Garcia v CPS 1 Realty

Annotate this Case

Download PDF

Garcia v CPS 1 Realty 2016 NY Slip Op 30364(U) February 29, 2016 Supreme Court, Suffolk County Docket Number: 08020/2011 Judge: Jr., Andrew G. Tarantino 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] ( - ORIGINAL - I L:i.."_~::::::- co SUPREME COlT - PART 50 COUNTY OF SUFFOLK - TATE OF NEW YORK PRESENT · HON. ANDREW G. TARANTINO, JR. ------------------------------------------------~~~~~~~~---11-x - Index No. 08020/2011 Motion seq. Orig. Date: Adj. Date: 008: MD 9/30/2014 3/2/2016 Motion seq. Orig. Date: Adj. Date: 009: XmotD 10/28/2014 3/2/2016 Motion seq. Orig. Date: Adj. Date: 010: XMotD 11/ 12/14 3/2/2016 WALTER GARCIA, Plaintiff(s) -againstCPS 1 REALTY, LP, CPS 1, LLC, CPS 1 REAI!.TY GP, LLC, EL-AD PROPERTIES NY, LLC, ELlAD 52, LLC, THE EL-AD GROUP, LTD., 49 EAS 21, LLC, FAIRMONT HOTEL MANAGEMENT P, AND TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, Defendant(s). -------------------------------------------------------------- -x CPS 1 REALTY, LP, CPS 1, LLC, EL-AD PROPERTIES NY, LLC AND THE EL-AD GROUP, LTD., Third-Party Plaintiffs, ORDER DENYING PRECLUSION AND OTHER RELIEF -againstNOVA DEVELOPMENT GROUP, INC., Third-Party Defendant. -------------------------------------------------------------- x NOVA DEVELOPMENT GROUP, INC., Second Third-Party Plaintiff, -againstATLANTIC-HEYDT CORPORATION, Second Third-Party Defendant. --------------------------------------------------------------- x Plaintiff: Walt.er Garcia Alan Shapey, Esq. Defendant: CPS 1 Realty LP, by McGaw, Alventos & Zajac Appellate Counsel: C 'stopher Simone Shaub, Ahmuty, Citri & Spratt Third-party Defendant Nova Development G up Baxter, Smith & Shap o Second third-party Defendant Atlantic-Heydt Corp. Gladstein, Keane & Fl menhaft [* 2] Garcia v CPS 1 Realty Index 08020-2011 Page2 Upon consideration of the notice of motion y the defendant CPS I Realty, LP 1 for an order precluding all parties from litigating, eliciting evidence of or otherwise attempting to establish that the subject accident occurred elsewhe e and in any manner other than as determined by the prior orders of the Supreme Court, Suffolk C unty (Leis, J.), dated January 26, 2012 (so ordered transcript dated March 2, 2012), and May 2 , 2013 (so ordered transcript dated June 6, 2013), the supporting affirmation and exhibits, the otice of cross-motion for an order denying CPS 1 Realty, LP's motion or alternatively, grantin Nova Development Group, Inc. judgment against Atlantic-Heydt Corporation on its claims fo common law indemnity, the supporting affinnation and exhibits, the amended notice of cro s-motion for that same relief, the supporting affirmation and exhibits, CPS l's Realty, LP's affid vit in reply and in opposition with supporting exhibits dated October 21, 2014, the reply affirmati n of Nova Development Group, Inc. with exhibits dated November 12, 2014, the affirmation i opposition to motion and cross motion on behalf of Atlantic-Heydt Corporation with exhibit d ted December 12, 2014, and the reply affirmation of Nova Development Group, Inc. dated December 16, 2014, it is hereby ORDERED that the order dated August 13, 015, disposing of motion sequences 008 through 010 is vacated; and it is further ORDERED that the motion of.CPS 1 Realty, LP ["CPS 1"],to preclude evidence at the apportionment trial as to the manner and location o the subject accident is denied; and it is further ORDERED that so much of the cross-motio of Nova Development Group, Inc. seeking denial of the motion to preclude is granted; and it is er ORDERED that so much of the cross-motio of Nova Development Group, Inc. seeking a judgment against Atlantic-Heydt Corporation for co on law indemnity is denied. On May 2, 2006, the plaintiff Walter Garcia "the plaintiff' or "Garcia"], an asbestos handler employed by third-party defendant Nova De elopment Group ["Nova"], was removing asbestos caulking from windows during a renovatio project at the Plaza Hotel in Manhattan. According to the plaintiff's testimony at his examin ion before trial, Garcia was standing on a scaffold when he fell while climbing over the safety ailing as he was attempting to reach the next window. In doing so, the plaintiff hit a section of pi~ and landed on a roofledge, which was 2 to 3 feet below the scaffold work platform. The scaffoldi g was erected by second third-party defendant Atlantic-Heydt Corporation ["Atlantic-Heydt"]. CPS l was the owner of the subject premises and construction manager of the project. Nova was· the c ntractor hired to provide asbestos abatement and hazardous material removal services. The action originally commenced in Supreme Court, Bronx County, was transferred to Suffolk County in 011 on Nova's motion to change venue. Well before the completion of discovery, No a moved to dismiss the third party complaint or alternatively, for summary judgment dismissing e third party complaint (motion sequence 1 action. By stipulation dated October 26, 2012, all o her defendants were discontinued from the [* 3] Garcia v CPS 1 Realty Index 08020-2011 Page 3 001 ). The three bases for Nova's dismissal motion ncluded that 1) CPS l's cause of action for common-law indemnification was barred by Work6{'s Compensation Law §11 in that the plaintiff did not sustain a "grave injury"; 2) the Labor Law_t200 cause of action was barred by the · applicable statute of limitations; and 3) CPS l's ca e of action predicated on contractual indemnity should be dismissed due to CPS l's viol ion of notice requirements in the subject contract. Shortly thereafter in August, 201 1, the plain iff cross moved for partial summary judgment on his Labor Law §240 (1) claim against CPS 1. At at point in the litigation only the plaintiffs deposition had been conducted. The plaintiff conte ded that in order to perform his assigned task he had to step from the scaffold to a small roof that as below the window, and that the accident occurred as he was transitioning from the scaffold t the roof deck. The scaffold moved, causing the plaintiff to lose his balance and fall sustaining e injuries for which he now sues. Garcia claimed that he was directed by Nova supervisor, ojciech Kowalczyk ["Kowalczyk"], to climb over the scaffold guardrail to perform caulking at th nearby window. The plaintiff asserted entitlement to judgment on liability under Labor La §240 (1) because he was engaged in a covered activity and was injured due to the owner's ailure to provide him proper protection from a gravity-related risk. CPS 1 opposed the plaintifrs cross-motion guing, inter alia, that at the time the plaintiff served his cross-motion, very limited discovery had en place. When the cross motion was made, only the plaintiff had been deposed. CPS I also argu.ed that the "other parties", presumably Nova, were in possession of an accident report prepared brla site safety specialist which was marked for identification at the plaintiff's examination before al but had not yet been exchanged, that appeared to contradict the plaintiffs version of the cident. At the time of the plaintiffs cross motion, CPS 1 was not yet in possession of a copy o the subject report. Before the Court had issued a decision on th first two motions, Nova noticed a second motion for summary judgment seeking dismissal of PS l's contractual indemnification cause of action in the third party complaint (motion sequence 003), on the basis that Nova was not negligent, nor did it provide any defective safety eq pment which caused, created or in any way contributed to the plaintiff's accident--the trigger to y obligation on Nova's part to indemnify CPS 1 under the subject contract. 2 On January 26, 2012, the then assigned Justi (Leis, J.), orally denied Nova's respective dismissal and summary judgment motions (sequence~ 001 and 003), and granted the plaintiff's cross-motion for summary judgment against CPS 1 ed upon CPS l's liability as owner pursuant to Labor Law§ 240 (1). The transcript was so-ordere on March 2, 2012. A note of issue filed on December 14, 2012, was vacated on April 5, 2012, t allow for additional discovery including the 2 In an affirmation in opposition to Nova's ini ial dismissal motion, the attorney for CPS 1 stipulated to withdraw the first cause of action in th third party complaint based on common law indemnity, as well as the second cause of action r violation of Labor Law §200. [* 4] Garcia v CPS 1 Realty Index 08020-2011 Page4 depositions of Nova and Atlantic-Heydt. The depos tion of a site safety expert, Joseph Accetta, 3 was also still outstanding. In January, 2013, after the outstanding depo itions had been conducted, CPS l moved for leave to renew plaintiffs prior cross motion for s ary judgment to the extent that the March 2, 2012, order granted summary judgment in plaintiff' favor on the New York State Labor Law §240 cause of action, and upon renewal, vacating Justice eis's prior order, and denying plaintiff's application for summary judgment in its entirety. e basis of CPS l 's motion was that recent discovery raised triable issues of fact that called the laintiff's credibility into question as to how and where the accident occurred. In seeking renew , CPS l argued that the deposition testimony of Nova's Wojciech Kowalczyk, Atlantic-Heydt's ugh Kieran Ennis, and site safety expert Joseph Accetta, raised material issues of fact regard ng not only how and where the accident occurred, but whether the scaffold, or the scaffold r 'ling was set up correctly. Notably, Kowalczyk testified that the plainti came to him after the accident and indicated that he had slipped on the scaffold. According to K alczyk, the plaintiff never said anything about climbing over the scaffold railing or about the scaffold moving. Nova also submitted an affirmation in suppo of CPS l's motion to renew. The affirmation discussed an accident report which stated that the pl intiff fell on stairs after he had stopped for lunch. The site safety supervisor, Accetta, had idenf 1ed this document at his deposition and testified that he prepared the report. He also testifie that he "probably" got the information for the report from the plaintiff; however, Accetta did not s ecifically recall the conversation. Nova argued that since it was just as likely that the plainti s injury could have been caused by something other than the alleged L.L. §240 (1) viola ion, such as falling down steps, any determination. by the trier of fact as to the cause of e accident would be based upon sheer speculation. Notably, in CPS l's "Affirmation In Reply T Plaintiff's Affirmation In Opposition To Motion For Leave To Renew" dated March 22, 2013 CPS l's attorney argued in further support of his renewal motion: "While plaintiff claims that his acci ent occurred when the scaffold railing moved as he was climbing ov r it because he was required to leave the scaffold to perform his job d ties, there is now evidence upon which a jury could reach an entirely "fferent conclusion. Notably, as pointed out in the affirmation in supp rt of the motion, the deposition of NOVA's witness, along with the d osition testimony of non-party witness Joseph Accetta, establishes th t there was absolutely no reason for the plaintiff to climb off the sea old to do his job .... Similarly, while the plaintiff contends that prop r scaffolds had not yet been set up in the particular area in question, e recent deposition testimony 3 The surname "Accetta" has been variously s elled throughout the motion papers. For the sake of consistency, this Court will adopt the spel ing "Accetta" as the correct version. [* 5] Garcia v CPS 1 Realty Index 08020-2011 Page 5 constitutes evidence that in fact propf r scaffolding had in fact been set up in the area, such that there was n1need for the plaintiff to leave the scaffold at any time during the co se of his work. .. .Likewise, the accident report in question, which as now been authenticated, and identified by Mr. Accetta as an accid nt report that he prepared, in the ordinary course of business, clearly in icates that the plaintifffell while walking down steps." On renewal of the order granting partial s ary judgment in favor of the plaintiff on liability, CPS l argued that the accident report and t e testimony of Accetta, Kowalczyk, and Ennis raised numerous and significant triable issues of fac precluding summary judgment in the plaintiffs favor on his §240 claim, not the least of hich was whether the plaintiff's own actions constituted the sole proximate cause of the accident. On May 23, 2013, during an oral argument o CPS l's renewal motion, Justice Leis denied CPS l's motion, concluding that the accident report ould not be admissible since Accetta, the maker of the report, testified only that he "probably' obtained the conflicting information about the accident from the plaintiff. Justice Leis also conclu~d that Kowalczyk's testimony was not inconsistent with the plaintiff's version of the accid~nt. The transcript denying the renewal motion was so-o.rdered on June 6, 2013. On July 2, 2013, J~stice Leis referred a motion for summary judgment dismissing Nova's second third party complaint and all cross-claims and counterclaims for contractual and common-law indemnification by Atlantic- Heydt to the Calendar Control Part for further proceedings. Ultimately, so much of Atl tic-Heydt's motion that sought to dismiss Nova's contractual indemnification claim was grant d, and the motion was otherwise denied (Baisley, J.) .(motion sequence 007). CPS I took an appeal from Justice Leis's or r denying renewal. Ultimately, CPS 1 moved to withdraw its appeal, which motion was granted b order of the Appellate Division Second Judicial Department, on November 21, 2013. There re, any appeal by CPS I from the final judgment will bring up for review Justice Leis's prio orders granting partial summary judgment and denying renewal of the order granting that relief respectively (see CPLR 5501 [a][l]; see generally, Siegel, N.Y. PRAC. § 530 at 910 [4th ed.]) An apportionment trial before the Hon. W. G rard Asher was commenced on May 12, 2014. It ended in a mistrial based on a dispute betwe n the attorneys for CPS 1 and Nova that the trial judge regretted it could not resolve: whether Jus ·ce Leis' s findings in granting Garcia partial summary judgment vis-a-vis his §240 claim, became1 law of the case, and could not be rethe litigated at the apportionment trial insofar as the cros claims for contribution and common law and contractual indemnity were concerned. CPS l's atto ey argued that if on the apportionment trial the parties are permitted to go into an accident repo stating that the plaintiff fell on a staircase while going down to lunch, thereby undoubtedly defi ating CPS l's contractual indemnification claim against Nova, such testimony would be contr to Justice Leis's grant of partial summary judgment on Garcia's §240 claim. In declaring a mi rial, Justice Asher stated that only Justice Leis should determine the ramifications of the partial grant of summary judgment vis-a-vis the [* 6] Garcia v CPS 1 Realty Index 08020-2011 Page6 apportionment claims. 4 After the mistrial on the issue of fault appo ionment, the matter was assigned to this Court enced on July 20, 2015, and concluded with a strictly for a damages trial. The damages trial co verdict in the plaintiff's favor in excess of $6 millio dollars, on August 10, 2015. Prior to this Court being assigned to try the amages portion of the case, CPS 1 moved to preclude any evidence at the fault apportionment tri that contradicted the version of the accident that formed the basis for Justice Leis's decision gr ting partial summary judgment in the plaintiffs favor (motion sequence 008). In other wo ds, CPS 1 sought to preclude Nova and Atlantic-Heydt from attempting to prove that the ac ident happened anywhere or in any manner other than on the scaffold as testified to by the plain iff at his examination before trial. Nova cross moved for an order denying the requested preclusio and alternatively, again sought summary judgment for common law indemnification against tlantic-Heydt (motion sequences 009 and 010). During the damages trial motions 008 throu 0 I 0 were pending. Believing, mistakenly, that the issues presented in these motions had been r ndered academic by the damages trial, this Court denied all three motions as moot on August 1 , 2015. The Court vacates the order dated August 13, 2015, and now considers, as CPS 1 asse s, whether Justice Leis's order granting the plaintiff liability pursuant to §240 is the law of the cfe as to the factual basis for where and how the accident occurred for purposes of apportioning Ii bility among CPS 1, Nova, and AtlanticHeydt. Regarding motion sequences 009 and 010 (rupended notice of cross-motion), Nova's argument is that the issue decided on the prior motioh was solely the plaintiff's entitlement to summary judgment on his Labor Law §240 claim ag inst CPS 1. The plaintiffs motion was not even brought against Nova and, more importantly, re was never any discussion with, much less a determination by, Justice Leis of CPS l's entitleme t to contractual or common law indemnity as against Nova. Nova argues that the order granting su ary j udgment in the plaintiff's favor does not in any way require preclusion of testimony regar ing the evidence in the apportionment trial which will ultimately determine the indemnity claim . Alternatively, if this Court were to extend the law of the case doctrine to include factual findin as to how the accident happened, then Nova argues it would be entitled to common law indemnifi ation against Atlantic-Heydt as it is undisputed that Atlantic-Heydt erected the scaffold. The law of the case doctrine addresses the po entially preclusive effect of judicial determinations made in the course of a single litigati n before final judgment (People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 123 [2000]). The law of the case doctrine is part of a larger family of kindred concepts, which include res judicata (claim preclusion) and collateral estoppel (issue preclusion). Id. "These doctrines, bro dly speaking, are designed to limit 4 The attorneys for CPS 1, Nova and Atlantic- eydt advised this Court that after the mistrial before Justice Asher, Justice Leis declined th ir invitation to decide motion sequences 008 through 0 l 0. [* 7] Garcia v CPS 1 Realty Index 08020-2011 Page 7 relitigation of issues. Like claim preclusion and iss e preclusion, preclusion under the law of the case contemplates that the parties had a full and fai opportunity to litigate the initial determination". Id. citing Arizona v. California, 4 U.S. 605, 619, 103 S.Ct. 1382, 75 L.Ed.2d 318; People v. Guerra, 65 N.Y.2d 60, 63, 489 N.Y.. 2d 718, 478 N.E.2d 1319; Sales v. State Farm Fire & Cas. Co., 902 F.2d 933, 936 [I Ith Cir.1990 ). However, law of the case rests on a foundat on that distinguishes it from issue and claim preclusion. Whereas the latter concepts are rigid rul s of limitation, law of the case is a judicially crafted policy that "expresses the practice of courts enerally to refuse to reopen what has been decided, [and is] not a limit to their power" (People v. Evans, 94 N.Y.2d 499, 503, 727 N.E.2d 1232, 1235 (2000], citing Messenger v. Anderson, 5 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152). As such, law of the case is necessarily amorp: ous" in that it "directs a court's discretion," but does not restrict its authority (see, Arizona v. C ifornia, 460 U.S. at 618, 103 S.Ct. 1382, 75 L.Ed.2d 318). Pursuant to the doctrine of law of the case, j dicial determinations made during the course of a litigation before final judgment is entered may ave preclusive effect provided that the parties had a full and fair opportunity to litigate the initial d termination (see Purpura v. Purpura, 21 A.D.3d 542, 799 N.Y.S.2d 916; Stone v. Stone, 19 !D.3d 404, 795 N.Y.S.2d 893; Engel v. Eichler, 300 A.D.2d 622, 623, 753 N.Y.S.2d 109). CPS 1 argues that the grant of summary jud ent on §240 liability establishes the law of the case as to the issues essential to that determinati n, citing 28 N. Y. JUR. 2D, Courts and Judges, § 269; Dukett v. Wilson, 31 A.D.3d 865, 868, 818 N. .S.2d 337, 340 (3d Dept. 2006). According to CPS 1, Justice Leis's finding of how the accident ccurred-while plaintiff was stepping over the ary judgment on the plaintiffs Labor Law scaffold railing-was "essential" to its granting of s §240 claim. Justice Leis could not have granted the laintiff judgment on liability under § 240 (1) without making factual determinations to support its mding. There is a fatal flaw to CPS 1's argument reg ding application of law of the case: that is, in order for the law of the case to be binding on the Co and the parties in a litigation, the parties must have had a full and fair opportunity to litigate e issues to which one party seeks to bind another. Here, on plaintiffs summary judgment cros motion, neither Nova nor Atlantic-Heydt had a full and fair opportunity to contest how and where e accident occurred. First, the Garcia's summary judgment motion was solely against CPS 1 as owner, not against Nova, the plaintiffs employer, or against Atlantic-Heydt, a subcontractor n the project. Second, as so eloquently, albeit unsuccessfully, set out in CPS 1's renewal mot on and reply, the plaintiffs cross motion was made before the defendants' and non-party depositio s were even taken and before discovery was complete. Specifically, the motion was granted befor the plaintiffs supervisor testified that the plaintiff reported to him that he slipped on the scaffo d, and before the site safety expert testified that he prepared an accident report that detailed the p aintiff as having fallen on a staircase. While this Court is not unmindful that "a co should not ordinarily reconsider, disturb or overrule an order in the same action of another court f co-ordinate jurisdiction" (Matter ofDondi v. Jones, 40 N.Y.2d 8, 15, 386 N.Y.S.2d 4, 351 N.E. d 650), law of the case is necessarily "amorphous" in that it "directs a court's discretion," ll t does not restrict its authority (see, Arizona [* 8] Garcia v CPS 1 Realty Index 08020-2011 Page 8 v. California, 460 U.S. at 618, 103 S.Ct. 1382, 75 .Ed.2d 318). As a Court of coordinate jurisdiction, this C decision that CPS I is strictly liable to the plaintiff discovery had yet to be completed when partial s insofar as the apportionment /indemnification trial i preside, the Court exercises its discretion to allow e the accident occurred insofar as there are clearly iss determine CPS l 1s contractual indemnity claim agai claim against Atlantic-Heydt. urt should not and will not alter Justice Leis's otwithstanding that a significant amount of ary judgment was granted. Nevertheless, concerned, over which this Court will idence of the location of and manner in which es of fact, the resolution of which will st Nova, and Nova's common law indemnity Accordingly, the order dated August 13, 201 010 is vacated. CPS l's motion to preclude evidenc and location of the subject accident is denied. Som CPS l's motion to preclude is granted. So much of against Atlantic-Heydt for common law indemnity i , disposing of motion sequences 008 through at the apportionment trial as to the manner ch of Nova's cross motion seeking denial of ova's cross-motion seeking a judgment denied. This constitutes the decision of the Court. FINAL DISPOSITION _NON-FINAL DISPOSITION

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.