The following papers numbered 1 to 26 read on this motion by third-party defendant Spring Scaffolding LLC (“Spring”) for leave to amend its answer to the third-party complaint to add an affirmative defense, and a separate motion by defendant/third-party plaintiff Nordica Soho LLC (“Nordica”) for leave to amend its answer to assert an additional affirmative defense.Papers NumberedNotices of Motion – Affidavits — Exhibits 1-8Answering Affidavits — Exhibits 9-14Reply Affidavits 15-16DECISION AND ORDERUpon the foregoing papers, it is ordered that the motions are joined for the purpose of disposition and are determined as follows: This is an action to recover damages for personal injuries allegedly sustained by plaintiff as the result of defendant’s negligence and violation of Labor Law sections 200, 240, and 241(6). In considering the motions for leave to amend movants’ pleadings, the Court is guided by the general rule that, in the absence of prejudice, leave to amend a pleading should be freely given unless the proposed amendment is palpably insufficient or patently devoid of merit. (See, Massias v. Goldberg, ___ AD3d ___, 2018 NY Slip Op 05151 [2d Dept 2018]; CDx Labs., Inc. v. Zila, Inc., ___ AD3d ___, 2018 NY Slip Op 04693 [2d Dept 2018].)On its motion, third-party defendant Spring, on Motion Sequence Number 2, seeks leave to amend its complaint to add the affirmative defense that “[a]ny claims which plaintiff may have against the defendant are barred by the doctrine of collateral and/or judicial estoppel.” Inasmuch as this affirmative defense is devoid of merit, Spring’s motion is denied.Under the doctrine of collateral estoppel, or issue preclusion, an administrative agency’s quasi-judicial determination will be given conclusive effect in a subsequent civil action when (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding and (2) the party to be estopped was afforded a full and fair opportunity to contest the issue in the administrative tribunal. (See, Jeffreys v. Griffin, 1 NY3d 34, 39 [2003]; Melendez v. McCrowell, 139 AD3d 1019 [2d Dept 2016]; Kowalsky v. County of Suffolk, 139 AD3d 903 [2d Dept 2016].) Spring bases its application for leave to amend its answer to the third-party complaint on a copy of a document Spring identifies as a Workers’ Compensation Board decision relating to a claim by plaintiff which states that “[a]t this time, the Workers’ Compensation Board finds no evidence that the claimant has a permanent restriction or loss of use as a result of this injury.”There is no identity between the issue of permanent restriction or loss of use purportedly determined by the Workers’ Compensation Board (the Board) and the issue to be determined in this action concerning the liability of defendant/third-party plaintiff Nordica to plaintiff. (See, Auqui v. Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255 [2013]; Melendez, 139 AD3d at 1020.) No indication exists, moreover, that the issues of Nordica’s alleged negligence and statutory violations were considered by the Board. Furthermore, even if the collateral estoppel defense sought to be raised were to be limited to the issue of permanency as related to the question of damages, the Court of Appeals has held that the finder of fact ascertaining a plaintiff’s total damages in a third-party negligence action, which is much broader in scope than a workers’ compensation proceeding, should not be bound by the narrow findings of the Board regarding the duration of plaintiff’s injury. (See, Auqui, 22 NY3d at 256-257.)The document relied upon by Spring, furthermore, is entitled “Notice of Amended Proposed Decision” and sets forth a proposed decision based on information in the Board’s file as of October 28, 2015. The proposed decision itself was subject to the consideration of timely objections by plaintiff. The proposed decision, by its further title and terms, moreover, does not finally determine the issue of permanent restriction or loss of use but invites the claimant to submit a further medical opinion on the issue of permanency. Even if the proposed decision had become final, therefore, there would be no issue necessarily decided by the Board in that decision on which to base an estoppel in this case. (See, Auqui, 22 NY3d at 255; Kowalsky, 139 AD3d at 904.)The doctrine of judicial estoppel precludes a party who assumed a certain position in a prior legal proceeding and secured a favorable judgment therein from assuming a contrary position in another action simply because the party’s interests have changed. (See, Rosario v. Montalvo & Son Auto Repair Ctr., Ltd., 76 AD3d 963, 964 [2d Dept 2010].) Judicial estoppel, also known as the doctrine of inconsistent positions, is not applicable to the facts of this case. (Id.; see e.g. Orr v. City of New York, 304 AD2d 541 [2d Dept 2003].)Defendant/third-party plaintiff Nordica’s application, under Motion Sequence Number 3, to add the affirmative defense of release is based upon a release allegedly executed by the Spanish-speaking plaintiff and third-party defendant Spring. Nordica submits two documents it identifies as being a Spanish and an English version of the release to show the existence of the release and support its claim that the release precludes plaintiff’s action against it. The documents, which on a visual inspection do not contain the same paragraph structure, are not accompanied by a translator’s affidavit in compliance with CPLR 2101(b). As such, the documents are facially defective and inadmissible, and the proposed amended answer is insufficient. (See, Raza v. Gunik, 129 AD3d 700 [2d Dept 2015]; Heydt-Benjamin v. Heydt-Benjamin, 127 AD3d 814 [2d Dept 2015]; Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47, 54 [2d Dept 2011].) Accordingly, Nordica’s motion, under Motion Sequence Number 3, is denied.In short, both motions, under Motion Sequence Numbers 2 and 3, are denied.The foregoing constitutes the decision, order, and opinion of the Court.Dated: Jamaica, New YorkOctober 3, 2018
