DAVID VAN WINKEL v. LEFRAK NEWPORT REALTY CORP LEFRAK ORGANIZATION RIVERSIDE REINFORCED CONCRETE CORP ICC CONSTRUCTION CORP SHORE CONDO CONSTRUCTION COMPANY SHORE CLUB CONSTRUCTION COMPANY LLC (2010)

Plaintiff, David Van Winkel, appeals from orders granting summary judgment to the defendants resulting in a final judgment and from an order of June 16, 2009, denying reconsideration.   Plaintiff challenges the grant of summary judgment to defendants Shore Condo Construction Company (SCCC) and ICC Construction Corp., and contends that the trial judge abused his discretion in granting SCCC's motion to bar his expert report.

I.

Plaintiff sustained injuries while working on a high-rise construction project for the Lefrak Newport Realty Corp.¹ He was employed as an ironworker by defendant Riverside Reinforced Concrete Corp., a subcontractor of SCCC, the general contractor.   Plaintiff fell through plywood flooring that had been temporarily installed to cover a hole purposely left in the concrete flooring during construction.

After interrogatories were answered and the discovery end date passed, plaintiff unsuccessfully moved to permit the submission of an expert report designed to show that SCCC breached a duty to protect plaintiff from injuries and that the plywood covering the purposely laid hole in the concrete floor constituted negligence by SCCC. Plaintiff further challenges the summary judgment to ICC, which was granted on the basis that it and plaintiff's employer, Riverside, had identical ownership and management, so that ICC was, in fact, the subcontractor, or an “alias,” which employed plaintiff and suit against it was therefore barred by the Workers' Compensation Act, N.J.S.A. 34:15-8.

On August 29, 2008, the Law Division granted summary judgment to both ICC and Riverside (except for SCCC's cross-claim against it).   Judge Alvaro L. Iglesias found that plaintiff had not included a “Laidlow ” ² claim in his complaint and there were no facts in the record to support such a claim.   On that basis, the court determined that no genuine issue of material fact existed to preclude ICC's and Riverside's entitlement to immunity from a personal injury action by plaintiff as set forth under N.J.S.A. 34:15-8.³  In addition, the judge found that ICC and Riverside were the same corporate entity and that “ICC” was simply a “trade name” used by Riverside.   The court stated its reasoning as follows:

The fact that ICC is the party that is named and who signed the contract, doesn't necessarily establish that there is a separate entity.   If we were to look at the facts of this case and conclude that because the contract was signed by ICC, because payments were received by ICC and then deposited in its joint account with Riverside, and the other information that we had, if we concluded that that establishes a separation of identity, then we would never be able to use trade names because that's what businesses do when they are using a name to trade under․  Mr. B[a]letto [is] operating the business and that ․ is consistent with his own sworn testimony and with what Mr. Jenkins has to say․  [E]ven the insurance policy covers both names[.]  I don't really see anything based on this motion record that leads me to believe that there is a genuine issue of material fact with regard to the identity or the separate identity of these companies, or as to the Laidlow claim.

On September 29, 2008, plaintiff filed a Notice of Appeal from the order granting the Riverside-ICC motion for summary judgment, but did not file a motion for leave to appeal the interlocutory order.   On November 25, 2008, we dismissed plaintiff's appeal as interlocutory.   Plaintiff argues in his brief that “formal discovery was effectively stayed while the Appellate Division reviewed and decided the issues raised by [p]laintiff on appeal.”   However, notwithstanding plaintiff's claim that discovery had been stayed upon his filing of the Notice of Appeal, on October 17, 2008, defendant sought plaintiff's medical records from Dr. Michael DiStefano and Valley Hospital in Ridgewood, and received those records on or about November 18, 2008.

Plaintiff then served on defendants the expert report of Vincent A. Gallagher, a professional engineer, on or about December 4, 2008.   In response, on December 10, 2008, SCCC filed a motion seeking to prohibit Gallagher from serving as an expert witness, based on the fact that Judge Bariso's order dated July 18, 2008, required plaintiff to serve his expert report by September 30, 2008, and also provided that the discovery period (“DED”) would expire on November 14, 2008.   Plaintiff submitted opposition on December 29, 2008, arguing that his filing of the Notice of Appeal on September 29, 2008, had effectively stayed discovery in the matter.   However, the trial court rejected that argument and on January 12, 2009, entered an order barring Gallagher from serving as an expert witness.   Specifically, Judge Iglesias did “not accept the appeal of a summary judgment order as justification for [a] late amendment.”

On January 19, 2009, plaintiff served a supplemental report from Michael Natoli, a professional engineer who had prepared a report before the discovery end date.   On January 26, 2009, SCCC filed a motion seeking to preclude consideration of Natoli's supplemental report, which SCCC alleges was time-barred because of the September 30, 2008, discovery deadline and was a reiteration of the Gallagher report, and “flagrant attempt” to “end run” the order barring Gallagher's report.   On February 20, 2009, Judge Barry P. Sarkisian granted SCCC's motion and barred plaintiff “from amending his answers to Interrogatories to include the January 16, 2009 report” of Natoli and barred him from testifying as to the opinions or his report dated January 16, 2009.   Judge Sarkisian found that plaintiff's attempt to use the Natoli report “incorporate[d] essentially the same information” as the prior Gallagher report and was “a violation of a prior order” by Judge Iglesias, and plaintiff had not shown any “exceptional circumstances ․ to allow this amendment of the report to go before this jury.”

On February 24, 2009, defendant SCCC filed a motion for summary judgment.   SCCC contended that it did not owe a duty to plaintiff in the circumstances under which his injuries occurred, because “Riverside was delegated exclusive responsibility for safety and bore the risk for any injuries that might occur.”   SCCC also argued plaintiff had not presented sufficient competent expert evidence to establish a prima facie claim of negligence.

After denial on March 1, 2009, of plaintiff's motion for reconsideration of the order excluding the Natoli report, plaintiff filed an opposing brief in response to SCCC's summary judgment motion.   Plaintiff argued SCCC had a non-delegable duty to all workers at the construction site to maintain a safe working environment free from hazardous conditions and had breached that duty, proximately causing plaintiff's injuries.

On April 21, 2009, Judge Iglesias granted SCCC's motion for summary judgment and dismissed plaintiff's complaint against it.   Plaintiff's motion for reconsideration was denied, and plaintiff now appeals from the final judgment which dismissed his complaint.

II.

On November 30, 2005, plaintiff was employed by defendant Riverside as a crane signalman and was working construction at a “multi-storied, high rise construction site” located in Jersey City known as the Newport Project.   At approximately 3:20 p.m., he suffered serious injuries when a piece of plywood on which he was standing gave way and he fell through the ninth floor of the high rise building.   According to plaintiff, as he stepped onto the edge of the piece of plywood, “it sprang upwards and caused him to plummet down one story.”

Plaintiff fell one floor down through what, for present purposes, we understand to have been a “purposefully created opening in the concrete floor,” or “hidden ‘trap door,’ ” which he claims was created “because the plywood covering the opening was improperly secured” to the floor.   He alleges that the opening, which was covered by plywood, was “supposed to be covered and secured by 4x8 plywood sheets, secured to stringers to prevent shifting.”   Plaintiff also alternatively claims that the plywood may have been “inadequately secured to the ․ stringer beams.”

As already noted, the general contractor for the project was SCCC, while ICC was a subcontractor hired to provide structural concrete under a written construction agreement that included an indemnification clause which provided that ICC would be responsible for indemnifying SCCC for any legal claims arising out of the project.   The agreement between SCCC and ICC required ICC to employ a health and safety officer properly trained to protect workers employed at the project, and stated that “[a]ll labor and materials ․ shall be provided by this Subcontractor [ICC] for temporary safety protection and perimeter protections, in accordance with State, Local and Federal Agencies having jurisdiction, including [the Occupational Safety and Health Administration (OSHA) ]. This shall include, but not be limited to floor openings.” ⁴  In addition, the agreement provided that SCCC would retain full supervisory authority over ICC's work, stating that the “Contractor [SCCC], in writing, may at any time for any reason, direct Subcontractor [ICC] to suspend, stop or interrupt the Work or any part thereof for a specified period of time.”

According to plaintiff, the accident occurred while he was walking across the plywood deck of the ninth floor of the building.   As he walked directly on one of the column penetrations, a piece of plywood gave way and “fell from underneath” him.   Plaintiff stated that he fell through a penetration located on the northeast corner of the ninth floor.   Plaintiff also testified that his fall was caused by the improper securing of a piece of plywood to the “stringers” underneath the plywood, and that Riverside was responsible for securing the plywood to the stringers.

Plaintiff claimed he had reported Riverside's system of using plywood in the way that it did as dangerous, because he felt that the system was unsafe and posed a danger to the project's construction workers.   However, plaintiff made those reports to Riverside employees only.   As a result of plaintiff's report of an unsafe condition, his superiors at Riverside informed him that this system could not be changed.

John Balleto, sole shareholder and owner of Riverside, testified in depositions that SCCC was primarily responsible for general workplace safety and for the safety of the construction workers at the project.   However, Balleto explained that when Riverside performed work on a particular floor of the building, ICC assumed responsibility for the safety of the construction site and its workers.

Balleto further testified that it was “[c]ommon practice ․ to throw plywood where people are walking over a penetration.”   He also explained that SCCC employees informed him that “they had an argument over trying to prevent falls from happening.”   According to Balleto, it was the responsibility of Riverside's deck foreman to ensure that the plywood was properly secured.

In addition, Balleto testified that other construction workers at the project had nearly fallen through pieces of plywood position in this manner, stating that there were “prior near misses” with respect to construction workers falling through a piece of plywood, meaning that SCCC had previously experienced issues with “people almost falling into these holes.”   However, Balleto testified that Riverside's use of its plywood coverings over the penetrations in the building's floors could not be changed because a perimeter guard around the pieces of plywood would not allow for the installation of the steel cage which forms the wall.   Finally, Balleto claimed that SCCC as the general contractor maintained a supervisory role over the project and would regularly “inspect for safety issues” in an effort to prevent “[a]n obvious safety hazard.”

On August 12, 2008, David Jenkins, SCCC's “general superintendent of construction” testified at a deposition.   According to Jenkins, SCCC entered into a construction contract with ICC only, and not with Riverside.   Jenkins explained that his role in the project was to “coordinate the flow of work, the ․ job schedule, which would entail procedural operations, seeing that the contractor is erecting the building on time, and that the other trades are following behind in sequential manner.”

Jenkins further testified that SCCC had four or five employees working at the project on the day plaintiff was injured, including two superintendents and three or four local laborers.   He also confirmed that when ICC performed work on a particular floor of the building, ICC was “responsible” for inspecting that floor including for “floor penetrations” for the purpose of insuring the safety of the project and its workers.   However, he claimed that when ICC finished working on a floor, that area would return to SCCC's control and responsibility.

Jenkins additionally explained that ICC was responsible for “fall safety protection, perimeter protection coverings, covering the floor penetrations on the working deck, any floors that still have form work and any floors that are still stacked with material.”   Finally, at his deposition Jenkins initially testified that he was not aware whether ICC had a “health and safety officer,” but he “assume[d]” that “Charlie Metaxis, who was their general superintendent, [who] would bring [him] safety concerns ․ was the safety officer.”

III.

In an appeal of a grant of summary judgment, we use the same standard as the trial court and decide whether there is any genuine issue of material fact in dispute between the parties.   If there is no genuine issue of material fact in dispute, we must decide whether the trial court's ruling on the law was correct and if summary judgment is warranted.  Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998).   Even if allegations of the pleadings appear to raise an issue of fact, if the other papers show that, in fact, there is no real material issue, the trial court may grant a motion for summary judgment, and disputed factual issues that are “of an insubstantial nature” are insufficient to defeat a motion for summary judgment.  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995) (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)).

“An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.”   R. 4:46-2(c).  Moreover, while the trial court must accord all favorable inferences to the non-moving party, if the court finds no material disputes of fact, it may render a judgment as a matter of law in favor of either the moving or non-moving party.  Ibid.

In considering whether the defendant general contractor owed the plaintiff a duty in a personal injury matter, the court will consider several factors, including “the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.”  Alloway v. Bradlees, 157 N.J. 221, 230 (1999) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).   Moreover, a general contractor may be held liable for the plaintiff's personal injuries where it retains control over the manner of the worker performed, the general contractor knowingly hires an incompetent subcontractor, or the work performed by the subcontractor is inherently dangerous.  Id. at 229.

The contractual obligations between the contractor and the subcontractors are important in assessing the issues before us as well as ultimate liability.   Here, under the indemnification provisions of the agreement ICC assumed SCCC's defense.

Plaintiff argues that SCCC violated a federal regulation promulgated by the Occupational Safety and Health Administration (OSHA), specifically 29 C.F.R. 1926.16.   This court has held that a “violation of the obligations imposed by the federal regulations supports a tort claim under state law.”  Meder v. Resorts Int'l Hotel, Inc., 240 N.J.Super. 470, 477 (App.Div.1989), certif. denied, 121 N.J. 608 (1990).   Nevertheless, we have also expressly stated that “the finding of an OSHA violation does not ipso facto constitute a basis for assigning negligence as a matter of law;  that is, it does not constitute negligence per se.”  Kane v. Hartz Mountain Indus., Inc., 278 N.J.Super. 129, 144 (App.Div.1994), aff'd o.b., 143 N.J. 141 (1996).   See also Alloway, supra, 157 N.J. at 236-37 (holding that “violation of OSHA regulations without more does not constitute the basis for an independent or direct tort remedy” and that “non-compliance with an OSHA regulation does not, as such, preclude a finding that there was no negligence”);  Van Dunk v. James Constr.   Co., _ N.J.Super.  _ (App.Div.2010) (applying same rule where OSHA found a “willful” violation and plaintiff sought the right to sue his employer).

Plaintiff attempts to support his argument that the trial court improperly granted summary judgment to SCCC by citing to the requirement of 29 C.F.R. 1926.16 that general contractors have “joint responsibility” with subcontractors.   This argument is flawed because the regulation is inapplicable.   As SCCC points out in its brief, 29 C.F.R. 1926.16 implements part of the Contract Work Hours and Safety Standards Act (CWHSSA), 40 U.S.C.A. §§ 3701-3708 (2010), which applies to certain federal projects.   See 29 C.F.R. 1910.12(c).  Plaintiff has not identified any other OSHA regulation which SCCC violated in this case, or how that violation interacts with SCCC's duty or alleged breach of duty as it relates to plaintiff's injuries.

Plaintiff contends that the trial court also erred in granting defendant SCCC's motion for summary judgment because “whether SCCC met its obligation to maintain a safe work environment is a question for the jury;  yet Judge Iglesias improvidently assumed the role of the jury and decided that question as a matter of law.”   According to plaintiff, summary judgment was inappropriate because “[i]f SCCC allowed a hazardous condition to exist and said condition caused [p]laintiff's injuries, SCCC, as the acknowledged [g]eneral [c]ontractor for this construction site, is legally liable and responsible to the [p]laintiff for those injuries.”   Furthermore, plaintiff relies upon Alloway, supra, 157 N.J. at 238, in contending that the general contractor has a “duty to protect all onsite workers, whether within the general contractor's or the subcontractor's employ, by requiring through agreement or operation of law, the designation of a single person whose ultimate responsibility is to safeguard the worksite and to ensure overall safety for each and every onsite laborer.”

Judge Iglesias concluded that plaintiff failed to provide the following information in his complaint and other submissions to the court:

The problem that I have, and the reason why I'm granting this motion is because I don't know what caused this accident in terms of what duty was violated and by whom.   Who was it that did something wrong here?  ․ And ․ whatever it was that ․ caused the plaintiff to fall and injure himself.   I don't know that, and I can't allow the motion record to be supplemented by the arguments of counsel in that regard․  I have to make my fact findings based on the motion record, and when it comes to what was the specific duty that was violated, who was it that did something wrong that led to the accident and the injuries here, I don't have anything to hang my hat on.

And I am left with ․ the [Natoli report, which] tells me about the hazard.   It describes what the hazard was, and it describes the hazard being the reason why this accident unfortunately happened.   But, it doesn't tell me anything about who was responsible.   How was the person responsible.   What was the specific nature of the responsibility that contributed to the happening of the accident, and whether or not any of that actually caused this hazard to exist.   I don't have any information on that.   I don't have anything that I can look to that [could] satisfy the requirements of what was the specific duty that was violated, and how was that violation the proximate cause of the injuries;  the accident and the injuries that followed.   I don't have anything in this motion record, aside from the arguments of counsel, that allows me to find that there is a genuine issue of material fact as to those items, namely[:]

What was the specific duty that was violated?  ․ [W]ho did something wrong here, and how is that the proximate cause of this accident?

So, that's how I see it, and those are the reasons why I am granting this motion for summary judgment.

Given ICC's contractual relationship with SCCC, and ICC's obligations with respect to this project, we are compelled to agree with Judge Iglesias.   We add only that the filing of an inappropriate appeal when there is no final judgment, or even an unsuccessful motion for leave to appeal, does not toll the discovery end date, and even if it did, there was no tolling given the relevant dates involved.   The improper notice of appeal was filed on September 29, 2008, one day before the plaintiff's expert report was to be served, but the Gallagher and Natoli supplementary reports were not served one day after the appeal was dismissed.   Thus, the Gallagher and Natoli supplementary reports were out of time even under plaintiff's theory.   Moreover, plaintiff did not merely seek to supplement Natoli's report, which might have led to a different result.   Rather, he tried to present Gallagher's report and then to supplement his original report only after Gallagher's report was time barred.⁵

Finally, plaintiff's interrogatory answers refer to Natoli's original report, but it is not attached.   Plaintiff's brief refers only to the interrogatories when pointing to that report.   If the original report is the letter dated January 12, 2006, it is insufficient to hold SCCC as responsible for the accident, and plaintiff in seeking to use the supplementary report does not seem to argue otherwise.

We therefore affirm the summary judgment granted to SCCC.

IV.

Plaintiff argues the trial court erred in granting summary judgment in favor of defendant ICC because “ICC failed to establish, as a matter of law, that ICC and Riverside were, in fact, one in [sic] the same entity.”   He adds that “the evidence shows that Riverside and ICC were separate corporate entities which were acting independently during the construction project.”   Based on that argument, plaintiff apparently asserts that ICC can be held liable for his injuries because the applicable statute only precludes a plaintiff from recovering damages on a negligence claim against his own employer (“except for intentional wrong”), and that ICC can be held liable for his injuries in this case because Riverside was his employer, not ICC.

As already noted, Judge Iglesias found that plaintiff had failed to demonstrate any genuine issue of material fact with respect to ICC's and Riverside's entitlement to immunity from plaintiff's negligence action provided in N.J.S.A. 34:15-8.   The court also determined that Riverside and ICC were the same entity and Riverside was merely a “trade name.”   We agree and affirm substantially for the reasons expressed by Judge Inglesias.   We add only that the SCCC subcontract was with ICC, and it was not disputed that “ICC and Riverside shared a joint bank account into which payments for the subject project were deposited”;  “Riverside hired and paid all of the ICC workers and carpenters for the project”;  and “Riverside's sole principal, John Balletto, explained [at his deposition] that ․ ICC was created as an alternate name for Riverside because he previously did business under the name Interborough Construction Corporation, which some in the business still associate him with, rather than Riverside.”   Furthermore, the failure of a corporation to register a trade name “shall not impair the validity of any contract or act of such corporation and shall not prevent such corporation from defending any action or proceeding in any court of this State.”  N.J.S.A. 14A:2-2.1(6).   We therefore reject plaintiff's contention that summary judgment was inappropriately granted.

Moreover, even if the court had found that plaintiff had presented a genuine issue of material fact regarding whether ICC was or was not plaintiff's employer, the order dismissing plaintiff's claims against ICC ultimately could have been granted on the same grounds as the subsequent order granting summary judgment to SCCC. Assuming separate entities existed, plaintiff failed to demonstrate how ICC, as opposed to his employer Riverside, violated a duty owed to him or breached that duty by failing to use the proper standard of care.   Accordingly, the judgment is affirmed in all respects.

FOOTNOTES

FN1. Plaintiff voluntarily dismissed his complaint against Lefrak..  FN1. Plaintiff voluntarily dismissed his complaint against Lefrak.

FN2. See Laidlow v. Hariton Machinery Co., 170 N.J. 602, 606 (2002) (stating that an employer who causes the death or injury of an employee by committing an intentional wrong will not be insulated from common-law suit)..  FN2. See Laidlow v. Hariton Machinery Co., 170 N.J. 602, 606 (2002) (stating that an employer who causes the death or injury of an employee by committing an intentional wrong will not be insulated from common-law suit).

FN3. The order granted summary judgment and dismissed the complaint as to “Riverside Reinforced Concrete Corporation, d/b/a ICC Construction Corporation.”.  FN3. The order granted summary judgment and dismissed the complaint as to “Riverside Reinforced Concrete Corporation, d/b/a ICC Construction Corporation.”

FN4. This is how the provision reads after being amended and initialed by the parties..  FN4. This is how the provision reads after being amended and initialed by the parties.

FN5. We are told that an arbitration had already occurred in the matter and trial had already been scheduled by the time plaintiff attempted to serve the supplemental Natoli report (served on SCCC in January 2009), after the Gallagher report (served on SCCC in December 2008) had already been barred under Judge Bariso's order of July 18, 2008, which required plaintiff to serve expert reports by September 30, 2008, and set a discovery expiration date of November 14, 2008.   The parties also did not agree “prior to the expiration of the discovery period” to a consensual extension of discovery under Rule 4:24-1(c).  Based on those circumstances, because the parties had already participated in an arbitration and a trial date had been fixed, the court could have allowed Natoli's report as evidence only if plaintiff could satisfy the requirements of Rule 4:24-1(c) by showing “exceptional circumstances.”.  FN5. We are told that an arbitration had already occurred in the matter and trial had already been scheduled by the time plaintiff attempted to serve the supplemental Natoli report (served on SCCC in January 2009), after the Gallagher report (served on SCCC in December 2008) had already been barred under Judge Bariso's order of July 18, 2008, which required plaintiff to serve expert reports by September 30, 2008, and set a discovery expiration date of November 14, 2008.   The parties also did not agree “prior to the expiration of the discovery period” to a consensual extension of discovery under Rule 4:24-1(c).  Based on those circumstances, because the parties had already participated in an arbitration and a trial date had been fixed, the court could have allowed Natoli's report as evidence only if plaintiff could satisfy the requirements of Rule 4:24-1(c) by showing “exceptional circumstances.”

PER CURIAM