Olszewski v Park Terrace Gardens, Inc.
Annotate this CaseDecided on December 19, 2006
Supreme Court, New York County
Tadeusz Olszewski, ZOFIA OLSZEWSKA and JERRY GIELDOWSKI, Plaintiffs,
against
Park Terrace Gardens, Inc., INSIGNIA RESIDENTIAL GROUP, INC. and DJM CONTRACTING CORP., Defendants.
101783/99
Nicholas Figueroa, J.
Defendants third-party plaintiffs Park Terrace Gardens, Inc., Insignia Residential Group, Inc., and DJM Contracting Corp. (Park) move, pursuant to CPLR 3212, for summary judgment against third-party defendant Plaza Restoration, Inc. (Plaza) granting it common law indemnification for the full amount of a June 9, 2004 $10,000,000 post-trial settlement, plus its costs and disbursements and attorneys fees. Plaza acquired defendant DJM's rights as part of that settlement.
Plaza cross moves for summary judgment dismissing the complaint against it.
A December, 2002, trial resulted in a verdict for plaintiff for over ten million dollars. Plaintiff was severely injured when a rope supporting a scaffold broke and he fell several stories. The settlement occurred while post-trial motions were pending. Park's claim for common law indemnification, which this court previously dismissed, was reinstated by the Appellate Division (18 AD3d 349) after the settlement. Park now seeks summary judgment on that common law [*2]indemnification claim.
Following the Appellate Division's reversal, this court, on July 1, 2005, severed the third-party action from the m ain case and restored the third-party action to the calendar for trial. Justice Ira Gammerman subsequently directed the parties to file summary judgment motions.
Park argues that there are no triable issues of fact barring summary judgment. Park bases this argument on the facts established at trial and on the Appellate Division decision affirming this court's award of summary judgment to Park on its contractual indemnity claim.
Park argues that it is entitled to common law indemnification because although it was found liable, Plaza was the primary, or principal, wrongdoer that committed the act giving rise to liability to plaintiff (see Allman v. Sigfried, 49 AD2d 357). Park argues that it did not supervise or have work done and that there was no proof that it was negligent; rather, its liability was predicated solely on a violation of Labor Law §240(1) that made it culpable even though it was not negligent (see Kelly v. Diesel Construction Division of Care A. Morse, Inc., 35 NY2d 1). Continuing, Park asserts that its right to common law indemnification entitles it to attorneys fees, and its costs and disbursements.
Park argues that the settlement does not bar its right to indemnification, as it can demonstrate both Plaza's liability to the plaintiff and the reasonableness of the settlement account (Codling v. Paglia, 38 AD2d 154,161-162, aff'd 35 NY2d 330).
Park analyzes the proof it relies on in support of the motion. The proof establishes that Park hired DJM that in turn subcontracted the work to Park. Plaintiff was injured performing that work.
The contract, in evidence at trial, made Plaza solely responsible for the supervision and control of the work ; it also made it responsible for taking safety precautions at the work site. The contract specifically prohibited DJM from exercising any control over Plaza's workers.
In addition to the contract, the proof Part submits established Plaza's exclusive control of the job site, scaffolding, and employees. Plaza's owner testified that its two foreman "were making decisions always" with respect to the work, and that Plaza's workers took their orders from the foreman. One of Plaza's foreman directed plaintiff to go on the scaffold that collapsed. Moreover, Plaza owned the scaffold and ropes, installed the safety equipment at the job site, and conducted safety meetings for its workers.
Park next argues that Plaza has never asserted or proved that Park was at fault in causing plaintiff's accident. Park contends that on Plaza's prior motion for summary judgment, it argued that DJM's general manager certified, to the New York City Department of Buildings, that he was a licensed rigger and that the scaffold rigging was performed under his supervision. Park notes that on its appeal, Plaza argued unsuccessfully that DJM, not Park was negligent; however, the Appellate Division's affirmance of a grant of unconditional summary judgment shows that neither party was culpable. Park argues that this court is bound by the Appellate determination (see Stewart v. Volkswagen of America, 181 AD2d 4, 7).
Park next argues that it satisfies the requirement for proving Plaza's liability for indemnification after settlement (Coddling v. Paglia, id.). Park notes that its liability was predicated only on statutory liability under Labor Law §240(1), based on the Appellate Division's affirmance of this court's grant of summary judgment against Plaza. It notes that this establishes that Plaza's liability was based on its actual negligent conduct. [*3]
Park argues that having established liability, the sole remaining question, in order to establish its right to post-settlement common-law indemnification, is whether the settlement was reasonable. Park argues that it was.
Park notes that the jury awarded plaintiff $8,000,000 for pain and suffering, $4,000,000 for past and $4,000,000 for future, and that the reminder of the award was for economic loss: past lost earnings of $90,000, future lost earnings of $200,000, stipulated past medical expenses of $237,466.18, $1,438,000 in future medical and medical related expenses, and $100,000 for automobiles.
Park argues that the pain and suffering component was consistent with pain and suffering awards the First Department has sustained. It cites Bondi v. Bambrick, 308 AD2d 330 - - $9,750,000 pain and suffering award to a thirty-five year old woman who sustained an above-the-knee amputation; Mundy v. New York City Transit Authority, 284 AD2d 225; Sladick v. Hudson General, 226 AD2d 263 - $7.5 and 8 million dollars, respectively, for pain and suffering resulting from above-the-knee amputations.
Continuing, Park cites several cases including Roness v. Federal Express Corporation, 284 AD2d 208 - - $1,000,000 for past pain and suffering for a forty-three year old person who sustained traumatic brain injury causing brain-function deficits; Kirby v. Turner Construction Company, 286 AD2d 618 - - $2,000,000 for pain and suffering for hip, back and spine injuries; and Reed v. City of New York, 304 AD2d 1 - - $5,000,000 total award, pain and suffering and pecuniary loss, for a forty-three year old woman who sustained a head injury causing, among other problems, cognitive impairment.
Park argues that in determining whether a settlement is reasonable, only a good faith possibility, not certainty of liability and damages, is necessary in order to gauge the reasonableness of the settlement amount (Pahl v. Grenier, 279 AD2d 882). Park argues that the amount of damages was not merely based on a possibility; rather, the settlement amount was agreed to after a jury determined the proper amount of damages.
Moreover, Park argues that the settlement amount was proper because interest on the verdict, at nine percent a year from the grant of summary judgment on liability in June, 2001, had added three million dollars to the jury verdict, and that the interest was continuing to accrue by approximately one million dollars a year.
Finally, Park argues that Plaza consented to the settlement by failing to challenge the amount settled for; and, because its insurance carrier participated in the settlement negotiations and agreed to pay the full amount of its policy.
Plaza cross-moves for summary judgment. It asserts, as a threshold argument, that the attorneys who brought Park's motion have no standing, as they are not Park's attorneys of record. On the merits, it argues that there are issues that preclude Park's entitlement to summary judgment. These issues, according to Plaza, are that: the Appellate Division remanded this case for a trial on whether plaintiff's brain injury is a grave injury within the meaning of Worker's Compensation Law §11; Park has waived the right to seek recovery by settling the case before post-trial motions were decided; Park is estopped from asserting that $10,000,000 was a reasonable settlement amount because of its previous argument that the jury verdict was excessive; and, there are issues of fact as to whether DJM was negligent as a consequence of its failure to inspect the scaffold and supervise the scaffold rigging process. [*4]
Next, Plaza argues that it is entitled to summary judgment because Park's voluntary settlement barred any claim it may have had for contribution and any other claim (General Obligations Law §15-108).
In its memorandum of law, Plaza relies on, among other cases, McGurran v. Di Cano, 251 AD2d 467. That case holds that a person entitled to indemnity may recover after settlement, provided that the settling party proves the defendant's liability and that the settlement amount was reasonable. As noted, Park also asserts that this is the proper test.
Plaza argues that the settlement amount was unreasonable because the jury verdict was excessive. It argues that the cases Park relies on are inapposite, as they involve injuries that are more severe than plaintiff's injuries. It asserts that Bondi v. Bandrick, id., involved a partial leg amputation nine surgeries, painful skin grafts, and scarring. It argues that in Sladick v. Hudson General Corporation, id., the plaintiff sustained an above-the-knee amputation and used prostheses, conditions that plaintiff did not suffer. Plaza argues that Reed v. City of New York, id., is distinguishable because the plaintiff in that case suffered skull fractures, seizures, and suicidal ideation, "conditions which do not afflict Mr. Olszewski."
Next, Plaza argues that the jury should not have been permitted to award plaintiff past or future lost earnings, as he was an undocumented alien. Plaza bases this argument on two 2004 cases, decided subsequent to the 2002 verdict, Balbuena v. IDR Realty, LLC, 13 AD3d 285 and Sanango v. 200 East 16th Street, 15 AD3d 36. However, the court notes that the Court of Appeals reversed the former case subsequent to the instant cross motion (Balbuena v. IDR Realty Corp., L.L.C., 6 NY3d 338).
Next, Plaza argues that the jury awards for past and future lost earnings, $90,000 and $200,000 respectively, were excessive. It asserts that plaintiff's work sometimes interrupted by weather conditions, and that work was not always available to him. Moreover, plaintiff intended to return to Poland two months after the accident, and that his initial motivation for working in the United States was to support his wife and children who remained in Poland.
Plaza then argues that plaintiff was not entitled to the $100,000 award for the cost of an automobile. It contends that the award duplicates the awards for future pain and suffering and a home health aid.
Plaza next contends that the jury's $100,000 award for follow-up studies was improper; that the expert testimony did not provide a factual basis for the need for future medical examinations.
Plaza asserts that plaintiff was not entitled to an award for a home health aid, as he has a wife and children who can care for him.
Plaza argues next that the settlement was unreasonable because it was made before the court decided the post-trial motions to set aside the verdict. It contends that it objected to the settlement and that it appealed the court's decision denying its motion based on the settlement. However, the court notes that the First Department affirmed that decision subsequent to the filing of this instant cross-motion (27 AD3d 308) and held that the post-trial motions were properly dismissed as academic, based on the $10,000,000 settlement, and that Plaza was seeking an advisory opinion on the possible outcome of its post-trial motion.
Plaza argues that Park is estopped from contending that the settlement was reasonable, because it previously asserted the inconsistent position, on its post trial motion, that the verdict [*5]was excessive (see Secured Equities Investments v. McFarland, 300 AD2d 1137, holding that a party is barred from framing its pleadings inconsistently with a position taken in a prior judicial proceeding: a position that allowed it to prevail in a prior proceeding inconsistent with one it attempts to use to prevail in a subsequent proceeding on the same facts).
Plaza asserts that Park's claim for contribution is barred by General Obligations Law §15-108(c) that reads, "A tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person." Therefore, Plaza argues, Park waived its rights by settling the case.
Finally, Plaza argues that DJM was negligent. It adds that there was no contractual provision permitting DJM to delegate its contractual obligation to direct and control the work to Plaza. It argues that DJM's employee Tromboli certified, as part of a building permit application, that as the superintendent of construction, he would take responsibility for the use of materials and their use at the work location. Continuing, Plaza argues that Trimboli inspected the scaffold rigging; but, by his own admission, failed to supervise and inspect the rigging that caused plaintiff's fall.
Plaza submits, in addition to the trial record, new material in support of its cross-motion: the affidavit of Stanley Fein, an engineer.
According to Fein, because DJM submitted Trimboli's license to the Buildings Department in order to obtain a work permit, DJM became responsible for site safety as the general contractor. Fein asserted that DJM was responsible for supervising and inspecting the scaffold rigging and "possessed the requisite expertise to insure the safe rigging of all scaffolds on this job." Continuing, Fein stated that "DJM then failed to discharge this responsibility when DJM and its employees failed to supervise and inspect the rigging...of the ...scaffold which was utilized by Tadeusz Olszewski on the day of the accident." Fein alleged that the failure to inspect and supervise violated Industrial Code Sections 23-5.1(h) and 23-5.8(c) and concluded that this negligence by Trimboli, DJM's employee, was a proximate cause of the scaffold collapse.
In its opposition to Plaza's cross-motion and as a reply on its own motion, Park asserts that its attorneys have standing to bring the instant motion and that DJM, as part of the settlement, assigned to Park all of its rights to seek indemnification from Plaza; that the Appellate Division has already rejected Plaza's estoppel argument; that Park is seeking indemnification, making General Obligations Law §15-108(c) inapplicable (Weinstick v. Jenkins Contracting Co., 134 AD2d 254); that the reasonableness of a settlement does not equate with the excessiveness of the jury award and that it is entitled to summary judgment on the reasonableness of the amount; that the cross-motion is improper as it is an impermissible successive summary judgment-motion; that the Appellate Division's June, 2001 order precludes litigation of Plaza's negligence claim; that even if the instant cross-motion for summary judgment were properly brought, Plaza has failed to establish entitlement to judgment as a matter of law, particularly as the new expert's affidavit Plaza submits is inadequate both legally and factually in that the Buildings Department application signed by DJM's employee Trimboli do not constitute a basis for liability, and that the contract Plaza relies on cannot support the argument that DJM assumed responsibility to Plaza for the rigging, as the contract was between DJM and Park, not DJM and Plaza; and, finally, that Plaza "concedes that Park is entitled to common law indemnification." [*6]
In its reply on its cross motion, Plaza asserts that it would be inequitable to grant indemnification to Park, as the settlement amount was unreasonable.
Continuing, Plaza alleges that the culpability of the parties has never been litigated, particularly whether plaintiff suffered a grave injury under the Workers' Compensation Law §11, although the Appellate Division, in its order reinstating the common-law indemnification claim, remanded the grave injury issue for trial. Plaza argues that the negligence question is viable, regardless of whether Park is proceeding on a contribution or common-law indemnification claim. It argues that if DJM were found negligent, Plaza's liability for contractual indemnification would be reduced.
Plaza argues that contrary to Park's allegation, the Appellate Division's prior, May 24, 2005, decision focused on the grave injury question and is not dispositive of Plaza's estoppel argument, and that the decision did not address the waiver issue Plaza raises on its instant cross motion. Plaza repeats its assertion that Park may not argue that the settlement was reasonable, as Park previously argued that it was excessive.
Plaza denies that its cross motion seeks an advisory opinion and argues that "A decision by this court wherein the damages award of December 2002 is set aside as excessive would hardly be advisory." Plaza also denies that its motion is not an impermissible summary judgment motion, as it is presenting new issues: waiver and estoppel and the allegedly unreasonable settlement amount.
Having examined the submissions of both parties, the court finds that Park's motion for summary judgment must be granted and that Plaza's cross-motion for summary judgment must be denied. In passing on the merits of both motions, the court is mindful of the fact that this is Plaza's third attempt at summary adjudication. Nevertheless, the court will address the merits.
At the outset, there is no basis to find that Plaza's attorneys have no standing to bring this motion. This court, the Appellate Division, and Plaza, have, since the trial, treated the instant attorneys at Park's attorneys and this court will continue to do so.
Park is not estopped from seeking the instant relief, despite its previous argument on another motion, that the verdict was excessive. As the First Department held, in an appeal in this action, the doctrine of judicial estoppel does not bar inconsistent positions that are asserted in the same action (Olszewski v. Park Terrace Gardens, 18 3d 349, 350,351).
As Park is not seeking contribution, Plaza's reliance on General Obligations Law §15-108 is misplaced (McDermott v. City of New York, 50 NY2d 211; Weinstocke v. Jenkin Contracting Co., Inc., id. ). The statute does not bar Park's claim for indemnification; rather, the settlement would only have barred a claim for contribution.
The ultimate issue on this motion and cross-motion is whether Park has established its entitlement to indemnification because of Plaza's liability to plaintiff and the reasonableness of the settlement. The court is satisfied that Park met its burden of proving entitlement to summary judgment as it is established, based on admissible proof, that there are no factual issues warranting a trial (see Zuckerman v. City of New York, 49 NY2d 557).
In arriving at its holding, this court is cognizant of the facts established at trial, and the Appellate Division's decisions in this case, the most recent one being Olszewski v. Park Terrace Gardens, Inc., 27 AD3d 308, in which the First Department, in holding that this court properly dismissed Plaza's post-trial motion to set aside the jury verdict as the settlement made the motion [*7]academic. The Appellate Division wrote that, "Examination of Plaza's own arguments on appeal, which set forth numerous uncertainties and potential outcomes regarding the motion to set aside the verdict and the remaining third-party claims for contractual and common-law indemnification, indicate that Plaza seeks nothing more than an advisory opinion here...". The Court also affirmed this court's denial of the Plaza's motion to renew, noting that "Plaza failed to offer any new facts that might have changed the prior determination." The new material on this motion, Fein's affidavit, does not constitute "new facts" (id.) that show that Plaza is not culpable. However, the material Park submits is sufficient to show that Plaza had the responsibility for supervising and controlling the work site and the apparatus that caused plaintiff's injury.
The applicable contract made Plaza, not DJM, the responsible party. The contract, as noted, prohibited DMJ from giving orders or instructions to employees, such as plaintiff, and required Plaza to "assume toward contractor [DJM] all obligations and responsibilities which the contractor, under the Prime Contract, assumes toward the Owner [Park]." Moreover, also as noted, Park submitted evidence that Plaza's foreman actually supervised the site and directed plaintiff to use the scaffold on the day of the accident. The evidence establishes that Plaza, both by contract and in fact, assumed and exercised control over the work site and exercised all responsibilities for safety, equipment and the method of work.
Additionally, Park correctly argues that prior rulings preclude re-litigation of the liability question. Because the Appellate Division affirmed the order awarding Park summary judgment on
its contractual indemnification claim, the question of its lack of fault has been judicially determined. Although Plaza contended, on that motion, that DJM was negligent for not supervising and inspecting the scaffold rigging, the Appellate Division affirmed the holding that Park was entitled to unconditional judgment. Thus, the finding, being unconditional, was that neither DJM nor Park was negligent. Only if the judgment had been conditional would a trial on the degree of negligence between Plaza and DJM become necessary (see Aarons v. 401 Hotel, LP, 12 AD3d 293). The prior determination on liability is now the law of the case and may not be re-litigated (see Brown Rigg v. New York City Housing Authority, 29 AD3d 721).
In any event, even if there had been no prior summary judgment motions and determinations, Plaza has not provided sufficient proof either entitling it to summary judgment or denying summary judgment to Plaza.
Fein's affidavit is conclusory; it is not based on facts. Rather, he merely recites the material he reviewed in making his conclusion (see Alvarez v. Prospect Hospital, 68 NY2d 320, 324-325). The affidavit does not make any reference to the contracts that control the obligations of the parties and so does not rebut Park's allegations based on the contractual provisions.
Fein's affidavit fails to rebut Park's argument that the contract delegated all of DJM's responsibilities to Plaza, and that Plaza was solely responsible for the work and supervision at the site. Therefore, it is insufficient to support Plaza's assertion that DJM's failure to supervise the scaffold rigging relieved Plaza of its liability.
In any event, even if DJM were liable because it was negligent, and therefore was not entitled to common law indemnification, Plaza has neither asserted nor proven that Park was liable. Therefore, as Plaza has not offered any competent proof of Park's liability, Park has satisfied its burden of proving Plaza was liable for plaintiff's accident. [*8]
Park has also demonstrated that the settlement was reasonable. As the court has already noted, in its prior decision denying Plaza's motion, the $10,000,000 settlement saved the parties from incurring further economic losses, as the settlement did not include three million dollars in interest that had accrued and was continuing to accrue.
Moreover, the evidence at the trial revealed that plaintiff suffered painful, permanent injuries that left him totally disabled. His injuries have impaired his mobility and cognitive functioning. The evidence at trial revealed that plaintiff suffers from psychological problems, including depression, as a result of the accident.
Plaintiff sustained painful spinal and pelvic fractures. The pelvic fractures impaired plaintiff's bowel and bladder functions and also caused sexual dysfunction, preventing him from achieving full erections and having normal sensation on intercourse.
The jury recognized that plaintiff's injuries would eventually necessitate his use of a wheelchair and automobile transportation. Contrary to Plaza's argument, the jury award for a wheelchair and an automobile were not duplicative of any other component of the award, as these items will become necessary for plaintiff's mobility in his later years, and are separate and distinct for the pain and suffering award.
Although Plaza seeks to distinguish plaintiff's condition from that of persons who lost legs, the argument is unavailing. While plaintiff has not lost his legs, his severely impaired mobility, and his eventual need for a wheelchair, makes his condition as severe as an amputee's impairments. Therefore, the pain and suffering award was reasonable (Mundy v. New York City Transit Authority, id.).
Moreover, the lost wage award and other pecuniary damages awards were supported by the evidence at trial. Notably, the jury found that plaintiff was permanently unable to work, as demonstrated by the fact that it awarded the full amount plaintiff's economist projected as future lost earnings. The court has no basis to interfere with that determination. In light of the Court of Appeals reversal in Balbuena v. IDR Realty, id., Plaza's argument that plaintiff was not entitled to any compensation for lost earnings is without merit. Further , Plaza's argument that plaintiff's work would have been interrupted by weather conditions, and thus diminished, is speculative. Moreover, the jury award was a factual determination that the court may not interfere with, absent "an indication that substantial justice has not been done..." (Brown v. Taylor, 221 AD2d 208).
Contrary to Plaza's argument, the fact that plaintiff has a wife and children does not make him ineligible to receive a home health aide's services. The aide is trained to perform services that a family member is incapable of performing, especially because plaintiff's badly impaired condition. Again, the court may not interfere with the jury's determination that a home health aid will become necessary.
As the court is granting Park's motion for summary judgment on common-law indemnification, it need not consider Plaza's argument that the question of whether plaintiff suffered a grave injury within the meaning of Workers' Compensation Law §11, as that issue is now academic.
Although Plaza may be entitled to attorneys fees, that claim may not be resolved on this motion; rather, a trial on that issue is appropriate.
Accordingly, it is [*9]
ORDERED that the motion for summary judgment by defendants-third-party plaintiffs Park Terrace Gardens, Inc., Insignia Residential Group, Inc. and DJM Contracting Corp. is granted, and it is further
ORDERED that he Clerk shall enter judgment in favor of the parties in the immediately preceding paragraph in the principal amount of $10,000,000, together with interest from June 9, 2004 at the lawful rate as calculated by the Clerk, as well as their costs and disbursements as calculated by the Clerk, and it is further
ORDERED that the portion of the motion seeking recovery of attorney's fees is hereby severed and an assessment thereof is directed, and it is further
ORDERED that a copy of this order with notice of entry be served on the Clerk of the Trial Support office (Room 158), who is directed upon filing of a note of issue and a statement of readiness and payment of the proper fees to assign this matter to an appropriate part for the assessment ordered in the immediately preceding paragraph, and it is further
ORDERED that the cross motion for summary judgment by Third -Party Defendant Plaza Restoration, Inc. is denied.
This constitutes the decision and order of the court.
Dated: December 19, 2006
_______________
J.S.C.
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