Smith v Bovis Lend Lease LMB, Inc.
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Smith v Bovis Lend Lease LMB, Inc. 2014 NY Slip Op 31516(U) June 16, 2014 Sup Ct, New York County Docket Number: 113098/10 Judge: Doris Ling-Cohan 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 3~ PRESENT: Justice Index Number: 113098/2010 SMITH, CHARLES F. vs. BOVIS LEND LEASE LMB SEQUENCE NUMBER : 005 INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. - - - SUMMARY JUDGMENT J1J l'V'1 ~ '7 tr ucf.2 ,.~ f11 1.F The following papers, numbered 1 to _ _ , were read on this motion to/for I No(s). { L I No(s). _ _......_ __ ') I No(s). Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits --1=---- Replying Affidavits Upon the foregoing pape,., It I ¢ ordered that this motion i r f[,,_, .· ,ru,,.,.,,,r} J1dt~;;I #c; cb£,,,,_k/- !&v/:r ~~ Le~.!.. /176, ./ri c. is ~c-W ;-,., UJOC<>~/VC-(. w w ~ u ;::: ~ "") .nv ~-7' ~ c w a:: Fl LED a:: w LI. w a:: >- . :.:. ..J ~ ..J z JUN 17 2014 ::I 0 l NEWYORK....,~; LI. t/J I- <( Ow COUNTY CLERK'S~ t . .J w a::: g, (!) z w a::: - "' 5': -0 w ..J "' ..J <( 0 0 LL - ::t: z w 0 I- ;:: a:: Oo :i5 LL 'i:l· NON-FINAL DISPOSITION 2. CHECK AS.APPROPRIAT~f ¢ ¢, ¢ ¢: ¢ ¢ ¢ ¢:.. ·c·· ¢u ¢m ¢····MP~ION.IS: .. 3. CHECK IF APPROPRIAT~::~.: ¢ ¢,: ¢ ¢ :...L.'. ;L. ¢;;./..J.:.......;. ¢. . . .· o· GRANTED 0 OSETTLE ORDER . . ... ·. .!"hf;; . · ¢· .·. ·d·.·o····o···N"o···r·.. Po·.s··.·r LJ -~-,-:--·'.-- ~:- ·-~'. 0 GRANTED IN PART 0 0 OTHER SUBMIT ORDER FIDlJCIARYAPPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THt STATE OF NEW YORK COUNTY OF NEW YORK· : IAS PART 36 ~------------------------------------x CHARLES F. SMITH and SONIA ORTIZ, Index No. 113098/10 Plaintiffs, - against - Motio Seq. No.: 005 BOVIS LEND LEASE LMB, INC. and ERNEST FLEMING, Defendants. -------------------------------------x BOVIS LEND LEASE LMB, . INC., · Third-party Plaintiff, against - ________ · f \ \. . PARKVIEW PLUMBING & HEATING, INC., '\ ED JUl't '\ 7 2014 \ :~~=~=~:==~-~===~~:~~~~~ \i\JU ¢'· . HON. DORIS LING-COHAN / J. : ' ---~ .. ::.. ·- ~ Defendant/third-party plaintiff Lend Lease (QS) Construction LMB Inc., form~rly known as Bovis Lend Lease LMB, Inc. ("Lend Lease"), moves, pursuant to CPLR 3212, for summary judgment dismissing the Complaint and all cross claims against it. BACKGROUND Plaintiffs Charles F. Smith ("Smith") and Sonia Ortiz ("Ortiz"), husband and wife, reportedly commenced this action seeking to recover damages from defendants for personal injuries that resulted from an incident Fleming ("Fleming") . betwee~ Smith and defendant E~nest The incident allegedly occurred on May 20, 2010, during work on a cdnstruction project at the Rego Park Mall, 61-11 Junction Boulevard, Queens, New York. Smith, a plumber, was employed by third-party defendant Parkview Plumbing [* 3] & Heating, Inc. Tremont Avenue, Lease, ("Par kview P 1 umbing") , lo cat Bronx, he genera project. Fleming was a foreman with Lend New York. contractor for the Rego Park Mall constructi Parkview Plumbing was a plumbing subcontracto project. work st at 3928 claims that he was assault on the construction project. seek to recover ng's negligence, and s for personal injuries based on Fl re whi e Fl Plain~iffs r the f superior. ngs and the f o lowing facts are gleaned from the pl of Smith's testimony at an t:rans ("EBT") (Tr of ation before trial th EBT, Not of Mot, Exh G) Smith began wor the Rego Park Mall construction project in February 200 a::20). He was the plumbing foreman for the construction ject, and had never been suspended for any reason 30-3 ) . d. 20, 2010, two Lend Lease wor On (id. at 25, rs informed Smi h that Fleming had hidden his snap cut er tocl the previou n presumably because Fleming wanted to maintain a clean work area, and Smith often left his tools on the floor response, (id. at 48-49 . th took Fleming's keys from an ATV-type cl that Fl would return Smith's snap cutter tool for the keys ass (id. at 55, 58, 61). n n Fleming denied ta Smith's cutter, and forcefully attempted to recover his keys at 64-65). Smith onto The two men got into a scuff , and Fl pile of sheet rock (id. at 67-68). 2 tack ed The incident ng d. [* 4] ended only when another Lend Lease worker separated Smith and Fleming (id. at 69). Smith allegedly sustained injuries and this action ensued. In the first cause of action in the Complaint, Smith alleges that the occurrence was caused solely by the negligence of defendants. He claims that he was assaulted by Fleming while lawfully performing his duties on the construction project. He also claims that Lend Lease was negligent, under the doctrine of respondeat superior, for permitting Fleming to assault him; allowing Fleming to be employed on the construction project despite his tendencies for bad actions; and hiring Fleming, who faced criminal charges for aggressive and violent behavior in another jurisdiction. In the second cause of action, Ortiz reportedly alleges a claim against defendants for loss of consortium. The Bills of Particulars contain similar allegations and adds that Smith suffered injury to his right shoulder and lumbar spine (Bill of Particulars, Lend Lease Affirm, Exh F, ~14) Defendants filed separate answers, generally denying the allegations in the Complaint, asserting numerous affirmative defenses, and alleging cross claims against co-defendant for contribution or indemnification. In addition, Lend Lease commenced a third-party action against Parkview Plumbing alleging claims for contractual indemnification (first count), breach of contract (second count), negligent hiring and retention (third 3 [* 5] count) , negligent submissions do not sion (fourth count). The arance by Parkview P umb lude an du led Plaint ff Ortiz failed to appear for conferences s 4, 20 2, and the Court di Orde ssed the action as to Ortiz st 24, on Non-appearance dated n a J). 23, 2013, that she never consent (Tr f Ort 201 , Lend Lease a-c an EBT, tion, Ortiz testif ld Affir~, March a party in this ac to on firm, Exh A, at 29 30}. EBT, Reply Lend Lease now seeks surrmary judgment dismissing t ligence claim by Smith and all cross cla remaining (see asserted aga ns DISCUSSION I is well settled must make a pr rnot as a mat er of law, York Univ. Med. Ner,.1 York, the proponent of a summary j f acie showi of ent tlement to j sufficient r t any mater he absence o t 1 issues of Ctr., 64 NY2d 851, 4 9 NY2d 55 7, 5 62 dence to demonstrate (see Win 853 (1985]; [ l 98 0] ) . d \l Zuckerman v Once this showi has been made, the burden shifts to the party opposing the motion for suff ic proof to produce suITLrnary j ssible form to establish the existence of material issues of which require a trial of the action (Zuckerman v City of Nc;,1 York, supra). Mere conclusions, expressions of 4 , or ~ [* 6] unsubstantiated allegations or assertions are insufficient to defeat summary judgment (id.). As stated, the Complaint alleges, in essence, that the occurrence was caused solely by the negligence of defendants, including the negligence of Lend Lease in employing and supervising Fleming. Negligence is the breach of a duty resulting in jury (Pulka v Edelman, 40 NY2d 781, 782 [1976]) An employer is vicariously liable for the torts of its employee, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his or her employment 3 02 [ 197 9] ) . (Riviello v Waldron, 47 NY2d 291, The term "scope of employment" is defined to include "an act ... done while the servant is doing [the] master's work, no matter how irregularly, or with what disregard of instruct ion" : id. [internal citations omitted] ) . The determination of whether a particular act was within the scope of the servant's employment is so heavily dependent on factual considerations (id. at 303) ordinarily one for the jury (id.). Thus, the question is Among the factors to be weighed are the connection between the time, place, and occasion of the act; the history of the relationship between the employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act 5 [* 7] was one that the employer could reasonably have anticipated (id. [internal citations omitted]). An employer may also be required to answer in damages for the tort of an employee against a third party when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm (see Kirkman v Astoria Gen. 401, 403 Hosp., 204 AD2d [2d Dept 1994]). In seeking summary judgment, Lend Lease essentially argues that the alleged wrongful acts of Fleming were not done within the scope of his employment. Lend Lease also contends that Smith cannot establish that Lend Lease was negligent in employing or supervising Smith. To support its position, Lend Lease relies primarily on the transcripts of the EBT testimony of the parties. Fleming testified at an EBT and denied assaulting Smith (see Tr of Fleming EBT, Not of Mot, Exh I, at 103). that he had never been convicted of a crime, no charges pending against him (id. at 8-9). He also teslified and that there were He further testified that he received orientation from Lend Lease on the code of ethics and treatment of other workers at a job site at 10, 11). In addition, (id. he stated that Lend Lease probably identified violence or using expletives to talk to other workers as unbecoming conduct (id. at 11). Fleming also testified that he was notified of Lend Lease's policy against physical fights on the job site, and was aware that a violation of the policy would 6 [* 8] to termination (id. at 14). was never reprimanded ~e that r testifi Lend Lease for his conduct at the job ement site (id. at 16), but had seen the termination policy one time at 1 7) . required supe Fleming stated that Lend Lease's policy sors to notify foremen of tripping hazards and tions at the work site (id. at 36-37, dangerous also tes if ed that prior to the alle i 40). He dent, he repeatedly ained to the plumbing foreman about materials being left at work sites by plumbing workers at 35). (id. , Fleming admitted tha:. on May As LO the alleged 2010, at approximately 5:30 p.m., he cutter tool, s -c (id. which had been at 53-57). eked up Smith's snap on the floor at the cons rue ion He also testif ed that the next morning, nquired about his tool; that Smith taunted him with the S~ith r Smith' ; that he reached keys, dangling them in front of hand to recover the keys; and that he did not touch Smith's while t that he to recover the keys He stated (id. at 102-103). ed with Smith for two minutes, trying to recover the keys, until a Lend Lease worker separated them and Smith threw the onto the floor then picked up the t .) . ( Flemings claims that he and returned to work (id.). he and Smith wrestled, or that he threw Smith rock (id. at 113). He der1ied He stated that Lend Lease invest ident and terminated him six on sheet dow~ ted the later, based on the company's policy barring physical fi 7 s on the ob (id. at 127). [* 9] He also stated that he was never involved in any other incident, and that there were no complaints made regarding any fights or altercations or allegations of a violent temper during his roughly 25 years of employment with Lend Lease Christopher DelPozzo (~DelPozzo"), (id. at 149) General Superintendent of Lend Lease, testified at his deposition that he was the supervisor for the construction project (see Tr of DelPozzo EBT, Not of Mot, Exh H, at 24). He also stated that the duties of a Lend Lease foreman included cleaning the project and removtng debris (id. at 14) . DelPozzo also testified that he terminated Fleming on May 24, 2010, at the direction of the Lend Lease legal department and in order to comply with company policy, based on the May 20, 2010 incident at the Rego Park Mall construction project 17). DelPozzo testified that he was informed of ~he (id. at 16alleged incident by another laborer, who reported that Smith and Fleming had gotten into an argument; that Smith had dangled Fleming's keys, and teasing him; that the two got into a small pushing or wrestling match; that it was broken up immediately; and that it was not a big deal (id. at 40). DelPozzo further teslific:c ha.L he had not received any prior complaints about Fleming's work or behavior (id. at 20-21, 50). On review of the submissions, the Court cannot determine as a matter of law that Fleming was not acting within the scope of his employment at the time of the alleged incident. 8 The parties [* 10] y dis incident. al eg e the circumstances surrounding t The e dentiary proof submitted raises triable issues of fact as to whether Fleming confiscated Smith's snap cutter tool in furtherance of his responsibility as foreman to maintain a ean job site, and whet occurred when Smith tri r the alleged assault and injuries to The assertion that Fl f his oyment, o confiscate was not act since Lend Lease does not instruct its foremen that the duties of a foreman incl lean worksite. s However, pr for :naintaining a n the scope of employment, e11o v fval as long as , at 304) ry support for the alle Moreover, worked the submissions are devoid of any or retained Fl of his propensity for the sort of so much of the ne a~ Both Fleming and DelPozzo r incidents during the roughly 25 years that Fl dence that Lend Lease on ly hired and retained Fleming despi e cies for bad acts. Lease. he been reasonably expected (see is no evident Lend Lease negl is t ojecL the exact manner of the injury for an employee to be rded as acting tha is unavailing. An employer need not have foreseen the prec se ral type of conduct may Ri within the scope Lease's supervisor on the construct acknowl re the tool. ools left behind by subcontractors, .r,,s stat act o re~rieve all ng with know edge here :'..n. Thus, igence claim as seeks damages based the negligent hiring or supervision of Fleming must be di 9 ssed. [* 11] ORDERED that the motion for sununary judgment :Ls he extent of severing and ed to ssing so much of the laim as seeks damages based on the negligent hiring or supervision of Fleming, it is and the motion is otherwise denied, rt.her ORDERED that the rema it and r of the action shal continue; and s further ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon all parties, entry. 11 ¢ na+· ed" "' ¢ u Tur1e Lfl__~ L) C \. .l T ¢ \ v. \ f 2 c·,, 4 ) J... \SMITH036.gordon.wpd 10 with notice of
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