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O'Flaherty v. Turner Construction Co.

October 6, 2010

PATRICK O'FLAHERTY, PLAINTIFF-APPELLANT,
v.
TURNER CONSTRUCTION COMPANY, DEFENDANT-RESPONDENT.
WILLIAM MICHAEL MOORE, PLAINTIFF-APPELLANT,
v.
TURNER CONSTRUCTION COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-6023-07 and L-5086-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 20, 2010

Before Judges R.B. Coleman and C.L. Miniman.

Plaintiffs William Michael Moore (Moore) and Patrick O'Flaherty (O'Flaherty) appeal the dismissal of their claims against defendant Turner Construction Company (Turner) as barred by the statute of limitations. Because the extraordinary circumstances surrounding the inception of their employment relationship with Turner do not toll the applicable statutes of limitations, and because there is no basis for invoking the doctrine of equitable estoppel to toll those statutes, we affirm.

On September 11, 2001, Moore, a volunteer firefighter and a Master Sergeant with the United States Air Force Reserve, and O'Flaherty, his friend, responded to the disaster at the World Trade Center and volunteered to assist in the rescue and recovery effort. Moore immediately took an active role in coordinating those efforts and controlling the site of the disaster. O'Flaherty was put to work in the clean-up effort. As time went on and volunteers began to leave the site, Moore and O'Flaherty were asked to stay and were incorporated into the Joint Task Force (JTF) operated by the Office of Emergency Management (OEM) for the City of New York. Moore was given the position of Branch Chief of the JTF and was sponsored for that position by his union, Teamsters Local 469.

On September 21, 2001, Lillian Fernandez, Chief of Staff for the OEM, wrote to Michael Burton, the Executive Deputy Commissioner for New York City's Department of Design and Construction (DDC). She expressed that it was in the interest of the OEM to retain Moore, O'Flaherty, and others as staff members. She explained that they would continue to act as military liaisons for the OEM and would "have increased responsibilities to act as a team for expediting and coordinating the concerns [about] matters between public safety and construction." She continued:

To all concerned, it will be noted that this team will not be employees of the City of New York, rather sponsored or employed by the contractor or union tasked to the work . . . and relief effort for the World Trade Center Disaster.

Assets and equipment/supplies for this team may not be available through the Mayor[']s Office, therefore, subsist[ence] may be required via contractors or unions.

It is understood that these individuals will fall into the supervision of the OEM and not the contractors or unions.

O'Flaherty signed a W-4 Employee's Withholding Allowance Certificate on September 11, 2001, and on September 24, 2001, he filled out a New York State Employee's Withholding Allowance Certificate. Neither document identifies the employer. O'Flaherty also completed another form in which he supplied his employee information and verification; Turner Construction Company, 375 Hudson Street, New York City 10014, was listed as the business name of O'Flaherty's employer. In dating the document, O'Flaherty accidentally inserted his birth date rather than the date of his signature. He also signed an undated disclaimer in which he expressed that he understood and agreed that his employment with Turner "is for no definite duration, and is on a per diem basis, not to exceed the duration of the project."

Although both Moore and O'Flaherty had been listed on the OEM roster and had been issued photo identification cards, on September 29, 2001, Louie Rueda, R.A., Assistant Commissioner, DDC, issued the following letter:

Please be advised that the Department of Design and Construction (DDC) has engaged the following individuals, William Michael Moore and Adrian Carlotta Dicker to act as consultants to the World Trade Center 2001 rescue, recovery and reconstruction operation.

Both individuals have been issued photo identification cards already. Please change the name of the agency for each from "JTC Military Liaison" or "OEM/JTF" to ...


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