Lennon v. 56th & Park(NY) Owner, LLC

• Decision Date: 15 September 2021
• Docket Number: 2018–07336,Index No. 508298/14
• Citation: 153 N.Y.S.3d 535,199 A.D.3d 64
• Parties: Sean LENNON, appellant, v. 56TH AND PARK(NY) OWNER, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 64

153 N.Y.S.3d 535

Sean LENNON, appellant,

v.56TH AND PARK(NY) OWNER, LLC, et al., respondents.

2018–07336

Index No. 508298/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 8, 2021

September 15, 2021

Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), for appellant.

Malapero Prisco & Kaluber, LLP, New York, N.Y. (Francis B. Mann, Jr., of counsel), for respondents.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

OPINION & ORDER

DILLON, J.P.

A plaintiff's claim may be barred by the doctrine of collateral estoppel when there is a prior determination from an administrative board involving the same subject matter. When and whether a plaintiff is actually collaterally estopped from obtaining a recovery in a later action invokes a maxim that is frequently and generally heard by attorneys advising clients and by jurists deciding issues: It depends. Below, we discuss the variables that must be examined in determining when a workers’ compensation board's denial of a claim for benefits operates to collaterally estop the plaintiff from recovering damages in a personal injury action involving the same alleged accident.

I. Facts

The plaintiff alleges that on July 18, 2014, he was injured while working at a construction site located in Manhattan. According to the plaintiff, the injuries occurred when the hoist elevator on which he was riding made multiple and sudden unanticipated rises and drops.

On July 31, 2014, the plaintiff filed a claim for workers’ compensation benefits as a result of knee injuries allegedly sustained during the incident at the construction site. On November 24, 2014, a hearing was held before an administrative law judge (hereinafter ALJ). The plaintiff was represented by an attorney at the workers’ compensation hearing. The plaintiff testified at the hearing about the occurrence underlying the claim, the violent movements of the hoist when it rose and dropped "a bunch of times" while he and several other workers were upon it, and about the knee injuries he allegedly sustained. The plaintiff could neither recall the names of any of the other workers who were with him on the hoist at the time, nor identify any other person with knowledge of the alleged malfunction. In contrast, Robert O'Reilly, the general superintendent of the defendant Atlantic Hoisting & Scaffolding, LLC,^* testified at the hearing that safety features that were in place would have prevented the accident from occurring in the mechanical way described by the plaintiff. Moreover, the safety features would have prompted a regulatory 45–minute evaluation and re-set of the equipment after any such event, and required the generation of an incident report, none of which occurred on the date in question. David Cannamela, a medical administrator for a subcontractor at the worksite, testified that after receiving a later medical bill related to the plaintiff, he investigated the accident date and determined that nothing out of the ordinary had occurred on that date. All of the witnesses who testified were cross-examined on the witness stand. At the conclusion of the hearing, closing arguments were presented by counsel.

In a decision filed December 23, 2014, the ALJ denied the plaintiff's workers’ compensation claim on the ground that the ALJ did "not believe that the hoist elevator malfunctioned in any way, much less in the drastic and dramatic way described by [the plaintiff]." The ALJ noted from the plaintiff's testimony his inconsistent descriptions of the event itself, the injuries attributed to it, and the failure of the plaintiff's initial treating physician to find from imaging scans one week after the occurrence any knee condition other than degenerative changes. The ALJ concluded the "claim to be, at best, an afterthought." In other words, the ALJ determined that the alleged accident did not actually happen in any manner related to the claimed injury. Upon an administrative review of the determination that had been requested by the plaintiff, the Workers’ Compensation Board affirmed the findings and conclusion of the ALJ. No further review of the administrative proceedings was sought in any court.

By summons and complaint, first amended complaint, and second amended complaint, the plaintiff commenced this action against the defendants, alleging that they were liable for damages for their common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendants, 56th and Park(N.Y.) Owner, LLC, Bovis Lend Lease LMB, Inc., Lend Lease (US) Construction LMB, Inc., and Atlantic Hoisting & Scaffolding, LLC, were the owner, construction managers, and a contractor at the site, respectively, and were jointly represented by the same attorney. On March 22, 2016, the defendants interposed an answer to the second amended complaint, which contained eight affirmative defenses. However, the answer did not include any affirmative defense that the litigation was barred by the doctrines of collateral estoppel or res judicata.

Thereafter, the parties performed the usual and customary discovery undertaken in worksite construction-accident actions. On April 7, 2017, the plaintiff filed a note of issue and certificate of readiness, certifying that discovery had been completed and that the action was ready for trial.

On September 7, 2017, the defendants moved pursuant to CPLR 3025(b) for leave to amend their answer to include, for the first time, an affirmative defense that the plaintiff's claim was barred by, inter alia, the doctrine of collateral estoppel. Further, upon leave to amend, the defendants sought summary judgment dismissing the second amended complaint. As for summary judgment, the defendants argued that the ALJ's determination, as affirmed by the Workers’ Compensation Board, that the underlying event was not causally related to the claim, collaterally estopped the plaintiff from re-asserting the same claim before the Supreme Court.

The plaintiff opposed both leave to amend and summary judgment. Regarding the proposed amendment to the answer, the plaintiff argued that the defendants’ motion was untimely as the defendants were actually aware of the ALJ's determination as early as July 2015. The plaintiff also argued that the issue before the Workers’ Compensation Board was not identical to the broader issues present in the personal injury litigation. Additionally, regarding that branch of the defendants’ motion which was for summary judgment dismissing the second amended complaint, the plaintiff argued the merits of his common-law negligence and Labor Law claims asserted against the various named defendants.

In the order appealed from dated April 30, 2018, the Supreme Court granted that branch of the defendants’ motion which was for leave to amend their answer to include, inter alia, the affirmative defense of collateral estoppel, and thereupon, granted that branch of their motion which was for summary judgment dismissing the second amended complaint on the basis of that defense. For reasons discussed below, we affirm.

II. Collateral Estoppel

Collateral estoppel is sometimes referred to as issue preclusion (see HSBC Bank USA, N.A. v. Pantel, 179 A.D.3d 650, 651, 116 N.Y.S.3d 336 ; Manko v. Gabay, 175 A.D.3d 484, 486, 106 N.Y.S.3d 130 ; Bruno v. Bank of N.Y., 172 A.D.3d 992, 994, 101 N.Y.S.3d 124 ). The doctrine of collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity" ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ; see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 ; Coleman v. J.P. Morgan Chase Bank N.A., 190 A.D.3d 931, 931–932, 136 N.Y.S.3d 911 ; BT Holdings, LLC v. Village of Chester, 189 A.D.3d 754, 758, 137 N.Y.S.3d 458 ; Napoli v. Breaking Media, Inc., 187 A.D.3d 1026, 1027, 131 N.Y.S.3d 264 ; Bank of N.Y. Mellon v. Chamoula, 170 A.D.3d 788, 790, 96 N.Y.S.3d 148 ; Douglas Elliman, LLC v. Silver, 143 A.D.3d 752, 754, 39 N.Y.S.3d 51 ). One of the purposes of the doctrine is to conserve the resources of the courts and litigants (see Mayers v. D'Agostino, 58 N.Y.2d 696, 698, 458 N.Y.S.2d 904, 444 N.E.2d 1323 ; Gilberg v. Barbieri, 53 N.Y.2d 285, 291, 441 N.Y.S.2d 49, 423 N.E.2d 807 ).

The collateral estoppel doctrine gives conclusive effect to prior determinations when two conditions are met. There must be "an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling" ( Buechel v. Bain, 97 N.Y.2d 295, 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914 ; see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; Ryan v. New York Tel. Co., 62 N.Y.2d at 500–501, 478 N.Y.S.2d 823, 467 N.E.2d 487 ; Lamberti v. Plaza Equities, LLC, 161 A.D.3d 837, 839, 77 N.Y.S.3d 420 ). Collateral estoppel is described as a flexible doctrine, and a determination of whether a party had a full and fair opportunity to litigate in the prior proceeding requires a "practical inquiry into the realities of [the prior] litigation" ( Gilberg v. Barbieri, 53 N.Y.2d at 292, 441 N.Y.S.2d 49, 423 N.E.2d 807 [internal quotation marks omitted]; Auqui v. Seven Thirty One Ltd. Partnership, 22 N.Y.3d 246, 255, 980 N.Y.S.2d 345, 3 N.E.3d 682 [internal quotation marks omitted]). The burden of proof is upon the proponent of collateral estoppel to establish the duplicative identity of the party against whom the doctrine is sought to be applied and the issues of the two proceedings. The party seeking to avoid application of the doctrine has the ultimate burden of establishing the absence of a full and fair opportunity to have litigated the earlier matter (see Matter of Dunn, 24 N.Y.3d 699, 704, 3...