Mendoza v. Highpoint Associates

• Decision Date: 08 March 2011
• Citation: 2011 N.Y. Slip Op. 01719,919 N.Y.S.2d 129,83 A.D.3d 1
• Parties: Jose MENDOZA, Plaintiff–Respondent,v.HIGHPOINT ASSOCIATES, IX, LLC, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1

919 N.Y.S.2d 129

2011 N.Y. Slip Op. 01719

Jose MENDOZA, Plaintiff–Respondent,

v.HIGHPOINT ASSOCIATES, IX, LLC, Defendant–Appellant.

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

March 8, 2011.

Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Jonathan A. Judd and Shanna R. Torgerson of counsel), for appellant.Davidson & Cohen, P.C., Rockville Centre (Robin Mary Heaney of counsel), for respondent.PETER TOM, J.P., JAMES M. McGUIRE, ROLANDO T. ACOSTA, DIANNE T. RENWICK, HELEN E. FREEDMAN, JJ.RENWICK, J.

Plaintiff Jose Mendoza brought this action for injuries sustained during a fall while he was on a roof to inspect damage and determine the extent of necessary repairs. Plaintiff asserts claims under Labor Law §§ 240(1), 241(6) and 200, and common-law negligence. During the discovery process, defendant refused to produce an employee of the subject property for a deposition. As a result, Supreme Court ultimately precluded defendant from introducing evidence at trial with respect to liability.

Defendant does not dispute that Supreme Court appropriately exercised its discretion to fashion a remedy for its failure to comply with discovery demands. What defendant disputes is Supreme Court's subsequent determination that the preclusion order ipso facto prevented it from making a motion for summary judgment on the ground that plaintiff would not be able to make a prima facie case on liability. For the reasons explained below, we find the preclusion order did not prevent defendant from making such a motion. Accordingly, we entertain the motion on the merits.

Factual and Procedural Background

The alleged roof accident occurred in April 2006, at the premises known as 81– 11A Broadway Avenue, Elmhurst, New York, a vacant one-story commercial building. This action was commenced in March 2007 against defendant Highpoint Associates IX, LLC (Highpoint), the owner of the premises. Plaintiff's deposition took place on November 5, 2008, at which time he testified that on the date of the accident, he was employed by Keystone Management (Keystone) as a property manager. Keystone's headquarters were located in California, but the entity also managed numerous properties in New York City. Plaintiff supervised nine Keystone employees at various properties in the City, including the instant premises. Plaintiff's supervisor in California was Raha Arna who was no longer employed by Keystone at the time this action was commenced.

At the time of the accident, plaintiff was “assessing” a damaged roof. The previous day, Arna had told plaintiff that there was a leak in the roof, and directed him to assess the damage and fix it. Plaintiff testified that the leaking started during the summer of 2005, at which time debris covered a large part of the roof, further straining it. Arna had instructed plaintiff to have the debris removed by Keystone employees. The employees, however, complained that the roof did not feel right, and plaintiff informed Arna that the roof was “flimsy” and “not too safe.” Plaintiff, at Arna's direction, took photos and e-mailed them to Arna. Plaintiff was aware that prior tenants had complained, at least since 2005, to Keystone and the building owner about leaks in the roof; plaintiff heard about the complaints from Arna, but he did not know to whom the complaints were made.

Prior to the accident, plaintiff was “doing a walk-through” on the roof, assessing what repairs were necessary and what materials would be required, and taking down notes. At one point, after about one half hour, he stopped near the middle of the roof. The roof then “started to buckle” causing him to fall to his right side and land on his knee. As plaintiff explained, prior to his fall, the roof under his right foot started to “sink, to give way ... about maybe an inch and a half, two inches,” which “threw [plaintiff] off to the side,” and caused him to fall onto his right knee, coming into contact with a piece of metal, “like a conduit pipe,” on a conduit platform.

Daniel Shalom, the president of Keystone, was deposed on March 13, 2009. Shalom, a resident of California, testified that he was the sole shareholder of Keystone, which managed about 30 buildings, about half in the City and the other half in California. Shalom denied having any ownership interest in Highpoint but admitted he had such interest in several similarly named entities, which owned properties in the City. He claimed that his sister, Amy Shalom, was the sole owner of Highpoint.

Shalom remembered discussing the roof leaks with plaintiff and directing him to inspect the roof. Although Shalom kept records of tenants' complaints for the various properties he managed, he did not bring any of them to the deposition; they remained in California. However, he remembered reviewing records revealing that the entire roof of the Elmhurst property had to be replaced in May 2006 because of leaks.

Because of the repeated failures to comply with discovery demands, by order dated May 5, 2009, Supreme Court precluded Highpoint from introducing evidence at trial unless, within 45 days of the order, defendant produced employees who had personal knowledge of facts related to the instant accident. Defendant was also directed to produce copies of all violations on the building for the year preceding plaintiff's accident. By its terms, the order was self-executing, specifically directing that defendant's failure to comply would result in preclusion of evidence at trial as to liability.

Defendant failed to produce any witness for a deposition. Nor did defendant appeal from the preclusion order. Instead, defendant moved for summary judgment on the ground, inter alia, that plaintiff would not be able to make out a prima facie case on liability for any of the claims asserted against it. Plaintiff opposed and cross-moved for summary judgment. Supreme Court refused to hear defendant's motion on the ground that the preclusion order prevented defendant from presenting any evidence at trial on liability. Likewise, Supreme Court denied plaintiff's cross motion as untimely. Defendant appeals from the refusal to entertain its motion and seeks a dismissal of the action.

Discussion

A.

As a threshold procedural issue, we find no legal impediment to examining the merits of defendant's motion for summary judgment. Contrary to Supreme Court's determination, the fact that defendant was precluded from presenting evidence at trial on liability did not affect its right to move for summary judgment. Generally, a defendant's preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment ( see Northway Eng'g v. Felix Indus., 77 N.Y.2d 332, 567 N.Y.S.2d 634, 569 N.E.2d 437 [1991]; Rosario v. Humphreys & Harding, 301 A.D.2d 406, 752 N.Y.S.2d 865 [2003] ). Indeed, a preclusion order does not relieve the plaintiff of the burden of proving its case ( see Northway, 77 N.Y.2d at 337, 567 N.Y.S.2d 634, 569 N.E.2d 437; Murphy v. Herbert Constr., Co., 297 A.D.2d 503, 747 N.Y.S.2d 439 [2002]; Israel v. Drei Corp., 5 A.D.2d 987, 173 N.Y.S.2d 360 [1958] ); nor does it preclude affirmative defenses ( see e.g., Ramos v. Shendell Realty Group, Inc., 8 A.D.3d 41, 777 N.Y.S.2d 644 [2004] [affirmative defense of comparative negligence still a viable defense despite the preclusion order]; Mendez v. Queens Plumbing Supply, Inc., 12 Misc.3d 1064, 820 N.Y.S.2d 707 [Sup. Ct., Bronx County 2006] [same]; see also Moskowitz v. Garlock, 23 A.D.2d 943, 259 N.Y.S.2d 1003 [1965] ). Therefore, a preclusion order preventing evidence at trial on liability is unlike the striking of an answer, which effectively resolves a claim against the nondisclosing defendant ( see Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 480 N.Y.S.2d 197, 469 N.E.2d 518 [1984] ).

Accordingly, summary judgment should be granted where the non-disclosing defendant can establish entitlement to such relief despite the preclusion order barring it from offering its own affirmative evidence as to liability. This Court's determination in Murphy v. Herbert Constr. Co., 297 A.D.2d 503, 747 N.Y.S.2d 439 [2002] aptly illustrates the point. In Murphy, the plaintiff moved for summary judgment on liability pursuant to Labor Law § 241(6), and the defendant subcontractor cross-moved for summary judgment dismissal of the claims under Labor Law §§ 240(1) and 241(6). Supreme Court granted plaintiff summary judgment and denied defendant's cross motion in its entirety. This Court reversed and granted the non-disclosing defendant summary judgment despite the fact that the motion court had precluded it from presenting evidence at trial on liability. Specifically, this Court dismissed the Labor Law §§ 240(1) and 241(6) claims asserted against the subcontractor because the plaintiff's evidence failed to allege a key element of such claims ( id. at 504, 747 N.Y.S.2d 439).

Plaintiff's reasoning for distinguishing Murphy—adopted by the dissenters—is not persuasive. Plaintiff argues that Murphy is inapplicable, in that the plaintiff there was the movant, but failed to produce any evidence establishing a prima facie case, a fundamentally different procedural posture from that at issue here. Plaintiff contends that, since defendant has the burden of establishing a prima facie case on its motion for summary judgment through the tendering of evidence and it is barred from tendering such evidence because of the preclusion order, it cannot meet its burden.

The divergent posture of this case vis-à-vis Murphy changes nothing. What is significant is that in both cases the preclusion order did not bar the defendant from challenging the sufficiency of the plaintiff's evidence; the answer was not stricken and the preclusion did not extend beyond limiting the defendant's affirmative evidence at trial on liability. The application of the remedy of preclusion to a specific category of evidence, as applied against a defendant,...