Alicea v City of New York

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Alicea v City of New York 2022 NY Slip Op 34559(U) August 11, 2022 Supreme Court, Bronx County Docket Number: Index No. 31849/2017E Judge: Mitchell J. Danziger Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 31849/2017E FILED: BRONX COUNTY CLERK 08/16/2022 10:39 AM NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 08/16/2022 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF BRONX ---- --------------------------------------------------------------x MICHAEL ALICEA, Plaintiff(s), Index No.: 31849/2017E DECISION/ORDER Present: HON. MITCHELL J. DANZIGER -against- CITY OF NEW YORK, Defendant( s). ------------------------------------------------------------------x Recitation as Required by CPLR §22 l 9(a): The following papers were read on this Motion for Summary Judgment: Papers Numbered Notice of Motion, Affirmation in Support with Exhibits. Statement of Material Facts .. .... .. . ....... ..... .......... ....... ..... .. ........ .... ..... . Affirmations in Opposition with Exhibits and Counter-Statement of Material Facts . .. ........ .. .. .. ....... .. .... .. ....... ... ... ..... .. ... .. .. Affirmation in Reply . .... .. ... .. ...... .. ....... ......... ... .. .. ... ..... .. ...................... .. .. .. 2 3 Upon the foregoing cited papers, the Decision/ Order of this Court is as follows: Motion by defendant, The City of New York ("City"), for an order pursuant to CPLR §3025(b) and (c), granting leave to amend its answer to assert affirmative defenses of res judicata, collateral estoppel and judicial estoppel and payment, deeming their amended answer served nune pro tune, and pursuant to CPLR §3212 and/or CPLR §321 1(a)(5), dismissing from plaintiffs bill of particulars any claim that his alleged lost earnings were caused by the accident alleged in this action, is decided as follows: As an initial matter, plaintiff docs not oppose the portion of the City's motion seeking to amend their answer to include the affirmative defenses of res judicata, collateral estoppel and judicial estoppel and payment and deem the amended answer timely served, nune pro tune. As such, the portion of the City 's motion seeking to amend their answer is granted and their amended answer is deemed served, nune pro tune, without opposition. This action arose from a trip and fall which allegedly took place in a Department of Sanitation ("DOS") parking lot on December 7, 2016, resulting in plaintiff sustaining personal injuries including injuries to his neck, right knee, and right shoulder. At the time of his trip and fall , plaintiff was 1 [* 1] 2 of 7 FILED: BRONX COUNTY CLERK 08/16/2022 10:39 AM NYSCEF DOC. NO. 93 INDEX NO. 31849/2017E RECEIVED NYSCEF: 08/16/2022 an employee of DOS. Plaintiff is also claiming lost wages as a result of his trip and fall incident. Prior to his trip and fall , on September 13 , 2016, plaintiff was involved in a work-related motor vehicle accident, where he was allegedly rear-ended in his DOS vehicle by another car driven by a civilian. J\.s a result of this motor vehicle accident, plaintiff claims injuries to his low back, right ankle, and right knee. Within a month after the motor vehicle accident, plaintiff returned to work on a limited basis. After both accidents and on September 11 , 2017 , Lara Glass, a director of the cw York City Department of Sanitation, fil ed and submitted a Disability Retirement application to YCERS on behalf of plaintiff. On April 12 , 20 18, plaintiff was awarded a Disability Pension by NYCERS , where the board found '·the incident of December 13, 2016 , is an accident and the competent causal factor leading to the applicant 's disabling condition. " The Court notes that December 13 , 2016 is not the date of either ofplaintifrs accidents. The City seeks dismissal of any lost earnings claims related to plaintiff's trip and fall incident, since his disability retirement application cited the injuric he sustained in hi s September 13 , 2016, motor vehicle accident as the reason he cannot work . The C ity seeks a finding that plaintiff is estopped from claiming that he is unable lo wo rk as a sani tation wo rker due to his alleged trip and fall accident. The Ci ty submits that res jud icata acts as a bar to the litigation of a claim or defense if there is a final judgment in the former litigation in which the parties, subject matter, and causes of action are identical. The City contends that plaintiff applied for retirement disability so le ly for the motor vehicle accident injuries that took place on September 13, 2016. The City argues that pl aintiff was represented by coun el and appeared for an interview in front of the YCERS Medical Board wherein he stated that he could no longer work as a Sanitation Supervisor because of the injuries he sustained in the motor vehicle accident. The Med ical Board reviewed a letter from Ms . Glass which stated that plaintiff last worked on September 13 , 2016, was then placed on medical leave and was disabled as a result of a rotator cuff tear, lumbago and ccrvicalgia. In opposition, plaintiff submits that the City has not met its burden of demonstrating that collateral estoppcl applies to estop plaintifr s lost wages claim. Plaintiff submits he did not fill out his disability application, but rather Ms. G lass did , and that he on ly completed portions related to designated survivors/beneficiaries. [n addition, all evidence presented to NYCERS was submitted by DOS , not plaintiff. Plaintiff did not have an attorney present at his hearing. /\this 2 [* 2] 3 of 7 FILED: BRONX COUNTY CLERK 08/16/2022 10:39 AM NYSCEF DOC. NO. 93 INDEX NO. 31849/2017E RECEIVED NYSCEF: 08/16/2022 NYCERS hearing, plaintiff was not afforded the opportunity to illicit testimony, call on additional witnesses or cross-examine the doctors. Plaintiff submits that his Accidental Disability Pension award letter does not indicate which of his injuries were the basis of the deci sion . Further, questions of fact exist as to which accident caused his retirement since he returned to work one month after the motor vehicle accident and did not return to work after hi s trip and fall. II is rotator cuff tear, which DOS indi cates was one of the injuri es that rendered him permanently disabled, was as a result of the trip and fall not the earlier motor vehicle accident. The interview portion of the Medical Board report lists injuries sustained in both accidents and the YCERS Board references the accident date as December 13 , 2016, which is neither accident date, but a combination of both. The rules of res judicata and co llateral estoppel arc founded upon the belief that a party should have limited litigation and one final determination, so as to stop a party from rclitigating a subsequent action in the future (Ryan v. New York Tel. Co., 62 N.Y .2d 494 , 500 fl984]). '·Among the spec ific factors to be considered arc the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiati ve to liti gate and the actua l extent of litigation, the competence and experti se of counsel, the availability of new evidence the differences in the applicable law and the foreseeability of future litigation" (Id. at 501 ). To establish collateral cstoppcl, "the burden rests upon the proponent of collateral cstoppcl to demonstrate the idcnticality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding" (Id.). The prior action need not have invo lved formal litigation befo re a court; a "quasi-judicial " or administrative proceeding can give rise to judgments accorded prcclusive effect. (Allied Chem. Niagara Mohawk Po wer Corp., 72 NY2d 271 fl 988n. Among "the factors bearing on whether an administrati ve decision is quasi-judicial arc whether the procedures used in the administrati ve decision were sufficient both quantitatively and qualitati vely, so as to permit confidence that the facts asserted were adequately tested , and that the issue was folly aired." (Jeffreys v. Gr(/fi,n, 1 NY3d 34 12003J). Collateral cstoppel may be given to " quasijudicial determinations of administrati vc agencies, when rendered pursuant to the adjudicatory autho rity of an agency to decide cases brought before its tribunals employing procedures substantiall y similar to those used in a court of law ." (Ryan v. ew York Tel. Co ., 62 1Y2d 494 [ I 984]). Judicial cstoppel is intended to prevent abuse of the judicial system where a party 3 [* 3] 4 of 7 INDEX NO. 31849/2017E FILED: BRONX COUNTY CLERK 08/16/2022 10:39 AM NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 08/16/2022 obtains relief maintaining one position and later, in a different action, maintains a contrary position. (D&L !foldings, LLC v. RCG Goldman Co. LIL', 287 A.D.2d 65 list Dept. 2001J). /\t the NYCERS disability hearing, 3 doctors from YCERS, interviews the injured/disabled worker. An attorney may be present but may not speak. The injured worker cannot call additional witnesses, nor cross-examine the doctors. /\I I of the evidence submitted is submitted by the New York City Department of Sanitation. /\!though the City claims that plaintiff was "permitted to speak" during the NYCERS hearing, there are further forum di ffercnces between YCERS Medical Board hearing and a lawsuit. In this lawsuit, plaintiff must prove a causal link between defendant 's negligence and the injuries plaintiff sustained, as well as proving notice . Further, in the context of damages, a plaintiff, in his lawsuit is permitted to show fu ture salary/wage increase, promotional opportunities, and bonuses . To qualify for disability, plaintiff must prove only that he is "physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident, not caused by his or her own wi 11 ful negligence, sustained in the performance of such uniformed sanitation service while actually a member of YCERS shall be retired for accidental disability. " (McKinney's Retirement and Social Security Law§ 605-b. Moreover, whi le the opportunity was available to him, plaintiff did not have an attorney present during the YCERS di sability hearing. As such , this Court finds that the process by which the NYCERS Medical Review Board comes to its decision is unlike litigation in court. The production o[ evidence is different, there arc no witnesses, liability expe11s may not be called, appellate review is not possible, and while an attorney may be present, that attorney may not speak during the hearing. The Med ical Review Board 's proceedings arc not quasi -judicial and therefore, this Court cannot find that the procedures used are "sufficient both quantitatively and qualitatively, so as to permit confidence that the facts as erted were adequately tested, and that the issue was fully aired." (Jeffreys v. Gr([fin , 1 N. Y.3d 34 [20031). As a result, plaintiff did not have a full and fair opportunity to contest the prior determination. This finding is consistent with this Court's previous decision in Dawes v. City of New York, Index estoppcl of the o. , 23263/2017, wherein plaintiff moved for collateral YPD Medical Board determination in that case, and this Court denied the same in favor of the City. 4 [* 4] 5 of 7 INDEX NO. 31849/2017E FILED: BRONX COUNTY CLERK 08/16/2022 10:39 AM NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 08/16/2022 In addi ti on, the car accident occurred on September 13 , 2016, while the trip an d fal l occurred on December 7, 20 I 6. Plaintiff's application was filed with NYCE RS on behalf of on September 12, 2017, after both accidents. While the app lication references the September 13, 2016, accident, it lists injuries that occurred in both the car accident and the trip and fa ll. Moreover, after the car acci de nt and before the trip and fa ll , plaintiff had started to return to work on a light duty basis. According to the Medical Board Report for plaintiff's disability application, the incident of December 13 , 20 16, was the causal factor that led to plaintiff's disability. However, it is unclear which accident was the causal factor , as December 13 , 2016, is not one of plaintiffs accident dates. The Medica l Boards decision docs not ind icate what injuries were take n into account nor does it state where the disability came from. As such, there is a question of fact as to which accident and which injuries were used to by the Medical Board to make its determination. As such, the Court finds that plaintiff should not be collaterally cstoppcd from claiming that the trip and fa ll accident contributed to his inability to work. While the doctrine of judicial estoppel applies to ruling that arc not denominated as judgments and plaintiff offers no argument in response, it would be premature to decide on this issue whi le questions of fact sti ll ex ist. (D& /, I foldings , LLC v. RCG Goldman Co. LLC, 287 A.D.2d 65 , 71 fist Dept. 20011) . " ITlhe doctrine of judicial estoppel is intended to prevent abuses of the judicial system by which a party obtai ns re li ef by maintaining one position, and later, in a different acti on, maintain s a contrary position .'' (Id.). lf a party assumes a certain position in a legal proceeding and succeeds, he cannot a sume a contrary position for a subsequent legal proceeding. (Jones Lang Wootton USA v. LeBoeuf Lamb, Greene & MacRae, 243 A.D.2d 168 , 177 11st Dept. 1998] , quoting Davis V. Wakelee, 156 .S. 680 , 689 r1895 1). Judicial estoppe l is imposed to estop partie from using contrary positions because the judicial system "cannot tolerate thi s ' playing ·'fast and loose with the courts."' ' (Environmental Concern, Inc. v. Larchwood Constr. Corp., 10 l A.D.2d 591, 594 l2 d Dept. 1984 l, quoting Scarano v. Central R. Co. of NJ. , 203 F2d 510, 5 13 13d Cir. 19531). 1Iowcver, plaintiff does not offer two different positions, as he claimed disabi lity alt.er the car accident but did return to work on a limited basis. Plaintiff never returned to work after the trip and fall acci den t. Lastly , plaintiff's application for disability retirement references injuries from both accidents . Based on the foregoing , the motion is granted in part and denied in part. The portion of the City' s motion seeking leave to amend is granted wi thout opposit ion and the City' s proposed 5 [* 5] 6 of 7 INDEX NO. 31849/2017E FILED: BRONX COUNTY CLERK 08/16/2022 10:39 AM NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 08/16/2022 amended answer i. deemed timely served nunc pro tune . The portion of the City· s motion seeking dismissal of plaintiffs claims for lost earnings is denied. The plaintiff is directed to serve a copy of this order, with notice of entry, upon the parties within 30 day ' of the entry date. Dated: Th~'J;tr;s_r;;e decision and order of the Court. Bron[ cwYork //'~ IION. MTTCHELLJ.DAZlGER, J.S.C. 6 [* 6] ,$./ 7 of 7

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