Gallo v. Albert
| Decision Date | 06 January 2014 |
| Docket Number | Index No. 113483/2010,Index No. 590819/2012,Index No. 590348/2012 |
| Citation | 2014 NY Slip Op 30107 |
| Court | New York Supreme Court |
| Parties | ANTHONY GALLO, Plaintiff v. STEVEN ALBERT, ASHOK MEHRA, SIXTH AVENUE WEST ASSOCIATES, L.P., MANHATTAN WHOLESALERS INC., and CFD 27, INC., Defendants STEVEN ALBERT, ASHOK MEHRA, and SIXTH AVENUE WEST ASSOCIATES, L.P., Third Party Plaintiffs v. DAVIS ALARMS INC., D & W CENTRAL STATION FIRE ALARM CO., INC., and D & W CENTRAL STATION ALARM CO., INC., Third Party Defendants STEVEN ALBERT, ASHOK MEHRA, and SIXTH AVENUE WEST ASSOCIATES, L.P., Second Third Party Plaintiffs v. CFD 27, INC., Second Third Party Defendant |
DECISION and ORDER
In this action for personal injuries plaintiff sustained December 30, 2009, this decision concerns only the dispute between defendants-third party plaintiffs and third party defendants, three alarm corporations: Davis Alarms Inc., D & W Central Station Fire Alarm Co., Inc., and D & W Central Station Alarm Co., Inc. All third party defendants move for summary judgment dismissing the third party complaint and any claims by parties in the main action or second third party action against third party defendants, C.P.L.R. § 3212(b), and for sanctions against third party plaintiffs for continuing a frivolous third party action. 22 N.Y.C.R.R. § 130-1.1.
Third party defendants identify only third party plaintiff's claims against third party defendants, for contribution, implied indemnification, contractual indemnification, and breach of contract. Hence only third party plaintiffs oppose the motion.
Third party defendants' admissible evidence, principally the affidavit of Henry Davis, Davis Alarms' Vice President, shows that plaintiff was working for third party defendant Davis Alarms when he was injured and received Workers' Compensation for his injuries under a Workers' Compensation insurance policy issued to Davis Alarms. Plaintiff claims his injuries were an aggravated hernia in his groin and a cyst on his knee.
Davis explains that D & W Central Station Fire Alarm Company is a name by which Davis Alarms conducts business, while D & W Central Station Alarm Company is a registered business name ofthe corporation Davis Alarms. He also is the Vice President of the corporation D & W Central Station Fire Alarm Co., Inc., and was the Vice President of the currently dissolved corporation D & W Central Station Alarm Co., Inc. Neither of these corporations ever performed services at the location of plaintiff's injury or entered any contract to perform services there or any contract with a party in the main action or third party actions.
Third party defendants' .witness further attests that there has never been any contract between third party plaintiffs and any of third party defendants, including Davis Alarms. Nor has any third party defendant ever contracted with any other party or nonparty to procure insurance for or indemnify third party plaintiffs.
The New York Workers' Compensation Board did not actually decide that Davis Alarms was plaintiff's employer. There is "no indication in the record that this was a disputed issue at the workers' compensation proceeding or that the WCB specifically adjudicated this issue." Vitello v. Amboy Bus Co., 83 A.D.3d 932, 933 (2d Dep't 2011). See American Home Assur. Co. v. Highrise Constr. Co., 1ll A.D.3d 446, 976 N.Y.S.2d 16, 17 (1st Dep't 2013); Vera v. NYC Partnership Hous. Dev. Fund Co., Inc., 40 A.D.3d 472 (1st Dep't 2007); Sorrentino v. Ronbet Co., 244 A.D.2d 262 (1st Dep't 1997). The Board's decision simply found that plaintiff sustained work related injuries to his groin and right knee and authorized medical treatment for those body parts. See, e.g., Talcove v. Buckeye Pipe Line Co., 247 A.D.2d 464, 465(2d Dep't 1998). The decision listed plaintiff's employer as Davis Alarms, but, as Davis attests, this listing was pursuant to his list of employees entitled to Workers' Compensation that he provided to the New York State Insurance Fund (SIF) before it issued an insurance policy to Davis Alarms and his report of plaintiff's injuries to SIF and the Board. See Vera v. NYC Partnership Hous. Dev. Fund Co., Inc., 40 A.D.3d 472; Sorrentino v. Ronbet Co., 244 A.D.2d 262; Callaghan v. Point at Saranac Lake, Inc., 83 A.D.3d 1177, 1179 (3d Dep't 2011); Vitello v. Amboy Bus Co., 83 A.D.3d at 933.
Third party plaintiffs seek contribution and indemnification from third party defendants for any liability to plaintiff. These third party claims may not be maintained against plaintiff's employer absent a "grave injury" to plaintiff or a written contract providing for contribution or indemnification by his employer to third party plaintiffs. N.Y. Workers' Comp. Law § 11; Flores v. Lower E. Side Serv. Ctr., 4 N.Y.2d 363, 367 (2005) ; Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 490 (2004); Hansen v. 510 Manhattan Affordable Hous., 2 A.D.3d 274 (1st Dep't 2003). See Rodrigues v. N & S Bldg. Contrs., Inc., 5 N.Y.3d 427, 431-32 (2005); Portelli v. Trump Empire State Partners, 12 A.D.3d 280, 281 (1st Dep't 2005); Petrillo v. Purr Mech. Constr., 306 A.D.2d 25, 26 (1st Dep't 2003); Pena v. Chateau Woodmere Corp., 304 A.D.2d 442, 444 (1st Dep't 2003). The parties do not dispute that the injuries plaintiff claims hesustained are not a grave injury.
New York Workers' Compensation Law § 11 applies only to employers. While an employer may be immune from liability for contribution and indemnification only if the employer procures Workers' Compensation insurance for an employee's injuries sustained in the course of the employment, to be immune, the party must both be an employer and have procured the insurance. Boles v. Dormer Giant, Inc., 4 N.Y.3d 235, 239-40 (2005); Terry v. Maurice Pastries, 34 A.D.3d 328 (1st Dep't 2006); Sarmiento v. Klar Realty Corp., 35 A.D.3d 834, 837 (2d Dep't 2006). See Raynor v. Landmark Chrysler, 18 N.Y.3d 48, 53 (2011); Commissioners of State Ins. Fund v. Photocircuits Corp., 20 A.D.3d 173, 176 (1st Dep't 2005). Procuring the insurance is not enough if the party is not the employer of the injured worker. E.g., Clemons v. Brown, 69 A.D.3d 1197, 1200 (3d Dep't 2010). While plaintiff would not be entitled to recover twice for medical expenses or lost earnings for which the insurance compensated him, if Davis Alarms did not employ him, it would not be protected from potential liability for his other losses.
Even were the Workers' Compensation Board decision certified or considered authenticated by its recipient Davis, and the listing of Davis Alarms as plaintiff's employer considered a finding of that fact, it would not bind third party plaintiffs and preclude a contrary determination against Davis Alarms, that it was not plaintiff's employer, and in favor of third party plaintiffs. See Cordeiro v. Shalco Invs., 297 A.D.2d 486, 489(1st Dep't 2002). Collateral estoppel bars a party from pursuing a claim necessarily decided in a previous action only where there was a full and fair opportunity to litigate the issue, and the party pursuing the claim is the same. Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 199 (2008); City of New York v. Welsbach Elec. Corp., 9 N.Y.3d 124, 128 (2007); Buechel v. Bain, 97 N.Y.2d 295, 303-304 (2001); Martin v. Safeco Ins. Co. of Am., 19 A.D.3d 221 (1st Dep't 2005). For collateral estoppel to apply, the claim or issue must have been resolved against the party now seeking to raise the issue or against another party in privity with the current claimant. Buechel v. Bain, 97 N.Y.2d at 303; Green v. Santa Fe Indus., 70 N.Y.2d 244, 253 (1987); BDO Seidman LLP v. Strategic Resources Corp., 70 A.D.3d 556, 560 (1st Dep't 2010); Kinberg v. Kinberg, 59 A.D.3d 236, 237 (1st Dep't 2009). Collateral estoppel applies to prior administrative agency determinations, as long as the agency employed "procedures substantially similar to those used in a court of law." ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 226 (2011); Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 153 (1988); Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499 (1984); Metro-North Commuter R.R. Co. v. New York State Exec. Dept. Div. of Human Rights, 271 A.D.2d 256, 257 (1st Dep't 2000).
Thus, for example, assuming plaintiff filed a Workers' Compensation claim, and the Workers' Compensation Board determined that the party identified as his employer, Davis Alarms, was his employer, plaintiff would be estopped fromclaiming that Davis Alarms was not his employer. E.g., Hynes v. Start El., 2 A.D.3d 178, 181 (1st Dep't 2003). As long as Davis Alarms received notice of the proceeding and was provided an opportunity to be heard, Davis Alarms, too, would be estopped from claiming it was not his employer or, had the Board determined that Davis Alarms was not his employer, from claiming that it was. Malmon v. East 84th Apt. Corp., 67 A.D.3d 566, 567 (1st Dep't 2009); Excelsior Ins. Co. v. Antretter Contr. corp., 262 A.D.2d 124, 128 (1st Dep't 1999); Vogel v. Herk El. Co., 229 A.D.2d 331, 332-33 (1st Dep't 1996).
Third party plaintiffs, however, were not parties in the Workers' Compensation Board proceeding, received no notice of the proceeding, and were provided no opportunity to be heard. Thus, while the fact that plaintiff received Workers' Compensation under Davis Alarms' Workers' Compensation insurance policy for his injuries may be persuasive evidence that he was Davis Alarms' employee, it is not dispositive. Callaghan v. Point at Saranac Lake, Inc., 83 A.D.3d at 1179-80; Vitello v. Amboy Bus Co., 83 A.D.3d at 933; Talcove v. Buckeye Pipe Line Co., 247 A.D.2d at 465. See Vera v. NYC Partnership Hous. Dev. Fund Co., Inc., 40 A.D.3d 472; Cordeiro v. Shalco Invs., 297 A.D.2d at 489.
Third party plaintiffs present a letter signed by "Hank Davis...
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