| Kilcer v Niagara Mohawk Power Corp. |
| 2011 NY Slip Op 05838 [86 AD3d 682] |
| July 7, 2011 |
| Appellate Division, Third Department |
| Joseph Kilcer et al., Respondents, v Niagara MohawkPower Corporation et al., Respondents-Appellants, and Blasland, Bouck & Lee, Inc., Defendantand Third-Party Plaintiff-Respondent-Appellant. Earth Tech, Inc., Third-PartyDefendant-Appellant-Respondent. |
—[*1] Tuczinski, Cavalier, Gilchrist & Collura, P.C., Albany (Roland M. Cavalier of counsel), forNiagara Mohawk Power Corporation and others, respondents-appellants. Lewis Brisbois Bisgaard & Smith, L.L.C., New York City (Joseph DiGregorio of counsel),for defendant and third-party plaintiff-respondent-appellant. The Tuttle Law Firm, Latham (James B. Tuttle of counsel), for respondents.
McCarthy, J. Cross appeals from an order of the Supreme Court (Czajka, J.), entered October19, 2010 in Columbia County, which, among other things, denied third-party defendant's motionfor summary judgment dismissing the complaint and third-party complaint.
Plaintiff Joseph Kilcer (hereinafter plaintiff) was employed by third-party defendant at ahazardous waste remediation site owned by defendant Niagara Mohawk Power Corporation.Plaintiff also served for over 40 years as a volunteer firefighter with a local fire department, andfor eight years as a fire investigator with the Columbia County Cause and Origin Team(hereinafter CCCOT). One day after investigating a fire scene where he was exposed to smokefor several hours, plaintiff began experiencing memory loss and disorientation, and was laterdiagnosed as having a decrease in brain function caused by exposure to carbon monoxide.
Prior to commencing this action, plaintiff filed two claims with the Workers' CompensationBoard (hereinafter Board). The first claim was filed against CCCOT seeking volunteer firefighterbenefits (see Volunteer Firefighters' Benefit Law § 41), alleging that his smokeinhalation at fire investigations caused him to suffer toxic brain injuries. The second claim wasagainst third-party defendant, alleging that his toxic brain injuries were caused by inhaling fumesat the remediation site. The second claim was closed based upon a lack of prima facie medicalproof; plaintiff did not pursue that claim. The claim against CCCOT proceeded to a hearing, afterwhich the Workers' Compensation Law Judge (hereinafter WCLJ) found that plaintiff suffered acompensable injury while performing his duties as a volunteer firefighter. The WCLJ declined toapportion the award between CCCOT and third-party defendant because plaintiff's treatingphysician could not apportion any part of plaintiff's injury to exposure while working forthird-party defendant. Upon CCCOT's administrative appeal, the Board affirmed the WCLJ'sdeterminations and denied CCCOT's request for full Board review.
While his workers' compensation claim was still pending, plaintiff and his wife, derivatively,commenced this action against Niagara Mohawk, defendant Environmental ResourcesManagement, Inc. and the general contractor on the remediation project, defendant Blasland,Bouck & Lee, Inc. (hereinafter BBL). The complaint alleged that plaintiff suffered a toxic braininjury due to his exposure to harmful chemicals at the remediation site. Defendants asserted crossclaims against each other. BBL also commenced a third-party action alleging that third-partydefendant had a duty to indemnify BBL. Third-party defendant asserted counterclaims and crossclaims, then moved for summary judgment dismissing the complaint, the third-party complaintand all cross claims against it. Defendants each cross-moved to amend their answers to assert theaffirmative defenses of collateral estoppel and res judicata, and for summary judgmentdismissing the complaint. Supreme Court permitted defendants to amend their answers, butdenied third-party defendant's motion and defendants' cross motions for summary judgment.Defendants and third-party defendant appeal.
The complaint should be dismissed based upon judicial estoppel. Under that doctrine, alsoknown as estoppel against inconsistent positions, if a party assumes a position in one legalproceeding and prevails in maintaining that position, that party will not be permitted to assume acontrary position in another proceeding simply because the party's interests have changed (see Kittner v Eastern Mut. Ins. Co., 80AD3d 843, 846 [2011], lv dismissed 16 NY3d 890 [2011]; Hinman, Straub,Pigors & Manning v Broder, 124 AD2d 392, 393 [1986]). A litigant should not [*2]be permitted to lead a tribunal to find a fact one way and thenattempt to convince a court in a different proceeding that the same fact should be foundotherwise; the litigant should be bound by the prior stance that he or she clearly asserted (see Mikkelson v Kessler, 50 AD3d1443, 1444 [2008]; Clifton Country Rd. Assoc. v Vinciguerra, 252 AD2d 792, 793[1998]).
In plaintiff's workers' compensation proceeding, his counsel submitted a memorandum of lawquoting the testimony of plaintiff's treating physician that, while she initially considered both thefire scene and the remediation site as sources of plaintiff's exposure to toxic chemicals, shedetermined that his symptoms seemed more likely caused by carbon monoxide poisoning at thefire scene and not due to the chemicals at the remediation site (compare Gillespie v Flight Line Pub, 2AD3d 1014, 1015 [2003]). Plaintiff asserted in that administrative proceeding that his toxicbrain injury and its related symptoms were causally related to his carbon monoxide exposure atthe fire. He acknowledges that when CCCOT raised the issue of apportionment of causationagainst third-party defendant, his counsel "did not in any way support the idea of apportionment,"instead seeking to establish that plaintiff's toxic brain injury was caused solely by CCCOT.According to plaintiff, the reason that he did not attempt to establish liability against third-partydefendant before the Board, but only pursued his claim against CCCOT, is "because that waswhat was best for me at that time." Now that he has commenced a tort action, he desires toestablish that his brain injury was caused by exposure at the remediation site, thereby creatingliability against defendants and third-party defendant. The doctrine of judicial estoppel does notpermit him to assert this inconsistent position merely because his interests have changed (seeKittner v Eastern Mut. Ins. Co., 80 AD3d at 846; Matter of Sbarra, 17 AD3d 975, 976 [2005]). Hence, the complaintand third-party complaint must be dismissed.
The parties' remaining contentions have been rendered academic by our decision.
Peters, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is modified,on the law, with one bill of costs to defendants and third-party defendant, by reversing so muchthereof as denied third-party defendant's motion for summary judgment dismissing the complaintand third-party complaint and defendants' cross motions for summary judgment dismissing thecomplaint; motion and cross motions granted to that extent and complaint and third-partycomplaint dismissed; and, as so modified, affirmed.