Sanchez v 1710 Broadway, Inc.

[*1] Sanchez v 1710 Broadway, Inc. 2011 NY Slip Op 52430(U) Decided on December 23, 2011 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2011
Supreme Court, Kings County

Julio Sanchez, , Plaintiff,

against

1710 Broadway, Inc. And Unite Health Center, Inc.,, Defendants.



24312/06



Plaintiff Attorney: Friedman, Friedman, Chiaravallot, 2 Rector Street, New York, NY 10006

Defendant Attorney: Patrick F. Adams, PLLC, 3500 Sunrise Highway, Great River, NY 11739

David I. Schmidt, J.

The following papers numbered 1 to 8 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2

Opposing Affidavits (Affirmations)3-5

Reply Affidavits (Affirmations)6-8

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, plaintiff Julio Sanchez (plaintiff) moves, pursuant to CPLR 2221 for: 1) leave to renew and reargue his order to show cause, dated March 11, 2009, seeking to strike the answer of defendant/third-party plaintiff Unite Health Center, Inc. (Unite or defendant) or, in the alternative, directing a finding of liability against defendant and, 2) vacating the decision dated January 13, 2009 (Schmidt, J.) to the extent that it dismissed his action against defendant.

This is a negligence action commenced by plaintiff, a porter worker, to recover damages for injuries he sustained on March 7, 2005, when a mirror in a bathroom he had been cleaning in the course of his employment with non-party Principal Building Services fell off the wall and lacerated the palm of his left hand. On that date, plaintiff was working on one of the floors in a building owned by defendant 1710 Broadway and leased by Unite. Prior to the accident, Unite had hired third-party defendant A.W. Hochberg, Inc. (Hochberg) to perform construction work at the site. [*2]Hochberg, in turn, hired third-party defendant Koslowitz Construction Co., Inc., doing business as Koslow Storefront (Koslow), to install mirrors in the restrooms on the floors leased by Unite. As indicated, plaintiff was injured when, in the course of his employment as a porter for non-party Principal Building Services, he was cleaning a restroom on one of the floors leased by Unite when a mirror allegedly fell off a wall and struck and injured him.

Plaintiff commenced the instant negligence action against 1710 Broadway and Unite, and Unite commenced a third-party action against, among others, Hochberg and Koslow. 1710 Broadway and Unite moved and cross-moved, respectively, for summary judgment dismissing the complaint insofar as asserted against them based upon their lack of notice of any dangerous condition. On January 13, 2009, the court heard oral argument on Unite and 1710 Broadway's motions for summary judgment dismissing the complaint. That day, in a short form order, the court granted the motions from the bench, held that plaintiff's action was dismissed with prejudice, and directed counsel for plaintiff to settle the order.

On or about March 11, 2009, before defendants settled the order, plaintiff moved by order to show cause to strike Unite's answer for allegedly failing to comply with its discovery demands which, according to plaintiff, would have disclosed the existence of the negligent contractor (Koslow) responsible for the installation of the mirror which injured him. Specifically, plaintiff alleged that Unite's "failure . . . to timely comply with court orders and discovery demands pursuant to CPLR 3126, which fatally deprived the plaintiff of the ability to timely implead, or otherwise pursue a claim against the liable parties in this case," namely Koslow.

Thereafter, by order dated June 12, 2009, the court vacated its order of January 13, 2009 to the extent that it reinstated the claim against Unite, i.e. denying Unite's motion for summary judgment, finding that Unite "ha[d] a non[-]delegable duty to keep the premises in a safe condition and the negligence of his contractor may accrue to defendant Unite." The court also held that the branch of plaintiff's "motion to estop and hold defendant liable based on spoliation is denied as moot."

The June 12, 2009 order was subsequently appealed by Unite to the Appellate Division, Second Department. By decision and order dated December 14, 2010, the Appellate Division reversed the June 12, 2009 order and held that upon reargument, the determination in the order dated January 13, 2000, granting Unite's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, be adhered to (Sanchez v 1710 Broadway, Inc., 79 AD3d 845 [2010]). Specifically, the Appellate Division held that:

"Here, Unite established, prima facie, that it neither created nor had actual or constructive notice of the alleged defective condition which caused the plaintiff's injuries. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, under the circumstances presented here, Unite may not be liable for Koslow's alleged negligence. As a general rule, one who hires an independent contractor may not be held liable for the independent contractor's negligent acts. In opposition to Unite's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether any exception to the so-called independent contractor rule' applied to the facts of this case. Accordingly, the Supreme Court, upon reargument, should have adhered to the determination in an order dated January 13, 2009, granting Unite's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. [*3]

In light of our determination, we need not reach Unite's remaining contentions" (id. at 846-847).

Plaintiff now moves for leave to renew and/or reargue its March 11, 2009 order to show cause seeking to strike the answer of Unite or, in the alternative, directing a finding of liability against Unite and vacating the decision dated January 13, 2009 to the extent that it dismissed plaintiff's action against Unite. Plaintiff argues, in substance, that since the Appellate Division dismissed plaintiff's complaint insofar as asserted against Unite, plaintiff's motion to strike Unite's answer for failing to disclose the name of the negligent contractor (Koslow) until after the statute of limitations had run, in violation of two court orders and discovery demands, is no longer moot, and is the only remedy it has left. Stated otherwise, plaintiff asserts that since it was Unite's violation of two court orders and discovery demands, which deprived plaintiff of his opportunity to obtain relief against Koslow, the court should strike Unite's answer, "effectively making Unite stand in the shoes of the liable parties, [because] its wrongful conduct prevented the plaintiff from seeking any redress at law." In this regard, according to plaintiff, the first time he learned that Koslow installed the subject mirror was on April 10, 2008, when Unite responded to plaintiff's motion to compel discovery.

In opposition, Unite argues, among other things, that plaintiff's motion is baseless as Unite complied with all discovery demands. In particular, Unite notes that before the statute of limitations had run, pursuant to a December 4, 2007 compliance conference order, it agreed to produce a witness with knowledge to testify on behalf of Unite on February 29, 2008, before the statute of limitations ran on March 7, 2008. However, on February 27, 2008, plaintiff's counsel requested an adjournment until April 2, 2008 - which plaintiff fails to specifically address in his supplemental affirmation, addressed below.[FN1] Unite also contends that plaintiff had a full opportunity to add Koslow as a direct defendant in its lawsuit, and that it never deprived plaintiff from doing so; that plaintiff's motion fails to conform to the requirements set forth in CPLR 2221 since, among other things, it is untimely; and that the Appellate Division has ruled on these issues dismissing plaintiff's action insofar as asserted against it.

In further opposition, Koslow argues that "[b]y dismissing this action against the sole remaining defendant, Unite [], the Appellate Division effectively terminated this action and there is no longer any case pending before this court . . .[and] [t]his court, therefore, has no power to declare the law or the rights of the parties to this motion practice, as there is currently no case pending before this court."

In a supplemental affirmation, plaintiff argues that it has established that Unite failed to comply with court orders to disclose the names of all contractors which performed work at the premises where the accident occurred and that in failing to do so, it caused plaintiff to lose a viable [*4]claim against Koslow; that Unite subsequently investigated the accident and confirmed that the mirror was not hung properly; and that had Unite properly responded to plaintiff's discovery orders, plaintiff would have been able to sue it directly as the affirmatively culpable party.

Plaintiff further contends that because this court denied Unite's motion to dismiss, it did not have occasion to rule on plaintiff's motion to strike Unite's answer for discovery abuses. Thus, plaintiff asserts that given that his claim was deemed by this court to be viable against Unite, his "motion to strike was essentially mooted." Moreover, plaintiff argues that this court has the "power to rule on the issue [of whether it can review the motion to strike] de novo because [a] plaintiff's original request to strike Unite's answer was never ruled upon since this [c]ourt denied Unite's motion for summary judgment; [b] the prior appeal did not deal with the issue; and [c] the factual circumstances have changed" because the Appellate Division dismissed the complaint as against Unite, "making inapplicable the general rule that decisions of the Appellate Division are binding on the trial court." Stated otherwise, plaintiff argues that "[w]here a different issue was decided in a prior order, the doctrine of law of the case does not apply."

In response to plaintiff's supplemental affirmation, Unite argues that the court has no jurisdiction over this matter based upon the ruling by the Appellate Division. Further, Unite contends that the identical issue relating to plaintiff's motion to strike was raised by plaintiff in the appeal to the Second Department, which the Second Department rejected. As to plaintiff's contention that there is a change of circumstances due to the Appellate Division's dismissal of plaintiff's case against Unite, and that said change of circumstances should allow plaintiff to reassert his claims of "spoliation," Unite contends that plaintiff is merely denying that the issues argued in plaintiff's "motion to renew" were fully litigated before the Second Department, and were rejected. Finally, as to the case law cited by plaintiff - in support of his argument that only those issues actually decided by the appellate court are entitled to "law of the case" preclusive effect - Unite asserts that these cases are inapt since the rulings in these appellate court cases did not finally resolve the ultimate issue between the parties, as did the Appellate Division here by dismissing the action against Unite in its entirety.

In reply to plaintiff's supplemental affirmation, Koslow argues that plaintiff's contention that the doctrine of the law of the case does not preclude the court from reviewing Unite's conduct during discovery, and issuing an order striking Unite's answer for its perceived misconduct, the "law of the case" doctrine has no applicability to this case because the Second Department dismissed Unite from this action, and thus there is no longer any matter sub judice before this court.

Analysis

The motion to renew and/or reargue must be denied. First, plaintiff failed to move to reargue the June 12, 2009 order "within thirty days after service of a copy of the order determining the prior motion and written notice of its entry, as mandated by CPLR 2221(d)(3), based upon the grounds that Unite had failed to comply with its discovery demands. Thus, plaintiff may not move to reargue and/or renew on this ground now, almost two years later. Secondly, plaintiff did not file a cross-appeal with the Appellate Division, Second Department on the grounds that Unite failed to comply with his discovery demands. Having failed to do so, he is foreclosed from seeking renewal and/or reargument of that order dismissing the action against Unite. Thirdly, as Koslow and Unite argue, "[i]t is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in [*5]a particular case pending before the tribunal" (Hearst Corp. v Clyne, 50 NY2d 707, 713 [1980]; Reyes v Sequeira, 64 AD3d 500, 506 [2009]). Inasmuch as the action against Unite, the sole remaining defendant, has been terminated, there is no longer any action pending before this court. Thus, this court has no jurisdiction to entertain the instant motion on this ground as well. Plaintiff's reliance upon case law addressing the doctrine of the law of the case are distinguishable from this case. In the cases cited by plaintiff, the rulings did not finally resolve the action, as the Appellate Division did here. As plaintiff concedes, "an appellate court's determination on a prior appeal constitutes law of the case and is binding on the trial court."

In sum, while it is regrettable that plaintiff is precluded from maintaining an action against the entity potentially liable for his injuries (i.e. Koslow), this does not provide a basis for reviving plaintiff's claim against Unite. Accordingly, the motion to renew and/or reargue must be denied.

This constitutes the decision and order of the court.

E N T E R

J. S. C. Footnotes

Footnote 1:Unite's witness testified on July 14, 2008 that Koslow installed the subject mirror, which was part of a construction project that was completed in 1998, although plaintiff represents that the witness also testified on October 22, 2008. Unite filed its third-party summons and complaint against "Koslow Storefront" and others on or about September 12, 2008, and filed an amended third-party summons and complaint on November 6, 2006, changing the name "Koslow Storefront" to "Koslowitz Construction Co., Inc. d/b/a/ Koslow Storefront."