Auqui v. Seven Thirty Ltd. P'ship

• Decision Date: 05 April 2011
• Citation: 920 N.Y.S.2d 79,2011 N.Y. Slip Op. 02725,83 A.D.3d 407
• Parties: Maria AUQUI, etc., et al., Plaintiffs–Appellants,v.SEVEN THIRTY LIMITED PARTNERSHIP, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 407

920 N.Y.S.2d 79

2011 N.Y. Slip Op. 02725

Maria AUQUI, etc., et al., Plaintiffs–Appellants,

v.SEVEN THIRTY LIMITED PARTNERSHIP, et al., Defendants–Respondents.

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

April 5, 2011.

Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for appellants.Fabiani Cohen & Hall, LLP, New York (Joseph J. Rava of counsel), for respondents.MAZZARELLI, J.P., SWEENY, CATTERSON, DEGRASSE, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 7, 2009, which, insofar as appealed from, as limited by the briefs, granted defendants' motion to preclude plaintiffs from litigating the issue of plaintiff Jose Verdugo's accident-related disability beyond January 24, 2006, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about December 8, 2009, which, inter alia, upon granting reargument and renewal, adhered to the prior determination, unanimously dismissed, without costs, as academic.

The motion court erred in according collateral estoppel effect to the determination of the Workers' Compensation Law Judge that plaintiff's post-January 24, 2006 disability was not causally related to his December 24, 2003 accident. The determination that workers' compensation coverage would terminate as of a certain date for plaintiff's injuries (including head, neck and back injuries, and depression and post-traumatic stress disorder, which are not disputed, and which were caused when plaintiff was struck in the head by a falling sheet of plywood in the course of his employment) is not, nor could it be, a definitive determination as to whether plaintiff's documented and continuing injuries were proximately caused by defendants' actions. While factual issues necessarily decided in an administrative proceeding may have collateral estoppel effect, it is well settled that “an administrative agency's final conclusion, characterized as an ultimate fact or mixed question of law and fact, is not entitled to preclusive effect” ( Akgul v. Prime Time Transp., Inc., 293 A.D.2d 631, 633, 741 N.Y.S.2d 553 [2002]; see Tounkara v. Fernicola, 63 A.D.3d 648, 883 N.Y.S.2d 27 [2009] [no identity of issues between proceeding before workers' compensation board, which involved determination of whether party was plaintiff's employer for purposes of workers' compensation coverage, and third-party action, which involved determination of whether party was plaintiff's employer for purposes of indemnification provision] ). The agency's determination on ultimate facts, as opposed to mere evidentiary facts, is imbued with policy considerations as well as the agency's expertise ( see Matter of Engel v. Calgon Corp., 114 A.D.2d 108, 110, 498 N.Y.S.2d 877 [1986], affd. 69 N.Y.2d 753, 512 N.Y.S.2d 801, 505 N.E.2d 244 [1987] ). Therefore, the Workers' Compensation Board's determination is not entitled to preclusive effect because it involved the ultimate issues of disability and proximate cause, which were committed to the Board's discretion. Indeed, the October 13, 2009 guardianship order that was the partial basis for plaintiffs' renewal motion raises an issue of fact as to the cause of plaintiff's ongoing disability sufficient to warrant denial of defendants' motion.

All concur except SWEENY and CATTERSON, JJ. who dissent in a memorandum by CATTERSON, J. as follows:CATTERSON, J. (dissenting).

Because I believe that the duration of plaintiff's disability was an evidentiary determination fully and fairly litigated by him at the Workers' Compensation proceeding terminating his benefits, he should be precluded from relitigating the issue of continuing disability in this personal injury action. Furthermore, in my opinion, the uncontested appointment of a guardian for the plaintiff more than three years later does not raise a triable issue of fact as to when his work-related disability ended. Therefore, I respectfully dissent.

The plaintiff, a food service deliveryman, was injured on December 24, 2003 when a sheet of plywood allegedly fell from a building under construction owned by defendant Seven Thirty One Limited Partnership. Defendant Bovis Lend Lease LMB, Inc. was the construction manager, and defendant Northside Structure, Inc. was the concrete superstructure subcontractor. The plaintiff's claim for Workers' Compensation (hereinafter referred to as “WC”) benefits was approved, and he was compensated for treatment of his head, neck, and back injuries, as well as post-traumatic stress disorder and depression. While receiving benefits, the plaintiff commenced this personal injury action in Supreme Court in 2004.

The following year, in December 2005, while this action was pending, the insurance carrier for the plaintiff's employer moved the WC Board to discontinue plaintiff's benefits on the grounds that he was no longer disabled from the accident. In the January 2006 WC proceeding, the Administrative Law Judge (hereinafter referred to as “ALJ”) reviewed the evidence and expert testimony submitted by the plaintiff and the insurance carrier. The ALJ found that the plaintiff no longer suffered any disability as of January 24, 2006 and terminated his benefits. The plaintiff appealed, but on February 1, 2007, a full panel of the WC Board concluded that the plaintiff was no longer disabled as of January 24, 2006, and required no further treatment.

In April 2009, the defendants in the instant personal injury action moved to preclude the plaintiff from relitigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the WC administrative proceeding. While the motion was pending in Supreme Court, the plaintiff's attorney commenced a separate Mental Hygiene Law article 81 proceeding to appoint a guardian for the plaintiff. On October 7, 2009, Supreme Court granted the defendants' motion to preclude.

Based on uncontested evidence of incapacity, the plaintiff's sister-in-law and wife were appointed as co-guardians on October 13, 2009. The plaintiff then moved for leave to renew and/or reargue the defendants' motion in Supreme Court on the grounds that, inter alia, the guardianship order raised a triable issue of fact with regard to the plaintiff's ongoing work-related disability. By order and decision dated December 3, 2009, Supreme Court granted the plaintiff's motion, but nonetheless adhered to its earlier determination that the plaintiff was precluded from relitigating his ongoing disability.

On appeal, the plaintiff argues that Supreme Court erred because there is no identity of issues between the causation element in a WC determination and proximate cause in a personal injury claim. In addition, the plaintiff asserts that Supreme Court further erred because the appointment of a guardian raises a triable issue of fact with regard to the plaintiff's ongoing disability.

The defendants argue that the WC determination that the plaintiff's disability ended on January 24, 2006 was factual and identical to the issue in the personal injury action, and, further, that the plaintiff had a full and fair opportunity to litigate that question before the ALJ. Therefore, he should be precluded from relitigating whether his disability extended beyond that date. For the reasons set forth below, I agree with the defendants.

The doctrine of collateral estoppel is applicable where the issue in the current litigation is identical to a material issue decided in a prior proceeding, and the party to be precluded had a full and fair opportunity to litigate the issue in that proceeding. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500–501, 478 N.Y.S.2d 823, 826–827, 467 N.E.2d 487, 490–491 (1984); Matter of Abady, 22 A.D.3d 71, 81, 800 N.Y.S.2d 651, 658 (1st Dept.2005).

It is well settled that a...