Bessa v. Anflo Indus., Inc.

• Decision Date: 01 April 2015
• Docket Number: 7596, 2011
• Citation: 10 N.Y.S.3d 835,2015 N.Y. Slip Op. 25137,49 Misc.3d 587
• Parties: Jordano BESSA, Plaintiff, v. ANFLO INDUSTRIES, INC., Vista Engineering, Inc., and Royal One Real Estate, LLC, Defendants.
• Court: New York Supreme Court

49 Misc.3d 587
10 N.Y.S.3d 835
2015 N.Y. Slip Op. 25137

Jordano BESSA, Plaintiff
v.
ANFLO INDUSTRIES, INC., Vista Engineering, Inc., and Royal One Real Estate, LLC, Defendants.

7596, 2011

Supreme Court, Queens County, New York.

April 1, 2015.

10 N.Y.S.3d 836

Stefanidis and Mironis, LLP, Long Island City, Attorney for Plaintiff.

Havkins Rosenfeld Ritzert & Varriale, LLO, Mineola, Attorney for Defendant Royal One Real Estate, LLC.

Baxter Smith & Shapiro, PC, Hicksville, Attorney for Vista Engineering Corp.

Churbuck Calabria Jones and Materazo, PC, Hicksville, Attorney for East Coast Painting & Maintenance, LLC.

Opinion

BERNICE D. SIEGAL, J.

Upon the foregoing papers,

49 Misc.3d 588

it is hereby ordered that the motion is resolved as follows:

Royal One Real Estate, LLC (“Royal”) moves for leave to reargue, pursuant to CPLR § 2221, a prior motion for summary judgment and dismissal of plaintiff's complaint and Vista Engineering Corporation (“Vista”) likewise moves for leave to reargue its prior motion for summary judgment and dismissal of plaintiff's complaint.¹

Background

Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on October 6, 2010, when he fell after stepping into a hole in the ground at a storage yard located at 42–31 Crescent Street in Long Island City, New York. The undisputed record indicates that plaintiff fell into the hole while carrying a five-gallon bucket full of concrete. At the time of the incident, plaintiff was employed by East Coast Painting and Maintenance, LLC (“East Coast”).

Vista was awarded a contract by the New York City Transit Authority (NYCTA) to perform painting and scraping

10 N.Y.S.3d 837

work for the elevated structures at Queensboro Plaza South. Royal owns the undeveloped earthen lot where plaintiff fell, 42–31 Crescent Street, located several blocks from the work site. Vista leased this lot from Royal, for use as a construction storage yard. Vista hired East Coast as a subcontractor to paint and scrap portions of the bridge construction site. Daniel Ribeiro aka Jordano Bessa (“plaintiff”) was employed as a bridge painter for East Coast in October 2010.

49 Misc.3d 589

The underlying motions for summary judgment were granted to the following extent: awarding Royal and Vista dismissal of Plaintiff's Labor Law 241(6) claims predicated upon Industrial Code 23–1.7(e)(2) and 23–1.7(b)(1); awarding East Coast dismissal of the contractual indemnification claims by Vista and to dismiss Vista's cause of action for breach of contract; awarding East Coast's motion to dismiss the contribution and common-law indemnification claims; and awarding Vista summary judgment on their contractual indemnification claim from East Coast.

The sole issue before this court upon reargument is whether Royal and Vista (hereinafter collectively as “Movants”) are entitled to reargument on the issue of Plaintiff's alleged fraud with respect to his use of a fictitious name for the purpose of commencing the within action.

Facts

Plaintiff testified at his Examination Before Trial that his full name is Daniel Ribeiro. Plaintiff is a Brazilian national without status in the United States. (EBT pp. 12, line 2–7.) Plaintiff also testified that he assumed the name “Jordano Bessa” in 1997, after a friend provided him with identification so that plaintiff could work as a bridge painter. (EBT pp. 13, line 17–24.) The order issued March 26, 2014 did not address Royal's claim that the current action cannot be maintained because plaintiff filed suit under the assumed name of another individual plaintiff therefore perpetrating a fraud. Defendants seek re-argument on this basis and dismissal of plaintiff's claims in their entirety.

Movants' motions to re-argue are granted and upon reargument this court denies Movants' motions to dismiss as more fully set forth below.

Discussion

Reargument

Motions for reargument are “addressed to the sound discretion of the court.” (McGill v. Goldman, 261 A.D.2d 593, 594, 691 N.Y.S.2d 75 [2nd Dep't 1999] ; Frisenda v. X Large Enterprises, Inc., 280 A.D.2d 514, 515, 720 N.Y.S.2d 187 [2d Dep't 2001] ; see also V. Veeraswamy Realty v. Yenom, 71 A.D.3d 874, 874, 895 N.Y.S.2d 860 [2d Dep't 2010] ; Barnett v. Smith, 64 A.D.3d 669, 670, 883 N.Y.S.2d 573 [2d Dep't 2009] ; E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 A.D.3d 653, 654, 828 N.Y.S.2d 212 [2d Dep't 2007].) Additionally, motions for reargument are controlled by CPLR § 2221(d) which states in pertinent part,

49 Misc.3d 590

“[a] motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.” Thus, a motion to reargue is not designed to provide an opportunity to present new arguments that were not originally presented, but rather to provide parties with the opportunity to show that the court overlooked or misapprehended the relevant facts or principles of law. (Amato v. Lord & Taylor, Inc., 10 A.D.3d 374, 375, 781 N.Y.S.2d 125 [2nd Dep't 2004] ; McGill, 261 A.D.2d at 594, 691 N.Y.S.2d 75.)

10 N.Y.S.3d 838

The court failed to address the portion of motions made by Vista and Royal for dismissal of Plaintiff's cause of action on the grounds that Plaintiff committed a fraud by assuming the name of “Jordano Bessa”. Accordingly, Movants' motions for reargument are granted.

Motion to Dismiss based on Fraud

Movants contend that Plaintiff committed a fraud when he assumed the name “Jordano Bessa” in 1997 after a friend provided him with identification so that plaintiff could work as a bridge painter and that this alleged fraud is a bar to Plaintiff's action. The act of assuming of a fictitious name has previously been held to be insufficient grounds for dismissing a lawsuit. (Sheppard v. Ridgewood Grove, Inc., 126 N.Y.S.2d 761 [Sup.Ct.1953] citing International Union Bank v. Nat. Surety Co., 245 N.Y. 368, 157 N.E. 269 [Ct.App.1927].) Furthermore, it has likewise been held that a contract exists between two parties as they know one another; however assuming the name of another third-party individual does not bind that third-party in contract. (Maslin v. Columbian Nat. Life Ins. Co., 3 F.Supp. 368 [S.D.N.Y.1932] [finding where a healthy man assumed the identity of a diseased man in order to gain life insurance the contract existed only between the insurance company and the person examined, not the diseased man].)

Royal and Vista contend that Sheppard stands for the proposition that a party may not maintain an action for breach of contract under a fictitious name, however this is unsupported. Sheppard clearly states, “[i]n the absence of any...