Loporcaro v City of New York

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[*1] Loporcaro v City of New York 2012 NY Slip Op 50617(U) Decided on April 9, 2012 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2012
Supreme Court, Richmond County

Michael Loporcaro and JENNIFER LOPORCARO, Plaintiff(s),




Thomas P. Aliotta, J.

The following papers numbered 1 to 5 were marked fully submitted on the 14th day of December, 2011.



Notice of Motion for Summary Judgment by Defendant PERFETTO

CONTRACTING COMPANY, INC., with Supporting Papers, and Exhibits

(dated July 20, 2011) 1

Affirmation in Opposition by Plaintiffs, with Exhibits and Memorandum of Law

(dated November 23, 2011) 2,3

Affirmation in Partial Opposition by Defendants BENEDETTO SCIASCIA and


(dated December 7, 2011) 4

Reply Affirmation of Defendant PERFETTO CONTRACTING COMPANY, INC.,

(dated December 6, 2011) 5

Upon the foregoing papers, the motion for summary judgment of defendant PERFETTO CONTRACTING COMPANY, INC. is granted, in part, and denied, in part, as hereinafter provided.

Plaintiffs commenced this action to recover damages for personal injuries allegedly sustained to the right knee of New York City firefighter MICHAEL LOPORCARO (hereinafter [*2]"plaintiff") on two separate occasions during the course of his employment: first, on August 2, 2008, while responding to a fire at a private residence owned by defendants BENEDETTO and CATHERINE SCIASCIA (hereinafter "SCIASCIA") located at 145 Bay Terrace on Staten Island, and thereafter, on July 8, 2009, while responding to a car accident on Clarke Avenue (between Rene Drive and Montreal Avenue), also on Staten Island. It was on this latter occasion that plaintiff claims that his knee "blew out" as he stepped on an "uneven" portion of roadway while crossing Clarke Avenue to the accident location. To the extent relevant, it appears that defendant PERFETTO CONTRACTING, INC. (hereinafter "PERFETTO") was hired by defendant THE CITY OF NEW YORK (hereinafter "THE CITY") to install a storm sewer line under a section of Clarke Avenue which included the accident site, as well as to repair, repave and resurface the roadway after completing the installation. The road work was allegedly completed on March 18, 2009, more than three months prior to the date of plaintiff's injury on July 8, 2009.

In the complaint, plaintiffs assert, inter alia, causes of action against PERFETTO under General Municipal Law §205-a predicated upon its alleged violation of the Administrative Code and the Rules and Regulations of the City of New York, and common-law negligence based upon allegations that PERFETTO (1) failed to properly repair the subject roadway following its sewer line installation; (2) failed to adequately inspect the road surface following such repairs; (3) failed to properly maintain the street in the area in question; (4) created a dangerous condition by improperly repairing, repaving, and resurfacing the area so as to create a pronounced difference in elevation between the preexisting road surface and the newly repaved area of asphalt; and (5) allowed and/or permitted said defect to persist notwithstanding its knowledge and awareness of the marked difference in elevation which allegedly caused plaintiff to sustain the injury which ultimately culminated in his disability retirement.

In the current application, PERFETTO contends that it had completed its work on Clarke Avenue on March 18, 2009, at least three and one-half months prior to the date of plaintiff's injury; that its work had been inspected and accepted by THE CITY upon completion; and that it would not have been paid had its workmanship proved to be unsatisfactory. In this regard, CESARE PERFETTO, the president of the moving defendant, explained during his EBT, that if his company's work had been found to be deficient following inspection, a "field order" would have been issued by THE CITY to correct the road surface prior to the authorization of payment. Only after the correction had been made and approved would PERFETTO have been paid for its work. According to the witness, PERFETTO never received a field order indicating that its work with regard to the repaving of Clarke Avenue was defective, deficient, or otherwise in need of repair or revision at any point prior to receiving payment. In fact, he claimed that PERFETTO had never received any complaints whatsoever regarding its work at the subject location at any time prior to the date of plaintiff's injury.

In addition, it was contended that pictures authenticated by plaintiff at his EBT do not depict an actionable defect, nor do they exhibit any of the qualities associated with the creation of a "trap", a "snare" or a "hazard". In light of the above, he branded any possible height differential as "trivial" in nature, and any present attempt by plaintiff to quantify the dimensions of the purported defect in the unindexed photographs as based upon pure speculation. In sum, PERFETTO argues that the alleged defect, if any, was so minor in nature as to be nonactionable, [*3]and that any claims of negligence against it are subject to dismissal.

In the alternative, PERFETTO argues that plaintiffs are barred from seeking any recovery based on defective workmanship by the "firefighters rule", which asserts that firefighters are deemed to assume the risk of ordinary injuries sustained on the job as a result of their specific training in the confrontation of dangerous situations. In addition, even though General Municipal Law §205-a establishes a cause of action on behalf of firefighters (or their survivors) who are injured in the line of duty "directly or indirectly as a result of any neglect, omission, wilful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of ... any government", PERFETTO maintains that such claims may only be asserted against a property owner or others having control of the premises at the time of the firefighter's injury. According to PERFETTO, not only was the subject roadway the property of THE CITY, but it lacked any control over the condition of its surface for more than three months prior to the date of plaintiff's injury.

Moreover, PERFETTO maintains that plaintiff has failed to establish that it violated any relevant regulatory requirement within the intendment of General Municipal Law §205-a, or that any such violation was a cause of plaintiff's injuries. In particular, PERFETTO notes that (1) section 2-02 of Title 34 of the Rules and Regulations of the City of New York pertains solely to policies and procedures relating to the permit application process, none of which were either violated in this case nor could have been a cause of plaintiff's injury; (2) section 2-07 of the above Title pertains to underground street access covers, vaults and gratings, none of which (a) had been negligently opened or replaced by PERFETTO, (b) are alleged to have played any role in plaintiff's injury, or (c) are owned, operated or maintained by the moving defendant; and (3) there is no proof that PERFETTO violated either sections 2-09 or 2-11 of Title 34, which pertain, inter alia, to the liability of permitees to properly surface street openings and excavations made by them. In addition, PERFETTO argues that plaintiffs have failed to establish any violations of §§19-11-, 19-115, 19-143 and 19-147 of THE CITY's Administrative Code and, most particularly, §19-143, which applies solely to public service corporations rather than subcontractors like itself. Neither has it been shown that its non-compliance (if any) with of these rules and regulations was a cause of plaintiff's injuries.

In the balance of its motion, PERFETTO demands that plaintiffs produce proper authorizations for the discovery of various documents, including the records of the Board of Education and Brooklyn College, pharmacy records, marital counseling records and "postings" to plaintiff's Facebook account. According to PERFETTO, the bill of particulars states that plaintiff has been permanently disabled since the accident on July 8, 2009. However, plaintiff testified at his EBT that he has been attending classes and working for the Board of Education. Therefore these records are said to be material and relevant to plaintiff's claim of permanent disability. In addition, plaintiff further testified that he had been prescribed certain pain and anti-inflammatory medication in connection with the subject accident and, therefore, that defendant is entitled to examine his pharmacy records to ascertain the nature and amount of these medications and their effect. This is said to be particularly true since plaintiff's wife, JENNIFER LOPORCARO, has brought a loss of services claim, which is said to include plaintiff's professed loss of the ability to assist in the cooking, cleaning, household maintenance, yard work and child care. Moreover, since she also claims that she and her husband were compelled to seek marital [*4]counseling due to the serious effect that the accident had upon their interpersonal relationship, an authorization to obtain copies of these counseling records is alleged to be critical and necessary to the defense of the action.

Finally, PERFETTO argues that records of plaintiff's postings to his Facebook account are discoverable in view of the claims in the bill of particulars and his EBT testimony regarding the significant impact this accident is alleged to have had upon his enjoyment of life. In support, PERFETTO points out that the public pages of plaintiff's Facebook account significantly contradict these claims regarding this purported loss of "enjoyment", and that such postings are reflective of someone who maintains an active lifestyle. Accordingly, PERFETTO argues that access to these records could easily lead to the discovery of admissible evidence that is both material and necessary to the assessment of damages in this action.

In opposition, plaintiffs contend that PERFETTO has failed to satisfy its burden of proving that the defect in question was "trivial" as a matter of law, nor has it successfully demonstrated by admissible evidence (e.g., an expert's report), that it complied fully with each and every violation cited in plaintiffs' causes of action under General Municipal Law §205-a or that any such transgressions bear no "practical connection" to plaintiff' injuries. In addition, plaintiffs contend that so much of PERFETTO's motion as seeks to compel plaintiff to provide authorizations for access to various personal and medical records in the possession of, e.g., the Board of Education, Brooklyn College, his pharmacy or any marital counselor, and/or his "Facebook" account is unauthorized, immaterial, and wholly irrelevant to the subject litigation.

In further opposition, plaintiffs contend that the proof thus far establishes that (1) PERFETTO obtained two street-opening permits granting it permission to open the roadway, install a storm sewer line and repave the roadway at the subject location between January and April of 2009; (2) these permits demonstrate that PERFETTO was the party responsible for performing the repaving work and therefore in control of the road surface just three and one-half months prior to the date of plaintiff's injury; (3) the photographs of the repaved roadway authenticated during discovery plainly illustrate that the "new" surface was not flush with the existing road surface, and (4) these photographs unquestionably reveal an abrupt change in elevation which plainly poses a tripping hazard to persons traversing the area. Plaintiffs also argue that CESARE PERFETTO's EBT testimony characterizing any change in the elevation of the roadway as "trivial" is not only self-serving, but that the photographs relied upon do not contain any reference points from which the height differential can be calculated. Neither has the extent of the purportedly "trivial" height differential been confirmed by any independent measurements by, e.g., an expert. Furthermore, plaintiffs argue that the witness's testimony directly contradicts plaintiff's testimony and therefore creates, at the very least, a triable issue of fact regarding the extent of any alleged defect. Plaintiffs also correctly point out that since there is no absolute standard as to what constitutes a "trivial" rather than a "material" defect, the question of whether or not, e.g., a "tripping hazard" was created constitutes an issue of fact for a jury to determine.

Additionally, plaintiffs contend that General Obligations Law §11-106 (added L1996, ch 703) allows a firefighter to seek damages for injuries allegedly sustained while in the lawful discharge of his official duties as a result of the common-law negligence of a third party not in the same employ. According to plaintiffs, the imposition of such statutory liability need not be [*5]predicated solely upon a regulatory violation (see Giuffrida v. Citibank Corp., 100 NY2d 72).

Referring back to General Municipal Law §205-a, plaintiffs note that the proof of causation required thereunder has been lessened such that liability may be imposed whenever there is any "practical connection" between an alleged violation and the injury. Plaintiffs also note that the courts have held that General Municipal Law §205-a is to be construed liberally to provide a cause of action for firefighters injured directly or indirectly as the result of any reasonably connected regulatory violation. Accordingly, since a firefighter is not required to demonstrate the same degree of causal connection as a common-law plaintiff, it is contended that liability may attach to anyone having significant contact with the premises that is found to be responsible for the violation of a pertinent statute, ordinance, rule or regulation.

As to the discovery aspect of PERFETTO's motion, plaintiffs contend that most of the records sought are unrelated to the claims against the moving defendant. More specifically, since plaintiff's allegations are related specifically to the injury to his right knee, it is claimed that any authorizations should be limited to medical and pharmaceutical records relating solely to this specific condition. In any event, plaintiffs argue that the moving defendant has not provided a sufficient factual predicate to obtain access to the non-public contents of plaintiff's "FACEBOOK" account.

In partial opposition to PERFETTO's motion, the SCIASCIA defendants argue that there are triable issues of fact as to the nature and size of the defect which allegedly caused the injury to plaintiff's right knee. In this regard, the SCIASCIAs note that plaintiff testified at his EBT that he stepped into a depression in the roadway created by a discrepancy in height between the old roadway surface and the newly laid asphalt which he described as being some "2 - 4" inches in magnitude. This, they claim, is clearly perceptible in two of the photographs authenticated at plaintiff's EBT, which are alleged to reveal a ninety-degree angle between the surface of the two adjacent areas of the roadway.

The SCIASCIAs also oppose PERFETTO's motion on the grounds that the latter's repaving work was found to fail a subsequent inspection conducted on January 23, 2010, and again on March 24, 2010, less than one year after plaintiff's purported injury. Although movant's work allegedly passed an inspection performed two months later on May 23, 2010, the SCIASCIAs argue that the questions raised by the January and March failures and the uncontroverted need for repair work preclude awarding PERFETTO summary judgment.

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of its right to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact. Once this initial burden has been met, it is incumbent upon the opposing party to lay bare its proof by producing competent admissible evidence establishing the existence of one or more triable issues of fact in order to defeat the motion (see Alvarez v. Prospect Hosp, 68 NY2d 320). In determining a summary judgment motion, the court's function is not to resolve disputed factual issues, but to determine whether any such issues actually exist (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).

In the instant case, defendant's motion for summary judgment on the cause of action pleaded under General Municipal Law §205-a must be denied, as PERFETTO has failed to establish, prima facie, that the roadway was resurfaced in conformity with the applicable rules [*6]and regulations. Rather, its assertion is based on the inference that it would not have been paid had its work been inspected and found to be deficient. Thus, there is no direct proof of compliance. Having failed to make a prima facie showing that its work was in full statutory compliance, PERFETTO is not entitled to dismissal of the complaint as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 230).

Under General Municipal Law §205-a, firefighters are entitled to recover damages for injuries caused by defendants whose failure to comply with governmental regulations are alleged to constitute a direct or indirect cause of their injuries. This law was specifically enacted to correct a perceived inequity in the common law, and was intended to impose liability whenever there is any practical or reasonable connection between a statutory or regulatory violation and the injury or death of a firefighter. Moreover, as a remedial statute, General Municial Law §205-a is to be construed liberally (see Kenavan v. City of New York, 70 NY2d 558, 566), requiring only that a plaintiff "identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's violation directly or indirectly caused the harm to the firefighter in order to defeat a defendant's motion for summary judgment" (Zanghi v. Niagara Frontier Transp. Commn., 85 NY2d 423, 441). Here, plaintiff has sufficiently stated the manner in which he was injured; identified the rules and regulations pertaining, e.g., to street openings and their remediation (see e.g. Title 34 of the Rules and Regulations of the City of New York §§2-09, 2-11 and §§ 19-110, 19-115 and 19-147 of the Administrative Code of the City of New York); and set forth sufficient facts from which it may be inferred that the violation of one or more of the foregoing directly or indirectly bore a practical connection to his injury (see Giuffrida v. Citibank Corp., 100 NY2d 72, 79).

Nevertheless, defendant's motion for summary judgment addressed to the cause of action predicated on common-law negligence is granted. It is axiomatic that in order to prove a prima facie case of negligence, a plaintiff must establish (1) the existence of a duty on the part of the defendant, (2) a breach of that duty, and (3) that said breach was a proximate cause of his or her injuries. Accordingly, there can be no liability without a corresponding duty (see Atkins v. Glens Falls City School Distr., 53 NY2d 325, 323-333).

Normally, a contractual violation by a subcontractor such as PERFETTO will not give rise to tort liability in favor of non-contracting third parties (see Church v. Callanan Inds., 99 NY2d 104). Nevertheless, in Espinal v. Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals identified three situations in which a party who contractually undertakes to render services for another may be said to have assumed a duty of care towards third persons capable of exposing them to potential tort liability: (1) where the putative wrongdoer has launched or put into motion a force or instrument of harm; (2) where its performance has induced a plaintiff's detrimental reliance upon its continuance; or (3) where the putative wrongdoer has entirely displaced its contractor's duty to maintain the premises in a reasonably safe condition (id. at 140). In this case, it cannot be said that any of these exceptions apply. Clearly, it cannot be said that plaintiff relied in any way upon the quality of PERFETTO's repaving, or that PERFETTO had effectively taken over THE CITY's responsibility to maintain the subject roadway in a reasonably safe condition. In addition, it is the opinion of this Court that the alleged height differential noted during discovery cannot be said to have affirmatively "launch[ed] a force or instrument of [*7]harm" upon the public at large (cf. H.R. Moch Co. v. Rensselaer Water Co., 247 160, 168). Although in certain circumstances a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk (see Brown v. Welsbach Corp., 301 NY 202, 205; Minier v. City of New York, 85 AD3d 1134), plaintiff at bar has failed to raise any such issue in this case, particularly where the condition of the pavement about which plaintiff complains was subject to various forces without PERFETTO's control for several months. As the Court of Appeals stated in Zuckerman v. City of New York, 49 NY2d at 562, "[m]ere conclusions, expressions of hope, or unsubstantiated allegations or assertions [of fact] are insufficient" to defeat a motion for summary judgment. Accordingly, plaintiffs have failed to raise any triable issue of negligence.

As for the argument by codefendants SCIASCIA regarding any subsequent violation issued to PERFETTO or the necessity to perform repair work following the date of plaintiff's accident, such arguments are not only irrelevant, but are neither admissible or discoverable in this action (see Cleland v. 60-02 Woodside Corp., 221 AD2d 307).

With regard to the discovery aspect of PERFETTO's motion, it is well settled that CPLR 3101(d)(1) entitles each party to the "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." What is "material and necessary" generally has been left to the sound discretion of the court and may include "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406).

Here, plaintiffs have included an extensive list of injuries in their bill of particulars allegedly attributable to the injury to plaintiff's right knee on July 8, 2009. Accordingly, it is the opinion of this Court that all of the records presently sought by PERFETTO may well be material and relevant to the claims made by plaintiffs in this lawsuit. As plaintiff concedes that he was prescribed pain medication to alleviate the discomfort following his knee injury, any pharmacy records pertaining to these type of medications issued to plaintiff are plainly material and necessary to the defense of this action (see Michael A. DeLouise v. S.K.I. Wholesale Beer Corp., 79 AD3d 1092). In addition, plaintiff maintains that this specific injury has left him permanently disabled and has negatively affected his enjoyment of life, including his post-accident relationship with his wife. It is also claimed that as a result of the above they have been compelled to attend marriage counseling. Since plaintiffs themselves have placed the post-accident status of their marriage into issue, they may be deemed to have waived any confidentiality issues pertaining to these records, thereby making them relevant and discoverable in the present litigation (see Carney v. Wopperer, 277 AD2d 1050; Waldman v. A.H. Robbins Corp., 129 Misc 2d 331). The same applies to plaintiff's claim for loss of services and his wife's claim for loss of consortium. Similarly, plaintiff has failed to convince this Court that his education and employment records are irrelevant or immaterial to the defense of this action, especially since he claims to be permanently disabled and unable to participate in, e.g., many of his normal daily activities, or to stand or sit for any length of time.

Finally, it is the opinion of this Court, that the moving defendant has sufficiently shown that information contained within plaintiff's Facebook account may contain information that is relevant to the claims made with regard to the effects of his injuries as alleged in their bill of [*8]particulars. These include plaintiff's claim to have been incapacitated and confined to bed or home during the first two months following the accident, as well as its permanent effects on his daily life. When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public. Clearly, our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material, and it is impossible to determine at this juncture whether any such disclosures may prove relevant to rebut plaintiffs' claims regarding, e.g., the permanent effects of the subject injury. Since it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery. Therefore, granting PERFETTO access to portions of plaintiff's Facebook account, including access to certain deleted materials, may well prove relevant and necessary to the defense (see Patterson v. Turner Construction Co., 88 AD3d 617; cf. Romano v. Steelcase Inc., 30 Misc 3d 426 [Sup Ct Suffolk Co 2010]).

Accordingly, it is

ORDERED that so much of the motion by defendant PERFETTO CONTRACTING COMPANY, INC., as seeks summary judgment dismissing the complaint and any cross claims against it is granted to the extent that the sixth cause of action alleging common-law negligence against it is hereby severed and dismissed; and it is further

ORDERED that so much of the motion as seeks additional discovery is granted to the extent that plaintiffs are directed to provide this Court with copies of plaintiff's education, employment, pharmacy, marital counseling records and Facebook postings, including deleted material, in order that the Court may perform an in camera inspection to assess the materiality and relevance of these materials; and it is further

ORDERED that plaintiffs file such materials with the Court within 30 days after the service upon them of a copy of this Decision and Order, with notice of entry; and it is further

ORDERED that the balance of the motion by defendant PERFETTO CONTRACTING COMPANY, INC., as seeks summary judgment dismissing the fifth cause of action under General Municipal Law §205-a is denied; and it is further

ORDERED that the clerk shall enter judgment accordingly.

E N T E R,

/s/ Hon. Thomas P. Aliotta

Dated:April 9, 2012J.S.C.

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