Cicogna and Res Judicata

Saturday, June 4, 2005 | 0

ONCE THE COMP BOARD RULES THAT WORKERS INJURY WAS AN ACCIDENT, ANY CLAIM OF INTENTIONAL TORT IS BARRED

Cicogna v. City of New York, NYLJ 5/24/05 (Supreme Court, Kings County 2005) (PARTNOW, j)

In 1992, plaintiff worked for the New York City Department of Transportation as a bridge repairer and riveter. For three or four days, plaintiff worked on a welding project to repair a tank in Brooklyn which was used for the production of asphalt cement. The tank was approximately 12 feet in diameter, with an opening cutout at one end to provide ingress and egress, and a hatch opening at another point on the tank. The tank was unventilated.

On the last day of the project, Cicogna welded pipes inside the tank. His equipment consisted of a regular welding mask, gloves, and a welding wire. While Cicogna was welding, the torch which he was using ignited residual tar in the tank, creating smoke which he breathed in. He claims that in spite of advising his supervisor that he was having difficulty breathing, his supervisor compelled him to keep working. He went home that day feeling ill and thereafter continued to experience difficulty in breathing. Cicogna denied having had a breathing disorder prior to this incident.

On March 9, 1994, DOT Mobile Medical Testing Service performed a routine physical examination of Cicogna. The doctor informed Cicogna that he had significantly abnormal lung findings and advised him to file for Workers' Compensation. He further advised Cicogna to follow up with his personal physician. On March 27, 1994, Cicogna filed for Workers' Compensation. A hearing was conducted on August 3, 1998.

On October 28, 1998, the Workers' Compensation Judge found that Cicogna had an occupational disease and that there was a causal relationship between the work performed by plaintiff and his injury. The City appealed the decision and, on September 22, 1999, the Workers' Compensation Board issued a memorandum of decision, upholding the finding of the Workers' Compensation Judge, finding the reports of the doctors provided substantial evidence of a reasonable link between Cicogna's exposure to certain substances while working as a welder and his development of lung disease. Cicogna thus received, and continues to receive, compensation for his occupational injuries.

On August 13, 1999, plaintiffs filed a notice of claim with the City. Thereafter, they commenced this lawsuit wherein they alleged five causes of action: (1) that the City, its employees and agents intentionally deceived Cicogna concerning the safety of working conditions at the Hamilton Avenue location in order to induce him to work there, and that Cicogna reasonably and justifiably relied on such representations; (2) the City, its employees and agents intentionally interfered with Cicogna's "civil" rights to commence a products liability action, by concealing Cicogna's alleged exposure to certain toxic and hazardous products, precluding access to and destroying certain products and equipment with which he worked, and pressuring witnesses to lie about Cicogna's exposure to the aforementioned products; (3) the City, its employees and agents maliciously intended to cause harm to Cicogna; (4) the City was "negligent, grossly negligent, and reckless" in requiring Cicogna to work under such dangerous conditions and circumstances; and (5) defendant's conduct resulted in damages to Patricia Cicogna for loss of consortium of her husband.

The City moved for summary judgment. In support of its contention that the first, third and fourth causes of action must be dismissed because plaintiffs have failed to file a timely notice of claim, the City asserted that Cicogna's claims arose, at the earliest, in August 1992, when he went home with an injury, and at the very latest in March 1994, when he was diagnosed with respiratory injuries upon his medical examination by DOT. Since the notice of claim was filed more than five years after the latest date upon which his claim arguably could have arisen, the City argued that the notice of claim was untimely. The statute of limitations, which is one year and 90 days, had also long expired.

In support of its further contention that workers' compensation is the exclusive remedy for the subject causes of action, the City relies on the language contained in Section 11 of the Workers' Compensation Law, which provides, in relevant part, that "the liability of an employer [prescribed by Section 10 of the Workers' Compensation Law] shall be exclusive and in place of any liability whatsoever, to such employee . . . or anyone otherwise entitled to recover damages at common law or otherwise on account of such injury or death." Cicogna, having already availed himself of the remedy of workers' compensation, is not entitled to a double recovery by way of an action at common-law.

Plaintiffs contended that the present claim, as it relates to Cicogna's brain injury as opposed to his lung injury, is not barred by workers' compensation or principles of res judicata, because Cicogna never received any compensation for the brain injury, nor was it ever placed in issue in any prior forum. In addition, they asserted that, as a factual matter, both the brain injury and the lung injury fall within the intentional tort exception of the workers' compensation law because such injuries were intentionally caused by plaintiff's supervisor.

Also, plaintiff contended that he should be excused for filing a late notice of claim because when his attorney investigated his claim by speaking with plaintiff's supervisor, the supervisor denied all the basic factual allegations and thus delayed the filing of the claim, and therefore the City should be equitably estopped from asserting the statute of limitations defense.

The Court held, first, that the doctrine of equitable estoppel does not apply here. "Although a municipality may be estopped from asserting that a claim was untimely when its improper conduct induced reliance by a plaintiff who changed his or her position to his or her detriment, the doctrine of estoppel will be applied against governmental agencies only in exceptional cases, and only where plaintiff demonstrates fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon."

In this case, "plaintiffs merely allege, without offering a shred of non-hearsay evidentiary support, that their attorney was misled by the misrepresentations of Cicogna's former supervisor and co-workers. Even if the court were to accept plaintiffs' allegations as true, plaintiffs fail to demonstrate that they reasonably relied on such misrepresentations. When viewed in the context of the operative legal standard, plaintiffs' unsupported allegation that 'plaintiffs were induced by the lies of the defendant not to start a claim or lawsuit against the City of New York . . . during the time . . . such claims or lawsuits were still within the applicable statute of limitations' is insufficient to justify application of the doctrine."

"The record establishes that Cicogna's claims arose no later than March 1994, when he was examined by DOT's Medical Testing Service and diagnosed with respiratory injuries. Under such circumstances, service of the notice of claim and the filing of the summons and complaint were clearly untimely, since the statute of limitations expired, at the very latest, in June 1995. Further, this court has no authority to extend the time to file a notice of claim once the statute of limitations expires."

"Moreover," held the Court, "plaintiffs' claims are barred by the exclusivity provisions contained in Section 11 of the Workers' Compensation Law. Plaintiffs' attempt to argue that Cicogna never sought recovery for brain or neurological injuries and therefore did not waive his right to assert an action for common-law tort, is unavailing. It is well-settled that 'primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board.'" The court noted that plaintiff's brain disfunction and cognitive deficits were diagnosed in 1996, during the pendency of his workers' compensation proceeding.

"Also unavailing is plaintiffs' argument that defendant committed an intentional tort, thus constituting an exception to the exclusivity of the workers' compensation system. Although it is true that the exclusivity provisions of the Workers' Compensation Law do not apply where an injury is sustained to an employee due to an intentional tort perpetrated by the employer or at the employer's direction, in order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as the intent to cause injury." Plaintiff's testimony, purporting to show that his supervisor forced him to return to a hazardous worksite, in spite of the fact that he was clearly in distress, by observing that 'there's plenty of guys in the union hall that will take this job,' "fails to demonstrate such intent to cause injury."

"Moreover," held the Court, "the intentional tort exception does not apply when, as here, the Workers' Compensaton Board had made a final determination regarding coverage, and the employee has accepted and retained benefits under the statute. Once the Workers' Compensation board has determined that the injury was 'accidental' within the meaning of the statute, the doctrine of res judicata applies and an employee is barred from bringing any common law claims against the employer, including those based on the theory of intentional tort."

The Complaint was dismissed.

by NY attorney Lawrence Rogak.

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