Viera v. Uniroyal, Inc.

• Decision Date: 07 June 1988
• Citation: 541 N.Y.S.2d 668,142 Misc.2d 1099
• Parties: Omar VIERA and Liber Viera, Plaintiffs, v. UNIROYAL, INC. and Crystal Home Cleaners of L.I., Corp., Defendants. CRYSTAL HOME CLEANERS OF L.I. CORP., Third Party Plaintiff, v. AFP COMMERCIAL AND HOME CLEANERS, INC., Third Party Defendant. CRYSTAL HOME CLEANERS OF L.I. CORP., Defendant, Third Party Plaintiff and Second Third Party Plaintiff, v. Armando ROMANELLI and Alberto Quintero, individually and doing business as AA Cleaners of New York, Second Third Party Defendants.
• Court: New York Supreme Court

Page 668

541 N.Y.S.2d 668

142 Misc.2d 1099

Omar VIERA and Liber Viera, Plaintiffs, v. UNIROYAL, INC. and Crystal Home Cleaners of L.I., Corp., Defendants.

CRYSTAL HOME CLEANERS OF L.I. CORP., Third Party Plaintiff, v. AFP COMMERCIAL AND HOME CLEANERS, INC., Third Party Defendant.

CRYSTAL HOME CLEANERS OF L.I. CORP., Defendant, Third Party Plaintiff and Second Third Party Plaintiff, v. Armando ROMANELLI and Alberto Quintero, individually and doing business as AA Cleaners of New York, Second

Third Party Defendants.

Supreme Court, New York County IAS 13.

June 7, 1988.

[142 Misc.2d 1101] Joseph Kelner, New York City, for plaintiffs.

Newman & Schlau, Evans, Orr, Pacelli, Norton & Lafan, P.C., Smith Mazure Director & Wilkins, Alan Kaminsky, New York City, Robert Damast, White Plains, for defendants.

MARTIN B. STECHER, Justice:

These motions and cross-motions present us with new turns in the tortuous road on which choice of tort law has embarked since simple, straightforward lex loci delictus ceased to be our sole guide [Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279].

THE FACTS

The relevant facts were stipulated. On June 9, 1979, plaintiff Omar Viera, a New York domiciliary, fell from a scaffold while helping to clear a factory in Kennett, Missouri, of smoke damage. The plant was leased to the defendant Uniroyal which engaged the cleaning services of defendant Crystal Home Cleaners of L.I., Inc. (hereafter "Crystal"). Uniroyal is a New Jersey Corporation whose "principal place of business and World Headquarters" are in Connecticut. It has an office in New York County as well as a plant in Missouri (and as suggested by the stipulation, places of business throughout the world).

Crystal is a New York corporation domiciled here. Its written contract with Uniroyal was prepared by Uniroyal in Connecticut, "mailed to Crystal in New York and was thereafter accepted by Uniroyal in Connecticut." Crystal subcontracted the smoke clearance to third party defendant AFP Commercial and Home Cleaners, Inc. (hereafter "AFP"), a New York corporation domiciled in New York. AFP is plaintiff Viera's employer. Crystal also engaged Baker Rentals of Paragould, Arkansas, to supply an unassembled scaffold to the work site; and engaged Armando Romanelli and Alberto Quintero d/b/a AA Cleaners of New York to erect the scaffold. (AA Cleaners is, in all likelihood, a New York enterprise). The Crystal contracts with Uniroyal and all of Crystal's subcontracts were to be performed exclusively in Missouri.

THE MOTIONS

Uniroyal moves for partial summary judgment (CPLR 3212) dismissing the first and second causes of action to the extent they seek recovery from Uniroyal. The first cause of action invokes the statutory, non-delegable duty imposed by New York Labor Law § 240 on "contractors and owners" where scaffolds are used. The second cause of action is premised on the non-delegable duty imposed by New York Labor Law § 241 (presumably, subdivision 6) on owners and contractors to provide a safe work place to those engaged in "construction, excavation or demolition work." (We need not, for the purposes of this motion, determine whether Viera was engaged in "construction, excavation or demolition," but see Jaroszewicz v. Facilities Development Corporation, et al., 115 A.D.2d 159, 160, 495 N.Y.S.2d 498).

Crystal, although serving no notice of cross-motion, "joins" in Uniroyal's motion and seeks dismissal of these first two causes against Uniroyal and Crystal. The failure to serve a notice of cross-motion is not necessarily fatal [Plateis v. Flax, 54 A.D.2d 813, 388 N.Y.S.2d 245] and Crystal's application is considered on its merits.

Crystal, the New York contractor, cross-moves for a default judgment [CPLR 3215] against Romanelli and Quintero, the New York scaffold erectors, for failure to answer the 2nd third-party complaint.

AFP, the New York cleaning subcontractors and Viera's employer, cross-moves to dismiss the third-party complaint on the ground that under Missouri Law the third party action does not lie against an employer where "both employer and employee have elected to accept the provisions of" Missouri's workers' compensation law.

UNIROYAL'S MOTION FOR PARTIAL SUMMARY JUDGMENT

We start with the proposition that the law of the State in which the tort was committed is the applicable law "to be rejected only when it is evident that the situs of the accident is the least of the several factors or influences to which the accident may be attributed" [Neumeier v. Kuehner, 31 N.Y.2d 121, 131, 335 N.Y.S.2d 64, 286 N.E.2d 454, concurring opinion, Breitel, J.]. It has been said in a case where the plaintiffs and defendant were New Jersey domiciliaries and the locus and forum were in New York [Schultz v. Boy Scouts of America, 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679] that "the relative interests of the domicile and locus jurisdictions in having their laws apply will depend on the particular tort issue in conflict in the case. Thus, when the conflicting rules involve the appropriate standard of conduct ... the law of the place of the tort 'will usually have a predominant if not exclusive concern' ... because (of) the locus jurisdiction's interests in protecting the reasonable expectations of the parties who relied on it to govern their primary conduct ... Conversely, when the jurisdictions' conflicting rules relate to allocating losses that result from admittedly tortious conduct ... considerations of the State's admonitory interest and party reliance are less important" [Schultz v. Boy Scouts of America, supra, p. 198, 491 N.Y.S.2d 90, 480 N.E.2d 679]. It has also been held that where plaintiff and defendant are domiciled in different states, as, for instance, a plaintiff passenger and defendant driver, we apply the rule of the locus state unless "it can be shown that displacing that normally applicable rule will advance the relevant substantive law purpose without impairing the smooth working of the multi-state system or producing great uncertainty for litigants" [Neumeier v. Kuehner, supra, 31 N.Y.2d p. 128, 335 N.Y.S.2d 64, 286 N.E.2d 454].

In my judgment to apply New York law to the dispute between the plaintiff and Uniroyal will "impair the smooth working of the multistate system." Labor Law § 240 has two purposes: To provide safety standards for scaffolds and other elevated places of work and to impose the non-delegable safety duty on "contractors and owners." Similarly, Labor Law § 241(6) imposes on owners and contractors the non-delegable duty to provide a safe workplace for those engaged in construction, demolition or excavation.

It is not necessary, for the purposes of resolving Uniroyal's motion, to call these statutes solely "loss allocating" or solely "conduct directing"; for the choice of law issue, as between Viera and Uniroyal, is determined by the absence of a common domicile. Not only are they domiciled in separate states, but the domicile of neither is the place of the tort. There is no greater reason to impose New York law on the dispute between these two litigants than there is to impose the law of Connecticut, Uniroyal's domicile. Indeed, Uniroyal, having a situs in, and therefore being subject to the jurisdiction of, many states, deviation from the doctrine of lex loci delictus would permit any plaintiff suing Uniroyal to choose the forum, whose law is most hospitable to his claims. Where a defendant is subject to the jurisdiction of many states, forum shopping is best discouraged by applying both the loss allocating and the standard-of-conduct law of the place of the tort [see Schultz v. Boy Scouts of America, supra, 65 N.Y.2d p. 201, 491 N.Y.S.2d 90, 480 N.E.2d 679].

Accordingly, Uniroyal's motion to dismiss the first and second causes of action to the extent pleaded against Uniroyal is granted, for New York's Labor Law is inapplicable to their dispute. The law of Missouri, the place of the tort, will govern.

CRYSTAL'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

It is to be observed at the outset that there is no necessity to apply laws uniformly to all litigants in a single case where choice of law issues are involved [see e.g. Babcock v. Jackson supra, 12 N.Y.2d p. 484, 240 N.Y.S.2d 743, 191 N.E.2d 279; Schultz v. Boy Scouts of America supra, 65 N.Y.2d p. 197, 491 N.Y.S.2d 90, 480 N.E.2d 679; Boxer v. Gottlieb, 652 F.Supp. 1056, 1062]. The same analytical approach to differently situated litigants may yield very different results. So it is with our approach to Uniroyal and to Crystal; for Viera and Crystal, unlike Viera and Uniroyal, are both domiciled in New York. (The result in Uniroyal's motion was dictated, in significant part, by the diversity of Viera's and Uniroyal's domiciles.)

There can be little doubt that the scaffold from which Viera fell had to be erected in a manner consistent with the laws of Missouri. Thus, the provisions of New York's Labor Law section 240 designating the weight bearing capacity of a scaffold and similar provisions could not be made to supercede Missouri's law. Conduct in Missouri must follow Missouri law.

Section 240(1) (and 241[6] of the Labor Law, however, also impose a duty on "contractors and owners ... who contract for but do not direct or control the work, in the ... cleaning ... of a building ... (to) cause to be furnished or erected for the performance of such labor, scaffolding ... which shall be so constructed ... as to give proper protection to a person so employed." This portion of the statute does not direct how the scaffold shall be built, but it fixes the responsibility for safety on owners and contractors.

As indicated previously, given the diversity of Uniroyal's and Viera's residences, and the fact that the site of the work was not New York, it would be disruptive of "the smooth working of the multistate system" to allow New York to allocate responsibility to Uniroyal for its failure to insure safety in accordance with...