Archer-Vail v. LHV Precast Inc.

• Decision Date: 17 January 2019
• Docket Number: 526555
• Citation: Archer-Vail v. LHV Precast Inc., 168 A.D.3d 1257, 92 N.Y.S.3d 434 (N.Y. App. Div. 2019)
• Parties: Patricia A. ARCHER–VAIL, Individually and as Administrator of the Estate of John F. Vail, Deceased, Appellant–Respondent, v. LHV PRECAST INC. et al., Respondents–Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1257

92 N.Y.S.3d 434

Patricia A. ARCHER–VAIL, Individually and as Administrator of the Estate of John F. Vail, Deceased, Appellant–Respondent,

v.LHV PRECAST INC. et al., Respondents–Appellants, et al., Defendant.

526555

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

Calendar Date: December 12, 2018

Decided and Entered: January 17, 2019

Marc J. Bern & Partners, LLP, New York City (Brian J. Isaac of Pollack, Pollack, Isaac & Decicco, LLP, of counsel), for appellant-respondent.

Goldberg Segalla LLP, Buffalo (James F. Faucher II of counsel), for LHV Precast Inc., respondent-appellant.

Salmon, Ricchezza, Singer & Turchi, LLP, New York City (Jacqueline Zoller of counsel), for Wieser Concrete Products, Inc. and another, respondents-appellants.

Catania, Mahon, Milligram & Rider, PLLC, Newburgh (Michael R. Frascarelli of counsel), for Spillman Company, respondent-appellant.

Before: Lynch, J.P., Clark, Mulvey, Devine and Rumsey, JJ.

MEMORANDUM AND ORDER

Clark, J.Cross appeals from an order of the Supreme Court (Cahill, J.), entered March 19, 2018 in Ulster County, which, among other things, partially granted a motion by defendants LHV Precast Inc., Wieser Concrete Products, Inc., Wieser Concrete Roxana, LLC and Spillman Company to dismiss the complaint against them.

Plaintiff is the administrator of the estate of her spouse, John F. Vail (hereinafter decedent), who ultimately died as a result of injuries he sustained when, during the course of his employment, a 2,500 pound bridge form fell on him. In a 98–page complaint containing 426 paragraphs, plaintiff – individually and as the administrator of decedent's estate – commenced this action asserting various causes of action. Prior to answering, defendant Wieser Concrete Products, Inc. and defendant Wieser Concrete Roxana, LLC (hereinafter collectively referred to as Wieser), concrete manufacturing contractors, defendant Spillman Company, the manufacturer of the subject bridge form, and defendant LHV Precast Inc., the alleged operator of the accident site (hereinafter collectively referred to as defendants), separately moved to dismiss the complaint. Supreme Court partially granted defendants' motions by dismissing claims predicated on violations of Labor Law §§ 240(1) and 241(6), as well as a common-law claim for permanent loss of consortium.¹ Plaintiff appeals, and defendants cross-appeal.

Initially, with respect to the facial sufficiency of the complaint, LHV and Wieser argue that Supreme Court should have dismissed the complaint in its entirety for failing to comply with the pleading requirements of CPLR 3013 and 3014. Pursuant to CPLR 3013, a pleading must "be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action" (see Robin BB. v. Kotzen, 62 A.D.3d 1187, 1188, 880 N.Y.S.2d 713 [2009] ; Matter of Johnson v. Goord, 290 A.D.2d 844, 844–845, 736 N.Y.S.2d 284 [2002] ). Additionally, pursuant to CPLR 3014, "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs" and "[e]ach paragraph shall contain, as far as practicable, a single allegation." "These [pleading] requirements must be read in light of CPLR 3026 [,] which provides for the liberal construction of pleadings and states that ‘[d]efects shall be ignored if a substantial right of a party is not prejudiced’ " ( Matter of Gerena v. New York State Div. of Parole, 266 A.D.2d 761, 762, 698 N.Y.S.2d 750 [1999], quoting CPLR 3026 ; see Rich v. Lefkovits, 56 N.Y.2d 276, 280–281, 452 N.Y.S.2d 1, 437 N.E.2d 260 [1982] ). Affording a liberal construction to the pleading here, we agree with Supreme Court that the complaint – although unnecessarily long and inartfully drafted – sets forth legally cognizable claims, including causes of action sounding in negligence and wrongful death, with sufficient particularity so as to provide defendants with notice of the claims asserted against them and the transactions and/or occurrences sought to be proven (see Estate of Unterweiser v. Town of Hempstead, 235 A.D.2d 453, 453, 652 N.Y.S.2d 1007 [1997] ; Braunstein v. Glachman, 157 A.D.2d 815, 815, 551 N.Y.S.2d 801 [1990] ; compare Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 155 A.D.3d 1218, 1220–1221, 64 N.Y.S.3d 389 [2017], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018] ). Accordingly, Supreme Court properly determined that dismissal of the complaint was not warranted under CPLR 3013 and 3014.

We also reject Wieser's assertion that Supreme Court should have dismissed plaintiff's request for punitive damages on the basis that the complaint does not contain allegations of facts that would support the conclusion that it acted wantonly or so recklessly as to constitute a conscious disregard of decedent's rights (see generally Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 200–201, 551 N.Y.S.2d 481, 550 N.E.2d 930 [1990] ). Plaintiff's third cause of action, which Supreme Court construed as including plaintiff's request for punitive damages, alleges that defendants failed to provide "decedent with a safe place to work and adequate, proper and sufficient safety devices and equipment" when he was unloading the bridge form from an elevated height, that such failures caused the bridge form to fall on decedent and that the failures demonstrated a wanton and willful disregard for decedent's safety. These allegations, construed liberally, provide sufficient factual support for plaintiff's punitive damages request so as to withstand a motion to dismiss at this stage of the action (see Saha v. Record, 177 A.D.2d 763, 766, 575 N.Y.S.2d 986 [1991] ; cf. Dumesnil v. Proctor & Schwartz, 199 A.D.2d 869, 870–871, 606 N.Y.S.2d 394 [1993] ; Kaplan v. Sparks, 192 A.D.2d 1119, 1119–1120, 596 N.Y.S.2d 279 [1993] ).

Next, contrary to plaintiff's contention, Supreme Court properly dismissed the claims alleging violations of Labor Law §§ 240(1) and 241(6) for failure to state a cause of action. Labor Law §§ 240(1) and 241(6)" ‘impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities’ " ( Landon v. Austin, 88 A.D.3d 1127, 1128, 931 N.Y.S.2d 424 [2011], quoting Lieberth v. Walden, 223 A.D.2d 978, 979, 636 N.Y.S.2d 885 [1996] ). Specifically, " Labor Law § 240(1) affords protection to workers engaged in the ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ " ( Cicchetti v. Tower Windsor Terrace, LLC, 128 A.D.3d 1262, 1263, 9 N.Y.S.3d 727 [2015], quoting Labor Law § 240[1] ). Similarly, Labor Law § 241(6) provides protection to workers who are injured in an "area[ ] in which construction, excavation or demolition work is being performed" (see Jock v. Fien, 80 N.Y.2d 965, 968, 590 N.Y.S.2d 878, 605 N.E.2d 365 [1992] ).

In support of her claimed violations of Labor Law §§ 240(1) and 241(6), plaintiff alleged that, at the time that decedent sustained the fatal injuries, he had been unloading a bridge form that had been delivered to the manufacturing facility operated by LHV so that it could be used in the manufacture and fabrication of construction materials that would be eventually used during unspecified construction at an unspecified construction site. As Supreme Court aptly concluded, these allegations "do not support any contention that the work being done at the time of the incident was, in any manner, an integral part of an ongoing construction contract or was being performed at an ancillary site, incidental to and necessitated by such construction project, where the materials involved were being readied for use in connection with a covered activity," so as to bring it within the ambit of Labor Law § 240(1) (see Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882–883, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ; cf. Davis v. Wind–Sun Constr., Inc., 70 A.D.3d 1383, 1383, 894 N.Y.S.2d 621 [2010] ; compare Gallagher v. Resnick, 107 A.D.3d 942, 945, 968 N.Y.S.2d 151 [2013] ). Accordingly, as plaintiff failed to allege any facts that could support the conclusion that decedent was engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" ( Labor Law § 240[1] ) or "duties ancillary to those acts" ( Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d at 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 ; see Saint v. Syracuse Supply Co., 25 N.Y.3d 117, 124, 8 N.Y.S.3d 229, 30 N.E.3d 872 [2015] ), Supreme Court properly dismissed the cause of action predicated on an alleged violation of Labor Law § 240(1) (cf. Jock v. Fien, 80 N.Y.2d at 968, 590 N.Y.S.2d 878, 605 N.E.2d 365 ; Davis v. Wind–Sun Constr., Inc., 70 A.D.3d at 1383, 894 N.Y.S.2d 621 ; Perchinsky v. State of New York, 232 A.D.2d 34, 37–38, 660 N.Y.S.2d 177 [1997], lv dismissed and denied 91 N.Y.2d 830, 666 N.Y.S.2d 561, 689 N.E.2d 531 [1997] ; compare Gallagher v. Resnick, 107 A.D.3d at 945, 968 N.Y.S.2d 151 ; Adams v. Alvaro Constr. Corp., 161 A.D.2d 1014, 1015–1016, 557 N.Y.S.2d 584 [1990] ). For the same reasons, plaintiff's factual allegations did not support a conclusion that decedent's injuries occurred in an "area[ ] in which construction, excavation or demolition work [was] being performed" ( Labor Law § 241[b] ) and, thus, Supreme Court's dismissal of plaintiff's Labor Law § 241(6) claim was proper (cf. Jock v. Fien, 80 N.Y.2d at 968, 590 N.Y.S.2d 878, 605 N.E.2d 365 ; Davis v. Wind–Sun Constr., Inc., 70 A.D.3d at 1383, 894 N.Y.S.2d 621 ; Perchinsky v. State of New York, 232 A.D.2d at 37–38, 660 N.Y.S.2d 177 ; compare Adams v. Alvaro Constr. Corp., 161 A.D.2d at 1015–1016, 557 N.Y.S.2d 584 ).

Further, we discern no abuse of discretion in Supreme Court's determination to deny, pending further discovery on the issue,...