| Tounkara v Fernicola |
| 2009 NY Slip Op 05407 [63 AD3d 648] |
| June 30, 2009 |
| Appellate Division, First Department |
| Balla Tounkara, Plaintiff, v Anthony Fernicola et al.,Defendants and Third-Party Plaintiffs-Appellants. Canadian Arctic Builders Corp., Third-PartyDefendant-Respondent. |
—[*1] Gates & Goldstein, LLP, Garden City (Kim Goldstein of counsel), for respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered May 30, 2008, which, inan action under the Labor Law for personal injuries, and a third-party action by defendantsproject owner and general contractor (collectively AMF) against plaintiff's purported employer(Canadian Arctic), granted Canadian Arctic's motion to reargue its prior motion to dismiss thethird-party complaint on the ground of collateral estoppel, and, upon reargument, vacated theprior order denying Canadian Arctic's motion to dismiss the third-party complaint and grantedthe motion, unanimously reversed, on the law, without costs, the motion to reargue denied andthe third-party complaint reinstated.
A workers' compensation board judge determined that at the time of the accident, plaintiffwas employed not by Canadian Arctic but by nonparty Mt. Moriah. The motion court initiallydecided that this administrative determination had no collateral estoppel effect on AMF'scontractual indemnity claim against Canadian Arctic, and denied Canadian Arctic's motion todismiss. Subsequently, Canadian Arctic moved to reargue on the ground that the courtoverlooked evidence, first submitted in its reply papers on its motion to dismiss, of anothercourt's decision to give collateral estoppel effect, in favor of Canadian Arctic and against AMF,to another workers' compensation judge's determination that another worker (Hamilton), whohad been injured at the same job site one day after plaintiff's accident, was employed by Mt.Moriah, not Canadian Arctic. The motion court granted reargument, vacated its prior decision,gave collateral estoppel effect to the compensation judge's determination that plaintiff was notemployed by Canadian Arctic, and dismissed AMF's third-party complaint against CanadianArctic.
Canadian Arctic's motion for reargument did not establish that the court overlooked ormisapprehended any issue of law or fact that was properly raised in its original motion, and was[*2]improperly based on argument that Canadian Arctic hadimproperly raised for the first time in its reply papers on the original motion (see Yasgour vCity of New York, 169 AD2d 673, 674 [1991]; Lumbermens Mut. Cas. Co. v MorseShoe Co., 218 AD2d 624, 625-626 [1995]). Accordingly, we reverse the granting ofreargument.
In any event, were we to consider all of Canadian Arctic's arguments raised in its reargumentmotion, we would conclude that the motion court's initial decision was correct. Canadian Arcticfailed to establish an identity of issues between the compensation proceeding, which involvedwhether Canadian Arctic was plaintiff's employer for purposes of workers' compensationcoverage, and the instant third-party action, which involves whether Canadian Arctic wasplaintiff's employer for purposes of the indemnification provision in the construction subcontractbetween AMF and Canadian Arctic, and raises many issues, not raised in the compensationproceeding, bearing on the relationship between Canadian Arctic and Mt. Moriah, and on thecourse of dealing between Mt. Moriah, Canadian Arctic and AMF (see O'Gorman v JournalNews Westchester, 2 AD3d 815, 817 [2003]). Nor did AMF have a full and fair opportunityto litigate the issue of Canadian Arctic's employer status in the compensation proceeding, whereit was not a party to the compensation proceeding and had no direct stake in its outcome exceptfor its potential collateral estoppel effect on this case (see Staatsburg Water Co. v StaatsburgFire Dist., 72 NY2d 147, 154-155 [1988]; Liss v Trans Auto Sys., 68 NY2d 15[1986]), and where the determination that plaintiff was not employed by Canadian Arctic restedon the unchallenged testimony of Canadian Arctic's owner (see generally Jeffreys vGriffin, 1 NY3d 34, 41 [2003]). That AMF testified as a nonparty in the Hamiltoncompensation proceeding does not require a different result (see Liss, 68 NY2d at 22).Concur—Mazzarelli, J.P., Saxe, Catterson, DeGrasse and Abdus-Salaam, JJ.