Boudreau v Broadway Houston Mack Dev., LLC

[*1] Boudreau v Broadway Houston Mack Dev., LLC 2008 NY Slip Op 52291(U) [21 Misc 3d 1131(A)] Decided on November 12, 2008 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2008
Supreme Court, New York County

Dana Boudreau, as Administratrix of the Estate of DAVID BOUDREAU, Deceased, and DANA BOUDREAU, individually, Plaintiffs,

against

Broadway Houston Mack Development, LLC and IDI CONSTRUCTION CO., INC., Defendants.



110373/04



For Defendants Broadway Houston Mack Development, LLC

and IDI Construction Co., Inc.:

Pillinger, Miller, Tarallo, LLP

By: Leslie G. Abele, Esq.

570 Taxter Road, Suite 275

Elmsford, New York 10523

(914) 703-6300

For Plaintiffs David Boudreau and Dana Boudreau:

Law Office of Lawrence P. Biondi, Esq.

By: Lawrence P. Biondi, Esq.

81 Main Street, Suite 504

White Plains, New York 10601

(914) 946-5093

For Defendant Cosner Construction:

Cerussi & Spring, Esqs.

By: Thomas F. Cerussi, Esq.

One North Lexington Avenue

White Plains, New York 10601

(914) 948-1200

Michael D. Stallman, J.

Motion sequence numbers 010, 011, 012 and 013 are hereby consolidated for disposition.

This is an action to recover damages for personal injuries and wrongful death sustained by a carpenter when he fell from a scaffold at a construction site located at 610 Broadway, New York, New York on June 21, 2004. In motion sequence number 010, plaintiffs Dana Boudreau, as Administratrix of the Estate of David Boudreau, deceased, and Dana Boudreau, individually move (1) pursuant to CPLR 2221, for leave to renew and reargue the Order of the court (Acosta, J.) dated October 19, 2007 and entered on October 26, 2007, which vacated the prior Order of the court (Acosta, J.) which had granted plaintiffs summary judgment on their Labor Law § 240 (1) claim; and (2) upon renewal and reargument, awarding plaintiff summary judgment as to liability pursuant to Labor Law § 240 (1).

In motion sequence number 011, plaintiff moves (1) pursuant to CPLR 3211 (b), for an Order dismissing the seventh affirmative defense of third-party defendant Cosner Construction Corporation (Cosner), as set forth in its verified answer to the amended verified third-party complaint, which alleged that plaintiffs' decedent, David Boudreau (Boudreau), did not suffer a "grave injury" as defined by the Worker's Compensation Reform Act; and (2) pursuant to CPLR 3212, granting plaintiff summary judgment that Boudreau sustained a "grave injury," as defined by Workers' Compensation Law § 11.

In motion sequence number 012, defendants Broadway Houston Mack Development, LLC (Broadway) and IDI Construction Co., Inc. (IDI) (together, defendants) move (1) pursuant to CPLR 3211 (b), for an Order dismissing third-party defendant Cosner's seventh and eighth affirmative defenses; and (2) pursuant to CPLR 3212, granting defendants summary judgment as against Cosner with respect to defendants' claims for common-law indemnification and contribution pursuant to Workers' Compensation Law.

In motion sequence number 013, defendants move (1) pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' Labor Law § 200 claims; and (2) pursuant to CPLR 511 (a), changing the place of trial of this action from New York County to Queens County; and (3) pursuant to CPLR 602, consolidating this action with a medical malpractice action pending in Queens County under Index No. 25024/2007.

BACKGROUND

Boudreau was a carpenter employed by subcontractor and third-party defendant Cosner when he was injured in a fall from a scaffold. Defendant and third-party plaintiff Broadway owns the construction site where Boudreau's accident occurred. Defendant and third-party [*2]plaintiff IDI was the construction manager on the project. As Boudreau sustained serious back injuries as a result of his accident, it was necessary for him to undergo multiple spinal surgeries. Boudreau died due to cardiac arrest on his third post-operative day following one of his back surgeries.

Plaintiffs' Amended Summons and Complaint in this action sets forth three causes of action. The first cause of action is grounded in common-law negligence and violations Labor Law §§ 200, 240 (1) and 241 (6). The second cause of action asserts a derivative loss of services claim on behalf of Boudreau's wife, plaintiff Dana Boudreau. The third cause of action sets forth a wrongful death claim. Plaintiff also has a medical malpractice action pending in the Supreme Court of Queens County, New York, Index Number 25024/2007.

Previously, in its decision, dated March 22, 2007 and entered on March 30, 2007, the court (Acosta, J.) granted summary judgment in plaintiffs' favor on their Labor Law § 240 (1) cause of action against defendants. In support of their motion, plaintiff put forth the affidavits of Boudreau's coworker, Paul McKenna (McKenna). In McKenna's affidavit of August 28, 2006, McKenna stated that he was standing on the scaffold with Boudreau when Boudreau stepped back and fell below. McKenna stated that the scaffold was assembled without a chest-rail, mid-rail or toe-rail, and that he and Boudreau had not been provided with any safety harnesses or lanyards. In his affidavit, dated October 30, 2006, McKenna reiterated that he was present on the scaffold with Boudreau at the time of the accident, and that he personally observed Boudreau fall off the scaffold and injure himself due to the scaffold's lack of safety railings.

In response to the McKenna affidavits, defendants put forth the deposition of Cosner's foreman, Lew Moseley (Moseley), wherein he testified that, when he asked McKenna what had happened, McKenna responded that he did not actually see what happened.

In its decision, the court noted that, as testimony put forth by the plaintiff showed that the subject scaffold did not possess a chest rail, mid-rail or toe-rail, and that plaintiff had not been provided with any safety harness or lanyards, plaintiff made the requisite showing that the statute was violated, and that the violation was the proximate cause of Boudreau's accident. As to Moseley's testimony, the court stated that Moseley's "tentative statements are insufficient to contradict McKenna's affidavit" (Plaintiff's Notice of Motion, March 22, 2007 Decision, Exhibit 1).

By its decision, dated October 19, 2007 and entered on October 26, 2007, the court granted defendants' motion to vacate its prior Order, because McKenna was not disclosed as a witness to defendants or deposed by defendants before plaintiffs made their summary judgment motion.

Specifically, in its October 19, 2007 Order, the court reasoned: On or about October 25, 2004, plaintiff served a response to a demand for the names and addresses of witnesses. McKenna was not among the six persons listed as witnesses in the response ... The note of issue was filed on September 1, 2006 and plaintiff did not disclose McKenna's identity before making her September 21, 2006 motion. Plaintiff makes the unavailing assertion that McKenna was identified as a witness during the July 21, 2005 deposition of Lew Mosely, another carpenter. That is not the case. Mosely merely testified that he spoke to someone named Paul about the accident. The transcript of Moseley's [*3]deposition does not indicate that McKenna observed or knew anything about the accident. Under these facts, this court should have disregarded McKenna's affidavit and does so now [citations omitted]. Accordingly, there exists a triable issue of fact as to whether Labor Law 240 (1) was violated and whether such violation was a proximate cause of the accident. [Defendants were] given no opportunity to depose McKenna, a witness who has made factual assertions on a pivotal issue.

On February 21, 2008, McKenna was deposed by defendants, at which time he testified that he was working on one end of the approximately 16-foot-long scaffold, when he noticed Boudreau "climbing down onto the scaffold" from some Q-decking at the other end in order to assist McKenna in shoring up an I-beam (Broadway's Affirmation in Opposition to Plaintiffs' Motion, Exhibit O, McKenna Deposition, at 45-47).

McKenna further explained that, once Boudreau had fully reached the scaffold's platform, and as Boudreau was taking a couple of steps backwards, he observed Boudreau fall approximately six to eight feet off the scaffold's platform. When confronted with the emergency room report that stated that Boudreau fell five feet off a ladder while at work, McKenna, who did not provide the information for the emergency room report, maintained that Boudreau fell from a scaffold platform, and that there were no ladders involved. In addition, McKenna stated that the scaffold did not contain any chest rails, mid-rails or toe-rails, and that he and Boudreau had not been provided with any safety harnesses or lanyards. McKenna also noted that no one spoke to him about how the accident occurred.

I

Plaintiffs' MOTION TO RENEW AND REARGUE (motion sequence number 010)

A.

CPLR 2221 (d) states, in pertinent part:

"(d) A motion for leave to reargue:

* * * 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion."

Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended facts or law or mistakenly arrived at its earlier decision (Marini v Lombardo, 17 AD3d 545, 546 [2d Dept 2005]; Carrillo v PM Realty Group, 16 AD3d 611, 611 [2d Dept 2005]). A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented (Pryor v Commonwealth Land Title Ins. Co., 17 AD3d 434, 436 [2d Dept 2005]; Amato v Lord & Taylor, Inc., 10 AD3d 374, 375 [2d Dept 2004]). New questions which were not previously advanced may not be raised on a motion to reargue (Levi v Utica First Ins. Co., 12 AD3d 256, [*4]258 [1st Dept 2004]).

Here, plaintiff is not entitled to leave to reargue the Order of the court dated October 19, 2007, as the court did not overlook or misapprehend any matters of fact or law when making its determination.

B.

CPLR 2221 (e) states, in pertinent part:

"(e) A motion for leave to renew:

* * * 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and3. shall contain reasonable justification for the failure to present such facts on the prior motion."

"A motion to renew should not be granted based upon evidence known to the moving party at the time of the original motion unless the moving party offers a reasonable excuse for not having submitted such evidence on the original motion" (Leonard Fuchs, Inc. v Laser Processing Corp., 222 AD2d 280, 280 [1st Dept 1995]). "[R]enewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Rubenstein v Goldman, 225 AD2d 328, 328-329 [1st Dept 1996], quoting Matter of Beiny, 132 AD2d 190, 210 [1st Dept 1987]; Chelsea Piers Management v Forest Elec. Corp., 281 AD2d 252, 252 [1st Dept 2001]).

Here, the branch of plaintiffs' motion to renew the Order of the court dated October 19, 2007 is granted. The statements made by McKenna in his February 21, 2008 deposition constitute new facts not offered on the prior motion that would have changed the court's prior October 19, 2007 Order. In addition, plaintiffs' failure to present these new facts in the prior motion is justified, because, at that time, McKenna's deposition had not yet been taken, as it was only ordered for in said Order.

Initially, it should be noted that McKenna's subsequent deposition testimony is substantially consistent with his statements presented in his prior affidavits. Although McKenna's statements in his affidavits and subsequent deposition testimony differ from Cosner's testimony that McKenna told him that he did not actually see what happened, such hearsay evidence, though it may be considered in opposition to a summary judgment motion, is "insufficient to bar summary judgment when it is the only evidence submitted" (Thomas v Our Lady of Mercy Med. Ctr., 289 AD2d 37, 38 [1st Dept 2001]).

In their affirmations in opposition to plaintiffs' motion, defendants and Cosner argue that plaintiffs' motion should be denied due to McKenna's lack of credibility. In support of this assertion, defendants and Cosner point to inconsistencies between details regarding the accident asserted by McKenna and those listed in the hospital's medical report. To this effect, the hospital medical report states that Boudreau "tripped and fell" five feet off the ladder (see Cosner's Affirmation in Opposition to Plaintiffs' Motion, Saint Vincent's Hospital Medical Chart for Plaintiff, Exhibit A), while McKenna testified that Boudreau fell approximately 16 feet below. [*5]However, a careful review of the record reveals that, although McKenna misstated the distance that Boudreau fell at first, he later testified that Boudreau fell six to eight feet off the platform.

In addition, defendants and Cosner assert that, as Boudreau did not access the platform of the scaffold from a certain prefabricated staircase, which McKenna testified that he utilized, questions of fact exist as to whether Boudreau is the sole proximate cause of his injuries. Where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1) (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [plaintiff's own negligent actions in choosing a ladder he knew was too short for the work to be accomplished, and then standing on the ladder's top cap in order to reach the work, were, as a matter of law, the sole proximate cause of his injuries]; Montgomery v Federal Express Corp., 4 NY3d 805, 806 [2005]; Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35, 39 [2004][where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240 (1) for injuries caused solely by his violation of those instructions]; Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280, 290 [2003]). However, in the instant case, defendants' sole proximate cause defense must fail, as Boudreau's accident occurred after he had already safely reached the platform. Thus, Boudreau's conduct in not utilizing the prefabricated staircase to access the platform could not have proximately caused his accident.

However, where "the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, the negligence, if any, of the injured worker is of no consequence [internal quotation marks and citations omitted]" (Tavarez v Weissman, 297 AD2d 245, 247 [1st Dept 2002]).

Here, Boudreau was not provided with safety rails or any other safety equipment to prevent him from falling. Thus, a statutory violation has been established as a proximate cause of his injuries, and, as such, any alleged contributory negligence attributable to Boudreau is immaterial (see Figueiredo v New Palace Painters Supply Co. Inc., 39 AD3d 363, 364 [1st Dept 2007] [plaintiff sustained her prima facie burden under Labor Law § 240 (1) through admissible evidence that her decedent fell through an open hole when an unsecured piece of plywood laid over beams shifted and no safety device was provided to prevent the decedent's fall]).

In addition, defendants did not offer any evidence, other than mere speculation, to refute plaintiffs' showing or to raise a bona fide issue as to how the accident occurred (see Pineda v Kechek Realty Corp., 285 AD2d 496, 497 [2d Dept 2001]; Hauff v CLXXXII Via Magna Corp., 118 AD2d 485, 486 [1st Dept 1986]). "A lack of certainty as to exactly what preceded plaintiff's fall to the floor below does not create a material issue of fact here as to proximate cause" (Vergara v SS 133 West 21, LLC, 21 AD3d 279, 280 [1st Dept 2005] [where either defective or inadequate protective devices constituted the proximate cause of plaintiff's accident, it did not matter whether plaintiff's fall was the result of the scaffold tipping over or was whether it was the result of plaintiff misstepping off its side]). Thus, plaintiffs are entitled to summary judgment in their favor as to liability on their Labor Law § 240 (1) claim as against defendants.

II

DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMMON-LAW NEGLIGENCE AND LABOR LAW § 200 CLAIMS (motion sequence number 013) [*6]

Labor Law § 200 is a " codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work' [citation omitted]" (Cruz v Toscano, 269 AD2d 122, 122 [1st Dept 2000]; see also Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]). Labor Law § 200 (1) states, in pertinent part, as

follows: "1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."

Although the parties in this case argue the issue of supervision, or lack thereof, on their part,[FN1] that standard applies in Labor Law § 200 cases which involve injuries resulting from the means and methods of the work. However, in this case, Boudreau's injuries allegedly arose from an unsafe condition created when the platform was constructed with no safety railings, so as to prevent him from falling off and becoming injured. In such a case, the proponent of a Labor Law § 200 claim must demonstrate that the defendant created or had actual or constructive notice of the allegedly unsafe condition that caused the accident (see Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708-709 [2d Dept 2007] [where plaintiff's injuries stemmed not from the manner in which the work was performed, but rather from a dangerous condition on the premises, general contractor was liable in common-law negligence and Labor Law § 200 when it had control over the work site and actual or constructive notice of the same]; Thomas v Claffee, 24 AD3d 749, 751 [2d Dept 2005]; Murphy v Columbia University, 4 AD3d 200, 202 [1st Dept 2004] [to support finding of a Labor Law § 200 violation, it was not necessary to prove general contractor's supervision and control over plaintiff because the injury arose from the condition of the work place created by or known to contractor, rather than the method of plaintiff's work]).

Here, there is no indication in the record to support a finding that defendants created the unsafe condition at issue, or that they had actual or constructive notice of the same. Costigan testified that Cosner was hired to pour concrete slabs and create concrete supporting structures. Moseley testified that the platform from which Boudreau fell was constructed by Cosner carpenters under Moseley's supervision, and that IDI did not have anything to do with the construction of the subject platform. Moseley also noted that he did not recall ever seeing defendant IDI's supervisor observe any of the work done by Cosner, and that he had never seen anyone employed by defendant Broadway present at the worksite. Costigan stated that he and two [*7]other Cosner employees were responsible for safety at the site and held regular safety meetings.

Thus, defendants are entitled to summary judgment dismissing plaintiffs' common-law negligence and Labor Law § 200 claims as against them.

III

WHETHER BOUDREAU SUFFERED A GRAVE INJURY AS DEFINED BY WORKERS' COMPENSATION LAW § 11 (motion sequence numbers 011 and 012)

Plaintiffs and defendants assert that, as Boudreau's untimely death was caused by his accident, he suffered a "grave injury" as defined by section 11 of the Workers' Compensation Law. Plaintiffs therefore move for summary judgment that Boudreau sustained a "grave injury" as defined by Workers' Compensation Law § 11. Plaintiffs and defendants seek summary judgment to dismiss Cosner's seventh affirmative defense of lack of grave injury asserted in Cosner's third-party answer. Defendants also seek summary judgment dismissing Cosner's eighth affirmative defense, which alleges that Boudreau's death was not causally related to his accident.

Section 11 of the Workers' Compensation Law prescribes, in pertinent part, as follows: For purposes of this section the terms "indemnity" and "contribution" shall not include a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered.An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death ... or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

"An employer's liability for an on-the-job injury is generally limited to workers' compensation benefits, but when an employee suffers a grave injury' the employer also may be liable to third parties for indemnification or contribution" (Rubeis v Aqua Club, Inc., 3 NY3d 408, 412-413 [2004]). "[T]he moving party bears the burden of establishing an absence of grave injury; it is not the burden of the party moved against to show the presence of a grave injury" (Way v Grantling, 289 AD2d 790, 793 [3d Dept 2001]). "Conflicting expert evidence concerning the nature and extent of an alleged grave injury' under Section 11 is especially likely to preclude summary judgment" (Solorio v Asplundh Tree Expert Co., 402 F Supp 2d 490, 497 [SD NY 2005] [summary judgment denied where there existed conflicting expert opinions as to whether plaintiff suffered a grave injury]).

Here, the testimony in this case supports a finding that Boudreau sustained a "grave injury" as defined by Workers' Compensation Law. In his affidavit, Deputy Medical Examiner Dr. Andrew Wolodzko (Dr. Wolodzko) stated that he performed the autopsy on Boudreau. Dr. [*8]Wolodzko opined that Boudreau's cardiac arrest was caused by cardiac arrhythmia, specifically, ventricular fibrillation. Notably, Dr. Wolodzko noted that this condition did not pose a threat of sudden death absent surgical and medical intervention necessitated by Boudreau's injuries alleged to have been sustained in the accident. Dr. Wolodzko further stated that, if Boudreau had not been subjected to the surgeries necessitated by his work-related injuries, he would not have died, as these medical interventions were a substantial factor in causing his death.

In his affidavit, Dr. Howard Schwartz (Dr. Schwartz), an expert put forth by plaintiff, stated that It is my opinion, within a reasonable medical certainty, that if Mr. Boudreau did not require the surgery of October 26, 2005 to remedy the pains caused by injuries sustained on June 21, 2004, he would have survived.It is my opinion, within a reasonable degree of medical certainty, that the work-related accident Mr. Boudreau suffered on June 21, 2004 which caused his multiple spinal injuries and necessitated his repeated spinal surgeries, was a substantial factor in a competent producing cause of his untimely death on October 29, 2005, at the age of 43. His accident and death are causally connected

(Plaintiffs' Notice of Motion, Exhibit D, Dr. Schwartz Affidavit).

In his affidavit, Dr. George Brief (Dr. Brief), a cardiologist, concurred with the statements of the aforementioned doctors, and opined that, but for Boudreau's spinal injury, which necessitated multiple spinal surgeries and medication, Boudreau would not have died.

Significantly, the issue as to whether Boudreau's death was caused by his work-related injury was litigated before the Workers' Compensation Board. In connection with the Workers' Compensation Board proceeding, Cosner and its insurer, Zurich American Insurance Company (Zurich), submitted the medical report of Dr. Carl B. Friedman (Dr. Friedman) in connection with plaintiffs' claim for benefits under Workers' Compensation Law. After a thorough review of Boudreau's medical file, Dr. Friedman opined in his report to Zurich that Boudreau's post-operative death after back surgery "was clearly related to the surgery. Since surgery is consequential to the patient's back injury, a causally-related death due to the need for surgery cannot be denied" (Plaintiffs' Notice of Motion, Exhibit 3, Dr. Friedman's Report).

By Decision, dated June 15, 2006, the Workers' Compensation Board found that Boudreau's death was work-related, and that his beneficiaries were entitled to compensation benefits. Notably, section 23 of the Workers' Compensation Law provides that An award or decision of the board shall be final and conclusive upon all questions within its jurisdiction, as against the state fund or between the parties, unless reversed or modified on appeal therefrom as hereinafter provided.

It should be noted that there has been no appeal filed from the Workers' Compensation Board's finding.

Moreover, as a result of the Workers' Compensation Board's decision, the doctrine of collateral estoppel also applies in the instant case, so as to preclude Cosner from raising again the issue of whether Boudreau's death was causally related to his accident such that he suffered a [*9]"grave injury." "Collateral estoppel, or issue preclusion, precludes a party from re-litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party ..., whether or not the tribunals or causes of action are the same'" (Parker v Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343, 349 [1999], quoting Ryan v New York Telephone Co., 62 NY2d 494, 500 [1984]; Lee v Jones, 230 AD2d 435, 437 [3d Dept 1997]).

"Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling. The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party. The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination"

(Lumbermens Mut. Cas. Co. v 606 Restaurant, Inc., 31 AD3d 334, 334 [1st Dept 2006], quoting Buechel v Bain, 97 NY2d 295, 303-304 [2001]).

The doctrine has been found "applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies," including the Workers' Compensation Board (Lee v Jones, 230 AD2d at 437, quoting Ryan v New York Telephone Co., 62 NY2d at 499; see also Vogel v Herk Elevator Co., 229 AD2d 331, 337 [1st Dept 1996]; Rigopolous v American Museum of Natural History, 297 AD2d 728, 729 [2d Dept 2002]). "The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result" (Buechel v Bain, 97 NY2d at 303).

Applying these principles, the Court concludes that Cosner is barred from re-litigating the Workers' Compensation Board's determination that Boudreau's death was work related, as this issue, which is decisive in the present action, was necessarily decided in the proceedings before the Board. Although Cosner maintains that the Court must reject the doctrine of collateral estoppel, because the "stakes" herein are greater than they were at the Workers' Compensation Board hearing, the fact that the stakes may be different does not change the Board's finding that Boudreau's death was causally related to his fall. Accordingly, the doctrine of collateral estoppel applies to the issue of whether Boudreau's untimely death was caused by his accident, such that he suffered a grave injury.

Cosner argues that, since it was not present at the Workers' Compensation Board hearing, collateral estoppel should not apply. However, although generally, a person may not be precluded from re-litigating issues resolved in an action where that person was not a party, "this prohibition ... is not unconditional and identity of parties, as opposed to identity of the issues, is not an absolute" (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 486 [1979]). "[A] nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of the rights of the party to the prior litigation" (D'Arata v New York Central Mutual Fire Ins. Co., 76 NY2d 659, 664 [1990]; see also Lumbermens Mut. Cas. Co. v 606 Restaurant, Inc., 31 AD3d at 355 [a person may be bound by a prior judgment to which he was not a party of record when his interests are represented by a party to the action]). [*10]

Here, privity exists between Zurich, as Cosner's insurer, and Cosner, as Zurich's insured defendant, such that the interests of Cosner were effectively represented at the proceedings before the Board (see Baldwin v Brooks, 83 AD2d 85, 88 [4th Dept 1981]). "Because both the liability insurer and its insured defendant whom it must indemnify, are necessarily interested in obtaining a favorable outcome in all claims or proceedings where the extent of the insured's liability is in issue, the courts in such cases have repeatedly found privity between the liability insurer and its insured" (id.; Hinchey v Sellers, 7 NY2d 287, 295 [1965]).

In addition, Cosner asks this Court to disregard the affirmations of Dr. Friedman, whose report was put forth by Zurich at the Workers' Compensation hearing. Cosner now asserts that Dr. Friedman's report did not include consideration of other potential factors that may have caused Boudreau's death, such as pre-existing hypertension, anxiety and arteriosclerotic heart disease. However, a review of Dr. Friedman's report reveals that Dr. Friedman did, in fact, consider and address these other potential factors.

Accordingly, plaintiff is entitled to an Order dismissing third-party defendant Cosner's seventh affirmative defense, as well as granting plaintiff summary judgment that Boudreau sustained a "grave injury," as defined by Workers' Compensation Law § 11. In addition, defendants are entitled to an Order dismissing Cosner's seventh and eighth affirmative defenses.[FN2]

IV

DEFENDANTS' CLAIMS FOR COMMON-LAW INDEMNIFICATION AND CONTRIBUTION AGAINST COSNER (motion sequence number 013)

Defendants assert that as defendant Cosner created the unsafe condition that caused Boudreau's accident, and as Cosner was in charge of directing and controlling Boudreau's work, defendants are entitled to common-law indemnification and contribution from Cosner. "To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident'" (Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684-685 [2d Dept 2005], quoting Correia v Professional Data Mgt., 259 AD2d 60, 65 [1st Dept 1999]; Priestly v Montefiore Medical Ctr./Einstein Med. Ctr., 10 AD3d 493, 495 [1st Dept 2004]). In the absence of any negligence, a claim for common-law indemnity may be established upon a showing that the proposed indemnitor "had the authority to direct, supervise, and control the work giving rise to the injury" (Hernandez v Two E. End Ave. Apt. Corp., 303 AD2d 556, 557 [2d Dept 2003]).

"Contribution is available where two or more tortfeasors combine to cause an injury and is determined in accordance with the relative culpability of each such person [internal quotation marks and citations omitted]" (Godoy v Abamaster of Miami, Inc., 302 AD2d 57, 61-62 [2d Dept 2003]).Although defendants may be vicariously liable for Boudreau's injuries under Labor Law § 240 (1), "a determination of liability against [defendants] under Labor Law § 240 [is] not the equivalent of a finding of negligence" (Gomez v Sharon Baptist Bd. of Directors, 2008 WL 4704925, * 1, 2008 NY App Div LEXIS 8007 [1st Dept 2008]), so as to bar defendants [*11]from establishing a claim for common-law indemnification. Moreover, the Court granted dismissal of plaintiffs' common-law negligence and Labor Law § 200 claims as against defendants.

Here, as a matter of law, it cannot be determined that Cosner's conduct in constructing the scaffold without safety rails, so as to create the unsafe condition at issue, fell far below any permissible standard of due care (see Ugarriza v Schmieder, 46 NY2d 471, 476 [1979]). Thus, defendants are not entitled to summary judgment in their favor with respect to their claims for common-law indemnification and contribution from Cosner.

V

DEFENDANTS' MOTION TO CHANGE VENUE AND CONSOLIDATE THE INSTANT ACTION WITH THE ACTION PENDING IN SUPREME COURT, QUEENS COUNTY (motion sequence number 012)

Defendants move, pursuant to CPLR 511 to change the place of trial for the instant action from New York County to Queens County, and then to consolidate the instant action, pursuant to CPLR 602, with the medical malpractice action pending in Supreme Court, Queens County, New York. CPLR 602 provides for consolidation of two actions involving common questions of law or fact: (a)Generally.When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

"A motion for consolidation is addressed to the sound discretion of the trial court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact" (Beerman v Morhaim, 17 AD3d 302, 303 [2d Dept 2005]; Nigro v Pickett, 39 AD3d 720, 722 [2d Dept 2007]; Flaherty v RCP Associates, 208 AD2d 496, 498 [2d Dept 1994]). While the court has broad discretion in ordering the consolidation of two actions, the present trend favors consolidating actions wherever possible in the interest of justice and economy (Flaherty v RCP Associates, 208 AD2d at 498).

Here, as the Court has already determined that Boudreau's death was proximately caused by the accident such that he suffered a "grave injury" as defined by Workers' Compensation Law, and as the Court has already found in favor of plaintiff on her Labor Law § 240 (1) claim against defendants, judicial economy will not be served by the proposed consolidation. However, as to the issue of the apportionment of fault and damages, the instant case and the medical malpractice case shall be tried jointly. Because this Court is not a medical malpractice part, this action shall be transferred to Supreme Court, Queens County. The method of trial and any bifurcation or separate trial of any issues is reserved to the sound discretion of the trial court.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that the motion (motion sequence number 010) of plaintiff Dana Boudreau, as Administratrix of the Estate of David Boudreau, Deceased, and individually, pursuant to [*12]CPLR 2221, for leave to renew and reargue the Order of the court dated October 19, 2007 and entered on October 26, 2007, which vacated the prior Order of the court which had granted plaintiffs' summary judgment on their Labor Law § 240 (1) claim, and, upon renewal and reargument, awarding plaintiff summary judgment as to liability pursuant to Labor Law § 240 (1), is granted; and it is further

ORDERED that plaintiffs' motion (motion sequence number 011), pursuant to CPLR 3211 (b), for an Order dismissing third-party defendant Cosner Construction Corporation's (Cosner) seventh affirmative defense, as set forth in its verified answer to the amended verified third-party complaint, and, pursuant to CPLR 3212, granting plaintiff summary judgment that Boudreau sustained a "grave injury," as defined by Workers' Compensation Law § 11, is granted; and it is further

ORDERED that defendants Broadway Houston Mack Development LLC and IDI Construction Co., Inc.'s (together, defendants) motion (motion sequence number 012), pursuant to CPLR 3211 (b), for an Order dismissing third-party defendant Cosner's seventh and eighth affirmative defenses, and, pursuant to CPLR 3212, granting defendants summary judgment as against Cosner with respect to defendants' claims for common-law indemnification is granted, and the motion is otherwise denied; and it is further

ORDERED that the part of defendants' motion (motion sequence number 013), pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' common-law negligence and Labor Law § 200 claims as against them is granted, and these claims are dismissed as against these defendants; and it is further

ORDERED that the remainder of the action and shall continue; and it is further

ORDERED that the part of defendants' motion (motion sequence number 013), pursuant to CPLR 511 (a), changing the place of trial of this action from New York County to Queens County, and, pursuant to CPLR 602, consolidating this action with the action pending in Queens County under Index No. 25024/2007, is granted to the extent that this action shall be tried jointly with the medical malpractice in Supreme Court, Queens County as to the issues of apportionment and damages; and it is further

ORDERED that the venue of this action is changed from this Court to the Supreme Court, County of Queens, and the Clerk of this Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, County of Queens upon service of a copy of this order with notice of entry and payment of appropriate fees, if any.

DATED:ENTER:

November 12, 2008s/

New York, New York______________________________

J.S.C. Footnotes

Footnote 1: James Costigan (Costigan), Cosner's construction supervisor, testified that defendants did not direct, supervise or instruct Cosner's workers in the performance or means and methods of their work. In fact, Costigan explained that Cosner's foreman, Moseley, was in charge of Boudreau's work on the day of the accident. In addition, Moseley testified that he was not aware of any time that defendants supervised or directed the means and methods by which Cosner workers performed their work. Moseley also noted that Costigan was responsible for overseeing safety at the job site, and that Boudreau only took instructions from Costigan or himself.

Footnote 2: It should be noted that, as a result of this finding, defendants are now judicially estopped at trial from arguing that there was no connection between Boudreau's death and the accident.