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Bessa v. Anflo Industries, Inc.

Supreme Court of New York, Second Department

March 22, 2017

Jordano Bessa, respondent,
v.
Anflo Industries, Inc., defendant, Vista Engineering Corporation, et al., appellants (and a third-party action). Index No. 7596/11

          Baxter Smith & Shapiro, P.C., Hicksville, NY (Robert C. Baxter and Sim R. Shapiro of counsel), for appellant Vista Engineering Corporation.

          Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, NY (Gail L. Ritzert and Amol N. Christian of counsel), for appellant Royal One Real Estate, LLC.

          Stefanidis & Mironis, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for respondent.

          CHERYL E. CHAMBERS, J.P. L. PRISCILLA HALL ROBERT J. MILLER FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendants Royal One Real Estate, LLC, and Vista Engineering Corporation separately appeal, as limited by their respective briefs, from (1) so much of an order of the Supreme Court, Queens County (Siegal, J.), dated March 26, 2014, as denied those branches of their respective motion and cross motion which were for summary judgment dismissing the complaint insofar as asserted against each of them, and (2) so much of an order of the same court dated April 1, 2015, as, upon reargument, adhered to the determination in the order dated March 26, 2014.

         ORDERED that the appeals from the order dated March 26, 2014, are dismissed, without costs or disbursements, as the portions of the order appealed from were superseded by the order dated April 1, 2015; and it is further, ORDERED that the order dated April 1, 2015, is modified, on the law, by deleting the provisions thereof, upon reargument, adhering to so much of the order dated March 26, 2014, as denied those branches of the appellants' respective motion and cross motion which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against each of them, and substituting therefor provisions, upon reargument, vacating that portion of the order dated March 26, 2014, and, thereupon, granting those branches of the motion and cross motion; as so modified, the order dated April 1, 2015, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings, including the amendment of the caption and the pleadings in accordance herewith.

         On October 6, 2010, the plaintiff allegedly was injured during the course of his employment with the third-party defendant East Coast Painting and Maintenance, LLC (hereinafter East Coast). The plaintiff was employed as a bridge painter, and was assigned to work on a project involving the scraping and re-painting of a portion of the Queensborough Bridge.

         The plaintiff alleged that he was injured at a dirt lot that was owned by the defendant Royal One Real Estate, LLC (hereinafter Royal), and leased to the defendant Vista Engineering Corporation (hereinafter Vista), the general contractor on the project. East Coast's workers were given access to the lot to store materials, and the workers would meet at the lot to load the materials onto trucks before heading to the construction site, which was located a few blocks away. The plaintiff alleged that he was carrying a bucket filled with lead and concrete to a truck for use at the bridge when he stepped in an 8- to 12-inch deep hole in the dirt surface of the lot, twisting his ankle and suffering injury.

         The plaintiff commenced this action using the name "Jordano Bessa, " which is the name on his lead certification card and on his employment documents. At his deposition, however, the plaintiff testified that his legal name was "Daniel Ribeiro." The plaintiff testified that he was an undocumented immigrant from Brazil, and that beginning in 1997 he had assumed the name of his friend, Jordano Bessa, in order to obtain work.

         Royal moved for, inter alia, summary judgment dismissing the complaint insofar as asserted against it. Royal argued that the complaint should be dismissed because the plaintiff had perpetrated a fraud on the court by commencing the action under a false name. Royal further argued that the dirt lot was not a construction site within the meaning of Labor Law § 241(6), that it had not violated any of the Industrial Code provisions alleged in the pleadings, and that it lacked notice of the hole that the plaintiff stepped into.

         Vista cross-moved for, among other things, summary judgment dismissing the complaint insofar as asserted against it. In support of its cross motion, Vista relied upon the same arguments that were advanced by Royal in support of its motion.

         In an order dated March 26, 2014, the Supreme Court, inter alia, denied those branches of Royal's motion and Vista's cross motion which were for summary judgment dismissing the complaint insofar as asserted against each of them. Both Royal and Vista moved for reargument. In an order dated April 1, 2015, the court granted reargument and, upon reargument, adhered to the determination in the order dated March 26, 2014. Royal and Vista separately appeal.

         Contrary to the appellants' contention, the Supreme Court, upon reargument, properly determined that dismissal of the complaint was not warranted on the ground that the plaintiff had perpetrated a fraud on the court. "[A] court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice" (CDR Créances S.A.S. v Cohen, 23 N.Y.3d 307, 318). "Fraud on the court involves wilful conduct that is deceitful and obstructionistic, which injects misrepresentations and false information into the judicial process so serious that it undermines... the integrity of the proceeding'" (id. at 318, quoting Baba-Ali v State of New York, 19 N.Y.3d 627, 634). "[I]n order to demonstrate fraud on the court, the nonoffending party must establish by clear and convincing evidence that the offending party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action'" (CDR Créances S.A.S. v Cohen, 23 N.Y.3d at 320, quoting McMunn v Memorial Sloan-Kettering Cancer Ctr., 191 F.Supp.2d 440, 445 [SD NY]). "A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns issues that are central to the truth-finding process'" (CDR Créances S.A.S. v Cohen, 23 N.Y.3d at 320-321, quoting McMunn v Memorial Sloan-Kettering Cancer Ctr., 191 F.Supp.2d at 445).

         Here, the appellants failed to establish that the plaintiff's use of the name "Jordano Bessa" was an attempt to hinder the fair adjudication of the case and their defense of the action (see CDR Créances S.A.S. v Cohen, 23 N.Y.3d at 320). The plaintiff had used the name "Jordano Bessa" since 1997 in connection with his employment, and that was the name that appeared on his employment documentation. The plaintiff did not verify the complaint as true, and was forthright about his true legal name when the issue arose at his deposition. The appellants failed to articulate how the use of the wrong name would have garnered the plaintiff any advantage in this litigation. Furthermore, the appellants learned of the plaintiff's correct legal name during the course of discovery, and they failed to establish that they suffered any prejudice by the plaintiff's use of the wrong name. Under the circumstances, the Supreme Court providently exercised its discretion in denying those branches of the motion and cross motion which sought dismissal of the complaint on the ground ...


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