Morris v Pavarini Constr.

Annotate this Case

Download PDF

Morris v Pavarini Constr. 2010 NY Slip Op 33905(U) March 8, 2010 Sup Ct, Bronx County Docket Number: 23980/02 Judge: Mary Ann Brigantti-Hughes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Mar 12 2010 Bronx County Clerk , · ~· · .·"··. .· .· ·.· .·.· .·~.> , - ... \ ¢":: ..... < ,' ' , , , , suri,uiME CO~T STATE OF NEW YORK COUNTY OF-BRONX. TRlA.LTERM-PART 15 Present: ·.. · Honorable Maiy Ann Brigantti-Hughes ~ ; ' i.t.AR ro 2010 ~D GLENFORD. MORRIS,. Plaintiff, .··-againstIndex No.~ ZJ980/02 PAVARINI CONSTRUCTION and VORNADO REALTY TRUST, Defendants. The following papers numbered I tol2 ·read on this Motion in Limine duly submitted on the Motion Calenifar fora Frame Jssue Hearing, ¥onday March 15, 20 I 0 in Part IA 15 Paoers Sub~itted Order to Show Cause, Affirmation & Exhibits(Defendan!!i) Moti(Jn ,in Llmine, Affirmation & Exhibit (Plaintiff) Defendants Memoranda of Law l'lab1tiff Memorandum of Law Plaintiff Expert Disclosu;e, Affinnations/Affidavit Defendanlli Expert Affidavit Numbered I, 2,3 4, 5 6, 7 8 9, 10,H 12 Upon the foregoing papers, Defendants Pavarini Construction and Vornado Realty move this Court for an Order precluding Plaintiff's (Glenford Morris) proposed expert witness \'licolas · Bellizi, Civil Enginser from testifying as an expert witness in the within matter including testimony as regards 12 NYCRR 23-2.2(a), and precluding Plaintiff's expert witne5s Mr. Wojtaszeck from testifying ils an opinion expert witness in. the within matter including testimony . . .· as regards 12NYCRR 23-2.2(a} Plaintiff moves this Court by Motion in Limine to exclude the testimony of Defendants' ex~rt witness Benj<l!Ilin Lavon, Profession11l Engineero After due deliberation it is ruled, for the reasons set forth below, [* 2] ........v1u cironx county Clerk Defendants' motion to pre<:lude Plaintiff's expert Mr. Bellizi from testifying is denied with leave to renew at. the framed issue hearing ordered by the Court of Appeals regarding Labor Law section 241(6) and 12 NYCRR 23·2.2(a) now scheduled for March 15, 2010. Defendants' motion to preclude Plaintiff's expert Mr. Wojtas7.eek frOm testifying is granted to the extent of precluding Mr. Wojta.s7.eek from testifying as an expert opinion witness and is otherwise denied, Plaintiff's Motion in Limine, to exclude the testimony of defendants' exiiert Mr. Lavin is denied. FACTS AND PROCEDURAL ffiSTORY On June 4, 2002 Plaintiff, Glenwood Morris, was at the time of the accident a carpenter working at a construction site and was injured while constructing forms. An unfinished fonn·shifted and crushed Plaintiff's hand against a steel beam. Plaintiff brought suit against Vornado Realty and Pavarini Construction the owner and general contractor respectively, seeking damages for his injuries. Plaintiff's suit claims defendants violated Labor Law§§ 200, 240(1) and 241(6) and also were negligent and that such violations and negligence was the proximate cause of the · plaintiff's injuries. As a result of prior motion practice this Court granted summary judgment in ·favor of defendants and dismissed plaintiff's claims against defendants for violation of Labor Lavi §200 and claims of negligence but denied sunimal'y judgment as to Plaintiff's Labor Law §241(6) claim. On appeal the Appellate Division; First Department reversed that portion of the decision denying summary judgment as to. Labor Law §241(6) and ordere4 that portion of the 2 [* 3] FILED Mar 12 2010 Bronx County Clerk Plaintiff's ctaim dismissed as well. The matter then went before the Court of Appeals which reversed that portion of the Appellate Division's decision dismissing Plaintiff's Labor Law.§ 241(6) claim and remanded the matter to this court for further proceedings discussed below. The Court of Appeiils held that under Labor Law§ 241(6) the Plaintiff can only recover if he shows a violation by the defendants of a regulatory requirement. The Plaintiff relied upon 12 NYCRR 23-2.2(a) which states in relevant part that "Forms ... shall be structurally safe and shall be properly braced and tied together so as to maintain position and shape'.'. Defendants claim 12 NYCRR 23-2.2(a) and Labor Law§ 241(6) do not apply here because the regulation and the Labor law do not apply to anything other than a completed form. Plaintiff asserts that the term "forms" refers to the object that injured Plaintiff and not necessarily just a completed fonn. The Court of Appeals stated, "(i) t WllS preQlllture for the Appellate Division to grant summary judgment on this record.. The iriterpretation of a regulation is a question of law but the meaning of the specialized terms in such a regulation is a question on which a Court must sometimes bear evidence before making its determination (See, Millard v. City ofOgdensburg, 274 AD2d 953, 4lh Dept., 2000). Here, a more complete record is neeessary both as to the nature of the object that caused the injury and the opinions of those expert in the construction or concrete walls as to whether the words of the regulation can sensibly be applied to anything but . completed forms". 3 [* 4] FILED Mar 12 2010 Brcinx County Clert< The matter was then remanded to this Court for "proceedings consistent with this opinion." A framed issue hearing encompassing such proceedings is now seheduled before this court on March 15, 2010. MOTION TO PRECJ,.l!DE PLAINTIIF'S EXPERT BELLIZI Defendants' motion lo preclude Mr. Bellizi is based.on Defendantif contention that Mr; Bellizi has no qualifications or expertise in concrete construction where the case is focused and which the Court of Appeals identified as the area of expertise required(" . ¢ ;those expert in the coostruction of concrete walls. ¢ ¢"). Defendants assert that the Cuniculum Vitae of Mr. Bellizi shows an expertise in traffic engineering, accident reconstruction and the like and no expertise in the construction of concrete walls. Defendaiits state that a licensed engineer with.no expertise in the area at issue should be precluded from testifying. (See, Rosen v. Tanning I 7 AD3d I 80, 21111 Dept., 2005; Lessard v. Caterpillar 291 AD2d 825, 4111 Dept, 2002). However a careful reading of Mr. Betlizi's Cuniculum Vitae states that he has Previously provided expert witness testimony and analysis in a number of areas diffe1eu1 from traffic engineering and accident reconstruction including "Construction Areas." Therefore Plaintiff's expert's lack of credentials is not as clear:-eut as defendants assert. To preclude Mr. Bellizi at this time is not warranted. Defense counsel will have an opportunity lo voir dire Mr. Bellizi at the time of the framed issue hearing. If it is so warranted the Defendants may renew their motion to preclude at that time. 4 [* 5] FILED Mar 12 2010 Bronx County Clerk MOTION TO PRECLUDE PLAINTIFF'S EXPERT WOJTASZECK Defense counsel also seeks to preclude the testimony of Plaintiff's expert witness Mr. Wojtaszeck on the grounds that Mr. Wojtaszeck bas no scientific or technical training so as to render an expert opinion. Mr. Wojtaszeck has 19 years of carpentry experience including . experience with building forms such as those used in this accident. However based upon docwnents put forth by Plaintiff's counsel Mr. Wojtaszeck wiU not render an expert opinion regarding 12 NYCRR 23-2.2(a) but wiU testify only as an expert/act witness. ((See, Dougherty v. Milliken, 163 NY 527, (1900); Clark v. Iceland SS Co:, 6 AD2d 544, ( 1" DeJ>t., 1958)). Therefore Defendants' motion is granted to the extent that Mr. Wojtaszeck is precluded from testifying as an expert opinion witness and may testify only as an expert fact witness. Motion in Limine Plaintiff moves by Motion in Limine to preclude defendants' expert Mr .. Lavon . . . thim testifying. Plaintiff's position is that ~v~n's testimony usurps the Court's function to interpret the regulation, that such is a question of law and not of expert interpretation. Plaintiff cites, Rodriguez v NYCHA 209 AD2d 260 (I" Dept., 1994) that it is error to prove negligence by expert testimony regarding the meaning of a statute imposing a standard of care, Messina v. City ofNew York, 300 AD2d 121 (I" Dept., 2002) and that the interpretation of a code, and whether the condition involved is within the regulation is a question of law. . Plaintiff also seeks to bar Mr. Lavon from testifying regarding the nature of the 5 [* 6] FILED Mar 12 2010 Bronx County Clerk .. object involved in the accident because the object involved was previously identified at Plaintiff's deposition of October 20, 2003. First "Rodriguez" cannot apply as the issue of negligence was settled by this Coilrt in granting that portion of defendants' motion for summary judgment dismissing plaintiff's claims of negligence. Further, the conclusion Plaintiff would have this Court reach would nullify the Court of Appeals directions. The Court of Appeals stated: ..Here a more complete record is necessary both as to the nature ofthe object that caused the injury and the opinions qfthose expert in the construction ofconcrete walls as to whether the words ofthe regu/alion can sensibly be applied to anything but completedforms". Even though Plaintiff's counsel claims the nature of the object that caused the injury was settled in 2003, the Court of Appeals in 2007 sought a more complete record as to the nature of the object, as well as the application of the words of the regulation. The proposed testimony of Mr. Lavon is within the direction of the Court of Appeals. Plaintiff's motion to limit or preclude defense expert's testimony is therefore denied. This constitutes the Decision and Order of this Court. Dated: March 8, 2010 Hon. Mary Ann Brigantti- Hughes, J.S.C. 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.