DaSilva v C & E Ventures, Inc.

DaSilva v C & E Ventures, Inc.

2011 NY Slip Op 03176 [83 AD3d 551]

April 21, 2011

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 8, 2011

Francisco DaSilva et al., Respondents,

v

C & E Ventures, Inc., et al., Defendants, and Port Authority of New York & New Jersey, Appellant. (And a Third-Party Action.)

—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Timothy R. Capowski of counsel), for appellant.

Law Offices of Lawrence Perry Biondi, Garden City (Lisa M. Comeau of counsel), for Francisco DaSilva, Maria DaSilva, Robert DaSilva, Silvia DaSilva, Marciano Debas, Daniel Martins, Graciela Tsoliakis and Stefano Tsoliakis, respondents.

Carol R. Finocchio, New York, for Mark Liard, respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 30, 2008, which, to the extent appealed from as limited by the briefs, denied the motion by defendant Port Authority (PA) for summary judgment dismissing the complaint against it in its entirety, or for a declaration that the law of New Jersey rather than New York governs, and granted plaintiff Liard's cross motion for leave to supplement his bill of particulars, unanimously affirmed, without costs.

In this action for personal injuries arising from plaintiffs' exposure to lead during lead paint abatement they performed on the George Washington Bridge, defendant PA argues, inter alia, that plaintiffs' injuries occurred while they were performing work on the portion of the bridge that is located in New Jersey and that applicable New Jersey law requires dismissal of plaintiffs' claims. The PA also argues that plaintiff Liard, the only plaintiff who did not initially assert an injury in New York as well as in New Jersey, should not be permitted to amend his bill of particulars to add such a claim.

Contrary to the PA's argument, Liard's notice of intention to make a claim satisfied specific requirements regarding time and content (McKinney's Uncons Laws of NY §§ 7107, 7108 [L 1950, ch 301, §§ 7, 8, as amended]), and along with his timely filing of a complaint, vested Supreme Court with subject matter jurisdiction. The court did not abuse its discretion in granting Liard leave to serve a supplemental bill of particulars for the purpose of amplifying and clarifying allegations based on additional factors uncovered during discovery (see CPLR 3025 [b], [c]; Scherrer v Time [*2]Equities, Inc., 27 AD3d 208 [2006]). Despite Liard's delay in seeking leave to supplement, the PA cannot claim prejudice, as the supplement set forth claims identical to those previously asserted in the complaint and bill of particulars filed by Liard's coplaintiffs (see Scarangello v State of New York, 111 AD2d 798 [1985]).

The issue of which state's law applies is dispositive. Under New Jersey's general negligence law, an owner is not responsible for harm which occurs to a contractor's employee as a result of the very work the contractor was hired to perform (Burger v Sunoco, Inc. [R&M], 2009 WL 4895207, *1, 2009 US Dist LEXIS 115474, *3 [D NJ 2009]; Accardi v Enviro-Pak Sys. Co., Inc., 317 NJ Super 457, 463, 722 A2d 578, 580 [1999], cert denied 158 NJ 685, 731 A2d 45 [1999]). In contrast, Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors "to provide reasonable and adequate protection and safety to the persons employed" at construction, excavation, and demolition sites. The PA argues that New Jersey law must be applied because plaintiffs' deposition testimony establishes that their injuries occurred only in New Jersey, and to the extent plaintiffs' affidavits, submitted in opposition to its motion for summary judgment, assert injury in New York, the affidavits' identical content, and the fact that they were inconsistent with plaintiffs' deposition testimony, demonstrate that these statements were fabricated for the purpose of avoiding dismissal. It therefore maintains that there is no real issue of fact regarding whether plaintiffs were injured in New York.

Plaintiffs' affidavits and the uncontroverted affidavit of their expert demonstrate exposure to lead-based paint contaminant during work performed on portions of the George Washington Bridge located in both New York and New Jersey. There are no fatal inconsistencies between the deposition testimony and the affidavits. In addition, particularly because plaintiffs worked together, performed similar tasks, and shared the same experience, the affidavits should not be rejected due to their identical nature.

In contrast, the PA failed to establish that plaintiffs were not injured in New York. Indeed, it neither submitted any expert testimony to controvert plaintiffs' expert's conclusion that plaintiffs were injured in both New York and New Jersey nor argued before the motion court that disputed issues of material fact require a framed-issue hearing before any determination on choice of law can be made. To the contrary, the PA maintained that there were no issues of fact and that it was entitled to both a declaration that New Jersey law applies and summary judgment based on the applicable New Jersey law. Having failed to raised this issue below, its current claim that a hearing is necessary is not preserved for our review (see William Kaufman Org. v Graham & James, 269 AD2d 171, 174 [2000]).