Bessa v. Anflo Indus., Inc.

• Decision Date: 22 March 2017
• Citation: 51 N.Y.S.3d 102,148 A.D.3d 974
• Parties: Jordano BESSA, respondent, v. ANFLO INDUSTRIES, INC., defendant, Vista Engineering Corporation, et al., appellants (and a third-party action).
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 974
51 N.Y.S.3d 102

Jordano BESSA, respondent,
v.
ANFLO INDUSTRIES, INC., defendant,

Vista Engineering Corporation, et al., appellants

(and a third-party action).

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

March 22, 2017.

51 N.Y.S.3d 104

Baxter Smith & Shapiro, P.C., Hicksville, NY (Robert C. Baxter and Sim R. Shapiro of counsel), for appellant Vista Engineering Corporation.

Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, NY (Gail L. Ritzert and Amol N. Christian of counsel), for appellant Royal One Real Estate, LLC.

Stefanidis & Mironis, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ.

In an action to recover damages for personal injuries, the defendants Royal One Real Estate, LLC, and Vista Engineering Corporation separately appeal, as limited by their respective briefs, from (1) so much of an order of the Supreme Court, Queens County (Siegal, J.), dated March 26, 2014, as denied those branches of their respective motion and cross motion which were for summary judgment dismissing the complaint insofar as asserted against each of them, and (2) so much of an order of the same court dated April 1, 2015, as, upon reargument, adhered to the determination in the order dated March 26, 2014.

ORDERED that the appeals from the order dated March 26, 2014, are dismissed, without costs or disbursements, as the portions of the order appealed from were superseded by the order dated April 1, 2015; and it is further,

ORDERED that the order dated April 1, 2015, is modified, on the law, by deleting the provisions thereof, upon reargument, adhering to so much of the order dated March 26, 2014, as denied those branches of the appellants' respective motion and cross motion which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6)

51 N.Y.S.3d 105

insofar as asserted against each of them, and substituting therefor provisions, upon reargument, vacating that portion of the order dated March 26, 2014, and, thereupon, granting those branches of the motion and cross motion; as so modified, the order dated April 1, 2015, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings, including the amendment of the caption and the pleadings in accordance herewith.

On October 6, 2010, the plaintiff allegedly was injured during the course of his employment with the third-party defendant

East Coast Painting and Maintenance, LLC (hereinafter East Coast). The plaintiff was employed as a bridge painter, and was assigned to work on a project involving the scraping and re-painting of a portion of the Queensborough Bridge.

The plaintiff alleged that he was injured at a dirt lot that was owned by the defendant Royal One Real Estate, LLC (hereinafter Royal), and leased to the defendant Vista Engineering Corporation (hereinafter Vista), the general contractor on the project. East Coast's workers were given access to the lot to store materials, and the workers would meet at the lot to load the materials onto trucks before heading to the construction site, which was located a few blocks away. The plaintiff alleged that he was carrying a bucket filled with lead and concrete to a truck for use at the bridge when he stepped in an 8– to 12–inch deep hole in the dirt surface of the lot, twisting his ankle and suffering injury.

The plaintiff commenced this action using the name "Jordano Bessa," which is the name on his lead certification card and on his employment documents. At his deposition, however, the plaintiff testified that his legal name was "Daniel Ribeiro." The plaintiff testified that he was an undocumented immigrant from Brazil, and that beginning in 1997 he had assumed the name of his friend, Jordano Bessa, in order to obtain work.

Royal moved for, inter alia, summary judgment dismissing the complaint insofar as asserted against it. Royal argued that the complaint should be dismissed because the plaintiff had perpetrated a fraud on the court by commencing the action under a false name. Royal further argued that the dirt lot was not a construction site within the meaning of Labor Law § 241(6), that it had not violated any of the Industrial Code provisions alleged in the pleadings, and that it lacked notice of the hole that the plaintiff stepped into.

Vista cross-moved for, among other things, summary judgment dismissing the complaint insofar as asserted against it. In support of its cross motion, Vista relied upon the same arguments that were advanced by Royal in support of its motion.

In an order dated March 26, 2014, the Supreme Court, inter alia, denied those branches of Royal's motion and Vista's cross motion which were for summary judgment dismissing the complaint insofar as asserted against each of them. Both Royal and Vista moved for reargument. In an order dated April 1, 2015, the court granted reargument and, upon reargument, adhered to the determination in the order dated March 26, 2014. Royal and Vista separately appeal.

Contrary to the appellants' contention, the Supreme Court, upon reargument, properly determined that dismissal of the complaint was not warranted on the ground that the plaintiff had perpetrated a fraud on the court. "[A] court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and

51 N.Y.S.3d 106...