Grasso v. N.Y.S. Thruway Auth.

• Decision Date: 07 March 2018
• Docket Number: 2015–11381
• Citation: 71 N.Y.S.3d 604,159 A.D.3d 674
• Parties: Jerry A. GRASSO, Jr., appellant, v. NEW YORK STATE THRUWAY AUTHORITY, respondent. (Action No. 1) John Sullivan, Jr., appellant, v. New York State Thruway Authority, respondent. (Action No. 2) Cathy Marl, appellant, v. New York State Thruway Authority, respondent. (Action No. 3) Louis Centolanza, appellant, v. New York State Thruway Authority, respondent. (Action No. 4) (Claim Nos. 109470, 109471, 109472, 109473)
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 674

71 N.Y.S.3d 604

Jerry A. GRASSO, Jr., appellant,

v.NEW YORK STATE THRUWAY AUTHORITY, respondent. (Action No. 1)

John Sullivan, Jr., appellant,

v.New York State Thruway Authority, respondent. (Action No. 2)

Cathy Marl, appellant,

v.New York State Thruway Authority, respondent. (Action No. 3)

Louis Centolanza, appellant,

v.New York State Thruway Authority, respondent. (Action No. 4)

(Claim Nos. 109470, 109471, 109472, 109473)

2015–11381

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

Argued—September 25, 2017

March 7, 2018

Weitz & Luxenberg, P.C., New York, N.Y. (Teresa Curtin and Ellen Relkin of counsel), for appellants.

Burke, Scolamiero, Mortati & Hurd, LLP, Albany, N.Y. (Judith B. Aumand of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In four related claims to recover damages for personal injuries, the claimants appeal, as limited by their brief, from so much of an order of the Court of Claims (Mignano, J.), dated June 22, 2015, as granted the defendant's motion for summary judgment dismissing the claims.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was for summary judgment dismissing the claims alleging a violation of Labor Law § 200 and common-law negligence, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs payable to the appellants.

In June 2004, the claimants filed claims in the Court of Claims against, among others, the New York State Thruway Authority (hereinafter NYSTA), alleging violations of Labor Law §§ 200 and 241(6) and common-law negligence. The claims arose out of injuries the claimants allegedly sustained in March 2004 when they were working as employees of the general contractor on an NYSTA highway construction project. In March 2007, the claimants commenced an action in the Supreme Court, Orange County, against an engineering firm and an environmental consulting firm that worked on the project (hereinafter together the engineering defendants). The Supreme Court action involved similar allegations based on the same set of facts. In an order dated December 16, 2014, the Supreme Court, inter alia, granted the engineering defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

Thereafter, NYSTA moved in the Court of Claims for summary judgment dismissing these claims on the ground, among others, that they were barred by the doctrine of collateral estoppel based on the granting of summary judgment to the engineering defendants in the Supreme Court action. The Court of Claims granted the defendant's motion for summary judgment dismissing the claims, and the claimants appeal.

"The doctrine of collateral estoppel ... precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ; see Tydings v. Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 199, 868 N.Y.S.2d 563, 897 N.E.2d 1044 ; Buechel v. Bain, 97 N.Y.2d 295, 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914 ; Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 350, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634 ). The "party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action" ( Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 482 N.E.2d 63 ).

In the Supreme Court action, the court awarded summary judgment to the engineering defendants dismissing the cause of action alleging a violation of Labor Law § 241(6) on the ground that it was not supported by a specific and relevant Industrial Code provision that would form a predicate for liability under Labor Law § 241(6). We have affirmed that determination in the companion appeal (see Marl v. Liro Engineers, Inc., 159 A.D.3d 688, 73 N.Y.S.3d 202, 2018 WL 1178363 [decided herewith] ). In the Court of Claims, NYSTA, in support of its motion, submitted proof that the Labor Law § 241(6) and related Industrial Code issues that were determined adversely to the plaintiffs in the Supreme Court action were identical to the Labor Law § 241(6) and Industrial Code issues raised by the claimants in the Court of Claims. Further, the claimants failed to establish that they did not have a full and fair opportunity to litigate these issues in the Supreme Court action (see Rodenheiser v. State of New York, 47 A.D.3d 788, 850 N.Y.S.2d 179 ; Becker v. State of New York, 274 A.D.2d 532, 712 N.Y.S.2d 130 ). Accordingly, the Court of Claims properly granted that branch of NYSTA's motion which was for summary judgment dismissing the claims alleging a violation of Labor Law § 241(6).

The Court of Claims also properly granted that branch of NYSTA's motion which was for summary judgment dismissing the claims for punitive damages. Although the claimants alleged in their supplemental bills of particulars that awards of punitive damages were warranted, "the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State or its ... subdivisions" ( Sharapata v. Town of Islip, 56 N.Y.2d 332, 334, 452 N.Y.S.2d 347, 437 N.E.2d 1104 ).

However, the Court of Claims erred in granting that branch of NYSTA's motion which was for summary judgment dismissing the claims alleging a violation of Labor Law § 200 and common-law negligence. Initially, the court erred in determining that those claims were barred by the doctrine of collateral estoppel. Whereas the engineering defendants in the Supreme Court action were contractors or subcontractors, NYSTA is the owner of the construction site where the injuries are alleged to have occurred. The evidence submitted by the engineering defendants in the Supreme Court action establishing their entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action—that they lacked supervision or control over the performance of the work—is distinct from the evidence that NYSTA would have to submit in support of a motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims in the Court of Claims. There are issues unique to NYSTA as a property owner involving creation and actual and constructive notice of the hazard, and NYSTA's compliance with the terms of a 2002 consent order, to which it was a party. The claimants did not have a full and fair opportunity to litigate these issues in the Supreme Court action as NYSTA was not a party to the Supreme Court action. Since the elements required for the application of collateral estoppel to the Labor Law § 200 and common-law negligence claims were not established in the Court of Claims, those claims were not subject to dismissal on that ground (see Kaufman v. Eli Lilly & Co., 65 N.Y.2d at 456, 492 N.Y.S.2d 584, 482 N.E.2d 63 ).

In addition, contrary to NYSTA's contention, it is not shielded from liability by the governmental function immunity defense. This defense "provides immunity for the exercise of discretionary authority during the performance of a governmental function" ( Turturro v. City of New York, 28 N.Y.3d 469, 479, 45 N.Y.S.3d 874, 68 N.E.3d 693 ). However, "[g]overnmental entities acting in furtherance of a proprietary function will be subject to liability under ordinary principles of tort law" ( Heeran v. Long Is. Power Auth. [LIPA], 141 A.D.3d 561, 563, 36 N.Y.S.3d 165, affd 30 N.Y.3d 719, 70 N.Y.S.3d 909, 94 N.E.3d 471, 2018 N.Y. Slip Op. 01148 [2018] ). While quintessential governmental functions include police and fire protection (see id. at 563, 36 N.Y.S.3d 165 ), "[a] government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises' " ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131, quoting Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 ). Thus, "proprietary functions include, for example, the maintenance of roads and highways in a reasonably safe condition" ( Heeran v. Long Is. Power Auth. [LIPA], 141 A.D.3d at 563, 36 N.Y.S.3d 165 ) and the ownership and care relating to buildings when the governmental entity acts as a landlord (see Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493 ). Moreover, the ownership and operation of a landfill has been deemed a proprietary function, subjecting the governmental entity to general principles of tort law (see Dangler v. Town of Whitestown, 241 A.D.2d 290, 294, 672 N.Y.S.2d 188 ).

The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine " ‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred ..., not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred’ " ( Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 447, 933 N.Y.S.2d 164, 957 N.E.2d 733, quoting Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 182, 448 N.Y.S.2d 141, 433 N.E.2d 124 ). Here, NYSTA, as the owner of real property, including a landfill requiring remediation, engaging in a...