New Canaan, Connecticut. At the time of the accident, Mr. Sturce was working for Dovoljani, Masonry, LLC, based in Weston, Connecticut. It is alleged that at the end of the work day, Mr. Sturce fell from the roof of the one family home. Allan George, the job foreman, was at the job site and performed first-aid on Mr. Sturce while waiting for an ambulance. Emergency Medical Technicians arrived and continued first aid while transporting Mr. Sturce to a hospital in Norwalk, Connecticut where he later died. The New Canaan Police Department ruled the fall as an accident and a representative from OSHA's Bridgeport Connecticut office visited the site and filed a report.

The plaintiff retained New York counsel for this action which filed a declaratory judgment action in the U.S. District Court for the Eastern District of New York seeking a declaration that the New York Labor Law applied to the Connecticut accident. The plaintiff, however, voluntarily discontinued the federal action and commenced this action in New York State Supreme Court for bodily injury and wrongful death.

In action number 1, the Das defendants seek an order pursuant to CPLR § 3211(a)(7) and §3211(a)(8) dismissing this action claiming that the plaintiff cannot as a matter of law state a cause of action under the New York Labor Law for a construction accident taking place in Connecticut or for loss of consortium in a wrongful death case.

In Padula v. Lilarn, (84 NY2d 519[1994]), the Court of Appeals held that the New York Labor Law §§ 200, 240(1) and 241(6) is inapplicable beyond New York State's borders. This Padula rule has been upheld in the Second and First Department Appellate Divisions. In Huston v. Hayden (205 AD2d 68 [2d Dept 1994]), the Second Department Appellate Division held that even where all parties are New York residents, there is no application of the New York Labor Law provisions beyond the state. The First Department Appellate Division has held the provisions of New York's Labor Law have absolutely no application to an accident taking place outside New York State.

The Das defendants also seek dismissal of this action against them based upon lack of personal jurisdiction. They argue that the complaint fails to allege any facts which would subject them to this court's jurisdiction pursuant to CPLR § 302, New York's Long Arm statute. CPLR § 302 provides that the courts may retain jurisdiction over a non-domiciliary "who transacts any business within the state or contracts anywhere to supply goods or services in the state." In 1999, the Court of Appeals held in Keane v. Kanin that "To satisfy the jurisdictional basis, there must be a constitutionally adequate connection between the defendant, the state, and the action." (94 NY2d 263 [1999]). [*3]

Here, the Das defendants contracted with the defendant and New York Corporation, Grid Management Corporation, a general contractor. The execution, and negotiations prior to entering the contract were done in Connecticut and the contract itself calls for the application of Connecticut law. For this court to extend jurisdiction over the Das defendants it must be shown that the Das defendants engaged in some purposeful activity in the state (Kreutter v. McFadden, 71 NY2d 460 [1988]).

In opposition to the Das defendants' motion, the plaintiff argues that there are significant contacts with New York State to warrant this court extending jurisdiction over the Das defendants. Specifically, the plaintiff states that "the most significant [sic] of the contacts are located in New York, those being the domicile of the plaintiff, and, up to the time of his death, former domicile of plaintiff's decedent, as well as the domicile of the primary tortfeasor herein, to wit: the General Contractor, defendant Grid Management Corp." However, the law is clear in the Second Department that even where all parties are New York residents, there is no application of the New York Labor Law provisions beyond the state (Huston v. Hayden, 205 AD2d 68 [2d Dept 1994]). Moreover, it is clear that whatever tortious claims the plaintiff may have must be decided under Connecticut tort law as Connecticut was the situs of the accident. These issues are more appropriate to be decided by a Connecticut Court (Mazzella v. Socony - Mobil 15 AD3d 361 [2d Dept 2005]). Accordingly, the plaintiff's complaint is dismissed against defendants, Sanjiv Das and Kusum Das.

Defendant, Dovoljani Masonry, LLC, similarly moves to dismiss the Das defendants based upon the lack of personal jurisdiction, as well as the inapplicability of New York's Labor Law outside the boundaries of New York State. Furthermore, Dovoljani alleges that Mr. Sturce was an employee of Dovoljani at the time of the accident and thus, Connecticut Workers' Compensation law provides the plaintiff's sole remedy.

Rivan Dovoljani is the sole member and owner of Dovoljani Masonry, LLC, a Connecticut Limited Liability Company. Mr. Dovoljani was served with a copy of the summons and complaint at his home at 36 Indian Valley Road, Weston, Connecticut. Dovoljani Masonry, LLC was contracted to do work at the Das's Connecticut home location and employed the plaintiff at the time of the action. Without ruling on the Connecticut Workers' Compensation issues, the complaint is dismissed against Dovoljani Masonry, LLC, for the same reasons as the Das dismissal.

The defendants, Brindisi & Yaroscak, collectively the same entity, seek an order dismissing the complaint as against them as it is argued that they had never worked on the project. Specifically, the president of Brindisi & Yaroscak, Christopher Yaroscak, submits an affidavit stating that although Brindisi & Yaroscak initially filed permits with the Town of New Canaan, the company was never contracted to do the work, nor did they ever enter into any contracts with anyone else to do the work at the site of the accident. Additionally, Brindisi & Yaroscak submit a letter from the Town of New Canaan Buildings Department stating that the "computer program which we currently use for our land use application does not provide us with [*4]the ability to alter the subsequent sub-permits as they are issued. Therefore these subsequent permits still list Brindisi & Yaroscak as the general contractor, which is not accurate." Furthermore, the letter states that "Grid Management informed the building department that they had taken over this project as general contractor and owner's agent." Without examining, or deciding on the merits of the Brindisi & Yaroscak defendants' substantive arguments, the court is dismissing the complaint as against all of the Brindisi & Yaroscak defendants as this action is more properly before the Courts of Connecticut pursuant to CPLR § 327(a).

Accordingly, it is hereby:

ORDERED, that the plaintiff's complaint is dismissed against all of the defendants, with prejudice, because the Courts of the State of New York do not have proper jurisdiction over this Connecticut accident. Accordingly, this action is dismissed. However, the plaintiffs may commence an action in Connecticut.

ENTER,

DATED:September 25, 2006

Joseph J. Maltese

Justice of the Supreme Court