Kwasnik v. 160 Water Street, Inc. et al
Filing
274
ORDER AND OPINION DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT TO DISMISS THE COMPLAINT re: (166 in 1:07-cv-11291-AKH) MOTION for Summary Judgment filed by WFP Tower A. Co. LP, BFP One Li berty Plaza Co. LLC., World Financial Properties L.P., BFP Tower Co. LLC, WFP One Liberty Plaza Co. LP, WFP Retail Co. L.P., BFP Tower C. MM LLC, Brookfield Properties Corporation, Brookfield Properties Holdings Inc., WFP Tower A Co., WFP Tower A. Co. G.P. Corp., Brookfield Partners LP, Brookfield Financial Properties, LP, WFP Tower A. Co. L.P., BFP One Liberty Plaza Co., Inc., WFP One Liberty Plaza Co, GP Corp., Brookfield Financial Properties, Inc., WFP Retail C o., G.P., Corp., (125 in 1:07-cv-11291-AKH) MOTION for Summary Judgment filed by 160 Water Street Associates, 160 Water Street, Inc., G.L.O. Management, Inc., (130 in 1:07-cv-11291-AKH) MOTION for Summary Judgment file d by General RE Services Corp., (178 in 1:07-cv-11291-AKH) MOTION for Summary Judgment . filed by Ambient Group, Inc., (134 in 1:07-cv-11291-AKH) MOTION for Summary Judgment filed by National Association of Securities Dea lers Inc., (161 in 1:07-cv-11291-AKH) SECOND MOTION for Summary Judgment filed by Structure Tone UK Inc., Structure Tone Global Services Inc., (141 in 1:07-cv-11291-AKH) MOTION for Summary Judgment filed by HILLMANN ENV IRONMENTAL GROUP, LLC, Hillman Environmental Group, LLC, (152 in 1:07-cv-11291-AKH) MOTION for Summary Judgment filed by 90 Church Street Limited Partnership, Boston Properties, Inc., (185 in 1:07-cv-11291-AKH) MOTION for Summa ry Judgment Dismissing Labor Law 241(6), 200 and General Negligence Claims filed by 59 Maiden Lane Associates, LLC., (145 in 1:07-cv-11291-AKH) MOTION for Summary Judgment filed by Blackmon-Mooring-Stematic Catastrophe Inc.: In summary, for the foregoing reasons, the motion filed by Water Street Associates is DENIED with respect to Kwasnik's section 200 claims arising from his work at 160 Water Street. The motion is GRANTED with respect to Kwasnik's section 241(6) claims arising from his work at 160 Water Street. The motion filed by General Re is GRANTED in its entirety with respect Kwasnik's section 200 and section 241(6) claims arising from his work at 1 Liberty Plaza. The motion filed by NASD is GRANTED in its entirety with respect to Kwasnik's section 200 and section 241(6) claims arising from his work at 1 Liberty Plaza. The motion filed by Hillmann is DENIED with respect to Kwasnik's section 200 claims arising from his work at 1 Liberty Plaza. The motion is GRANTED with respect to Kwasnik's section 241(6) claims arising from his work at 1 Liberty Plaza. The motion filed by BMS is GRANTED in its entirety with respect to Kwasnik's section 200 and section 241(6 ) claims arising from his work at 1 Liberty Plaza, 1 World Financial Center, and 3 World Financial Center. The motion filed by Boston Properties is DENIED with respect to Kwasnik's section 200 claims arising from his work at 90 Church Street. T he motion is GRANTED with respect to his section 241(6) claims, arising from his work at 90 Church Street, alleging violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g), and DENIED with respect to his section 241(6) claims alleging violatio ns of Industrial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4), and 23-1.8(b)(1). The motion filed by Structure Tone is DENIED with respect to Kwasnik's section 200 and section 241(6) claims arising from his work at 90 Church Street. The m otion is GRANTED with respect to his section 241(6) claims, arising from his work at 90 Church Street, alleging violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g), and DENIED with respect to his section 241(6) claims alleging violations of Industrial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4), and 23-1.8(b)(1). The motion filed by Brookfield is DENIED with respect to Kwasnik's section 200 claims arising from his work at 1 Liberty Plaza and 1 World Financial Center. The mo tion is GRANTED with respect to Kwasnik's section 241(6) claims arising from his work at 1 Liberty Plaza and 1 World Financial Center. The motion filed by Ambient is DENIED with respect to Kwasnik's section 200 claims arising from his wor k at 90 Church Street. The motion is GRANTED with respect to his section 241(6) claims, arising from his work at 90 Church Street, alleging violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g), and DENIED with respect to his section 241(6 ) claims alleging violations of Industrial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4), and 23-1.8(b)(1). The motion filed by Maiden Lane Associates is DENIED with respect to Kwasnik's section 200 claims arising from his work at 59 Maide n Lane. The motion is GRANTED with respect to Kwasnik's section 241(6) claims arising from his work at 59 Maiden Lane. Accordingly, the Clerk shall mark the following motions in No. 07-cv-11291 as terminated: Doc. No. 125, Doc. No. 130, Doc. N o. 134, Doc. No. 141, Doc. No. 145, Doc. No. 152, Doc. No. 161, Doc. No. 166, Doc. No. 178, and Doc. No. 185. The Clerk shall enter judgment in case number 07-cv-11291 dismissing the Complaint against General Re, NASD, and BMS (collectively, the & quot;Dismissed Defendants"), with costs to the Dismissed Defendants. Kwasnik shall file an Amended Complaint by November 14, 2014, consistent with this Order and Opinion, dropping the Dismissed Defendants from the caption and the allegations and retaining the paragraph numbering of the existing complaint. Defendants' Answers need not be amended. (Signed by Judge Alvin K. Hellerstein on 10/28/2014) Filed In Associated Cases: 1:21-mc-00102-AKH, 1:07-cv-11291-AKH(tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------- x:
IN RE WORLD TRADE CENTER LOWER
MANHATTAN DISASTER SITE LITIGATION
Docket: 21-mc- l 02
------------------------------------------------------------- x:
ORDER AND OPINION
DENYING IN PART AND
GRANTING IN PART
DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT
TO DISMISS THE
COMPLAINT
WLADYSLA W KWASNIK,
Plaintiff,
-against160 WATER STREET, INC., ET AL.,
Case Number: 07-cv-11291
Defendants.
------------------------------------------------------------- x:
ALVIN K. HELLERSTEIN, U.S.D.J.:
In this action, Plaintiff Wladyslaw Kwasnik asserts claims for common law
negligence and violations of sections 200 and 241(6) of the New York Labor Law. The claims
are based upon injuries Kwasnik allegedly suffered after working in numerous buildings in the
vicinity of the World Trade Center site in the weeks, months, and years following the 9111
terrorist attacks. Kwasnik asserts his claims against various owners, managing agents, lessees,
environmental consultants, and contractors (collectively, "Defendants") that allegedly owned,
managed, or worked in the buildings.
The Defendants have moved for summary judgment to dismiss the claims against
them. The owners, managing
agent~,
and lessees moving for summary judgment are: 160 Water
Street, Inc., 160 Water Street Associates, Inc., G.L.O. Management, Inc., General Reinsurance
Corp., the National Association of Securities Dealers, Inc., Boston Properties, Inc., 90 Church
1
Street, L.P ., Brookfield Financial Properties, Inc., 1 and 59 Maiden Lane Associates, LLC
(collectively, the "Owner Defendants"). The environmental consultants moving for summary
judgment are: Hillmann Environmental Group, LLC and Ambient Group, Inc. (together, the
"Environmental Consultant Defendants"). The contractors moving for summary judgment are
Structure Tone, Inc.,2 ("Structure Tone") and Blackmon-Mooring Steamatic Catastrophe, Inc.
("BMS"). For the following reasons, the Defendants' motions are granted in part and denied in
part.
I.
Background3
This opinion is one more in a series of opinions resolving numerous motions for
summary judgment filed by defendants in cases arising from abatement work performed by
various plaintiffs in the buildings surrounding the World Trade Center site in the aftermath of the
September 11, 2001 terrorist attacks. I previously provided the relevant background facts in In
re World Trade Center Lower Manhattan Disaster Site Litigation, No. 09-cv-680, 2014 WL
4446153 (S.D.N.Y. Sept. 9, 2014). For this reason, familiarity with the facts is presumed and
this opinion will describe only the facts relevant to my disposition of the issues particular to the
motions at issue here.
A.
1 World Financial Center
1 World Financial Center is located southwest of the World Trade Center site,
across West Street. On and after September 11, 2001, the building was owned by Brookfield
Properties One WFC Co. LLC and managed by Brookfield Financial Properties, LP (together,
1
Brookfield Financial Properties, Inc. also moves on behalf of the following entities: Brookfield Financial
Properties, L.P., Brookfield Properties OLP Co. LLC (£'k/a BFP One Liberty Plaza Co. LLC), Brookfield Properties
One WFC Co. LLC (£'k/a WFP Tower A Co. L.P.), and Brookfield Properties One WFC G.P. Corp. (f/k/a WFP
Tower A GP Corp.).
2
Structure Tone, Inc. also moves on behalf of the following entities: Structure Tone (UK), Inc. and Structure Tone
Global Services, Inc.
3
The facts stated here are either undisputed or presented in the light most favorable to Kwasnik, as the non-moving
party. See Sec. Ins. Co. ofHartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
2
"Brookfield 1 WFC"). See Deel. William J. Smith Supp. Brookfield Mot. Summ. J. ("Smith
Deel."), Exh. G at 24:1-25:18. 1 World Financial Center sustained moderate damage consisting
of several hundred broken windows and an infiltration of World Trade Center dust and debris.
See Cannata Deel., Exh. 7 at 7-2, Exh. 18A. Brookfield hired Hillmann Environmental Group,
LLC ("Hillmann") as its environmental consultant. 4 See Smith Deel., Exh. Fat 53:8-54:18. On
September 20, 2001, Hillmann tested the dust and debris for asbestos. See Cannata Deel., Exh.
86. That test revealed asbestos levels below 1%. See Smith Deel., Exh. J. Although the debris
was not considered "asbestos-containing material" by regulation, a report prepared by Hillmann
noted that "Brookfield [1 WFC] opted to clean all heavily dusty areas using asbestos abatement
methodologies and licensed asbestos contractors as a safety precaution." Cannata Deel., Exh. 86.
Brookfield 1 WFC alleges that it hired Hillmann to advise it on how to treat the
building's remediation and to develop procedures for implementing the remediation. See Smith
Deel., Exh. Fat 53: 19-54:5. The record does not reflect whether a safety and remediation
protocol was developed or who developed it. There is nothing in the record that suggests
Hillmann tested the pH level of the dust. See id., Exh. J; Cannata Deel., Exh. 86. The
parameters for the ongoing testing were "selected by Hillmann based upon the directions of
Brookfield Financial Properties, consultation with accredited laboratories, and Hillmann's
professional judgment." Id., Exh. 86.
Brookfield 1 WFC retained BMS, PAL Environmental Services ("PAL"), and
ETS Contracting, Inc. ("ETS") to conduct the remediation work. See Smith Deel., Exh. Fat 140;
Cannata Deel., Exh. 86. BMS performed remediation work at 1 World Financial Center from
November 21, 2001 to January 19, 2002 and, again, from April 15, 2002 to May 9, 2002. See
Deel. Frank Keenan Supp. BMS Mot. Summ. J. ("Keenan Deel."), Exh. 5 at 18-19.
4
Kwasnik has not brought claims against Hillmann with respect to its work at 1 World Financial Center.
3
Kwasnik worked at 1 World Financial Center for ETS for eight hours the week of
April 1, 2002. See Smith Deel., Exh. E. His work consisted of cleaning dust and debris. See
Cannata Deel., Exh. 47 at 147:14-21. Other workers removed contaminated ceiling tiles and
flooring, and covered broken windows. See id., Exh. 20A, Exh. 53 at 217:3-218:24, Exh. 59 at
525:20-526:3. While Kwasnik testified that he did not perform any asbestos removal, he was
provided with asbestos-specific safety equipment. See Smith Deel., Exh. Bat 147:14-150:4. He
alleges that his supervisors refused to provide him with replacement filters, see Cannata Deel.,
Exh. 47 at 162:11-163:18, and that he was not informed the World Trade Center dust was
hazardous, see id., Exh. 47 at 150:9-17.
B.
3 World Financial Center
3 World Financial Center is located west of the World Trade Center site, across
West Street. On September 11, 2001, 3 World Financial Center sustained substantial damage
consisting of hundreds of broken windows, fa9ade damage, and an infiltration of World Trade
Center dust and debris. See Cannata Deel., Exh. 138. Both ETS and BMS were retained to
perform the remediation work. Kwasnik performed general abatement work for ETS at 3 World
Financial Center from February 18, 2002 to March 18, 2002. See Keenan Deel., Exh. 2. BMS
performed work between February 28, 2002 and March 21, 2002. See Keenan Deel., Exh. 5.
BMS' s work was limited to removing computer equipment on the third and eleventh floors. See
Keenan Deel., Exh. 6. BMS did not utilize any labor provided by ETS and did not, at any point,
supervise Kwasnik. See Keenan Deel., Exh. 8.
C.
1 Liberty Plaza
1 Liberty Plaza is located one block east of the World Trade Center site. At the
time of the World Trade Center attacks it was owned by Brookfield Properties OLP Co. LLC and
4
managed by Brookfield Financial Properties, LP (together, "Brookfield OLP"). See Smith Deel.,
Exh. Mat 24:1-25:18. The building sustained moderate damage, consisting of broken windows
and an infiltration of World Trade Center dust and debris. See Cannata Deel., Exh. 7 at 7-2, Exh.
19H. Pursuant to an oral agreement, Brookfield OLP retained Hillmann Environmental Group,
LLC ("Hillmann") to test the dust and debris for multiple toxins, prepare a "health and safety
plan," and "coordinate environmental clean-up." See id., Exh. 80 § 2.3; Deel. Salvatore J.
Calabrese Supp. Hillmann's Mot. Summ. J. ("Calabrese Deel."), Exh. C if 48.
On September 16, 2001, Hillmann tested the asbestos content of the dust. See
Cannata Deel., Exh. 81. Although testing revealed the dust to contain less than 1% asbestos, see
id., Exh. 81, "Brookfield [OLP] opted to use abatement methodologies and licensed asbestos
abatement workers," id., Exh. 80 at 3, Exh. 81. There is also evidence that Hillmann advised
Brookfield OLP that it should implement asbestos abatement methodologies. See Deel. Richard
E. Leff Supp. NASD Mot. Summ. J. ("LeffNASD Deel."), Exh. G at 40:3-9. Hillmann did not
test the pH levels of the airborne dust and initially tested only for asbestos. See Cannata Deel.,
Exh. 80. Brookfield OLP alleges that it did not supervise the cleanup work and that Hillmann
developed the safety and remediation protocol for the building. See Smith Deel., Exh. G at
70:24-71:14.
Hillmann recommended ETS and PAL to perform the bulk of the abatement
work. See Cannata Deel., Exh. 80 at 3. BMS performed work at 1 Liberty Plaza only on
December 1, 2001 and, again, in July and August 2002. See Keenan Deel., Exh. 5. In or around
December 2001, Gruntal and Company, a tenant of One Liberty Plaza, retained Environmental
Disaster Services ("EDS") to perform cleanup work on certain floors. See LeffNASD Deel.,
Exh. J at 14:15-15:14, Exh. K, Exh. 0. EDS, in turn, retained LVI Environmental Services, Inc.
5
("LVI") to perform the work. See id., Exh. J at 20:17-19, Exh. K. LVI was required to employ
asbestos abatement procedures. See id., Exh. J at 21:6-13, 42:12-18. It is not clear from the
record to what extent LVI' s work was controlled by the safety and remediation protocol prepared
by Hillmann.
General Reinsurance Corp. ("General Re") and the National Association of
Securities Dealers, Inc. ("NASD") leased various floors in 1 Liberty Plaza. See Deel. Richard E.
Leff Supp. General Re Mot. Surnm. J. ("Leff General Re Deel."), Exh. F; LeffNASD Deel.,
Exh. Fat 21 :5-14. Between September 11, 2001 and October 22, 2001, Brookfield OLP
prohibited all tenants from reoccupying the building while testing and remediation were
performed. See id., Exh. H. General Re did not occupy its floor until June 2002. See Leff
General Re Deel., Exh. G at 18:20-19:3. LVI did not perform any work on the floors leased by
NASD and General Re. See LeffNASD Deel., Exh. J at 48:20-49:20. There is no evidence that
NASD or General Re developed the remediation and safety protocols for the cleanup work,
influenced the decision to treat the remediation as an asbestos abatement, or directly supervised
Kwasnik's work. See id., Exh. J at 49:8-12, Exh. Fat 45:5-46:4, 84:3-10, 96:5-8; Leff General
Re Deel., Exh. G at 32:17-33:8, 37:2-7, 44:3-10.
Kwasnik worked at 1 Liberty Plaza for LVI for approximately 30 hours during the
week of December 13, 2001. See Smith Deel., Exh. E. LVI supervised Kwasnik' s work, see id.,
Exh. Bat 124:21-25:8, which consisted ofremediating asbestos, cleaning HVAC ducts, and
removing ceiling tiles, carpet, and furniture, see Cannata Deel., Exh. 47 at 120:12-121: 13. Other
workers removed broken window frames, removed sheetrock, vacuumed and wiped up dust, and
cleaned HVAC systems. See id., Exh. 17B, Exh. 18D. He was provided with an asbestos suit,
rubber boot covers, and gloves. See id., Exh. 4 7 at 119: 18-120: 11. However, he was provided
6
with only one set of filters per day. See id, Exh. 47 at 162:11-163:18. Kwasnik wore half-mask
respirators and a full-mask respirator when he performed the asbestos abatement. See id., Exh.
47 at 120:4-7. He was not told that the World Trade Center dust was hazardous. See id., Exh. 47
at 120:13-121:7.
D.
90 Church Street
90 Church Street is located one block north of the World Trade Center site. On
September 11, 2001, the building was owned by the United States Postal Service, which had
leased it to 90 Church Street L.P. See Deel. Richard Leff Supp. Boston Properties, Inc. Mot.
Summ. J. ("Leff Boston Properties Deel."), Exh. G. Boston Properties, Inc. ("Boston
Properties") managed the property. See id., Exh. F at 11 :2-13. The west side of 90 Church
Street sustained severe structural damage-part of 7 World Trade Center had collapsed into its
base and projectiles from the collapsing towers destroyed hundreds of windows. See id., Exh. F
at 58:3-22. Dust and debris were present throughout the building. See Cannata Deel., Exh. 47 at
155:14-156:6.
Boston Properties hired Ambient Group, Inc. ("Ambient") to evaluate the
environmental condition of the building, develop a remediation protocol, and monitor the
restoration process. See Leff Boston Properties Deel., Exh. Hat 29: 15-30: 17. Boston Properties
did not limit the scope of Ambient's work to asbestos abatement. See Cannata Deel., Exh. 175.
Boston Properties retained Structure Tone, Inc. as general contractor for all repair and
reconstruction of90 Church Street. See Leff Boston Properties Deel., Exh. Fat 104:11-105:16.
Together, Structure Tone, Ambient, Boston Properties, and several non-party tenants developed
a safety and remediation protocol that required testing of multiple contaminants and the use of
personal protective equipment. See id., Exh. I at 28:12-34:21. The project was deemed an
7
asbestos abatement due to the presence of asbestos. See Deel. John Cookson Supp. Ambient
Motion Summ. J. ("Cookson Deel."), Exh. Eat 53:1-11. Thus, the protocol required the use of
licensed asbestos-abatement workers, compliance with asbestos regulations, and that workers be
required to wear half-mask respirators. See Cannata Deel., Exh. 177.
Structure Tone, as general contractor, oversaw the remediation process at 90
Church Street. It retained subcontractors, such as Pinnacle Environmental Corp. ("Pinnacle"), to
perform the remediation and ensured compliance with safety protocols, including the use of
proper respiratory equipment. See Aff. William Joyce Supp. Structure Tone, Inc. Mot. Summ. J.
("Joyce Aff."), Exh. I at 28:9-17, 46:19-47:12; Leff Boston Properties Deel., Exh. Mat 153:1922. While Structure Tone provided its own employees with "powered air purifying respirators,"
see Joyce Aff., Exh. J at 21:15-22:7, it did not provide any equipment directly to the
subcontractors' workers, see id, Exh. I at 51:20-52:4, 90:9-13. Rather, subcontractors provided
their employees with respiratory equipment and told them how often to change their filters. See
id, Exh. I at 51 :20-52:4, 90:4-13, Exh. J at 72:14-73:2, Exh. Kat 54:11-17. Additionally,
Structure Tone's subcontractors would propose the manner and method of the work to Ambient,
who would approve or disapprove the proposal. See id, Exh. I at 151 :24-152:8.
Kwasnik worked for Pinnacle at 90 Church Street between May 4, 2003 and July
7, 2003 for approximately 449 hours. See id., Exh. D. Boston Properties did not supervise
Kwasnik's work. See Leff Boston Properties Deel., Exh. Nat 20:15-21:5. His work consisted of
general debris and dust removal as well as cleaning and removing mail-handling machinery. See
Cannata Deel., Exh. 47 at 155:9-161 :22. Other workers "demolished rooms," id., Exh. 55 at
495:22-496:3, and boarded up broken windows, see Joyce Aff., Exh. I at 36:2-12. The
remediation of 90 Church Street involved the tearing out of entire floors and the removal of
8
walls. See Cookson Deel., Exh. J at 222:23-223:5. Boston Properties alleges that, during this
work, Kwasnik was provided with, and wore, a body suit, rubber boots and gloves, filters and
either a half-face or full-face respirator. See Leff Boston Properties Deel., Exh. Mat 162:3-10,
163 :22-166:21. However, Kwasnik complained to both Pinnacle and his union that, rather than
provide him with clean filters, his supervisors told him to manually wash and reuse dirty filters.
See Cannata Deel., Exh. 47 at 162:11-63:18. He also testified that he was not told the World
Trade Center dust was hazardous. See id., Exh. 47 at 151 :7-152:20.
E.
160 Water Street
160 Water Street is located approximately seven blocks west of the World Trade
Center site and is owned by 160 Water Street Associates, Inc. ("Water Street Associates"). See
Deel. Richard E. Leff Supp. Water Street Associates Mot. Summ. J. ("Leff Water Street
Associates Deel."), Exh. Fat 14:3-6. As a result of the September 11th attacks, the buildings
sustained an infiltration of World Trade Center dust but no other damage. See id., Exh. F at
50:8-13, Exh. I. AIG, a tenant of the building, retained A.RT., Inc. ("ART"), with the
knowledge and consent of Water Street Associates, to perform environmental testing on October
1, 2001 on AIG' s floors. See id., Exh. F at 60:25-61: 11. There is no indication that the pH level
was tested. See id., Exh. I.
AIG retained Trade Winds Environmental Restoration, Inc. ("Trade Winds") to
perform the remediation on the floors it occupied. See id., Exh. F at 69:23-73 :20. Trade Winds
required its employees to use personal protective equipment, and monitored workers'
compliance. See id., Exh. G at 95:17-24, Exh. Hat 34:8-13. The record does not reflect whether
AIG, ART, or Trade Winds developed a safety and remediation protocol applicable to Kwasnik's
work. Kwasnik worked at 160 Water Street for Trade Winds the week of October 9, 2001for55
9
hours. See id., Exh. C at 1. Water Street Associates did not supervise his work, see id., Exh. G
at 115 :22-116:22, Exh. H at 131:25-132:11, which consisted primarily of cleaning dust, see id.,
Exh. Eat 83:22-84:9. Kwasnik wore an asbestos suit, gloves, and half-mask respirator, with
filters. See id., Exh. E at 85:4-86:10.
The record reflects a general lack of involvement on the part of Water Street
Associates in the environmental testing and remediation of the floors occupied by AIG. It was
unaware of the results of the testing performed on AIG's floors. 5 See id., Exh. Fat 62:22-63:19.
Nor was it aware of the possibility of contamination from lead, asbestos or other dangerous
contaminants. See id., Exh. Fat 64:13-65:15. Similarly, Water Street Associates was not
informed of the procedures employed by Trade Winds. See id. While Water Street Associates
initially sealed the building, see id., Exh. Fat 33:25-43:3, and tested the dust on the 14th Floor,
see Cannata Deel., Exh. 121, the record does not reflect what involvement, if any, Water Street
Associates had with the testing and remediation of the World Trade Center dust on the floors on
which Kwasnik worked.
F.
59 Maiden Lane
59 Maiden Lane is located approximately three blocks west of the World Trade
Center site and was owned by 59 Maiden Lane Associates LLC ("Maiden Lane Associates").
See Deel. Daniel S. Corde Supp. Maiden Lane Associates Mot. Summ. J. ("Corde Deel."), Exh.
Fat 9:11-20. Maiden Lane Associates claims that the work performed by Kwasnik was a
standard asbestos abatement, unrelated to the World Trade Center dust and debris that infiltrated
buildings in lower Manhattan after the September 11th attacks. In support, it merely points to
Kwasnik' s testimony that the job was treated as a standard asbestos abatement. See id, Exh. C
5
Although Water Street Associates retained ART and PAR Environmental Inc. ("PAR") to perform testing and
remediation work on the 14th floor, see Cannata Deel., Exh. 121, there is no evidence that Kwasnik worked for PAR
or any other company on that floor.
10
at 134:15-136:25. Kwasnik, however, presents evidence that an "emergency clean-up of
asbestos dust" began on October 1, 2001. See Cannata Deel., Exh. 162. There is nothing in the
record that indicates whether or not the remediation of the World Trade Center dust was
completed before Kwasnik performed his work at 59 Maiden Lane.
Kwasnik worked at 59 Maiden Lane for 96 hours between July 20, 2003 and
August 25, 2003 for Legend Construction ("Legend"). See Smith Deel., Exh. E. His work
consisted of general asbestos abatement, cleaning dust off surfaces, and removing furniture, tiles,
and carpet. See Cannata Deel., Exh. 47 at 175:9-177:18. His work was not supervised by any
representatives of Maiden Lane Associates. See Corde Deel., Exh. Cat 116:16-117:3. Legend
provided Kwasnik with his personal protective equipment aside from what he brought with him
to the work site. See id., Exh. Eat 175:19-182:18.
II.
Standard of Review
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue
of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on a
motion for summary judgment, the court must view all evidence in the light most favorable to
the nonmoving party, Overton v. NY State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d
Cir. 2004 ), and must "resolve all ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought," Sec. Ins. Co. of Hartford, 391 F.3d at
83. However, in deciding a motion for summary judgment, a District Court is not required to
"scour the record on its own in a search for evidence" where the non-moving party fails to
11
adequately present it. CILP Assocs. LP v. Price Waterhouse Coopers LLP, 735 F.3d 114, 125 (2d
Cir. 2013) (internal quotations and citations omitted).
III.
Discussion
A.
Exceptions to the Duty to Provide a Safe Workplace
Various Defendants argue that Kwasnik's claims under the New York Labor Law
are barred by two related exceptions to the duty to provide a reasonably safe workplace. The
first exception applies to injuries sustained due to defective conditions that are "part of or
inherent in" the very work being performed or conditions that are "readily observed by
reasonable use of the senses in light of the worker's age, intelligence and experience." Bombero
v. NAB Constr. Corp., 10 A.D.3d 170, 171 (1st Dep't 2004) (holding no duty owed to employee
who walked directly on exposed steel bars that were part of the construction) (citing Gasper v.
Ford Motor Corp., 13 N.Y.2d 104 (1963)). The second exception applies where the particular
defect giving rise to a plaintiffs injury was the very defect the injured plaintiff was hired to
remediate. See Kowalsky v. Conreco Co., 264 N.Y. 125, 128 (1934) ("An employee cannot
recover for injuries received while doing an act to eliminate the cause of the injury.").
Kwasnik points to evidence demonstrating a significant focus on asbestos
abatement at each building in which he worked. This is sufficient to raise a genuine issue of fact
as to whether, in the terms of his hiring, he was made aware that the dust he was hired to remove
was "high-alkaline" dust, or that removal of "high-alkaline" dust required different procedures
and protections than those relevant to asbestos-containing material, or that Kwasnik was aware
of the particular hazard posed by his work. Accordingly, for the reasons previously elaborated in
In re World Trade Center Lower Manhattan Disaster Site Litigation, No. 09-cv-680, 2014 WL
12
4446153, at *11-12 (S.D.N.Y. Sept. 9, 2014), I decline to grant the Defendants' motions on this
basis.
B.
The Scope of the Duty Imposed by the New York Labor Law
Various Defendants argue that they owed no duty under the New York Labor Law
because they were not owners, general contractors, or statutory "agents" under section 200 or
section 241(6) of the New York Labor Law. In order for a party to have a duty under section
200, it must "have the authority to control the activity bringing about the injury to enable it to
avoid or correct an unsafe condition." Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317
( 1981 ). Likewise, a party will be considered a statutory "agent" under section 241 (6) if it has the
authority to control the "injury producing activity." Id. at 317-18.
Kwasnik has presented evidence, sufficient to raise a triable issue of fact, that the
Environmental Consultant Defendants either developed the remediation protocols (including the
required personal protective equipment to be worn by the workers) or influenced the decision to
treat the remediation as an asbestos abatement in the respective buildings for which they were
retained. See Cannata Deel., Exh. 80, Exh. 177; Calabrese Deel., Exh. C iJ 48; LeffNASD Deel.,
Exh. G at 40:3-9; Smith Deel., Exh. G at 70:24-71:14; Leff Boston Properties Deel., Exh. Hat
29: 15-30:17, Exh. I at 28:12-34:21; Cookson Deel., Exh. Eat 53:1-11. Accordingly, for the
reasons previously elaborated in In re World Trade Center Lower Manhattan Disaster Site
Litigation, No. 09-cv-680, 2014 WL 4446153 at * 12-14, I hold that Kwasnik has raised a triable
issue of fact as to whether Hillmann or Ambient had the authority to "avoid or correct" the
alleged use of inadequate respiratory equipment, Russin, 54 N. Y .2d at 317, and therefore owed a
duty to Kwasnik under the Labor Law. 6
6
Similarly, for the reasons previously elaborated in In re World Trade Center Lower Manhattan Disaster Site
Litigation, No. 09-cv-680, 2014 WL 4446153 at *14-15, I reject Hillmann's argument that it did not owe a duty of
13
However, Kwasnik has failed to raise an issue of fact with respect to BMS's duty
to him at 1 Liberty Plaza, 1 World Financial Center, and 3 World Financial Center. BMS was
not present at either 1 Liberty Plaza or 1 World Financial Center on the days on which Kwasnik
worked. See Keenan Deel., Exh. 5, Exh. 8. At 3 World Financial Center, BMS did not utilize
any labor provided by Kwasnik's employer, ETS, nor did BMS supervise Kwasnik. See Keenan
Deel., Exh. 8. In opposition, Kwasnik has failed to present any controverting evidence.
Accordingly, I grant the motion for summary judgment filed by BMS with respect to Kwasnik's
claims arising from his work at 1 Liberty Plaza, 1 World Financial Center, and 3 World Financial
Center.
Kwasnik has also failed to raise an issue of fact with respect to his claims against
General Re and NASD arising from his work 1 Liberty Plaza. Both defendants have presented
substantial evidence that they lacked the authority to control the choice of personal protective
equipment worn by workers or the safety procedures implemented by the contractors. See Leff
NASD Deel., Exh. Fat 45:5-46:4, 84:3-10, 96:5-8, Exh. H, Exh. J at 48:20-49:20; Leff General
Re Deel., Exh. G at 18:20-19:3, 32:17-33:8, 37:2-7, 44:3-10. In opposition, Kwasnik points to
no contrary evidence. Accordingly, I hold that neither General Re nor NASD owed a duty to
Kwasnik under the New York Labor Law and grant their motions in their entirety.
D.
New York Labor Law Section 200
Section 200 of the New York Labor Law codifies 7 the common law duty "to
protect the health and safety of employees." In re Joint E. & S. Dist. Asbestos Litig., 827 F.
care to Kwasnik as a non-contracting third party. Kwasnik has raised an issue of fact that the Environmental
Consultant Defendants exacerbated the existing hazard by influencing the choice ofrespiratory equipment incapable
of handling that particular hazard and therefore breached an independent duty of care owed to Kwasnik by
"launch[ing] a force or instrument of harm." Espinal v. Melville Snow Contractors, 98 N.Y.2d 136, 140 (2002).
7
Because section 200 is a codification of common law negligence, courts analyze the claims simultaneously. See
Wojcik v. 42nd St. Dev. Project, 386 F. Supp. 2d 442, 455 n. 15 (S.D.N.Y. 2005) (collecting cases).
14
Supp. 1014, 1052-53 (S.D.N.Y.1993), aff'd in part rev'd in part on other grounds, 52 F.3d 1124
(2d Cir. 1995). Specifically, section 200 requires that a workplace "be so constructed, equipped,
arranged, operated and conducted as to provide a reasonable and adequate protection to the lives,
health and safety of all persons employed therein or lawfully frequenting such places." N.Y.
Labor Law§ 200(1) (McKinney 2014).
Section 200 has two disjunctive standards for determining liability. See
Chowdury v. Rodriguez, 57 A.D.3d 121, 128 (2d Dep't 2008). When a plaintiffs injury "arises
out of defects or dangers in the methods or materials of the work," the "means and methods"
standard will apply. Id. By contrast, where a plaintiff's injuries arise out of the "condition of the
premises rather than the methods or manner of the work," the "premises liability" standard
applies. Id. If an injury arises from both sets of conditions, concurrently, the proofs are to be
evaluated under both standards. See Reyes v. Arco Wentworth Mgmt. Corp., 83 A.D.3d 47, 52
(2d Dep't 2011) ("When an accident is alleged to involve defects in both the premises and the
equipment used at the work site, the property owner moving for summary judgment with respect
to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof
applicable to both liability standards.").
Kwasnik alleges that his injuries arose from two concurrent causes: (1) the toxic
"alkaline-based" dust and debris that spewed out of the collapsed World Trade Center buildings
on September 11, 2001 and present in each of the relevant buildings, and (2) the use of
respiratory equipment and safety procedures inappropriate for the particular hazard posed by the
"alkaline-based" dust. Accordingly, I have to evaluate the proofs relevant to both the "means
and method" standard and the "premises liability" standard. See id.
1.
The "Means and Methods" Standard
15
/
Where a plaintiffs claim arises out of an alleged defect or condition in the
"methods or materials" of the work, a party subject to Labor Law§ 200 cannot be held liable
unless "it is shown that the party to be charged exercised some supervisory control over the
operation." Ross v. Curtis-Palmer Hydro-Elec. Co., 81N.Y.2d494, 505 (1993); see also
Persichilli v. Triborough Bridge & Tunnel Auth., 16 N.Y.2d 136 (1965).
The Owner Defendants adequately show that they did not exercise supervisory
control over the work giving rise to Kwasnik's injuries. Kwasnik's opposition papers fail to
rebut the Owner Defendants' showing. Accordingly, I hold that no genuine issue of material fact
under the Section 200 "means and methods" standard exists. Owners Defendants' motions for
summary judgment are granted to the extent they seek dismissal ofKwasnik's claims under the
Section 200 "means and methods" standard.
However, I deny the Environmental Consultant Defendants' motions for summary
judgment. Kwasnik points to evidence that, at each of the relevant buildings, the Environmental
Consultant Defendants played a role in the choice of respiratory equipment and safety
procedures employed by the contractors that hired Kwasnik to perform the clean-up work. See
Cannata Deel., Exh. 80, Exh. 177; Calabrese Deel., Exh. C iJ 48; LeffNASD Deel., Exh. G at
40:3-9; Smith Deel., Exh. G at 70:24-71:14; Leff Boston Properties Deel., Exh. Hat 29:1530: 17, Exh. I at 28:12-34:21; Cookson Deel., Exh. Eat 53: 1-11; Joyce Aff., Exh. I at 151 :24152:8. This is sufficient to raise a triable issue of fact as to whether the Environmental
Consultant Defendants "exercised supervisory control over the means and method of the work."
Ross, 81 N.Y.2d at 505.
For the same reasons, I deny Structure Tone's motion for summary judgment.
Structure Tone helped develop the remediation protocol for the work performed at 90 Church
16
/
Street. See Leff Deel., Exh. I at 28:12-34:21. This is sufficient to raise a question of fact as to
Structure Tone's liability under section 200 of the Labor Law.
2.
The "Premises Liability" Standard
Where a plaintiffs claim arises out of the condition of the premises, a party is
liable if (1) it created the dangerous condition causing the injury or (2) failed to remedy a
dangerous or defective condition of which he or she had actual or constructive notice. See
Ortega v. Puccia, 57 A.D.3d 54, 61 (2d Dep't 2008). Furthermore, the statutory duty to maintain
a reasonably safe workplace implies a duty to make timely and adequate inspections for dangers
that may reasonably be discovered. DiNunzio v. Ken-Jil Elec. Contractors, Inc., 473 F. Supp. 2d
485, 487 (S.D.N.Y 2007). The question of whether a defendant "has conducted reasonable
inspections of the premises is usually a question of fact for the jury to resolve in determining
whether defendants fulfilled their duty to maintain the premises in a reasonably safe condition."
Dufrain v. Hutchings, 112 A.D.3d 1212, 1212 (3d Dep't 2013).
Kwasnik presents evidence that the Owner Defendants either retained
environmental consultants and contractors specifically to perform asbestos abatement and
monitoring or played some role in the decision to implement asbestos abatement procedures at
the worksites, leading to the use of allegedly inadequate respiratory equipment. See Cannata
Deel., Exh. 80, Exh. 81, Exh. 86; Leff Boston Properties Deel., Exh. I at 28:12-34:21. It is true
that certain Owner Defendants did not initially limit the scope of the consultants' work to
asbestos testing and monitoring. See, e.g., Cannata Deel., Exh. 175. However, on the record
before me, I cannot hold as a matter of law that the Owner Defendants played no role in the
allegedly unreasonable decision to use asbestos-specific safety equipment and procedures.
Similarly, although Water Street Associates played little to no role in the testing and remediation
17
of the floors on which Kwasnik worked, factual issues remain regarding whether Water Street
Associates discharged its duty to conduct a reasonable inspection of 160 Water Street and
reasonably remedied any hazards of which it may have had constructive notice. See Leff Water
Street Associates Deel., Exh. Fat 62:22-63: 19, 64:13-65:15, 73:23-74:5. Accordingly, for the
reasons previously elaborated in In re World Trade Center Lower Manhattan Disaster Site
Litigation, No. 09-cv-680, 2014 WL 4446153 at *18-19, I deny the Owner Defendants' motions
for summary judgment under section 200 of the Labor Law.
Additionally, there are questions of fact as to whether this Court has jurisdiction
over Kwasnik's claims against Maiden Lane Associates arising from his work at 59 Maiden
Lane. Maiden Lane Associates points to evidence that suggests Kwasnik' s work may not have
been sufficiently related to the September 11th terrorist attacks to fall within this Court's
jurisdiction under the Air Transportation Safety and System Stabilization Act. See 49 U.S.C. §
408(b)(3) (2012) (providing exclusive jurisdiction to this Court over claims "resulting from or
relating to the terrorist-related aircraft crashes" of September 11, 2001 ); Corde Deel., Exh. C at
134:15-136:25. However, Kwasnik presents contrary evidence, sufficient to raise a triable issue
of fact. See Cannata Deel., Exh. 162. Accordingly, I also deny Maiden Lane Associates' motion
for summary judgment with respect to Kwasnik's section 200 claims.
E.
New York Labor Law Section 241(6)
Section 241(6) of the New York Labor Law provides that:
All areas in which construction, excavation or demolition work is
being performed shall be so constructed, shored, equipped, guarded,
arranged, operated and conducted as to provide reasonable and
adequate protection and safety to the persons employed therein or
lawfully frequenting such places. The commissioner may make rules
to carry into effect the provisions of this subdivision, and the owners
and contractors and their agents for such work ... shall comply
therewith.
18
N.Y. Labor Law§ 241(6) (McKinney 2014). The statute imposes a non-delegable duty upon
owners, general contractors, and their agents, to ensure worksite compliance with the New York
Industrial Code. See Morris v. Pavarini Constr., 22 N.Y.3d 668, 673 (2014); Rizzuto v. L.A.
Wenger Constr. Co., 91N.Y.2d343, 348 (1998). To prove vicarious liability under section
241(6), a plaintiff must demonstrate that (1) the work giving rise to the injury was in connection
with "construction, excavation or demolition"; and (2) a violation of an applicable regulation
implementing section 241(6) caused the plaintiff's injury. See Nagel v. D & R Realty Corp., 99
N.Y.2d 98, 101 (2002); Rizzuto, 91 N.Y.2d at 348-50. These requirements are addressed in turn.
1.
"Construction, Excavation or Demolition"
For the reasons stated in In re World Trade Center Lower Manhattan Disaster
Site Litigation, No. 09-cv-680, 2014 WL 4446153 at *20-23, I hold that Kwasnik's work at 160
Water Street, 1 Liberty Plaza, 1 World Financial Center, and 59 Maiden Lane was not
sufficiently related to "construction, excavation or demolition" to support a claim under section
241(6) of the New York Labor Law. None of these buildings sustained structural damage and
the primary damage was limited to an infiltration of World Trade Center dust. See Cannata
Deel., Exh. 7 at 7-2, Exh. 18A, Exh. 19H, Exh. 47 at 175:9-177:18; Leff Water Street Associates
Deel., Exh. Fat 50:8-13, Exh. I. The work performed to remediate these buildings consisted
exclusively of cleaning the dust and removing contaminated debris, tiles and sheetrock. See
Cannata Deel., Exh. 17B, Exh. 18D, Exh. 20A, Exh. 53 at 217:3-218:24, Exh. 47 at 120:12121:13,147:14-21, 175:9-177:18, Exh. 59 at 525:20-526:3; Leff Water Street Associates Deel.,
Exh. Eat 83:22-84:9. Accordingly, I grant the Defendants' motions for summary judgment and
dismiss Kwasnik's section 241(6) claims arising from his work at 160 Water Street, 1 Liberty
Plaza, 1 World Financial Center, and 59 Maiden Lane.
19
However, Kwasnik has raised a question of fact as to whether his work performed
at 90 Church Street was sufficiently connected to "construction, excavation or demolition" to
support his section 241(6) claims. Importantly, the particular task performed by a plaintiff need
not constitute "construction, excavation or demolition" so long as the task is sufficiently
connected to a larger project that qualifies as "construction, demolition, or excavation." See
Prats v. Port Authority ofNY & NJ, 100 N.Y.2d 878, 882 (2003); McNeil v. La Salle Partners,
52 A.D.3d 407, 409 (1st Dep't 2008). 90 Church Street sustained significant structural damage
due to the collapse of 7 World Trade Center. See Leff Boston Properties Deel., Exh. Fat 58:322. The remediation effort included substantial renovations, including the demolition of entire
floors. See Cookson Deel., Exh. 222:23-223:5. Accordingly, with respect to 90 Church Street, I
must address the second prong of section 241 (6) liability.
2.
Violation of Applicable Industrial Code Provision
Liability under section 241 (6) also requires a violation of Part 23 of the New York
Industrial Code, the regulations implementing section 241 (6). See Kaczmarek v. Bethlehem Steel
Corp., 884 F. Supp. 768, 779 (W.D.N.Y. 1995); Nostrom v. A. W Chesterton Co., 59 A.D.3d 159
(1st Dep't 2009). It is insufficient to allege violations of OSHA regulations, see Rizzuto, 91
N.Y.2d at 351 n.1, or Part 12 of the New York Industrial Code, see Kagan v. BFP One Liberty
Plaza, 60 A.D.3d 531, 532 (1st Dep't 2009). Further, the provision of Part 23 alleged to have
been violated must "mandate compliance with concrete specifications and not simply declare a
general safety standard or reiterate common-law principles." Misicki v. Caradonna, 12 N.Y.3d
511, 515 (2009); see also Ross, 81 N.Y.2d at 505 (1993). The provision must add a "specific,
positive command" beyond the duty ofreasonableness imposed by the common law. Ross, 81
N.Y.2d at 504.
20
For the reasons previously elaborated in In re World Trade Center Lower
Manhattan Disaster Site Litigation, No. 09-cv-680, 2014 WL 4446153 at *26-27, I grant the
Defendants' motions with respect to Kwasnik' s claims under section 241 (6) of the Labor Law
alleging violations of sections 23-1. 7(g) and 23-2.1 (b) of the Industrial Code. Kwasnik has
failed to point to any facts that suggest he worked inside "enclosed" areas with "restricted means
of egress," as required to be considered a "confined, unventilated area" as that term has been
interpreted by New York courts. N.Y. Comp. Codes R. & Regs. tit. 12, §§ 12-l.3(f), 23-l.7(g)
(2014); Ceverizzo v. City ofNew York, 116 A.D.3d 469, 470-71 (1st Dep't 2014); Kagan, 60
A.D.3d at 532.
I deny the Defendants' motions with respect to Kwasnik's claims alleging
violations of sections 23-l.5(c)(3), 23-l.7(h), 23-l.8(c)(4), and 23-l.8(b)(l) of the Industrial
Code. Those provisions impose sufficiently "specific, positive commands" to serve as predicate
violations under section 241(6), Ross, 81 N.Y.2d at 504, and Kwasnik has presented evidence,
sufficient to raise a triable issue of fact, that his injuries were caused by their violation.
IV.
Conclusion
In summary, for the foregoing reasons, the motion filed by Water Street
Associates is DENIED with respect to Kwasnik's section 200 claims arising from his work at
160 Water Street. The motion is GRANTED with respect to Kwasnik's section 241(6) claims
arising from his work at 160 Water Street.
The motion filed by General Re is GRANTED in its entirety with respect
Kwasnik's section 200 and section 241(6) claims arising from his work at 1 Liberty Plaza.
The motion filed by NASD is GRANTED in its entirety with respect to
Kwasnik's section 200 and section 241(6) claims arising from his work at 1 Liberty Plaza.
21
The motion filed by Hillmann is DENIED with respect to Kwasnik's section 200
claims arising from his work at 1 Liberty Plaza. The motion is GRANTED with respect to
Kwasnik's section 241(6) claims arising from his work at 1 Liberty Plaza.
The motion filed by BMS is GRANTED in its entirety with respect to Kwasnik's
section 200 and section 241(6) claims arising from his work at 1 Liberty Plaza, 1 World
Financial Center, and 3 World Financial Center.
The motion filed by Boston Properties is DENIED with respect to Kwasnik's
section 200 claims arising from his work at 90 Church Street. The motion is GRANTED with
respect to his section 241(6) claims, arising from his work at 90 Church Street, alleging
violations oflndustrial Code Rules 23-2.l(b) and 23-l.7(g), and DENIED with respect to his
section 241(6) claims alleging violations oflndustrial Code Rules 23-l.5(c)(3), 23-l.7(h), 23l.8(c)(4), and 23-l.8(b)(l).
The motion filed by Structure Tone is DENIED with respect to Kwasnik's section
200 and section 241(6) claims arising from his work at 90 Church Street. The motion is
GRANTED with respect to his section 241 (6) claims, arising from his work at 90 Church Street,
alleging violations oflndustrial Code Rules 23-2.l(b) and 23-l.7(g), and DENIED with respect
to his section 241(6) claims alleging violations oflndustrial Code Rules 23-l.5(c)(3), 23-l.7(h),
23-l.8(c)(4), and 23-l.8(b)(l).
The motion filed by Brookfield is DENIED with respect to Kwasnik's section 200
claims arising from his work at 1 Liberty Plaza and 1 World Financial Center. The motion is
GRANTED with respect to Kwasnik's section 241(6) claims arising from his work at 1 Liberty
Plaza and 1 World Financial Center.
22
The motion filed by Ambient is DENIED with respect to Kwasnik's section 200
claims arising from his work at 90 Church Street. The motion is GRANTED with respect to his
section 241 (6) claims, arising from his work at 90 Church Street, alleging violations of Industrial
Code Rules 23-2.l(b) and 23-l.7(g), and DENIED with respect to his section 241(6) claims
alleging violations oflndustrial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4), and 23l.8(b)(l).
The motion filed by Maiden Lane Associates is DENIED with respect to
Kwasnik's section 200 claims arising from his work at 59 Maiden Lane. The motion is
GRANTED with respect to Kwasnik's section 241(6) claims arising from his work at 59 Maiden
Lane.
Accordingly, the Clerk shall mark the following motions in No. 07-cv-11291 as
terminated: Doc. No. 125, Doc. No. 130, Doc. No. 134, Doc. No. 141, Doc. No. 145, Doc. No.
152, Doc. No. 161, Doc. No. 166, Doc. No. 178, and Doc. No. 185. The Clerk shall enter
judgment in case number 07-cv-11291 dismissing the Complaint against General Re, NASD, and
BMS (collectively, the "Dismissed Defendants"), with costs to the Dismissed Defendants.
Kwasnik shall file an Amended Complaint by November 14, 2014, consistent
with this Order and Opinion, dropping the Dismissed Defendants from the caption and the
allegations and retaining the paragraph numbering of the existing complaint. Defendants'
Answers need not be amended.
SO ORDERED.
Dated:
New York, New York
October 28, 2014
VIN K. HELLERSTEIN
United States District Judge
23