| Auqui v Seven Thirty One Ltd. Partnership |
| 2011 NY Slip Op 02725 [83 AD3d 407] |
| April 5, 2011 |
| Appellate Division, First Department |
| Maria Auqui et al., Appellants, v Seven Thirty One LimitedPartnership et al., Respondents. |
—[*1] Fabiani Cohen & Hall, LLP, New York (Joseph J. Rava of counsel), forrespondents.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered October 7, 2009,which, insofar as appealed from, as limited by the briefs, granted defendants' motion to precludeplaintiffs from litigating the issue of plaintiff Jose Verdugo's accident-related disability beyondJanuary 24, 2006, reversed, on the law, without costs, and the motion denied.Appeal from order, same court and Justice, entered on or about December 8, 2009, which, interalia, upon granting reargument and renewal, adhered to the prior determination, unanimouslydismissed, without costs, as academic.
The motion court erred in according collateral estoppel effect to the determination of theWorkers' Compensation Law Judge that plaintiff's post-January 24, 2006 disability was notcausally related to his December 24, 2003 accident. The determination that workers'compensation coverage would terminate as of a certain date for plaintiff's injuries (includinghead, neck and back injuries, and depression and posttraumatic stress disorder, which are notdisputed, and which were caused when plaintiff was struck in the head by a falling sheet ofplywood in the course of his employment) is not, nor could it be, a definitive determination as towhether plaintiff's documented and continuing injuries were proximately caused by defendants'actions. While factual issues necessarily decided in an administrative proceeding may havecollateral estoppel effect, it is well settled that "an administrative agency's final conclusion,characterized as an ultimate fact or mixed question of fact and law, is not entitled to preclusiveeffect" (Akgul v Prime Time Transp., 293 AD2d 631, 633 [2002]; see Tounkara v Fernicola, 63 AD3d648 [2009] [no identity of issues between proceeding before Workers' Compensation Board,which involved determination of whether party was plaintiff's employer for purposes of workers'compensation coverage, and third-party action, which involved determination of whether partywas plaintiff's employer for purposes of indemnification provision]). The agency's determinationon ultimate facts, as opposed to mere evidentiary facts, is imbued with policy considerations aswell as the agency's expertise (see Matter of Engel v Calgon Corp., 114 AD2d 108, 110[1986], affd 69 NY2d 753 [1987]). Therefore, the Workers' Compensation Board'sdetermination is not entitled to preclusive effect because it involved the [*2]ultimate issues of disability and proximate cause, which werecommitted to the Board's discretion. Indeed, the October 13, 2009 guardianship order that wasthe partial basis for plaintiffs' renewal motion raises an issue of fact as to the cause of plaintiff'songoing disability sufficient to warrant denial of defendants' motion. Concur—Mazzarelli,J.P., DeGrasse and Manzanet-Daniels, JJ.
Sweeny and Catterson, JJ., dissent in a memorandum by Catterson, J., as follows: Because Ibelieve that the duration of plaintiff's disability was an evidentiary determination fully and fairlylitigated by him at the Workers' Compensation proceeding terminating his benefits, he should beprecluded from relitigating the issue of continuing disability in this personal injury action.Furthermore, in my opinion, the uncontested appointment of a guardian for the plaintiff morethan three years later does not raise a triable issue of fact as to when his work-related disabilityended. Therefore, I respectfully dissent.
The plaintiff, a food service deliveryman, was injured on December 24, 2003 when a sheet ofplywood allegedly fell from a building under construction owned by defendant Seven Thirty OneLimited Partnership. Defendant Bovis Lend Lease LMB, Inc. was the construction manager, anddefendant Northside Structure, Inc. was the concrete superstructure subcontractor. The plaintiff'sclaim for Workers' Compensation (hereinafter referred to as WC) benefits was approved, and hewas compensated for treatment of his head, neck, and back injuries, as well as posttraumaticstress disorder and depression. While receiving benefits, the plaintiff commenced this personalinjury action in Supreme Court in 2004.
The following year, in December 2005, while this action was pending, the insurance carrierfor the plaintiff's employer moved the WC Board to discontinue plaintiff's benefits on thegrounds that he was no longer disabled from the accident. In the January 2006 WC proceeding,the Administrative Law Judge (hereinafter referred to as ALJ) reviewed the evidence and experttestimony submitted by the plaintiff and the insurance carrier. The ALJ found that the plaintiff nolonger suffered any disability as of January 24, 2006 and terminated his benefits. The plaintiffappealed, but on February 1, 2007, a full panel of the WC Board concluded that the plaintiff wasno longer disabled as of January 24, 2006, and required no further treatment.
In April 2009, the defendants in the instant personal injury action moved to preclude theplaintiff from relitigating the duration of his work-related injury on the grounds that the issue wasalready fully litigated and decided in the WC administrative proceeding. While the motion waspending in Supreme Court, the plaintiff's attorney commenced a separate Mental Hygiene Lawarticle 81 proceeding to appoint a guardian for the plaintiff. On October 7, 2009, Supreme Courtgranted the defendants' motion to preclude.
Based on uncontested evidence of incapacity, the plaintiff's sister-in-law and wife wereappointed as coguardians on October 13, 2009. The plaintiff then moved for leave to renewand/or reargue the defendants' motion in Supreme Court on the grounds that, inter alia, theguardianship order raised a triable issue of fact with regard to the plaintiff's ongoing work-relateddisability. By order and decision dated December 3, 2009, Supreme Court granted the plaintiff'smotion, but nonetheless adhered to its earlier determination that the plaintiff was precluded fromrelitigating his ongoing disability.
On appeal, the plaintiff argues that Supreme Court erred because there is no identity of [*3]issues between the causation element in a WC determination andproximate cause in a personal injury claim. In addition, the plaintiff asserts that Supreme Courtfurther erred because the appointment of a guardian raises a triable issue of fact with regard tothe plaintiff's ongoing disability.
The defendants argue that the WC determination that the plaintiff's disability ended onJanuary 24, 2006 was factual and identical to the issue in the personal injury action, and, further,that the plaintiff had a full and fair opportunity to litigate that question before the ALJ. Therefore,he should be precluded from relitigating whether his disability extended beyond that date. For thereasons set forth below, I agree with the defendants.
The doctrine of collateral estoppel is applicable where the issue in the current litigation isidentical to a material issue decided in a prior proceeding, and the party to be precluded had a fulland fair opportunity to litigate the issue in that proceeding. (Ryan v New York Tel. Co.,62 NY2d 494, 500-501 [1984]; Matterof Abady, 22 AD3d 71, 81 [1st Dept. 2005].)
It is well settled that a final determination by a quasi-judicial administrative agency may beaccorded preclusive effect. (Ryan, 62 NY2d at 499.) The Workers' Compensation Boardhas been deemed to be such a quasi-judicial administrative agency. (See e.g. Rigopolous vAmerican Museum of Natural History, 297 AD2d 728 [2d Dept 2002]; Lee v Jones,230 AD2d 435 [3d Dept 1997], lv denied 91 NY2d 802 [1997]; Matter of Maresco vRozzi, 162 AD2d 534 [2d Dept 1990].)
Although an agency's ultimate conclusion of mixed law and fact is not entitled to preclusiveeffect, collateral estoppel may be applied to determinations of specific evidentiary facts essentialto that conclusion. (Matter of Engel v Calgon Corp., 114 AD2d 108, 111 [3d Dept 1986],affd 69 NY2d 753 [1987], citing Hinchey v Sellers, 7 NY2d 287 [1959]; seee.g. Ryan, 62 NY2d at 502 [while the ultimate fact of misconduct was not entitled tocollateral estoppel effect, determinations of material factual issues by the ALJ in the plaintiff'sunemployment claim precluded relitigation of those issues in his wrongful discharge action].)
Here, the evidentiary fact necessarily determined in the WC proceeding was that the plaintiffwas no longer disabled at all beyond January 24, 2006. The decision of the ALJ clearlyindicates that the plaintiff's claim of continuing disability was rejected because he failed topresent sufficient medical evidence to show any disability after that date. Observing that theplaintiff's cane appeared to be "merely a prop," the ALJ credited the defendants' orthopedicexpert opinion that the plaintiff's test results were normal and necessarily rejected the testimonyof the plaintiff's neurologist. Furthermore, the ALJ completely discounted the plaintiff's treatingpsychiatrist's opinion that the plaintiff suffered permanent psychiatric disability, noting thatinconsistencies in the doctor's responses rendered his testimony not credible.
Determination of the duration of the plaintiff's work-related disability was material and thevery point of the WC proceeding, and is the exact issue that the defendants seek to preclude theplaintiff from litigating in the personal injury action. Additionally, the plaintiff's representationby an attorney, presentation and cross-examination of expert testimony, and submission ofmedical reports, assured that he had a full and fair opportunity to litigate the issue.
In my opinion, the majority is mistaken in its characterization of the ALJ's determination[*4]as an ultimate fact involving disability and proximate cause.An agency's determination of an ultimate fact as opposed to a "pure or evidentiary fact[ ]" isbased upon analysis of "unique, and often times complex, statutes and regulations which applyspecifically to [that agency]." (Engel, 114 AD2d at 110.)
That is not the case here. There is no indication that the ALJ considered causation at all muchless that the decision analyzed causation in the specific context of WC claims. The defendantsdid not contest whether the plaintiff's injuries were related to an on-the-job accident, or offer anyproof that his claimed disability was caused by a prior non-work-related incident. The ALJ didnot interpret complex statutes or regulations, but rather evaluated the credibility of each party'smedical testimony to determine if the plaintiff was still disabled.
Nor is the duration of the plaintiff's disability an ultimate fact in the personal injury action.The length of time that a plaintiff is disabled is relevant to the quantum of damages, anevidentiary factual determination, not, as the plaintiff asserts, a mixed issue of law and factinvolving proximate cause.
Moreover, the majority's reliance on Engel, Akgul, and Tounkara is entirelymisplaced. The agency decisions at issue in these cases all deal with the classification of partiesbased upon statutory definitions. (SeeTounkara v Fernicola, 63 AD3d 648, 650 [1st Dept 2009]; Akgul v Prime TimeTransp., 293 AD2d 631, 633 [2d Dept 2002]; Engel, 114 AD2d at 110-111 [theNational Labor Relations Board's definition of the plaintiffs as employees did not preclude afinding that they were defined as subcontractors by the Division of Human Rights].) In Tounkara,the decision not to give collateral estoppel effect to a WC determination was also based on thefact that the third-party plaintiff to be precluded was not a party to the WC proceeding andtherefore had no prior full and fair opportunity to litigate. (Tounkara, 63 AD3d at 650.)Here, there is a total identity of issues with regard to the factual determination of the duration ofthe plaintiff's disability, and this plaintiff had a full and fair opportunity to litigate at the WCproceeding.
Furthermore, the plaintiff's guardianship order does not raise a triable issue of fact withregard to the ALJ's determination, or have any bearing on the application of collateral estoppel inthe personal injury action. The appointment of a guardian is a highly discretionary, flexibledecision taking into account the individual needs of the incapacitated person, and his wishes andpreferences. (See Mental Hygiene Law § 81.01.) In the plaintiff's article 81proceeding, the appointment of his wife and sister-in-law as guardians was unchallenged andfully supported by the plaintiff. The same psychiatrist that testified before the ALJ also testifiedin the guardianship proceeding; however, in the guardianship proceeding there was no evidencerequired to rebut the plaintiff's claimed incapacity or show that his incapacity more than threeyears later was [*5]unrelated to the accident. As such, adetermination of incapacity based upon the same testimony that was discredited by the WC ALJdoes not raise a triable issue of fact warranting denial of the defendant's motion.