Chevalier v 368 E. 148TH St. Assoc., LLC
Annotate this CaseDecided on January 25, 2010
Supreme Court, Bronx County
Leonilda Chevalier, Plaintiff,
against
368 E. 148TH Street Associates, LLC, SBM HOMEBUILDERS II LLC and NOTIAS CONSTRUCTION CORP., Defendants
20779/06
Mark Friedlander, J.
Third Party Plaintiff Notias Construction Corp. ("Notias") moves to renew so much of this Court's order of June 3, 2009 as dismissed its third party claims against Triboro Plumbing & Heating Corp. ("Triboro") and, upon renewal, for an order vacating the dismissal and denying Triboro's previous cross-motion which sought dismissal of such claims.
I. Background Facts.
This is the third time that the issues raised herein have been before the Court. The initial [*2]cross-motion by Triboro, brought on in April 2009 and seeking summary judgment in its favor (dismissing the third party claims against it) was not opposed by Notias and was granted on default by this Court's June 3, 2009 order. Thereafter, on June 10, 2009, Notias moved to vacate the previous decision and order, and, upon such vacatur, for leave to re-argue the motion for summary judgment, reciting various excuses for the default, and claiming further that summary judgment against it was inappropriate until discovery had been conducted. That motion was denied, on various technical grounds, with leave to renew on proper papers. The instant application is brought pursuant to such leave.
This action is based on a slip and fall by plaintiff, which occurred on May 27, 2006, in the roadway, at the corner of Phelan Place and Billingsley Terrace, Bronx, New York. Plaintiff alleges that she fell as a result of the presence of mud on the road, which purportedly traveled downhill from a construction site located further uphill on Phelan Place. Plaintiff sues the general contractor of the construction site (Notias), as well as the owner. Notias has impleaded both Triboro and Con Edison, based on work done by them at the site.
In its June 2009 motion to vacate, counsel for Notias offered various excuses for its default in responding to Triboro's April 2009 cross-motion, and this Court found such excuses less than totally persuasive, although the Court stopped short of discounting them entirely. The Court noted that, in the final analysis, it was clear that Notias had no intention of defaulting, and that such matters as were raised in Triboro's (summary judgment) application are better resolved on the merits. Thus, the Court was at that point willing to consider vacatur and re-argument, but not on the defective papers then submitted by Notias.
In its decision on Notias' motion to vacate, issued on July 13, 2009, this Court noted that the application was so procedurally defective that it had to be redone. In the first instance, there was no complete copy attached of the cross-motion sought to be re-argued, in that a key element of such cross-motion papers was inexplicably missing. That item was the supporting affidavit of Triboro's factual witness, Michael Passalacqua. Further, the application did not contain a copy of Notias' own third party complaint - the very pleading which it sought to have the Court restore to viability. Third, and finally, the previous Notias motion to vacate was premised on the argument that Notias should not have had to submit substantive opposition to the motion until it elicited further discovery from Triboro. The Court found that to be "a curious argument from a general contractor at a construction site," and surmised that the facts which control the outcome of a summary judgment application were not in the sole custody of Triboro, but should have been known equally to Notias.
Because the Court found that Notias could not stave off summary judgment on the sole basis of incomplete discovery, the Court noted that Notias would need, at the least, the affidavit of a party with knowledge of the facts which allegedly led Notias to assert its third party claims against Triboro. However, the Court did not find the lack of such affidavit to be fatal to Notias' aim, or to require preclusion of any renewal effort. The Court noted that the June application by Notias did not seek denial of original cross-motion by Triboro or any other substantive ruling on the dismissal of Notias' third party claims, but only a re-argument and a restoration of the motion to the calendar. Thus, the Court concluded in July 2009 that, because the Notias vacatur application was so limited in nature, the Court would grant it the opportunity to renew, particularly since the application needed renewal in any event by reason of its procedural defects. [*3]
Notias now moves, by a different counsel, for leave to renew, and attaches to the motion the affidavit of its project manager, who describes the reasons for Notias' assertion that it has meritorious third party claims against Triboro. The affidavit asserts that the work done by Triboro was of the type which could have caused the runoff of mud that allegedly triggered plaintiff's accident and that such work continued until a month before the accident. The affidavit is, on its face, sufficient to support the maintenance of third party claims against Triboro by Notias.
II. Conclusions as to Triboro's Arguments on the Earlier Cross-Motion.
The original cross-motion by Triboro argued that it was entitled to dismissal of the claims against it because, at the deposition of Notias' project manager, the witness had not articulated any fault on the part of Triboro and because Triboro had done its work only after the other third party defendant (Con Edison) had removed the sidewalk. The Court, while granting Triboro's application on default, noted in that very decision that Triboro's application was substantively weak, in that it seemed clear that Triboro had disturbed earth in connection with installing sewer lines, and that such work could have caused mounds or accumulations of earth which later slid downhill.
The Court now agrees with movant that Triboro's arguments are not persuasive for the purpose of supporting summary judgment in its favor. It is clear that Notias' project manager did not mention Triboro at the deposition, because he was not asked anything about Triboro. This is not unusual, in that Triboro was not impleaded until eight months after the deposition was conducted. If Notias' project manager was properly prepared as a witness, he was undoubtedly, and sagaciously, advised that, under questioning by the adverse attorney, he should not volunteer information, but rather keep his responses as brief as possible. Having witnessed and participated in hundreds of depositions over many years as a litigator, the undersigned is fully aware that no proper conclusion can be drawn from something that was not volunteered at such session.
Further, there is no implication in Triboro's favor that can be drawn from its claim that its work began only after Con Edison removed the sidewalk. Such claim may be based on the premise that only the sidewalk removal could have been responsible for the mud condition at the bottom of the hill, but that premise is logically faulty as well as unsupported by the totality of the evidence.
Based on the above, Notias has made a sufficient showing that it has refuted any prima facie arguments of Triboro in favor of dismissal of the third party claims, and that there are issues of fact as to such claims requiring a jury trial.
III. Conclusions as to Triboro's Opposition to the Current Motion.
Triboro opposes the instant motion, claiming that Notias cannot renew, because it has not shown that the basis for renewal was evidence unavailable at the time of the original motion. This argument overlooks the fact that the Court, in its earlier decision, specifically granted Notias leave to renew on proper papers. Triboro even appears to claim (in a footnote to paragraph 6 of its opposition) that this Court could not grant such leave. In this claim, Triboro errs.
a. Propriety of Renewal.
Nothing in the cases cited by Triboro would deny this Court discretion to permit the renewal. To the contrary, the cases cited only show that appellate courts have upheld the [*4]discretion of judges to deny renewal motions, where the proof offered was insufficient, and have reversed judges who have refused to vacate dismissals, noting that cases should be tried on the merits. What the cases do not show is that judges lack discretion to invite and/or to accommodate renewal motions where such renewed application is thought by them to be in the interests of justice. The First Department, in particular, has been receptive to judicial discretion in these matters. See Siegel, CPLR Practice Commentaries, C2221:9 (2005 and 2004 supplements).
In this instance, the Court granted leave for the renewal, for several reasons. First, as has been stated supra, the June motion by Notias was limited in its scope and purpose, seeking only vacatur of a previous dismissal and an opportunity to re-argue, rather than the ultimate benefit of the re-instatement of its claims. In such an instance, a movant may expect (and this practice may actually prevail in some jurisdictions) that the court which grants such application may then call the parties in, for oral argument or to schedule further submissions. In any event, the modesty of the aims set forth in the application to vacate caused the Court to allow further submissions, rather than preclude Notias' claims outright for failure to have submitted a complete application to re-instate such claims.
Second, Notias claimed in the earlier motion that its opposition to summary judgment could be limited to showing inadequate discovery to that point. The Court disagreed. However, there are certainly some instances in which lack of discovery can forestall summary judgment. Indeed, in its current renewal motion, Notias sets forth additional facts and makes a more adequate showing as to why discovery is needed so that it can fully justify its assertion of third party claims. This Court's decision herein does not depend on such added argument on the subject of discovery, but the Court welcomes the fact that the expanded arguments set forth by Notias are now part of the record. In its earlier decision, the Court's grant of leave was partially based on the fact that Notias' submission of inadequate papers in June 2009 was occasioned by its belief that the discovery argument alone could defeat dismissal of its claims. The Court found that argument inadequate, but not entirely unreasonable, and allowed renewal.
It should also be remembered that, when judicial discretion is invoked to deny renewal or re-argument, it is frequently because the mistakes of counsel are too grievous to be ignored, and, despite the unfortunate impact on the often blameless litigant, counsel cannot be encouraged to take lightly the relevant statutory requirements or court rules. However, in this instance, where a newly retained law firm has stepped in to rescue a client from the inadequate performance of a previous law firm, the principle of holding members of the bar to a standard of conduct has less resonance. Here, the client arguably sought to save itself by switching to more diligent counsel, a step to be lauded as helpful to the Court.
Thus, the vigorous arguments of Triboro against permitting renewal ring hollow, as does the argument that the motion cannot be re-cast as a re-argument application, because newly retained counsel was one month late. Under these circumstances, the Court does not believe that its exercise of discretion was unwarranted, and consequently does not find the current application by Notias to be either impermissible or untimely.
b. Adequacy of Movant's Proof.
Triboro also argues that the affidavit of Notias' witness must be totally discounted as a statement made specifically to defeat summary judgment, in contradiction to previous deposition [*5]testimony, and thus, as setting up merely a "feigned issue of fact." The Court, however, does not agree with Triboro's contention that the currently submitted affidavit of the witness contradicts his previous deposition testimony.
In his affidavit, the witness states that Triboro worked at the site as late as April 2006 (a month before the accident). At his deposition (p.38), according to Triboro, this witness conceded that Triboro completed its work by January 2006, but Triboro's claim in this regard is overblown, if not totally erroneous. In fact, at the deposition, the witness stated that he could not recall when the water and sewer project (done by Triboro) was completed. The questioner had referred to January 2006, and the witness' response began by saying the work was completed, but the continuation of the response makes clear that the witness did not know from memory when Triboro completed its work. In short, the deposition testimony, taken in context, does not contradict the affidavit now submitted.
The affidavit submitted by Notias is further bolstered by evidence submitted by Triboro's own witness. In an affidavit submitted to support Triboro's original summary judgment motion, its owner and president stated that Triboro did not even begin its work until February 2006. Thus, its work, according to its own president, was clearly not finished in January (exhibit T to the motion). There cannot be a claim of a feigned issue of fact where the evidence of the party making that claim shows the issue to exist.
For the above reasons, the Court finds the affidavit of Notias' witness to be acceptable for the purpose offered.
c. The Issue of Indemnification.
Finally, Triboro argues that Notias cannot claim common law indemnification from Triboro because Notias is not merely vicariously liable to plaintiff. (Notias' third party claim for contractual indemnification from Triboro was dismissed earlier, and only common law indemnification remains at issue). Triboro contends that a claim for common law indemnification can only be maintained where the claimant is not actively negligent, but only vicariously liable as a result of the conduct of the party from whom indemnification is sought (i.e. a vehicle owner claiming indemnification from a negligent driver). According to Triboro, since the plaintiff asserts that Notias was actively negligent, Notias cannot seek indemnification from Triboro.
(i) Propriety of Notias' Indemnification Claim.
Triboro's actual argument in this regard is premised on an "either/or" scenario, although such argument is not clearly articulated in its papers. The scenario is as follows: Either the fact-finder at trial finds that Notias acted negligently, in which case it cannot claim common law indemnification from Triboro (even if Triboro was also at fault); or the fact-finder finds no negligence on the part of Notias, in which case Notias is absolved of blame and has no loss for which to pursue Triboro.
The above scenario does not deal with the role of Notias as the general contractor at the property under construction. The possibility exists that Notias could be found liable at trial for a failure to properly supervise or manage the activity of Triboro at the scene, but not for any active negligence on Notias' part. Thus, even though Triboro was not the employee of Notias, and vicarious liability may not be technically applicable, there could be a situation in which Notias, without affirmative acts of negligence on its part, could look to Triboro for indemnification by [*6]reason of Triboro's affirmative acts. Triboro asserts that this is not a Labor Law case "in which vicarious liability is typically alleged." Yet, such vague formulation leaves much room for the possibility that indemnification remains appropriate here. It must be noted that plaintiff's complaint also charges Notias with failure of general supervision (paragraph 19) and negligence in "management" (paragraph 22).
(ii)Timing of Triboro's Indemnification Argument.
The Court notes, though, that the argument as to indemnification sounds somewhat curious, coming from Triboro. Triboro, in its opposition to any grant of relief for Notias, presents itself herein as a stickler for punctiliousness in practice and procedure. It argues that technical requirements for renewal are not met, the any request for re-argument is untimely, and that the Court should disregard a letter sent by Notias in reply to Triboro's opposition papers, on the ground that such letter is actually a sur-reply.
The latter argument of Triboro is based on its effort to scrupulously enforce the Court's order of July 2009 with regard to the scheduling of this renewal motion. In the penultimate paragraph of that order, the Court instructed Notias to treat its renewal motion as an opposition to the April 2009 cross-motion of Triboro, after which Triboro's submission would be treated as a reply. Thus, when Notias requested leave herein to send its letter of response to Triboro's submission, Triboro sought to have it rejected as an unauthorized sur-reply.
This makes it all the more glaring that Triboro did not raise the argument as to "vicarious liability as prerequisite for indemnification" in its April 2009 cross-motion, and thus its invocation of that doctrine here constitutes the raising of an argument for the first time in a reply. Surely, a stickler for proper practice would be aware that, if the "opposition papers" of Triboro were actually its reply on its April 2009 cross-motion, as per the schedule set by the Court's July 2009 order, then the inclusion of a totally new basis for relief was utterly inappropriate.
Notias did respond by letter to Triboro's papers herein, but, because its response had not been authorized in advance, it claimed to feel constrained to limit itself to a single issue. As a result, the issue of the possible propriety of common law indemnification here is not adequately briefed or argued. Because its resolution is not critical to the further progress of this action, for reasons set forth infra, the Court will defer resolution of the issue to the trial judge.
(iii) The Effect of Notias' Claims for Contribution.
It cannot be denied that the third party complaint seeks both indemnification and contribution from Triboro. Triboro's current papers make no reference to the claim for contribution, and in fact seem to studiously ignore the presence of the latter claim. Further, there can be no doubt that the issue of vicarious liability raised belatedly by Triboro does not in any way affect the Notias claim for contribution. Even if Notias is found negligent at trial, it may certainly seek contribution from Triboro for what it claims is Triboro's negligence. All of the cases cited by Triboro refer only to dismissal of indemnification claims (in cases where the claimant had more than vicarious liability), and, where such decisions also dismiss contribution claims, it is manifestly clear that the contribution claims were dismissed for other reasons, not relevant here.
Consequently, since the contribution claims will survive, regardless of the viability of the indemnification claims, it will make little difference, and further no aspect of judicial economy, during the pre-trial pendency of this action, whether or not the indemnification claims are teased [*7]out and dismissed. Therefore, it might be better to leave the third party claims as is until discovery is complete, and allow the parties to fully present the issue of indemnification, if they so desire, to the eventual trial judge.
IV. Other Issues Raised Herein.
Triboro objects to Notias raising once again in these papers its argument that it needs further discovery before it can fully defend its third party claims. Triboro argues that this Court already addressed the issue in its July 2009 decision. While Notias adds more facts in its current submission, and those facts help shed light on Notias' reason for reliance on the discovery issue in its previous application, some of the facts recited by Notias are contested by Triboro, and their disputes as to discovery are best resolved in the DCM Part. In any event, the issue of the sufficiency of the discovery to date, and its impact on the instant motion, is not reached by the Court, and is not found to be necessary to the result reached here, so that there is no further reason to deal with such issue.
As the Court mentioned supra, Notias submitted a letter in response to Triboro's opposition papers, and Triboro then submitted a letter objecting strenuously to the acceptance of the Notias letter. Triboro complains that Notias did not obtain leave of the Court before submitting the letter, but that complaint overlooks the fact that Notias requested leave at the outset of the same letter. If the Court had wished to withhold leave to respond, the Court could have elected to ignore the remainder of the letter. As it is, the Court presumed that the remainder of the letter was included as a time saving device, which is reasonable, if not also helpful. In any event, both the Notias letter and the objection letter by Triboro offer additional argumentation, which indicates that the parties have had more than adequate opportunity (except possibly for the indemnification issue - see supra) to have their say.
The Court has read the two letters submitted, and included them in the record of this motion, but believes that neither letter changes the result which would have been reached on the motion and opposition papers alone. Because the two letters did not influence or determine the outcome herein (as often happens in motion practice), they have minimal importance to the matter.
For the reasons stated above, the motion of Notias is granted in all respects. The Court grants renewal, and, upon renewal, the Court vacates its previous dismissal of the third party claims of Notias against Triboro. Such claims are re-instated pursuant to the log-standing policy of the Courts to favor adjudication on the merits over default dismissals, and pursuant to an adequate showing herein that there are issues of fact to be resolved at trial as to Triboro's possible responsibility for the injuries sustained by plaintiff.
This constitutes the Decision and Order of the Court.
/s/
1/25/10
Dated: ______________________________________
MARK FRIEDLANDER, J.S.C.
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