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Winkel v. Lefrak Newport Realty Corp.

September 8, 2010

DAVID VAN WINKEL, PLAINTIFF-APPELLANT,
v.
LEFRAK NEWPORT REALTY CORP. AND/OR LEFRAK ORGANIZATION, RIVERSIDE REINFORCED CONCRETE CORP. AND/OR ICC CONSTRUCTION CORP. AND/OR SHORE CONDO CONSTRUCTION COMPANY F/K/A SHORE CLUB CONSTRUCTION COMPANY, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4005-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 26, 2010

Before Judges Stern, Graves and Sabatino.

Plaintiff, David Van Winkel, appeals from orders granting summary judgment to the defendants resulting in a final judgment and from an order of June 16, 2009, denying reconsideration. Plaintiff challenges the grant of summary judgment to defendants Shore Condo Construction Company (SCCC) and ICC Construction Corp., and contends that the trial judge abused his discretion in granting SCCC's motion to bar his expert report.

I.

Plaintiff sustained injuries while working on a high-rise construction project for the Lefrak Newport Realty Corp.*fn1 He was employed as an ironworker by defendant Riverside Reinforced Concrete Corp., a subcontractor of SCCC, the general contractor. Plaintiff fell through plywood flooring that had been temporarily installed to cover a hole purposely left in the concrete flooring during construction.

After interrogatories were answered and the discovery end date passed, plaintiff unsuccessfully moved to permit the submission of an expert report designed to show that SCCC breached a duty to protect plaintiff from injuries and that the plywood covering the purposely laid hole in the concrete floor constituted negligence by SCCC. Plaintiff further challenges the summary judgment to ICC, which was granted on the basis that it and plaintiff's employer, Riverside, had identical ownership and management, so that ICC was, in fact, the subcontractor, or an "alias," which employed plaintiff and suit against it was therefore barred by the Workers' Compensation Act, N.J.S.A. 34:15-8.

On August 29, 2008, the Law Division granted summary judgment to both ICC and Riverside (except for SCCC's cross-claim against it). Judge Alvaro L. Iglesias found that plaintiff had not included a "Laidlow"*fn2 claim in his complaint and there were no facts in the record to support such a claim. On that basis, the court determined that no genuine issue of material fact existed to preclude ICC's and Riverside's entitlement to immunity from a personal injury action by plaintiff as set forth under N.J.S.A. 34:15-8.*fn3 In addition, the judge found that ICC and Riverside were the same corporate entity and that "ICC" was simply a "trade name" used by Riverside. The court stated its reasoning as follows:

The fact that ICC is the party that is named and who signed the contract, doesn't necessarily establish that there is a separate entity. If we were to look at the facts of this case and conclude that because the contract was signed by ICC, because payments were received by ICC and then deposited in its joint account with Riverside, and the other information that we had, if we concluded that that establishes a separation of identity, then we would never be able to use trade names because that's what businesses do when they are using a name to trade under. . . . Mr. B[a]letto [is] operating the business and that . . . is consistent with his own sworn testimony and with what Mr. Jenkins has to say. . . .

[E]ven the insurance policy covers both names[.] I don't really see anything based on this motion record that leads me to believe that there is a genuine issue of material fact with regard to the identity or the separate identity of these companies, or as to the Laidlow claim.

On September 29, 2008, plaintiff filed a Notice of Appeal from the order granting the Riverside-ICC motion for summary judgment, but did not file a motion for leave to appeal the interlocutory order. On November 25, 2008, we dismissed plaintiff's appeal as interlocutory. Plaintiff argues in his brief that "formal discovery was effectively stayed while the Appellate Division reviewed and decided the issues raised by [p]laintiff on appeal." However, notwithstanding plaintiff's claim that discovery had been stayed upon his filing of the Notice of Appeal, on October 17, 2008, defendant sought plaintiff's medical records from Dr. Michael DiStefano and Valley Hospital in Ridgewood, and received those records on or about November 18, 2008.

Plaintiff then served on defendants the expert report of Vincent A. Gallagher, a professional engineer, on or about December 4, 2008. In response, on December 10, 2008, SCCC filed a motion seeking to prohibit Gallagher from serving as an expert witness, based on the fact that Judge Bariso's order dated July 18, 2008, required plaintiff to serve his expert report by September 30, 2008, and also provided that the discovery period ("DED") would expire on November 14, 2008. Plaintiff submitted opposition on December 29, 2008, arguing that his filing of the Notice of Appeal on September 29, 2008, had effectively stayed discovery in the matter. However, the trial court rejected that argument and on January 12, 2009, entered an order barring Gallagher from serving as an expert witness. Specifically, Judge Iglesias did "not accept the appeal of a summary judgment order as justification for [a] late amendment."

On January 19, 2009, plaintiff served a supplemental report from Michael Natoli, a professional engineer who had prepared a report before the discovery end date. On January 26, 2009, SCCC filed a motion seeking to preclude consideration of Natoli's supplemental report, which SCCC alleges was time-barred because of the September 30, 2008, discovery deadline and was a reiteration of the Gallagher report, and "flagrant attempt" to "end run" the order barring Gallagher's report. On February 20, 2009, Judge Barry P. Sarkisian granted SCCC's motion and barred plaintiff "from amending his answers to Interrogatories to include the January 16, 2009 report" of Natoli and barred him from testifying as to the opinions or his report dated January 16, 2009. Judge Sarkisian found that plaintiff's attempt to use the Natoli report "incorporate[d] essentially the same information" as the prior Gallagher report and was "a violation of a prior order" by Judge Iglesias, and plaintiff had not shown any "exceptional circumstances . . . to allow this amendment of the report to go before this jury."

On February 24, 2009, defendant SCCC filed a motion for summary judgment. SCCC contended that it did not owe a duty to plaintiff in the circumstances under which his injuries occurred, because "Riverside was delegated exclusive responsibility for safety and bore the risk for any injuries that might occur." SCCC also argued plaintiff had not ...


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