Socha et al v. 110 Church L.L.C. et al
Filing
279
ORDER AND OPINION DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT DISMISSING COMPLAINT re: (73 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by 110 Church L.L.C., (5108 in 1:21-mc-00102-A KH) MOTION for Summary Judgment filed by Hillman Enviornmental Group, LLC., HILLMANN ENVIRONMENTAL GROUP, LLC, Hillman Environmental Group, LLC, (94 in 1:09-cv-00680-AKH) SECOND MOTION for Summary Judgment filed by S tructure Tone (UK) Inc., Structure Tone Global Services, Inc., Structure Tone (UK), Inc., (133 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by Ambient Group, Inc., (106 in 1:09-cv-00680-AKH) MOTION for Summary Jud gment filed by Crown 61 Associates, L.P., Crown Broadway, L.L.C., Crown Properties, Inc., Crown 61 Corp., (115 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by American International Realty Corp., Americ an International Group, Inc., (120 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by 222 Broadway, L.L.C., Battery Park City Authority, Merrill Lynch & Co., Inc., WFP Tower B. Co., G.P. Corp., WFP Tower D Co., G.P. Corp., WFP Tower D Co. L.P., WFP Tower B. Co. L.P., (5132 in 1:21-mc-00102-AKH) MOTION for Summary Judgment . filed by Weston Solutions, Inc., (80 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by Hillman Environmental Group, L.L.C., HILLMANN ENVIRONMENTAL GROUP, LLC, (84 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by Blackmon-Mooring-Steamatic Catastophe, Inc., (98 in 1:09-cv-00680-AKH) MOTION for Summary Judgmen t filed by Weston Solutions, Inc., (109 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by WFP Tower D Holding Co. I. L.P., BFP One Liberty Plaza Co., L.L.C., WFP One Liberty Plaza, Co. GP., Corp.,, WFP Tower D Holding Co. II L.P., Brookfield Financial Properties, L.P., Brookfield Partners, LP, WFP Tower D Co. L.P., World Financial Properties L.P., WFP Tower B Holding Co., L.P., WFP Tower D Holding I G.P. Corp., WFP One Liberty Plaza Co., L .P., WFP Tower A Co. L.P., Brookfield Properties Corporation, WFP Tower A Co., WFP Tower A. Co. G.P. Corp., WFP Tower D Co., G.P. Corp., Brookfield Partners, L.P., Brookfield Financial Properties, LP, WFP Tower B. Co., G.P. Corp., B rookfield Financial Properties, Inc., WFP Tower B. Co. L.P., (90 in 1:09-cv-00680-AKH) MOTION for Summary Judgment filed by 90 Church Sttreet Limited Partnership, Boston Properties, Inc., (143 in 1:09-cv-00680-AKH) MOTION for S ummary Judgment filed by Crown 61 Associates, L.P., Crown Broadway, L.L.C., Crown 61 Corp., Crown Properties, Inc.: In summary, the motion filed by environmental consultant Indoor Environmental Technologies, Inc. is GRANTED in its entirety with respect Socha's claims under both section 200 and section 241(6) of the New York Labor Law, arising from his work at 100 Church Street and 2 World Financial Center. The motion filed by Owner Defendants Boston Properties, Inc. and 90 Church Street, L.P. are DENIED with respect Socha's section 200 claim and section 241(6) claim alleging violations of Industrial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4), and 23-1.S(b)(1), arising from his work at 90 Church Street . The motion is GRANTED with respect to Socha's section 241(6) claim alleging violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g). The motion filed by Owner Defendants 110 Church, LLC and Lionshead 110 Development LLC is DENIED with re spect to Socha's section 200 claim and section 241(6) claim alleging violations of Industrial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4), and 23-1.S(b)(1), arising from his work at 110-120 Church Street. The motion is GRANTED with resp ect to Socha's section 241(6) claim alleging violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g). The motion filed by Owner Defendants Battery Park City Authority, Merrill Lynch & Co., Inc., and 222 Broadway LLC is DENIED with respect t o Socha's section 200 claim, arising from Socha's work at 2 World Financial Center, 4 World Financial Center, and 222 Broadway. The motion is DENIED with respect to Socha's section 241(6) claim arising from his work at 2 World F inancial Center, 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), and GRANTED with respect to alleged violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g). The motion is GRANTED with respect to Socha's section 241(6) claim, arising from his work at 4 World Financial Center and 222 Broadway. The motion filed by Owner Defendants Crown 61 Associates, LP, Crown 61 Corp., Crown Broadway LLC, and Crown Properties, Inc., is DENIED with respect to Socha's section 200 claim and GRANTED with respect Socha's section 241(6) claim, arising from his work at 61 Broadway. The motion filed by Owner Defendants American International Realty Corp. and American International Re alty Group is DENIED with respect to Socha's section 200 claim and GRANTED with respect Socha's section 241(6) claim, arising from his work at 70 Pine Street. The motion filed by Owner Defendants Brookfield Financial Properties Inc., Broo kfield Financial Properties, L.P., Brookfield Properties OLP Co. LLC, and Brookfield Properties One WFC G.P. Corp. is DENIED with respect to Socha's section 200 claim, and GRANTED with respect Socha's section 241(6) claim, arising from hi s work at 1 World Financial Center and 1 Liberty Plaza. The motion filed by Environmental Consultant Defendant Ambient Group, Inc. is DENIED with respect to Socha's section 200 claim, DENIED with respect to Socha's section 241(6) claim a lleging 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), and GRANTED with respect to alleged violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g), arising from his work at 90 Church Street. The motion filed by Environmental Consultant Defendant Hillmann Environmental Group, Inc. is DENIED with respect to Socha's section 200 claim arising from his work at 1 Liberty Plaza, 1 World Financial Center, and 2 World Financial Center. T he motion is GRANTED with respect to Socha' s section 241 (6) claim arising from his work at 1 Liberty Plaza and 1 World Financial Center. The motion is DENIED with respect to Socha's section 241(6) claim alleging violations of Indust rial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4), and 23-1.8(b)(1), and GRANTED with respect to alleged violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g), arising from his work at 2 World Financial Center. The motion filed by En vironmental Consultant Defendant Weston Solutions, Inc. is DENIED with respect to Socha's section 200 claim arising from his work at 222 Broadway, 2 World Financial Center, and 4 World Financial Center. The motion is GRANTED with respect to So cha's section 241(6) claim arising from his work at 222 Broadway and 4 World Financial Center. The motion is DENIED with respect to Socha's section 241(6) claim 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), and GRANTED with respect to alleged violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g), arising from his work at 2 World Financial Center. The motion filed by Structure Tone, Inc. is DENIED with respect to Soc ha's Section 200 claim arising from his work at 90 Church Street. The motion is DENIED with respect to Socha's section 241(6) claim 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), and GRANTED with respect to alleged violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g). The motion filed by Blackmon-Mooring Steamatic Catastrophe, Inc. is DENIED with respect to Socha's Section 200 claim arising from his work at 2 W orld Financial Center. The motion is DENIED with respect to Socha's section 241(6) claim 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), and GRANTED with respect to alleged violations of Industrial Code Rules 23-2.1(b) and 23-1.7(g). The Clerk shall mark the following motions in No. 09-cv-00680 as terminated: Doc. No. 73, Doc. No. 80, Doc. No. 84, Doc. No. 90, Doc. No. 94, Doc. No. 98, Doc. No. 106, Doc. No. 109, Doc. No. 115, Doc. No. 120, Doc. No. 133, and Doc. No. 143. (Signed by Judge Alvin K. Hellerstein on 9/9/2014) (tn)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------- x:
ORDER AND OPINION
DENYING IN PART AND
GRANTING IN PART
DEFENDANTS' MOTIONS
FORSUMMARYJUDGMENT
DISMISSING COMPLAINT
IN RE WORLD TRADE CENTER LOWER
MANHATTAN DISASTER SITE LITIGATION
09 CV 680 (AKH)
21MC102 (AKH)
-------------------------------------------------------------
)(
ALVIN K. HELLERSTEIN, U.S.D.J.:
In this action, Plaintiff Marek Socha, a licensed asbestos-abatement worker,
asserts claims for common law negligence and violations of sections 200 and 241 (6) of the New
York Labor Law. Socha's claims are based upon injuries suffered after working in numerous
buildings in the vicinity of the World Trade Center site in the weeks, months, and years
following the 9/11 terrorist attacks. Socha asserts his claims against various owners, managing
agents, lessees, environmental consultants, and contractors (collectively, "Defendants") that
owned, managed or worked in the buildings.
The Defendants have moved for summary judgment to dismiss the claims against
them. The owners, managing agents, and lessees moving for summary judgment are: Boston
Properties, Inc., 90 Church Street, L.P., 110 Church, LLC, Lionshead 110 Development LLC,
Battery Park City Authority, Merrill Lynch & Co., Inc., 222 Broadway LLC, Crown 61
Associates, LP, Crown 61 Corp., Crown Broadway LLC, Crown Properties, Inc., American
International Realty Corp., American International Realty Group, and various entities I will
1
designate as the "Brookfield Defendants" 1 (collectively, the "Owner Defendants"). The
environmental consultants moving for summary judgment are: Ambient Group, Inc., Hillmann
Environmental Group, Inc., Weston Solutions, Inc. (collectively, the "Environmental Consultant
Defendants"), and Indoor Environmental Technologies, Inc. The only general contractor moving
for summary judgment is Structure Tone, Inc. ("Structure Tone"). The only subcontractor
moving for summary judgment is Blackmon-Mooring Steamatic Catastrophe, Inc. ("BMS"). For
the following reasons, the Defendants' motions are granted in part and denied in part.
I.
Background2
On September 11, 2001, terrorists hijacked American Airlines Flight 11 and
United Airlines Flight 175 and crashed the airplanes into the north and south towers of the World
Trade Center. Within two hours, both towers collapsed, spewing debris and a large plume of
dust into buildings throughout lower Manhattan. The dust plume that penetrated the buildings
consisted of a complex mixture of pulverized cement, glass fibers, asbestos, crystalline silica,
metals, volatile organic compounds, and other chemicals, some of which were known human
carcinogens. See Deel. of Gregory J. Cannata in Supp. of Pls.' Opp'n to Defs.' Mots. for Summ.
J. ("Cannata Deel."), Exh. 1at7; In re WTC Disaster Site, 414 F.3d 352, 358 (2d Cir. 2005).
The hazard posed by the dust was allegedly due primarily to its high mass concentration, large
particulate matter, and high alkalinity with a pH measurement of over 11. See Cannata Deel.,
Exh. 2 at 4, Exh. 8 at 7.
1
The Brookfield Defendants include Brookfield Financial Properties Inc., Brookfield Financial Properties, L.P.,
Brookfield Properties OLP Co. LLC (f/k/a BFP One Liberty Plaza Co., LLC), Brookfield Properties One WFC Co.
LLC (£'k/a WFP Tower A Co. LP), and Brookfield Properties One WFC G.P. Corp. (£'k/a WFP Tower A Co. GP
Corp., WFP Tower B Co. L.P., WFP Tower B Co. G.P. Corp., WFP Tower D Co. L.P., and WFP Tower D Co. G.P.
Corp.).
2
The facts stated here are either undisputed or presented in the light most favorable to Socha, as the non-moving
party. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
2
Of the buildings at issue here, those located in close proximity to the World Trade
Center site suffered moderate to major damage when the World Trade Center towers collapsed,
including structural damage and breaches in their fa9ades. See Cannata Deel., Exh. 7 at 1-2.
Those buildings located further away sustained little to no structural damage. See id. However,
varying amounts of dust and debris entered all the buildings through open or broken windows,
fa<;ade breaches, and the ventilation systems, which often circulated the dust throughout the
buildings before being turned off. See, e.g., Cannata Deel., Exh. 3 at 147-48, Exh. 4 at 89-92.
The amount of settled dust in the buildings ranged from less than an inch to 10 feet. See, e.g.,
id., Exh. 17A iJ 4.
Following the 9/11 terrorist attacks, the owners, managing agents, and lessees of
the affected buildings retained environmental consultants and contractors to test the dust and air,
evaluate the condition of the buildings, and plan the cleaning and renovation. See, e.g., Cannata
Deel., Exh. 191. On September 14, 2001, the New York City Department of Environmental
Protection ("NYC DEP") issued a letter to owners of buildings affected by the collapse of the
World Trade Center towers. That letter indicated that the dust and debris should be tested for
asbestos or assumed to be "asbestos-containing material." See Goldstein Deel., Exh. D. Further,
the NYC DEP required that all "asbestos-containing material" be handled by workers certified as
"asbestos handlers." Id.
Socha, as a licensed asbestos-abatement worker, was employed by various
subcontractors retained to perform the clean-up of the dust and debris at the different buildings.
He alleges that the building owners, environmental consultants, general contractors, and
subcontractors, treated the cleanup work primarily as an asbestos-abatement project and failed to
take account of the dangerous "high-alkaline" dust present in all buildings. See Pls.' Master
3
Mem. in Opp'n to Defs.' Mots. for Dismissal of the Pls.' Labor Law Causes of Action ("Pls.'
Master Opp'n Br.") at 12-29. This singular focus, in tum, lead to the use ofrespiratory
equipment and the implementation of safety practices that, while perhaps acceptable for asbestos
abatement, failed to protect him from the "high-alkaline" World Trade Center dust. See id.;
Cannata Deel., Exh. 8 at 11. More specifically, Socha presents evidence that he wore "asbestosspecific" respirators and was not provided with "powered air purifying respirators." See Cannata
Deel., Exh. 53 at 170, 217-18, 222, 247-49, 256-59, Exh. 54 at 295, 301, 311, 329, 345, 377.
Moreover, Socha points to expert evidence that "asbestos-specific" respirators are prone to
clogging when used in environments with "high-alkaline" dust--characterized by large
particulate matter-leading to constrained air flow and leakage of contaminated air into the
lungs. See id., Exh. 8 at 7. This problem was allegedly compounded by the occasional
unavailability of replacement filters and decontamination units. See id., Exh. 8 at 11.
Over the months and years following Socha's work in the buildings, he has
allegedly developed various disorders of the upper and lower respiratory tracts. See, e.g., Pl.'s
56.l Statement of Disputed Facts Related to 110-120 Church Street~~ 3-5. Socha contends that
the inhalation of highly corrosive "alkaline-based" dust caused these various illnesses and seeks
to hold Defendants liable under sections 200 and 241(6) of the New York Labor Law and
common law negligence. Following fact discovery, Defendants moved for summary judgment.
Because there are significant differences in the relevant facts pertaining to each building, I
address each separately.
A.
110-120 Church Street
110-120 Church Street is located two blocks north of the World Trade Center site.
On September 11, 2001, the property was owned by 110 Church LLC, which had leased the
4
property to Lionshead Development LLC ("Lionshead") (together, "110 Church LLC
Defendants"). See Deel. of Leila Cardo in Supp. of 110 Church LLC' s Mot. for Summ. J.
("Cardo Deel."), Exh. D. On September 13, 2001, the property manager for Lionshead's parent
company, Neal Cohen, inspected the building. Cohen discovered that the engine from Flight 175
had struck the 16th floor, tearing a 15 by 18 foot hole in the exterior of the building. See id., Exh.
Fat 27-29. In addition, dust and debris from the collapsing World Trade Center towers was
present throughout the building. See id., Exh. F at 29-32. Cohen retained Environmental
Monitoring and Consulting Associates ("EMCA") to "test the debris and see if there is any
asbestos in it."3 Id. at 34. The contract between Lionshead and EMCA called for the "complete
removal and disposal of all asbestos contaminated dust and the decontamination of all surfaces."
Cannata Deel., Exh. 95 at 5. EMCA agreed to provide all union labor and equipment necessary
to complete the work. See id. The contract required the labor to consist of licensed asbestosabatement workers, see id. at 6, and notifications were posted advising the public of the ongoing
asbestos abatement project, see Cardo Deel., Exh. Fat 48.
Lionshead retained Socha's employer, Pinnacle Environmental Corp.
("Pinnacle"), to conduct the asbestos abatement and debris removal. See Cardo Deel., Exh. H.
That contract similarly required the use of "asbestos-certified personnel." See id. at 1. Socha
worked for Pinnacle at 110 Church Street for a total of 189 hours from December 3, 2001 to
December 10, 2001 and December 17, 2001 to December 24, 2001. See id., Exh. J. His work
consisted primarily of removing dust, moldy sheetrock, and cleaning air ducts. See Cannata
Deel., Exh. 53 at 236-39. Other Pinnacle workers demolished sheetrock and walls and removed
a drop ceiling and floor tiles. See id., Exh. 35 at 31. In addition, Socha would momentarily
3
On two prior occasions, Cohen had also hired EMCA to "investigate for asbestos, develop a protocol for the
removal of asbestos, and to manage the asbestos subcontractors' removal." Cardo Deel., Exh. Fat 34.
5
place his head and upper body inside HV AC ducts in order to vacuum out dust. See id., Exh. 53
at 239-41. Socha alleges that asbestos-abatement procedures were followed. See id., Exh. 53 at
236. The 110 Church LLC Defendants did not directly supervise Pinnacle or EMCA. See Cardo
Deel., Exh. Fat 52, 59.
B.
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. of Richard Leff in Supp. of Boston Properties Mot.
for Summ. J. ("Leff Deel."), Exh. I. Boston Properties, Inc. ("Boston Properties") managed the
property. See id., Exh. H at 11. 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. Hat 58. Dust and debris were
present throughout the building. See Cannata Deel., Exh. 47 at 155-56.
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 Deel., Exh. J at 29-30. 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 of 90 Church
Street. See Leff Deel., Exh. Hat 103-05, 111. Together, Structure Tone, Ambient, Boston
Properties, and several non-party tenants developed a safety and remediation protocol that
required testing of multiple contaminants including cement dust, PCBs, dioxins, asbestos, heavy
metals, and pH levels. See Leff Deel., Exh. Kat 30-34; Cannata Deel., Exh. 177 at 10-12. The
6
protocol also required the use of licensed asbestos-abatement workers, compliance with asbestos
regulations, and that workers be required to wear half-mask respirators. See id, Exh. 177 at 6.
Structure Tone, as general contractor, oversaw the remediation process at 90
Church Street. It retained subcontractors and ensured compliance with safety protocols,
including the use of proper respiratory equipment. See Aff. of William Joyce in Supp. of
Structure Tone, Inc.'s Mot. for Summ. J. ("Joyce Aff."), Exh. Fat 46-47. While Structure Tone
provided its own employees with "powered air purifying respirators," see id, Exh. G at 21-22, it
did not provide any equipment directly to the subcontractors' workers, see id, Exh. Fat 52, 90.
Rather, subcontractors provided their employees with respiratory equipment and told them how
often to change their filters. See id, Exh. G at 73, Exh. Hat 54, 64, 78. If a subcontractors'
worker was not wearing the proper respiratory equipment, a Structure Tone representative would
speak with the subcontractor foreman. See id, Exh. G at 26, 49, 50, Exh. Hat 38, 44.
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. F at 152.
Socha first worked at 90 Church Street for one day on or around November 5,
2001 for ETS Contracting ("ETS"), a subcontractor hired to perform the remediation. See Leff
Deel., Exh. 0 at 333-36. His task was to build a decontamination unit in an area that had already
been cleaned, see id, and the workers did not wear respiratory masks during this work, see id
Socha worked again at 90 Church Street for three weeks in May and June of 2003 as an
employee of Pinnacle. See Leff Deel., Exh. Sat 256-59. The project was a "typical asbestos
abatement," Socha wore a full-mask respirator, and was provided mask filters. See id., Exh. Sat
257, Exh. 0 at 342. While working for Pinnacle, Socha "demolished rooms," see Cannata Deel.,
Exh. 55 at 495-96, removed debris, and applied asbestos encapsulant to certain floors, see id.
7
Exh. 54 at 341; Leff Deel., Exh. S at 259. Other workers removed HV AC ducts and electrical
cables, see Cannata Deel., Exh. 64 at 127, Exh. 65 at 74-75, and boarded up broken windows,
see Joyce Aff., Exh. F at 36.
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
managed by Brookfield Financial Properties, LP (together, "Brookfield OLP"). The collapsing
World Trade Center towers broke numerous windows and dust and debris up to two feet deep
infiltrated the building. See Cannata Deel., Exh. 19H. Pursuant to an oral agreement, Brookfield
OLP retained Hillmann Environmental Group, Inc. ("Hillmann") to test the dust and debris for
multiple toxins, prepare a "health and safety plan," and "coordinate environmental clean-up."
See Cannata Deel., Exh. 80; Deel. of Salvatore J. Calabrese in Supp. ofHillmann's Mot. for
Summ. J. ("Calabrese Deel."), Exh. Ci! 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," see id., Exh. 80 at 2, Exh. 81; Calabrese Deel., Exh. G at 82. Accordingly,
Hillmann recommended subcontractors ETS and PAL Environmental Contracting ("PAL"), who
used "asbestos abatement methodologies" to perform the remediation. See Cannata Deel., Exh.
80 at 3. Hillmann did not test the pH levels of the airborne dust. See id., Exh. 80 at Table 2.1.
Socha worked at 1 Liberty Plaza for ETS for approximately three weeks
beginning in late September 2001. See id., Exh. 54 at 376. While there, he removed
contaminated ceiling tiles and sprayed floors with asbestos encapsulant. See id., Exh. 53 at 222.
8
Other workers removed broken window frames, removed sheetrock, vacuumed and wiped up
dust, and cleaned HVAC systems. See id, Exh. 17B, Exh. 18D. During his work at 1 Liberty
Plaza, an ETS supervisor instructed Socha to wear a half-mask respirator, which ETS provided.
See id, Exh. 53 at 222, Exh. 54 at 345, 377.
D.
1 World Financial Center
1 World Financial Center is located directly southwest of the World Trade Center
site. The building is owned by Brookfield Properties One WFC Co. LLC and managed by
Brookfield Financial Properties LP (together, "Brookfield 1 WFC"). See Brookfield Properties
One WFC Co. LLC Rule 56.1 Statement of Undisputed Facts~~ 35-36. 1 World Financial
Center sustained broken windows and fire damage; the dust and debris that inundated the
building measured two feet high in the lobby and two to three inches on the lower floors. See
Cannata Deel., Exh. 18A, Exh. 20A.
Brookfield 1 WFC hired Hillmann as its environmental consultant to develop
clean-up and remediation procedures for the building. See Deel. of William J. Smith in Supp. of
Brookfield Properties One WFC Co. LLC et al. Mot. for Summ. J. ("Smith Deel."), Exh. Cat 5354. As at I Liberty Plaza, Hillmann' s initial testing for asbestos revealed less than 1% asbestos
content. See Cannata Deel., Exh. 86 at 1. Hillmann noted in its Environmental Recovery Report
that the debris was not considered "asbestos containing material by regulation," but that
"Brookfield opted to clean all heavily dusty areas using asbestos abatement methodologies." Id.
Socha worked at 1 World Financial Center for ETS for approximately four weeks
beginning September 21, 2001. See Cannata Deel., Exh. 54 at 370-73. While there, he cleaned
and removed debris from the lobby, offices and the roof. See id, Exh. 53 at 217-18. Other
9
workers removed ceiling tiles and sheetrock. See id., Exh. 18A, Exh. 20A, Exh. 59 at 525.
Socha wore a half-mask respirator and was forced to reuse filters. See id., Exh. 53 at 217-18.
E.
2 World Financial Center
2 World Financial Center is located directly west of the World Trade Center site.
On September 11, 2001, the building was owned by WFP Tower B Co. L.P., a Brookfield entity,
and leased to Merrill Lynch & Co., Inc. ("Merrill Lynch"). See Aff. of David M. Kindbergh in
Supp. of Merrill Lynch Mot. for Summ. J. ("Kindbergh Aff.")
~~
2-3. BPCA was the ground
lessor. See Goldstein Deel., Exh. SS at 16. 2 World Financial Center sustained substantial
damage to its eastern fa9ade and a significant amount of dust and debris entered the building.
See id., Exh. DD. The "Winter Garden," a glass-enclosed lobby connecting 2 World Financial
Center and 3 World Financial Center, suffered severe structural damage including broken
windows and demolished walls. See Cannata Deel., Exh. 139.
Merrill Lynch retained Weston Solutions, Inc. ("Weston") to develop an "indoor
air quality program" for 2 World Financial Center. See Goldstein Deel., Exh. 0
~
5. Beginning
September 26, 2001, Weston conducted comprehensive testing for numerous "potential air
contaminants," including asbestos, fibrous glass, heavy metals, and volatile organic compounds.
See id., Exh. GG, Exh. W. After Weston's air testing revealed the presence of asbestos, Merrill
Lynch was allegedly "advised by Weston that [it] should treat the cleanup as an asbestos
abatement." See id., Exh. KK at 104-105. Weston, in contrast, denies that it advised Merrill
Lynch with respect to the abestos abatement. See Defendant Weston Solution, Inc.'s Rule 56.1
Statement of Undisputed Facts~ 5. There is no evidence that Weston tested the pH level of the
dust. See Cannata Deel., Exh. 123. While Weston denies directly supervising the abatement
workers or developing a safety protocol for the general abatement work at 2 World Financial
10
Center, it did create a remediation protocol and provided project monitoring for mold abatement
conducted in the basement. See Goldstein Deel., Exh. 0
iii! 6-8.
Certain tenants at 2 World Financial Center retained Hillmann as their
environmental consultant. See Aff. of Christopher Hillmann in Supp. ofHillmann Mot. for
Summ. J. ("Hillmann Aff."), Exh. D. Hillmann did not have any agreement with Merrill Lynch
nor did it perform any work for Merrill Lynch. However, Hillmann did conduct environmental
monitoring during and after the cleanup and conducted an asbestos survey for Brookfield in the
retail space. See Hillmann Aff., Exh. C iii! 3-8, 20-46.
Merrill Lynch retained Pinnacle and Blackmon-Mooring Steamatic Catastrophe,
Inc. ("BMS") to conduct the dust remediation and bulk cleanup. See id., Exh. Y at 1. Pinnacle
also conducted the mold abatement in the basement levels. See id., Exh. 0
if 8. Because initial
environmental testing revealed asbestos levels over 1%, Pinnacle implemented asbestos
abatement procedures during the cleanup. See id at 2. BMS alleges that it only performed "fine
cleaning" at 2 World Financial Center. See BMS Mem. of Law in Supp. of Mot. for Surnm. J. at
6. However, it acknowledges that it supervised part of the Pinnacle work force, including Socha,
for a total of 19 days between November 25, 2001 and March 11, 2002. See id.
On October 19, 2001, Indoor Environmental Technologies, Inc. ("IET")
conducted a single post-cleanup testing of the HVAC system for asbestos, lead, and microbial
contamination. See Aff. of John Stanley in Supp. of IET Mot. for Summ. J. ("Stanley Affidavit")
if 4, Exh. A. Beginning in February 2002, IET provided limited consulting services and project
management for environmental testing of the HVAC system at 2 World Financial Center. See
id., Exh. B, Exh. D. IET presents evidence that it neither developed safety protocols for the
abatement work performed by Pinnacle nor directly supervised Socha's work. See id.
11
iii! 14-15.
Socha worked at 2 World Financial Center for approximately 10 weeks between
November 2001 and April 2002 as a Pinnacle employee. See Goldstein Deel., Exh. B. His work
consisted of dust abatement, cleaning HV AC systems, and removing moldy sheetrock and wall
studs from the basement. See Cannata Deel., Exh. 53 at 227, 239, Exh. 54 at 352-53. Other
workers removed contaminated ceiling tiles and constructed a wooden tunnel through which
debris was removed. See id., Exh. 59 at 557, Exh. 66 at 302-03. When supervised by BMS,
Socha alleges that even standard asbestos-abatement procedures were not followed. In
particular, replacement filters were unavailable, the site lacked a decontamination unit, and BMS
supervisors told him that no respirator was necessary. See id., Exh. 53 at 170; Exh. 54 at 328-29.
F.
4 World Financial Center
4 World Financial Center is located one block west of the World Trade Center site
at 250 Vesey Street. On September 11, 2001, the building was owned by WFP Tower D Co.
L.P., a Brookfield entity, and leased to Merrill Lynch. See Kindbergh Aff.
iJil 2-3.
BPCA was
the ground lessor. See Goldstein Deel., Exh. SS at 16. 4 World Financial Center suffered no
structural damage but significant amounts of dust and debris infiltrated the building. See
Goldstein Deel., Exh. LL at 102-03; Cannata Deel., Exh. 41 at 62. In mid-September, Merrill
Lynch hired Weston to "provide oversight to all asbestos handlers in the building" and have air
samples "analyzed for [asbestos containing material]" between September 15, 2001 and
September 21, 2001. See id., Exh. 154 at 2; Goldstein Deel., Exh. F, Exh. 0
iJ 9; Exh. Kat 1.
In
October 2001, after the asbestos abatement work was complete, Weston began testing for other
elements, such as volatile organic compounds, PCBs, fibrous glass, heavy metals, and dioxons.
See Cannata Deel., Exh. 152 at 26:9-27:8; Goldstein Deel., Exh. P, Exh. W, Exh. Z.
12
While Weston claims that it did not develop a safety protocol for work at 4 World
Financial Center, see Kauffman Deel., Exh. 0
~
9, a report it prepared in October 2001 notes that
all asbestos abatement workers were required to wear half-mask respirators and that Weston
monitored subcontractor compliance with safety protocols and regularly tested the air for
asbestos. See id. at 2-7. Although the record reflects a significant focus on asbestos abatement,
see, e.g., Goldstein Deel., Exh. F; Cannata Deel., Exh. 157, Exh. 158, it is unclear whether
Merrill Lynch, Weston or GPS made the decision to treat the initial remediation as an asbestos
abatement, see, e.g., Cannata Deel., Exh. 152 at 16:18-24 (deposition of Bruce Ehrich testifying
that the decision regarding what should be tested for was based upon "discussions" between
Weston and Merrill Lynch). Weston presents evidence that it did not directly supervise the
abatement workers. See Kauffman Deel., Exh. 0
~
9.
Merrill Lynch retained Pinnacle to perform the remediation work beginning in
September 2001. See Goldstein Deel., Exh. K. Socha worked for Pinnacle at 4 World Financial
Center for approximately 10 weeks between November 2001 and April 2002. See Goldstein
Deel, Exh. B. While there, he performed general cleaning activities, which included vacuuming
inside HVAC ducts. See id., Exh. II at 261:2-5, 228:11-20. Other workers removed floor and
ceiling tiles and demolished sheetrock. See Cannata Deel., Exh. 49 at 132; Exh. 34 at 44, 156.
Workers wore half-face respirators but a decontamination unit was allegedly not available. See
Exh. 49 at 134. Further, some workers were allegedly instructed not to wear their respirators
outside the building and received no instructions for the use of personal protective equipment.
See Exh. 34 at 88. Neither Socha nor the Defendants point to any facts that indicate what type of
respiratory equipment Socha wore while working at 4 World Financial Center.
G.
222 Broadway
13
222 Broadway is located one block east of the World Trade Center site. On
September 11, 2001 it was owned by 222 Broadway, LLC, a Merrill Lynch entity. See Goldstein
Deel., Exh. MM at 183:7-12. While 222 Broadway suffered no structural damage, significant
amounts of dust and debris infiltrated the building. See Cannata Deel., Exh. 23B, Exh. 19G;
Goldstein Deel., Exh. R; Exh. MM at 187:19-188:2. Merrill Lynch retained GPS to provide
"asbestos consulting services." See Goldstein Deel., Exh. R. Testing performed by GPS
revealed small amounts of asbestos throughout the building. Id For this reason, "an abatement
contractor was selected to clean the building using asbestos specific procedures." Id
Between September 14, 2001 and September 17, 2001, Pinnacle performed the
asbestos abatement at 222 Broadway. See id GPS provided project oversight and air
monitoring during and after the abatement work. See id In addition, Weston assisted GPS and
developed a Health and Safety Plan, which called for the use of asbestos-specific safety
procedures. See Cannata Deel., Exh. 134; Goldstein Deel., Exh. Nat 15. Beginning on
September 26, 2001, Weston also provided an indoor air quality program, which included
monitoring for numerous substances, inlcuding asbestos and heavy metals. See id, Exh. P.
Because the samples yielded results below permissible OSHA levels, Merrill Lynch employees
reoccupied the building in October 2001. See Goldstein Deel., Exh. 0, Exh. P, Exh. Z.
On May 3, 2002, the NYC DEP informed Merrill Lynch that it had detected
debris from the collapse of the World Trade Center towers on the exterior of the building. See
Goldstein Deel., Exh. X. The NYC DEP instructed Merrill Lynch to perform further asbestos
abatement on the exterior of the building. See id The NYC DEP agreed to pay the fees charged
by the abatement contractor and the independent environmental consultant. See id. Safety
oversight was provided by the Occupational Health and Safety Administration ("OSHA"). See
14
id. Independent testing revealed that the debris on 19 outdoor setbacks at 222 Broadway
contained no asbestos. See Goldstein Deel., Exh. BB. Nonetheless, Merrill Lynch retained
Pinnacle to perform asbestos abatement. See Goldstein Deel., Exh. AA. Both GPS and Weston
provided project oversight. See id, Exh. BB; Exh. FF. While the record reflects a significant
focus on asbestos both during the initial abatement in September 2001 and the exterior cleaning
in May 2002, it is unclear whether Merrill Lynch or it environmental consultants decided to treat
the work as an asbestos abatement. Nothing in the record indicates whether GPS or Weston
tested the alkalinity or pH level of the dust.
Socha worked for Pinnacle at 222 broadway during the week of May 20, 2002.
See Goldstein Deel., Exh. B. While there, he vacuumed dust off the roof and cleaned balconies.
See Cannata Deel., Exh. 53 at 248; Goldstein Deel., Exh. Cat 267. Other workers constructed a
wooden shed to clean the HV AC system, see Cannata Deel., Exh. 19, removed contaminated
ceiling tiles, see id., Exh. 23B, and removed the HV AC system, see id., Exh. 34 at 6. According
to a report prepared by GPS, a decontamination unit had been installed. See Goldstein Deel.,
Exh. Rat 1. Socha, however, testified that a decontamination unit was not available. See id.,
Exh. II at 248. Socha wore a half-face respirator and protective clothing during the exterior
cleaning. See Goldstein Deel., Exh. II at 247:19-249:4.
H.
61 Broadway
61 Broadway is located 2 blocks east and approximately 4 blocks south of the
World Trade Center site. On September 11, 2001, the property was owned by Crown Broadway,
LLC ("Crown Broadway") and managed by Crown Properties, Inc. See Deel. of Suzanne
Harlbardier in Supp. of Crown Broadway, LLC Mot. for Summ. J. ("Harlbardier Deel."), Exh. F
at 8:13-17, 13:3-11, 14:23-25. 61 Broadway did not sustain structural damage but a significant
15
amount of dust entered the building. See id, Exh. D at 6; Cannata Deel., Exh. 54 at 51, 79, 326.
Neither party points to any facts in the record that indicate the scope of the environmental testing
performed in the building.
Socha worked for Pinnacle at 61 Broadway beginning in May 2002. See
Harlbardier Deel., Exh. G. Neither party points to any facts that indicate the scope of the work
performed by Pinnacle. Socha's work consisted of cleaning dust in offices and HVAC ducts.
See id., Exh. G at 246:5-6. During this work, he alleges that he wore a half-mask respirator and
that a decontamination unit was unavailable. See id.; Cannata Deel., Exh. 53 at 24 7. When he
cleaned HV AC ducts, Socha was required to remove his respirator to fit his head inside the duct.
See Cannata Deel., Exh. 54 at 326.
I.
70 Pine Street
70 Pine Street is located approximately seven blocks east and one block south of
the World Trade Center site. On September 11, 2001, the building was owned by American
International Realty Corporation and American International Realty Group (together, "AIRC").
See Deel. of Michael A. Savino in Supp. of AIRC Mot. for Summ. J., Exh. Hat 19:11-15. 70
Pine Street sustained no structural damage, but dust from the collapsing World Trade Center
towers infiltrated the building. See Cannata Deel., Exh. 53 at 206-07, Exh. 54 at 290. AIRC
hired North Atlantic Laboratories, Inc. ("NAL") to test the dust and debris for asbestos. See id.,
Exh. 172. NAL did not test the pH or alkalinity of the dust. See id. The testing revealed that the
debris was not "asbestos-containing material" as defined by state and federal regulation. See id.
On September 19, 2001 AIRC hired Trade-Winds Environmental Restoration, Inc. ("TradeWinds") to perform the clean-up work. See Savino Deel., Exh. Hat 49:8-12, Exh. E. TradeWinds agreed to "[s]upply labor and equipment to perform clean-up of dust and debris." Id. The
16
parties acknowledged in the agreement that "this dust and debris may be contaminated with
asbestos." Id.
Socha worked as a Trade-Winds employee beginning on September 17, 2001.
See Savino Deel., Exh. F. Trade-Winds utilized asbestos-specific procedures. See id., Exh. G at
158:3-7. However, there is nothing in the record that indicates whether Trade-Winds or AIRC
made the decision to employ such procedures. Jeffrey Micheli, a representative of Trade-Winds,
testified that Trade-Winds exercised exclusive supervision over the employees and that
employees were provided with half-mask respirators, body suits, gloves, boots and appropriate
PlOO filters. See Savino Deel., Exh. I at 127: 17-24, 130:3-9, Exh. G at 311 :12-15. He did not
recall ifthere was a decontamination unit present. See id. at 130: 13-15. As a Trade-Winds
employee at 70 Pine Street, Socha wiped and vacuumed dust off office equipment and machinery
inside offices, a "machine room," and the basement. See id. at 309:21-310:1, 292:13-17, 300:17. In addition, he worked in the basement and small "pump" rooms. See Cannata Deel., Exh. 53
at 207. Socha acknowledges that during this work he wore a half-mask respirator, gloves, hard
hat, and full suit. See id. at 311:12-15, 295:11-14, 301:1-6.
J.
100 Church Street
100 Church Street is located approximately one block north of the World Trade
Center site. Dust from the collapsing World Trade Center towers infiltrated the building. See
Cannata Deel., Exh. 26 at 25, Exh. 29 at 70. Merrill Lynch, an occupant of several floors,
retained IET to conduct a limited inspection of the ventilation system on November 8, 2001. See
Stanley Aff., Exh. E. From February 2002 to June 2002, IET provided post-cleaning air
monitoring for Merrill Lynch. See
id.~~
16-19. IET presents evidence that it neither developed
17
a safety protocol for the clean-up work conducted at 100 Church Street nor exercised supervision
over any clean-up workers. See id.
II.
iii! 11-20.
Socha points to no evidence to the contrary.
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
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
Defendants first argue that Socha's claims are barred by two related exceptions to
the duty to provide a reasonably safe workplace. In general, there is no duty to protect workers
from defective conditions that are "part of or inherent in" the very work being performed or
those 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., IO A.D.3d 170, 171-72 (1st Dep't
18
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)); see also
O'Sullivan v. !DI Constr. Co., Inc., 7 N.YJd 805, 806 (2006) (holding landowner had no
liability under section 241(6) where "the electrical pipe or conduit that plaintiff tripped over was
an integral part of the construction"). By contrast, the exception will not apply if an injured
worker had no reason to be aware of the specific danger allegedly inherent to the work. See
Brady v. Pa. Steel Co., 215 N.Y. 456 (1915) (holding "inherent danger" exception inapplicable
where worker was killed from fall after stepping on bridge's railroad tie that other workers had
sawed in half, as part of their work, because decedent had no reason to know other workers had
done so). Further, the "open and obvious" nature of a defective condition does not negate the
duty to maintain premises in a reasonably safe manner but, rather, only raises an issue of fact as
to a plaintiffs comparative fault. See Francis v. 107-145 West l 35th Street Assocs., 70 A.D.3d
599, 600 (1st Dep't 2010).
A related 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 (1936) ("An employee cannot recover for injuries received while doing
an act to eliminate the cause of the injury."); Hanson v. Trs. ofMethodist Episcopal Church of
Glen Cove, 51 A.D.3d 725 (2d Dep't 2008) (rejecting premises liability claim where worker was
injured by rotted roof he was hired to repair). However, if an employee is injured by some
defective condition he was not specifically hired to remediate, the exception will not apply. See,
e.g., Colello v. TJ Stevenson & Co., Inc., 284 A.D. 805, 806-07 (2d Dep't 1954) (holding
exception inapplicable where employee was overcome by noxious gasses because the
employee's company was hired to clean oil tanks for grain storage and not to specifically
19
remediate noxious gasses in the tanks); see also Patalano v. Am. President Lines, Inc., 322 F.
Supp. 2d 293, 295-97 (E.D.N.Y. 2004) (holding exception inapplicable where question of fact
existed as to whether longshoremen injured by damaged container door were in the specific act
of repairing the defective door when injured).
Defendants argue that both exceptions apply because Socha was hired to
remediate the dust and, as a licensed asbestos worker, he should have known that the risk of
respiratory injury is inherent to such work. See, e.g., Mem. of Law in Supp. of Boston
Properties, Inc. Mot. for Summ. J. at 11-12. However, in the cases cited by Defendants, there
was no evidence that the injured worker was unaware of the specific risk giving rise to the injury.
See, e.g., Wilhouski v. Canon US.A., 212 A.D.2d 525 (2d Dep't 1995) (dismissing section 200
premises liability claim because danger was "open and obvious"); Abbadessa v. Ulrik Holding
Ltd., 244 A.D.2d 517 (2d Dep't 1997) (dismissing premises liability claim because sanitation
worker was injured after attempting to lift refrigerator unassisted); Waiters v. N Trust Co. of
NY., 29 A.D.3d 325 (1st Dep't 2006) (applying exception where plaintiff slipped on wet marble
floors he was hired to mop); Skinner v. G&T Realty Corp. ofNY., 232 A.D.2d 627 (2d Dep't
1996) (applying exception where plaintiff was injured by defective window he was hired to
replace). Here, by contrast, there is evidence that Socha was hired to remediate asbestos and
perform general debris removal, but that he had no reason to know of the specific risks posed by
the "alkaline-based" dust. See, e.g., Cannata Deel., Exh. 8 at 9-10, Exh. 80 at 2-3, Exh. 86 at 1,
Exh. 177 at 6; Cardo Deel., Exh. H, Exh. J; Goldstein Deel., Exh. R. For example, at 110-120
Church Street, Lionshead retained Pinnacle to conduct asbestos abatement and debris removal.
See Cardo Deel., Exh. H. However, Defendants point to no evidence that Socha was aware of
the particular hazard posed by "high-alkaline" dust. Accordingly, Defendants have failed to
20
carry their burden of showing that, as a matter of law, the hazard posed by the "alkaline-based"
dust was inherent to the specific work Socha was hired to perform. See Brady, 215 N.Y. at 45960; Colello, 284 A.D. at 806-07; Patalano, 322 F. Supp. 2d at 295-97 & n. l. Thus, there are
questions of fact relating to the exceptions.
B.
Scope of the Duty Imposed by the New York Labor Law
The New York Court of Appeals has defined the scope of the duty to provide a
safe workplace imposed by sections 200 and 241(6) of the New York Labor Law. In Russin v.
Louis N Picciano & Son, the Court held that in order for a party to be liable 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." 54 N.Y.2d 311, 317 (1981). Likewise, while section 241(6) only
applies to "contractors, owners and their agents," see N.Y. Labor Law§ 241(6) (McKinney
2014), a party will be considered a statutory "agent" if it has the authority to control the "injury
producing activity." Id. at 317-18.
The Environmental Consultant Defendants argue that to be considered a statutory
"agent" under the Labor Law, one must have the authority to supervise or control a plaintiff's
day-to-day work. See Walls v. Turner, 4 N.Y.3d 861 (2005) ("[W]e have limited the definition
of the term 'agents' to those who have authority to supervise and control [the] work from which
an injury arises.") (internal quotations and citations omitted). The Environmental Consultant
Defendants point to facts suggesting that they lacked such authority. For example, Weston's
project manager, Bruce Ehrich, testified that Weston did not supervise Socha's work at 2 World
Financial Center or 4 World Financial Center, or direct the manner in which that work was
performed. See Kauffman Deel., Exh. 0, ~ 10. Nor did Weston have the authority to hire or
terminate the clean-up workers. See
id.~
10. Accordingly, the Environmental Consultant
21
Defendants argue that they were not statutory "agents" and, therefore, owed no duty to Socha
under the New York Labor Law. See, e.g., Weston Mem. of Law in Supp. of Mot. for Summ. J.
at 6-7.
However, the cases cited by the Environmental Consultant Defendants turn upon
a party's authority to control the daily work of a plaintiff because those injuries arose from the
plaintiffs daily work. See, e.g., Wall, 4 N.Y.3d at 863 (finding defendant to be an agent because
it had the authority to control the construction of scaffolding from which plaintiff fell); Pino v.
Irvington Union Free Sch. Dist., 43 A.D.3d 1130, 1131 (2d Dep't 2007) (finding defendant to be
an agent after plaintiff fell from scaffolding because it had the authority to stop work upon
discovery of unsafe conditions). But a duty arises not only when a defendant had the authority to
actively control a plaintiffs work on a daily basis but, rather, when a defendant had the authority
to "correct or prevent [the] unsafe condition" giving rise to a plaintiffs injuries. See Russin, 47
N.Y.2d at 317; Chowdhury v. Rodriguez, 57 A.D.3d 121, 129-130 (2d Dep't 2008) ("[W]e are
reminded that a basic, underlying ground for the imposition of any liability under both Labor
Law § 200 and the common law is the authority of the defendant to remedy the dangerous or
defective condition at issue."). The statutory "agents" in the cases cited by the Environmental
Consultant Defendants fell within the scope of the Labor Law because they had the ability to
prevent or correct the unsafe condition, not merely because they had the authority to maintain a
daily supervisory presence at the worksites.
Here, the alleged unsafe condition giving rise to Socha's injuries was the choice
to use respiratory equipment appropriate for asbestos abatement, but not designed to protect
workers from the "high-alkaline," large particulate dust present in the buildings. In support of
this allegation, Socha presents evidence that the Environmental Consultant Defendants had the
22
authority "to avoid or correct [this] unsafe condition" by properly testing the "high-alkaline" dust
and warning the owners and contractors about the need for appropriate respiratory equipment.
For example, Socha points to the engagement letter between Brookfield Financial Properties, LP
and Hillmann for environmental consulting at One Liberty Plaza. That document states that
"Hillmann was hired to prepare health and safety plans, test for environmental issues, and
coordinate environmental clean-up responses in the building." Cannata Deel., Exh. 80 at 3.
Indeed, Hillmann acknowledges that "it provided test results to its clients," "explained their
significance," and "recommended qualified contractors to do the work." Mem. of Law in Supp.
of Hillmann Mot. for Summ. J. ("Hillmann Br.") at 2-3. Similarly, Boston Properties hired
Ambient to help "develop a remediation protocol to reoccupy" 90 Church Street. Leff Decl.,
Exh. J at 29-30, 49. Indeed, there is evidence that Ambient would approve equipment and
procedures proposed by Structure Tone. See Joyce Aff., Exh. F at 152. Likewise, a report by
Weston for its work at 4 World Financial Center provided for the safety equipment workers were
required to wear and noted that Weston monitored compliance with the safety protocol. See
Kauffman Deel., Exh. 0
if 9.
Accordingly, Socha has raised a triable issue of fact as to whether
Hillmann, Ambient, and Weston had the authority to "avoid or correct" the use of inadequate
respiratory equipment,4 Russin, 54 N.Y.2d at 317, and therefore owed a duty to Socha under the
Labor Law.
Similarly, Socha has raised an issue of fact with respect to the role played by
Structure Tone, at 90 Church Street, and BMS, at 2 World Financial Center, in the decision to
4
The Environmental Consultant Defendants' argument that they could not have had the authority to supervise
Socha's day-to-day work because they were not licensed to perform asbestos abatement is similarly unavailing. See,
e.g., Hillmann Br. at 18-20 (citing N.Y. Comp. Codes R. & Regs., tit. 12, § 56)). As noted, it is not a party's
authority to control a plaintiffs work that is necessarily relevant, but its ability to correct the injury producing
activity. See Russin, 47 N.Y. at 317; Chowdhury, 57 A.D.3d at 129-130. Socha alleges that the Environmental
Consultant Defendants' development ofremediation protocols focusing primarily, and sometimes exclusively, on
asbestos abatement was unreasonable, not simply that their supervision of the asbestos abatement was unreasonable.
23
provide workers with asbestos-specific equipment. At 90 Church Street, there is evidence that
Structure Tone helped develop the safety and remediation protocol, which recommended the
type of safety equipment to be used by workers. See Leff Deel., Exh. Kat 30-34; Cannata Deel.,
Ex. 177 at 10-12. Similarly, there is evidence that during the time BMS supervised Socha,
replacement filters were unavailable and Socha was told that no respirators were necessary. See
id, Exh. 53 at 170, Exh. 54 at 329. Accordingly, there is an issue of fact as to whether Structure
Tone or BMS had the authority to "avoid or correct" the use of inadequate respiratory
equipment, Russin, 54 N. Y.2d at 317, and therefore owe a duty to Socha under the New York
Labor Law.
Socha has not, however, raised a triable issue of fact with respect to IET's duty.
IET has presented evidence that the scope of its work performed at 100 Church Street and 2
World Financial Center was limited to one-time inspections of the HVAC systems and postcleanup air monitoring. See Stanley Aff. iii! 4, 16-19, Exh. A-B. Further, IET has presented
evidence that it neither developed safety and remediation protocols nor supervised Socha's work.
See id
iii! 11-20.
Socha has failed to point to any contradictory evidence. Accordingly, I hold
that IET owed no duty to Socha and grant its motion for summary judgment in its entirety.
C.
Duty of Contracting Parties to Non-Contracting Third Parties
Hillmann additionally argues that its duty at One Liberty Plaza and 2 World
Financial Center was limited to the contract it executed with the owners of those buildings. See
Hillmann Br. at 36. It is true that "[a] contractual obligation, standing alone, will generally not
give rise to tort liability in favor of a third party." Espinal v. Melville Snow Contractors, 98
N.Y.2d 136, 138 (2002). To allow otherwise, would render contracting parties liable "to an
indefinite number of potential beneficiaries." HR. Moch Co. v. Rensselaer Water Co., 247 N.Y.
24
160 (1928) (Cardozo, J.) (holding that water company owed no duty to property owner who
suffered property damage from fire as a result of the company's failure to adequately perform its
contract with the city to provide water to hydrants). Thus, in general, a contracting party will not
be liable to a non-contracting third party for claims arising from the negligent performance, or
non-performance, of the contract. See Espinal, 98 N.Y.2d at 140.
However, a contracting party "may be liable in tort when it has breached a duty of
reasonable care distinct from its contractual obligations, or when it has engaged in tortious
conduct separate and apart from its failure to fulfill its contractual obligations." NY Univ. v.
Cont'/ Ins. Co., 87 N.Y.2d 308, 316 (1995). For example, a defendant may owe a duty to those
with whom it is not in privity if "the contracting party, in failing to exercise reasonable care in
the performance of [its] duties, launche[s] a force or instrument of harm." Espinal, 98 N.Y.2d at
140; see also MacPherson v. Buick, 217 N.Y. 382 (1916) (Cardozo, J.). Likewise, if, in the
course of discharging its contractual obligations, a party "creates an unreasonable risk of harm to
others, or increases that risk," the party may be liable to those foreseeably injured by its conduct.
See Sciscente v. Lill Overhead Doors, Inc., 78 A.D.3d 1300, 1301 (3d Dep't 2010); see also
Jenkins v. Related Cos., L.P., 114 A.D.3d 435 (1 51 Dep't 2014) (finding question of fact as to
whether a party hired to perform snow removal exacerbated the hazardous condition by failing to
adequately salt a path).
Initially, I note that HR. Moch Co. and its progeny stand for the general public
policy that courts will not impose a tort duty on a contracting party where doing so would expose
the party to potentially unlimited and undefined liability. See 247 N.Y. at 165 (Cardozo, J.) ("An
intention to assume an obligation of indefinite extension to every member of the public is seen to
be the more improbable when we recall the crushing burden that the obligation would impose.").
25
Here, the scope ofHillmann's duty is already defined by section 200 of the New York Labor
Law, which limits the duty of owners, general contractors, and their agents, to provide a safe
environment, not to the public at large, but to the workers employed at a worksite. See In re
Joint E. & S. Dist. Asbestos Litig., 827 F. Supp. 1014, 1052-53 (S.D.N.Y.1993); Russin, 47
N. Y.2d at 316-18. Thus, there is no risk of the boundless tort liability Judge Cardozo sought to
limit in HR. Moch Co.
Even assuming the HR. Moch Co. line of authority applies, there are factual
issues as to whether certain of the Environmental Consultant Defendants breached an
independent duty of care owed to Socha by "launch[ing] a force or instrument of harm."
Espinal, 98 N.Y.2d at 140; see also Coughtry v. Globe Woolen Co., 56 N.Y. 124, 128 (1874)
(holding that duty to provide safe scaffolding for workers at construction site was "independent
of the obligation created by a contract" to erect the scaffolding). Here, as noted above, there is
evidence that the Environmental Consultant Defendants, at a minimum, influenced the decision
to use allegedly inadequate respiratory equipment. See, e.g., Leff Deel., Exh. J at 29-30; Smith
Deel., Exh. C at 53-54; Goldstein Deel., Exh. KK at 104-05, Exh. 0
~
~
8; Kauffman Deel., Exh. 0
9; Cannata Deel., Exh. 80, Exh. 81, Exh. 86, Exh. 134, Exh. 152 at 16:18-24, Exh. 157, Exh.
158. Thus, Socha has presented evidence that Ambient, Hillmann, and Weston exacerbated the
existing hazard by influencing the choice of respiratory equipment incapable of handling that
particular hazard. Accordingly, the Environmental Consultant Defendants owed Socha a duty of
care with regard to their evaluation of the working environment and the adequacy of respiratory
equipment protecting the workers working in that environment.
D.
New York Labor Law Section 200
26
Defendants argue that Socha has failed to raise a triable issue of fact sufficient to
support a claim under section 200 of the New York Labor Law. Section 200 codifies 5 the
common law duty "to protect the health and safety of employees." In re Joint E. & S. Dist.
Asbestos Litig., 827 F. 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). The law applies to all workplaces
and does not require a worker to be engaged in "construction, excavation, or demolition." Mejia
v. Levenbaum, 30 A.D.3d 262, 263 (1st Dep't 2006).
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 plaintiffs 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.").
5
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).
27
Socha 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 (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., 83 A.D.3d at 52.
1.
The "Means and Method" Standard
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) (holding that owner and
general contractor were not liable for a subcontractor's failure to test air and properly ventilate
underground water reservoir after subcontractor's employee asphyxiated on noxious gasses).
This rule is rooted in the common law principle that parties should not be held liable for the acts
of others over whom the party had no control. See id. Some New York courts have held that
liability under the "means and methods" standard additionally requires actual or constructive
notice of the harm. See, e.g., Buckley v. Columbia Grammar & Preparatory, 44 A.D.3d 263,
272 (1st Dep't 2007) ("§ 200 applies only to owners and contractors who actually exercise
control or supervision over the work and had actual or constructive notice of the unsafe
condition.").
Unlike the question of whether a party has a duty under the New York Labor
Law-which only requires the authority to control the condition giving rise to the injury-
28
liability for a defect in the "means or method" of the work requires the actual exercise of control
over the method or manner of work giving rise to a plaintiff's injury. Ross, 81 N.Y.2d at 505.
The mere presence of a defendant at a worksite, general instructions regarding what work needs
to be done, and daily monitoring for safety violations are all insufficient to satisfy this
requirement. See Natale v. City ofNew York, 33 A.D.3d 772, 773 (2d Dep't 2006) ("General
supervisory authority at a work site for the purpose of overseeing the progress of the work and
inspecting the work product is insufficient to impose liability for common-law negligence and
under Labor Law§ 200."); see also Foley v. Consol. Edison Co. ofNY, 84 A.D.3d 476, 477 (1st
Dep't 2011). Notice alone of an unsafe working condition, without an actual exercise of
supervisory control, is insufficient to impose liability. See Ortega v. Puccia, 57 A.D.3d 54, 61
(2d Dep't 2008) ("[W]hen the manner of work is at issue, no liability will attach to the owner
solely because [he or she] may have had notice of the allegedly unsafe manner in which work
was performed.") (internal quotations omitted).
The Owner Defendants adequately show that they have not exercised supervisory
control over the work giving rise to Socha's injuries. See, e.g., Cardo Deel., Exh. Fat 52, 59.
Socha's opposition papers fail utterly 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. Defendant Owners' motions for summary judgment are granted to the extent they seek
dismissal of Socha' s claims under the Section 200 "means and methods" standard.
The Environmental Consultant Defendants present evidence that they did not
supervise or control Socha's daily work. See, e.g., Declaration of John Cookson in Supp. of
Ambient Mot. for Summ. J., Exh. Eat 54:1-6, 164:16-170:11. Rather, they argue that their role
was limited to providing oversight of the remediation work and testing the air and debris. See,
29
e.g., Calabrese Deel., Exh. G at 52-55. Socha, however, points to evidence that, at each of the
relevant buildings, the Environmental Consultant Defendants "exercised supervisory control over
the means and method of the work" in that they played a significant role in the choice of
respiratory equipment and safety procedures employed by the contractors that hired Socha to
perform the clean-up work. For example, there is evidence that Ambient would approve or
disapprove remediation procedures proposed by Structure Tone at 90 Church Street. See, e.g.,
Joyce Aff., Exh. Fat 152. Similarly, at 1 Liberty Plaza, Hillmann recommended subcontractors
that employed "asbestos-abatement methodologies." Cannata Deel., Exh. 80 at 3. Merrill Lynch
presents alleges that, at 2 World Financial Center, Weston advised it to "treat the cleanup as an
asbestos abatement." Goldstein Deel., Exh. KK at 104-05. Thus, there is a question of fact as to
whether the Environmental Consultant Defendants recommended the provision of respiratory
equipment and procedures suitable for asbestos abatement and, if so, whether that
recommendation was reasonable. Accordingly, the Environmental Consultant Defendants'
motions for summary judgment are denied with respect to Socha's claims pursuant to section 200
of the New York Labor Law.
Structure Tone presents evidence that, while it ensured compliance with safety
protocols, it did not exercise direct supervisory control over Socha's day-to-day work. See Joyce
Aff., Exh. Fat 46-47, Exh. G at 73, Exh. Hat 54, 64, 78. However, there is evidence that
Structure Tone helped to develop the safety and remediation protocol employed by
subcontractors at 90 Church Street, see Leff Deel., Exh. Kat 30-34; Cannata Deel., Exh. 177 at
10-12, and that it proposed the manner and method of Socha's work, see Joyce Aff., Exh. F at
152. Thus, Socha raises an issue of fact as to whether, and to what degree, Structure Tone
30
influenced the decision to utilize asbestos-specific equipment and practices, and whether that
decision was reasonable. Accordingly, I deny Structure Tone's motion for summary judgment.
I deny BMS 's motion for the same reason. Socha has presented evidence that
while BMS supervised his work at 2 World Financial Center, replacement filters were
unavailable and he was told respirators were not needed. See Cannata Deel., Exh. 53 at 170,
Exh. 54 at 329. BMS argues that it cannot be liable because it did not have actual or constructive
notice of the allegedly unsafe condition at 2 World Financial Center. See Reply Mem. of Law in
Supp. ofBMS Mot. for Summ. J. at 8. BMS, however, points to nothing in the record that
supports this assertion. Accordingly, there are issues of fact as to what hazards BMS knew of, or
should have known of, and whether they exercised reasonable supervision over the means and
method of Socha' s work.
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, 57 A.D.3d at 61. However, a subcontractor's or employer's failure to provide adequate
equipment does not create liability for a dangerous condition. See Persichilli, 16 N.Y.2d at 145;
Ortega, 57 A.D.3d at 62 ("[A] subcontractor's failure to provide safe appliances does not render
the 'premises' unsafe or defective."). A dangerous condition must be "visible and apparent" and
"exist for a sufficient length of time prior to the accident" for an owner to be liable for failing to
remedy such a condition. Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837
(1986). Furthermore, notice of generalized dangers, as opposed to the specific dangerous
condition giving rise to the injury, is insufficient. See Taylor v. United States, 121 F.3d 86 (2d
31
Cir. 1997) (holding that notice that a door was "malfunctioning" was insufficient because the
"infinite" number of ways a door may malfunction does not give defendant notice of the
particular defect causing the injury).
However, 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-Ji! Elec. Contractors, Inc., 473 F. Supp. 2d 485, 487 (S.D.N.Y 2007) ("A
landowner is generally charged with constructive notice of the dangerous conditions which a
reasonable inspection would have discovered because part of the landowner's duty to maintain
their property is the duty to use reasonable care to inspect and repair the property."). Thus,
constructive notice is imputed where a hazard exists for such a length of time that a defendant
would have discovered it by conducting reasonable inspections. Dufrain v. Hutchings, 112
A.D.3d 1212, 1212 (3d Dep't 2013). 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." Id; see also In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1137-38 (2d Cir.
1995) (finding sufficient evidence that general contractor had constructive notice ofrisks of
asbestos due to warning labels, state and federal regulations regarding asbestos, and general
contractor's presence at safety meetings where asbestos was discussed). Where a defendant has
actual or constructive notice of a dangerous condition, he or she must remedy the condition
within a reasonable time, see Evers.field v. Brush Hollow Realty, LLC, 91 A.D.3d 814, 816 (2d
Dep't 2012), and act reasonably when doing so, see Rizzuto v. L.A. Wenger Constr. Co., 91
N.Y.2d 343, 351 (1998) (holding that the jury could reasonably find "that someone within the
32
chain of the construction project was negligent in not exercising reasonable care ... to ...
remediate the hazard").
The Owner Defendants argue that they acted reasonably in remediating the dust
and debris that penetrated their respective buildings. In support, they point to evidence that
almost immediately after the September 11, 2001 attacks, they retained qualified environmental
specialists to test the air and debris in their buildings. See, e.g., Leff Deel., Exh. J at 29-30;
Calabrese Deel., Exh. C if 48; Smith Deel., Exh. Cat 53-54; Goldstein Deel., Exh. 0
if 9, Exh. Kat 1; Cannata Deel., Exh. 80, Exh.
if 5, Exh. F
175. Over the ensuing weeks, the Owner
Defendants allege that they continued to work with their respective environmental consultants to
monitor the air quality. 6 See, e.g., Leff Deel., Exh. Hat 123:14-124:15.
In opposition, Socha presents evidence that the Owner Defendants either retained
environmental consultants and contractors specifically to perform asbestos abatement and
monitoring, see, e.g., Cannata Deel., Exh. 80, Exh. 81, Exh. 86, Exh. 172; see also, e.g., Cardo
Deel., Exh. Fat 34; Calabrese Deel., Exh. G at 82; Goldstein Deel., Exh. R, Exh. AA, or played
some role in the decision to implement asbestos abatement procedures at the work sites, see, e.g.,
Cannata Deel., Exh. 177 at 6, 10-12; see also, e.g., Leff Deel., Exh. Kat 30-34. 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., Goldstein Deel., Exh. W, Exh. GG; Savino Deel., Exh. E.
However, on the record before me, I cannot hold as a matter of law that the Owner Defendants
6
Several Owner Defendants also point to the September 14, 2001 letter from the NYC DEP requiring the
implementation of asbestos abatement procedures to support their argument that they acted reasonably. See, e.g.,
Goldstein Deel., Ex. D. However, there is nothing in the letter that prohibits the Owner Defendants from providing
"powered air purifying respirators" or implementing other procedures that may have allegedly protected the workers
from "high-alkaline" dust. Accordingly, while the letter may be evidence of reasonableness, it does not establish
reasonableness as a matter of law.
33
played no role in the allegedly unreasonable decision to use asbestos-specific safety equipment
and procedures. 7 See, e.g., Cannata Deel., Exh. 152 at 16:18-24.
Socha also points to expert evidence that a reasonable inspection of the premises
by the Owner Defendants would have revealed the presence of "high-alkaline" dust. See
Cannata Deel., Exh. 8. Moreover, there is evidence that the Owner Defendants' focus on
asbestos, and failure to test for, or appreciate the danger posed by, elevated pH levels in the dust,
was unreasonable and lead to the provision of respiratory equipment that, while perhaps adequate
for asbestos abatement, failed to protect Socha from dust characterized by "high alkalinity,"
large particulates, and high mass concentration. 8 See id. This is a subject that will be covered by
experts each side plans to identify and discover in the next phase of the ligitation. Meanwhile,
Socha has raised a genuine issue of fact as to whether the Owner Defendants had constructive
knowledge of the presence of "high alkaline" dust and whether their remediation of that danger
was unreasonable. Accordingly, I deny the Owner Defendants' motions for summary judgment,
subject to renewal after discovery of relevant experts.
E.
New York Labor Law Section 241(6)
Section 241(6) of the New York Labor Law provides that:
7
Several Owner Defendants note that Socha does not specifically allege, with respect to his work in several
buildings, that his filters clogged or that he inhaled the "high-alkaline" dust. However, Socha does present evidence
that he wore "asbestos-specific" respiratory equipment, and that such equipment was inadequate to protect him from
the "high-alkaline" dust. Defendants have failed to controvert such evidence with evidence that he was provided
with "powered air purifying respirators" or that the equipment Socha did wear was, in fact, adequate to protect him
from the "high-alkaline" dust.
8
Several Owner Defendants rely on Kagan v. BFP One Liberty Plaza, 62 A.D.3d 531 (1st Dep't 2009), to argue that
Socha may not rely on expert testimony that environmental testing was unreasonable where the expert did not
conduct his or her own testing of the air. The case provides the Defendant Owners no support. In Kagan, the
environmental consultants hired by the owners had tested the air at 1 Liberty Plaza and found all airborne toxins to
be within acceptable levels. See id. at 532. Thus, the First Department held that the Defendant Owners discharged
their duty of care by relying upon the environmental consultants. Here, by contrast, Socha presents evidence that,
regardless of the test results, the Owner Defendants implemented abatement procedures that failed to protect the
workers from the particular hazard present in the buildings. Furthermore, at this point, while the parties are in the
midst of expert discovery, it is premature to rule on the dispositive legal effects of what experts might or might not
testify.
34
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.
N.Y. Labor Law§ 241(6) (McKinney 2014). These requirements apply to "[a]ll contractors and
owners and their agents." 9 Id. § 241. The statute is intended to protect workers "engaged in
duties connected to the inherently hazardous work of construction, excavation or demolition,"
Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 101 (2002), by imposing a non-delegable duty upon
owners, general contractors, and their agents, to comply with the New York Industrial Code, see
Rizzuto, 91 N.Y.2d at 348; Morris v. Pavarini Constr., 22 N.Y.3d 668, 671 (2014). Thus, unlike
section 200, section 241(6) imposes vicarious liability "for the negligence of a subcontractor,
even in the absence of control or supervision of the worksite" and "without regard to [the owner,
general contractor, or agent's] fault." Rizzuto, 91 N.Y.2d at 348-50. Further, a violation of an
applicable Industrial Code violation does not establish negligence; rather, it is evidence of
negligence to be considered by the jury. See Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 159
(1982). If a jury finds that the violation constituted negligence, the owner, general contractor,
and their statutory agents, are vicariously liable. See Rizzuto, 91 N.Y.2d at 348-50.
Accordingly, 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. These requirements are addressed in tum.
1.
"Construction, Excavation or Demolition"
9
As noted above, Socha has raised issues of fact as to whether the Environmental Consultants and BMS are
statutory "agents" under the Labor Law.
35
Section 241 (6) is limited to "industrial accidents specifically in connection with
construction, demolition or excavation work." Nagel, 99 N.Y.2d at 102. The Courts look to the
regulations implementing section 241 (6) to determine what constitutes "construction, excavation
or demolition." Jablon v. Solow, 91N.Y.2d457, 466 (1998). The New York Industrial Code
defines "construction work" as:
All work of the types performed in the construction, erection, alteration,
repair, maintenance, painting or moving of buildings or other structures
.. . by way of illustration but not by way of limitation, the work of
hoisting, land clearing, earth moving, grading, excavating, trenching,
pipe and conduit laying, road and bridge construction, concreting,
cleaning of the exterior surfaces including windows of any building or
other structure under construction, equipment installation and the
structural installation of wood, metal, glass, plastic, masomy and other
building materials in any form or for any purpose.
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.4(b)(13) (2014) (emphasis added). Socha argues
that the work he performed constituted "altering" and "cleaning." See Pls.' Master Opp'n Br. at
42-68. The New York Court of Appeals has held that work will constitute "altering" within the
definition of "construction work" so long as it constitutes a "significant physical change to the
configuration or composition of the building." Jablon v. Solow, 91N.Y.2d457, 461 (1998).
Similarly, "cleaning" may fall within the ambit of section 241(6) ifthe task is non-routine and
connected to construction, excavation or demolition. See, e.g., Rivera v. Ambassador Fuel & Oil
Burner Corp., 45 A.D.3d 275, 276 (1st Dep't 2007) ("The work performed by plaintiffs involved
more than a simple cleaning of a fuel tank, and was part of a more comprehensive, overall
contract for the installation of a new boiler. Based on these facts, it cannot be said, as a matter of
law, that the cleaning of the tank was not related to construction.").
The New York Court of Appeals' decision in Jablon v. Solow is instructive. 91
N.Y.2d 457 (1998). In that case, the plaintiff was instructed to install an electronic wall clock in
36
a room lacking a power source. See id at 461. To do so, the plaintiff chiseled a hole through a
wall leading to an adjacent room, from which to run wiring from a power source. See id at 46162. While doing so, the plaintiff fell from a ladder and was injured. See id at 462. The Court
held that, while a close question, the plaintiffs work constituted a "significant physical change to
the configuration and composition of the building." Jablon, 91 N.Y.2d at 465. Accordingly, the
Court held that the plaintiffs claims were covered by sections 240(1) and 241(6) of the New
York Labor Law. See id at 466.
By contrast, routine maintenance work is not covered by the statute. See, e.g.,
Nagel, 99 N.Y.2d 98 (holding that routine safety inspection of elevator brakes did not fall within
the scope of section 241(6)); Me/ski v. Fitzpatrick & Weller, Inc., 107 A.D.3d 1447, 1448 (4th
Dep't 2013) (holding that "replacing components that required replacement in the course of
normal wear and tear" was not covered as "construction, excavation or demolition"). Likewise,
cosmetic maintenance and decorative modifications fall outside the statute's scope. See, e.g.,
Amendola v. Rheedlen 1251h St., LLC, 105 A.D.3d 426, 427 (1st Dep't 2013) (holding that the
installation of window shades, entailing the securing of brackets with screws, did not constitute a
"significant physical change"); see also Munoz v. DJZ Realty, LLC, 5 N.Y.3d 747 (2005)
(holding that plaintiffs work changing face of billboard was decorative rather than structural and
therefore fell outside scope of section 240( 1)).
Notably, 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 McNeil v. La Salle
Partners, 52 A.D.3d 407, 409 (1st Dep't 2008) ("Plaintiffs inspection of asbestos abatement
work during the construction phase of the Grand Central Terminal renovation project was
37
essential and integral to the progress of the construction, since the abatement work could not
continue unless he gave his approval."); see also Prats v. Port Authority ofNY & NJ, 100
N.Y.2d 878, 882 (2003) ("The intent of the statute was to protect workers employed in the
enumerated acts, even while performing duties ancillary to those acts."). However, if the work is
unrelated or insufficiently connected to any "construction, excavation or demolition," it is not
covered under section 241(6). See English v. City ofNew York, 43 A.D.3d 811, 812-13 (2d
Dep't 2007) (affirming grant of summary judgment on the ground that plaintiffs replacement of
a missing component was unrelated to ongoing renovation work performed by subcontractor that
did not employ plaintiff); see also Martinez v. City o/New York, 93 N.Y.2d 322, 326 (1999)
(holding that asbestos inspector's work was "investigatory" in nature and not related to the later
phase of construction and, therefore, not within the ambit of section 240( 1)).
With respect to 110-120 Church Street, 90 Church Street, and 2 World Financial
Center, there is a triable issue of fact as to whether Socha's work was connected to "construction,
excavation or demolition." 110-120 Church Street sustained substantial structural damage after
the engine of Flight 175 struck the 161h floor, tearing a large whole in the exterior of the building.
See Cardo Deel., Exh. Fat 27-29. Similarly, 7 World Trade Center collapsed into the base of 90
Church Street, causing significant structural damage. See Leff Deel., Exh. J at 29-30. 2 World
Financial Center suffered hundreds of broken windows, demolished walls, and the destruction of
the "Winter Garden." See Goldstein Deel., Exh. DD; Cannata Deel., Exh. 139.
In each of these buildings, Socha was hired to perform the initial clean-up in a
larger effort to remediate and rehabilitate the buildings for occupancy. The extent of damage
alone is evidence that the work to which Socha's cleanup work was connected constituted
alterations at least as significant as that in Jablon. Further, in each of these three buildings,
38
Pinnacle workers "demolished walls," removed drop ceilings, boarded up broken windows, and
constructed structures to assist in the removal of debris. See Cannata Deel., Exh. 35 at 31, Exh.
59 at 557, Exh. 66 at 302-03; Joyce Aff., Exh. Fat 36. At 90 Church Street, Socha himself
"demolished rooms," Cannata Deel., Exh. 55 at 495-96, and, at 2 World Financial Center, he
removed wall studs, see Cannata Deel., Exh. 53 at 227, 239, Exh. 54 at 352-53.
Defendants principally rely upon Kagan v. BFP One Liberty Plaza, 60 A.D.3d
531 (1st Dep't 2009), to argue that clean-up work after the 9/11 attacks cannot, as a matter of
law, be considered "construction, excavation or demolition." The plaintiff in Kagan, however,
was hired to perform "fine cleaning" and only began the work after the large-scale "bulk" and
"environmental cleaning" was complete. See Cannata Deel., Exh. 188 at 8. Furthermore,
Defendants point to no evidence that the building at issue in Kagan, 1 Liberty Plaza, sustained
the degree of structural damage sustained by 110-120 Church Street, 90 Church Street, or 2
World Financial Center. Defendants point to no evidence that these three buildings did not
require "construction," and there is insufficient evidence to determine, as a matter of law,
whether Socha's work was "essential and integral" to any "construction" performed. McNeil, 52
A.D.3d at 409. Accordingly, I deny Defendants' motions for summary judgment under section
241 (6) of the Labor Law with respect to these three buildings.
With respect to the remaining six buildings still at issue, however, Socha has
failed to raise a triable issue of fact as to whether his work was connected to "construction,
excavation, or demolition." None of these buildings sustained structural damage and, in most,
the extent of the damage was limited to an infiltration of World Trade Center dust. See Cannata
Deel., Exh. 19H, Exh. 18A, Exh. 20A, Exh. 41at62, Exh. 23B, Exh. 19G, Exh. 53 at 206-07,
Exh. 54 at 51, 79, 290, 326; Goldstein Deel., Exh. LL at 102-03, Exh. R, Exh. MM at 187:19-
39
188:2; Harlbardier Deel., Exh. D at 6. The work performed to remediate these buildings
consisted exclusively of cleaning the dust and removing contaminated debris, tiles and sheetrock.
See Cannata Deel., Exh. 53 at 222; Exh. 17B, Exh. 18D, Exh. ISA, Exh. 19, Exh. 20A, Exh.
23B, Exh. 59 at 525, Exh. 53 at 217-18, 248, Exh. 49 at 132, Exh. 34 at 6, 44, 156; Goldstein
Deel., Exh. Cat 267, Exh. II at 261 :2-5, 228:11-20; Harlbardier Deel., Exh. G at 246:5-6; Savino
Deel., Exh. G at 309:21-310:1, 292:13-17, 300:1-7. Such work does not constitute a "significant
physical change to the configuration or composition" of the building. See Jablon, 91 N.Y.2d at
465; Kagan, 62 A.D.3d 531. Furthermore, the work performed at these buildings does not
present the degree of inherent risk against which the New York legislature sought to protect
workers by imposing vicarious liability on owners, general contractors, and their agents. See
Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 100-02 (2002) (discussing legislative history of
section 241(6)).
In opposition, Socha points to several cases interpreting the word "cleaning" in
the context of a similar statute, section 240(1) 10 of the Labor Law, which have held that nonroutine commercial cleaning may fall within the ambit of that statute. See, e.g., Collymore v.
1895 WWA, LLC, 113 A.D.3d 720, 720-21 (2d Dep't 2014) (denying summary judgment where
plaintiff was hired to decontaminate HVAC ducts). However, there is a critical difference
between the way in which the term "cleaning" is used in section 240(1) and the way it is used in
section 241(6). Section 240(1) applies to all work involving "the erection, demolition, repairing,
altering, painting, cleaning or pointing of a building or structure." N. Y. Labor Law § 240( 1)
(McKinney 2014) (emphasis added). By contrast, section 241(6) applies to "[a]ll areas in which
10
Labor Law§ 240(1) imposes a non-delegable duty upon owners, contractors, and their agents, to provide
reasonably safe devices necessary for workers subjected to elevation-related risks. See Soto v. J. Crew Inc., 21
N.Y.3d 562, 566 (2013). To recover, a plaintiff must have been engaged in a covered activity-"the erection,
demolition, repairing, altering, painting, cleaning or pointing ofa building or structure." N.Y. Labor Law§ 240(1)
(McKinney 2014).
40
construction, excavation or demolition work is being performed." Id § 241(6) (emphasis
added). The term "cleaning" as it relates to section 241 (6) is only found in the definition of
"construction work" in the Industrial Code, which includes "cleaning of the exterior surfaces
including windows of any building or other structure under construction." N.Y. Comp. Codes R.
& Regs., tit. 12, § 23-1.4(b)(13) (2014) (emphasis added). Thus, under section 241(6),
"cleaning" must be related to "construction," id.; see also Nagel, 99 N.Y.2d at 103, whereas the
statutory language of section 240( 1) has no such requirement. See N. Y. Labor Law § 240( 1)
(McKinney 2014). This is logical because section 240(1) has an additional requirement that the
work involve "elevation-related risks," id., and, thus, both statutes require the work to be
inherently hazardous for vicariously liability to attach. Accordingly, Socha's work at the abovelisted six buildings does not constitute "cleaning" under section 241(6) because, as held above, it
was not related to "construction." Accordingly, I grant Defendants' motions for summary
judgment under section 241(6) of the Labor Law with respect to 1 Liberty Plaza, 1 World
Financial Center, 4 World Financial Center, 222 Broadway, 61 Broadway, and 70 Pine Street.
2.
Violation of Applicable Industrial Code Provision
Liability under section 241 (6) also requires proof of 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, 62
A.D.3d at 532. 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
41
Ross v. Curtis-Palmer Hydro-Elec. Co., 81N.Y.2d494, 505 (1993). The provision must add a
"specific, positive command" beyond the duty of reasonableness imposed by the common law.
Ross, 81 N.Y.2d at 504.
In deciding whether a Part 23 provision is applicable, "[t]he Industrial Code
should be sensibly interpreted and applied to effectuate its purpose of protecting construction
laborers against hazards in the workplace." St. Louis v. Town ofN Elba, 16 N.Y.3d 411, 416
(2011 ). Furthermore, the question of whether a particular Industrial Code provision is a proper
basis for section 241(6) liability is a question oflaw. See Messina v. City ofNew York, 300
A.D.2d 121, 121 (1st Dep't 2002). Plaintiffs argue that their injuries were caused by violations
of several applicable provisions of Part 23 of the Industrial Code. I address each in turn.
(a)
Rule 23-1.5(c)(3)
Socha first alleges that a violation of Rule 23-l.5(c)(3) of the New York Industrial
Code caused his injuries. See Pls.' Master Opp'n Br. at 78-83. 11 That Rule provides that" [a]ll
safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be
immediately repaired or restored or immediately removed from the job site
if damaged." See
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-l.5(c)(3) (2014) (emphasis added). Socha argues
that the contractors hired by the Owner Defendants failed to "repair, replace or remove" clogged
filters and respirators. Pls.' Master Opp'n Br. at 79.
In determining whether Rule 23-1.5(c)(3) is a sufficiently "concrete, positive"
command, the New York Court of Appeals' decision in Misicki v. Caraddona, 12 N.Y.3d 511, is
11
While Socha failed to allege a violation of this specific Industrial Code provision in the Master Complaint, his
inclusion of the allegation in opposition to Defendants' summary judgment motions did not raise any new factual
allegations or new theories of liability and, therefore, does not prejudice the Defendants. See Klimowicz v. Powell
Cove Assocs., LLC, l l l A.D.3d 605, 606-07 (2d Dep't 2013).
42
instructive. In that case, the plaintiff's injury was allegedly caused by a violation of Rule 239.2(a), which provides, in relevant part:
All power-operated equipment shall be maintained in good repair and in
proper operating condition at all times. Sufficient inspections of adequate
frequency shall be made of such equipment to insure such maintenance.
Upon discovery, any structural defect or unsafe condition in such
equipment shall be corrected by necessary repairs or replacement.
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-9.2(a) (2014) (emphasis added). The Court held that
the first two sentences were "not specific enough to permit recovery under section 241(6)"
because they employed "general phrases" such as "good repair," "proper operating condition,"
"sufficient inspections," and "adequate frequency." Misicki, 12 N.Y.3d at 520. The third
sentence, by contrast, "mandates a distinct standard of conduct, rather than a general reiteration
of common-law principles, and is precisely the type of 'concrete specification"' sufficient to
support a section 241 (6) claim. Id. at 521.
Similarly, Rule 23-1.5(c), which requires that equipment be "immediately
repaired or restored" and "immediately removed from the job site if damaged," is a sufficiently
"concrete, positive" command to support Socha's section 241(6) claim. See Pina v. Dora
Homes, Inc., No. 09-cv-1626, 2013 WL 359386, at *6 (E.D.N.Y. Jan. 29, 2013) (holding that
under Misicki a violation of Rule 23-1.5(c)(3) may support a section 241(6) claim). Socha
presents evidence that inappropriate respirators and filters were used at the worksites and that his
employers failed to repair or replace them with appropriate equipment. See, e.g., Cannata Deel.,
Exh. 53 at 43, 170, 256-59, Exh. 54 at 329, 342. Because Defendants have failed to carry their
burden that no issue of fact exists with respect to the alleged violation of Rule 23-1.5(c)(3), I
deny their summary judgment motions.
(b)
Rules 23-l.7(h) and 23-1.8(c)(4)
43
Socha also predicates his section 241(6) claims on violations of Rule 23-1.7(h)
and Rule 23-1.8(c)(4). See Pls.' Master Opp'n Br. at 95-99. These provisions, which require
that employers provide proper protective equipment to employees required to handle "corrosive
substances," N.Y. Comp. Codes R. & Regs. tit. 12, §§ 23-1.7(h), 23-l.8(c)(4) (2014), have
likewise been held sufficiently specific to support a section 241 (6) claim. See Creamer v.
Amsterdam High Sch., 277 A.D.2d 647, 650 (3d Dep't 2000) (finding sufficient evidence to
support jury's determination that defendant violated Rule 23-l.8(c)(4) resulting in vicarious
liability under section 241(6)). Defendants argue that the provision is too general to support a
section 241 (6) claim and that the provision is inapplicable because Socha did not handle
"corrosive substances" as that term is intended in the regulations. See Def.'s Owners Section
241(6) Master Br. at 13-14. However, Defendants cite no case law in support of the former
position and no facts in support of the latter. See id. In contrast, while the Industrial Code does
not define "corrosive substance," see N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.4 (2014),
Socha has presented expert evidence that the "alkaline-based" dust could be considered a
"corrosive substance." See Exh. 8 at 7. This too is a subject that will be covered by experts each
side plans to identify and discover in the next phase of the ligitation. See Morris v. Pavarini
Constr., 9 N.Y.3d 47, 51 (2007) ("[T]he meaning of specialized terms in such a regulation is a
question on which a court must sometimes hear evidence before making its determination.").
Meanwhile, Defendants have failed to satisfy their burden that, as a matter of law, Socha cannot
predicate his section 241(6) claims upon a violation of Rules 23-l.7(h) and 23-l.8(c)(4).
(c)
Rule 23-1.S(b)(l)
Next, Socha argues that the contractors violated Rule 23-l.8(b)(I), which
provides:
44
Where this Part (rule) requires a respirator to be provided, the employer
shall furnish and the employee shall use an approved respirator. Such
respirator shall be approved for the type of operation for which it is to be
used and for the particular air contaminant present. The employer shall
maintain such respirator in good repair and shall furnish the means for its
continued proper working condition. The employer shall provide daily
inspection and cleaning and weekly disinfecting of such respirators.
Respirators shall be disinfected before being transferred from one person
to another. When not in use, respirators shall be stored in closed
containers.
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-l.8(b)(l) (2014). Socha argues that the contractors
hired by the Owner Defendants violated this regulation by (1) not providing respirators designed
for "the particular air contaminant present," (2) not providing the "means for [the respirators']
continued proper working condition" once the respirator filters became clogged, and (3) failing
to daily, or at appropriate intervals, inspect and clean the respirators. See Pls.' Master Opp'n Br.
at 100. Defendants argue that Rule 23-l.8(b)(l) consists of"general guidelines" insufficient to
support a section 241(6) claim. See Def.'s Owners Section 241(6) Master Br. at 13. However,
New York courts have held Rule 23-l.8(b)(l) sufficiently specific and upheld section 241(6)
claims predicated upon its violation. See Kebbeh v. City ofNew York, 113 A.D.3d 512, 513 (1st
Dep't 2014) ("The motion court also correctly denied defendants' motion for summary judgment
dismissing plaintiffs Labor Law§ 241(6) claim alleging violations of 12 NYCRR 23-1.8
(b). "). 12 Furthermore, Socha has presented evidence that inappropriate respiratory equipment
was used at the worksites. See, e.g., Cannata Deel., Exh. 53 at 43, 170, 256-59, Exh. 54 at 329,
342. Accordingly, Defendants have failed to show that, as a matter of law, Socha cannot base
his section 241(6) claim upon a violation of Rule 23-l.8(b).
12
Defendants reliance on Mouta v. Essex Mkt. Dev. LLC, 106 A.D.3d 549 (1st Dep't 2013) for the proposition that
Rule 23-l.8(b)(l) is too general to support a section 241(6) claim is misplaced. In that case, the First Department
held that "[t]o the extent the Labor Law§ 241(6) claim is predicated on Industrial Code (12 NYCRR) § ... 23-1.8 ..
., it must be dismissed as against all defendants because these provisions either are too general to support a section
241(6) claim or are simply inapplicable to the facts of this case." Id. at 550. Since its decision in Mouta, the First
Department has held that Rule 23-1.8(b)(l) is sufficiently specific to support a section 241(6) claim. See Kebbeh,
113 A.D.3d at 513.
45
(d)
Rule 23-2.l(b)
Socha also predicates section 241(6) liability upon a violation of Rule 23-2.l(b),
which provides that "[d]ebris shall be handled and disposed of by methods that will not endanger
any person employed in the area of such disposal or any person lawfully frequenting such area."
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-2.l(b) (2014). However, this provision adds nothing
specific to the common law duty of reasonable care and, therefore, fails to satisfy the
requirements provided by the New York Court of Appeals in Misicki. Several New York Courts
have specifically held that the provision cannot support a section 241(6) claim. See, e.g., Long v.
Long Island R.R., 116 A.D.3d 676, 677 (2d Dep't 2014); Gonzelez v. Glenwood Mason Supply
Co., 41A.D.3d338, 339 (1st Dep't 2011). Accordingly, as a matter oflaw, Socha may not
predicate his section 241 (6) claims upon a violation of Rule 23-2.1 (b) and I grant Defendants'
motions in this respect.
(e)
Rule 23-1.7(g)
Finally, Socha alleges that his injuries were caused by a violation of Rule 231.7(g). That regulation provides:
The atmosphere of any unventilated confined area including but not
limited to a sewer, pit, tank or chimney where dangerous air
contaminants may be present or where there may not be sufficient
oxygen to support life shall be tested by the employer, his authorized
agent or by a designated person before any person is suffered or
permitted to work in such area. Such testing shall be in accordance with
the provisions of Industrial Code Part (rule) 12 relating to the "Control of
Air Contaminants" and such areas shall be subject to the other pertinent
provisions of Industrial Code Part (rule) 12 and of Industrial Code Part
(rule) 18 relating to "Exhaust Systems."
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7(g) (2014). Defendants do not argue that the
provision is insufficiently specific to support a section 241(6) claim. Rather, they contend that
46
Socha has failed to present evidence that he performed any work in an "unventilated confined
area." See Defs.' Owners Section 241(6) Master Br. at 15-18.
While Part 23 of the Industrial Code does not define "unventilated confined area,"
Part 12 defines "unventilated confined space" as:
A tank, vault or similar enclosed structure or space with restricted means
of egress, such as a manhole or trap door, which is so enclosed and of
such volume that natural ventilation through openings provided will not
prevent the accumulation of dangerous air contaminants nor supply
sufficient oxygen to protect the life, health and safety of any person
occupying such structure or space.
N.Y. Comp. Codes R. & Regs. tit. 12, § 12-l.3(f) (2014). Applying this definition, the court in
Kaczmarek v. Bethlehem Steel Corp. held that a room with two large doors and ventilating fans
did not constitute an "unventilated confined space" so as to support a section 241(6) claim. 884
F. Supp. 768, 779-80 (W.D.N.Y. 1995). Similarly, in Kagan, the First Department held that
workers cleaning offices after the 9/11 attacks were not working in an "unventilated confined
space." 62 A.D.3d at 532. By contrast, New York courts have considered an empty aeration
tank with a small opening near the top to be an "unventilated confined space." See Ceverizzo v.
City ofNew York, 116 A.D.3d 469, 470-71 (1st Dep't 2014).
With respect to 90 Church Street, Socha has failed to point to any evidence
whatsoever that he performed work in a "confined, unventilated area" as New York courts have
interpreted that term. With respect to 2 World Financial Center and 110-120 Church Street, he
alleges that he worked inside small rooms, and basements, and cleaned inside HV AC ducts. See
Cannata Deel., Exh. 53 at 207, 237, 239-41, Exh. 54 at 290-92, 352-53, 356-67. However, he
points to no facts that such areas were "enclosed" or that he had "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)
47
(McKinney 2014); Ceverizzo, 116 A.D.3d at 470-71; Kagan, 62 A.D.3d at 532. Accordingly, I
hold that Socha cannot predicate his section 241(6) claim on a violation of Part 23-l.7(g) and
grant Defendants' motions in this respect.
IV.
Conclusion
In summary, the motion filed by environmental consultant Indoor Environmental
Technologies, Inc. is GRANTED in its entirety with respect Socha's claims under both section
200 and section 241(6) of the New York Labor Law, arising from his work at 100 Church Street
and 2 World Financial Center.
The motion filed by Owner Defendants Boston Properties, Inc. and 90 Church
Street, L.P. are DENIED with respect Socha's section 200 claim and section 241(6) claim
alleging violations oflndustrial Code Rules 23-l.5(c)(3), 23-l.7(h), 23-l.8(c)(4), and 231.S(b)(1 ), arising from his work at 90 Church Street. The motion is GRANTED with respect to
Socha's section 241(6) claim alleging violations oflndustrial Code Rules 23-2.l(b) and 23l.7(g).
The motion filed by Owner Defendants 110 Church, LLC and Lionshead 110
Development LLC is DENIED with respect to Socha's section 200 claim and section 241(6)
claim alleging violations oflndustrial Code Rules 23-l.5(c)(3), 23-l.7(h), 23-l.8(c)(4), and 231.S(b)(l), arising from his work at 110-120 Church Street. The motion is GRANTED with
respect to Socha's section 241(6) claim alleging violations oflndustrial Code Rules 23-2.l(b)
and 23-1.7(g).
The motion filed by Owner Defendants Battery Park City Authority, Merrill
Lynch & Co., Inc., and 222 Broadway LLC is DENIED with respect to Socha's section 200
claim, arising from Socha's work at 2 World Financial Center, 4 World Financial Center, and
48
222 Broadway. The motion is DENIED with respect to Socha's section 241(6) claim arising
from his work at 2 World Financial Center, alleging violations oflndustrial Code Rules 231.5(c)(3), 23-1.7(h), 23-l.8(c)(4), and 23-l.8(b)(l), and GRANTED with respect to alleged
violations oflndustrial Code Rules 23-2.l(b) and 23-l.7(g). The motion is GRANTED with
respect to Socha's section 241(6) claim, arising from his work at 4 World Financial Center and
222 Broadway.
The motion filed by Owner Defendants Crown 61 Associates, LP, Crown 61
Corp., Crown Broadway LLC, and Crown Properties, Inc., is DENIED with respect to Socha's
section 200 claim and GRANTED with respect Socha's section 241(6) claim, arising from his
work at 61 Broadway.
The motion filed by Owner Defendants American International Realty Corp. and
American International Realty Group is DENIED with respect to Socha's section 200 claim and
GRANTED with respect Socha's section 241(6) claim, arising from his work at 70 Pine Street.
The motion filed by Owner Defendants Brookfield Financial Properties Inc.,
Brookfield Financial Properties, L.P., Brookfield Properties OLP Co. LLC, and Brookfield
Properties One WFC G.P. Corp. is DENIED with respect to Socha's section 200 claim, and
GRANTED with respect Socha's section 241(6) claim, arising from his work at 1 World
Financial Center and 1 Liberty Plaza.
The motion filed by Environmental Consultant Defendant Ambient Group, Inc. is
DENIED with respect to Socha's section 200 claim, DENIED with respect to Socha's section
241(6) claim alleging violations oflndustrial Code Rules 23-1.5(c)(3), 23-1.7(h), 23-1.8(c)(4),
and 23-1.8(b)(l), and GRANTED with respect to alleged violations oflndustrial Code Rules 232.l(b) and 23-1.7(g), arising from his work at 90 Church Street.
49
The motion filed by Environmental Consultant Defendant Hillmann
Environmental Group, Inc. is DENIED with respect to Socha's section 200 claim arising from
his work at 1 Liberty Plaza, 1 World Financial Center, and 2 World Financial Center. The
motion is GRANTED with respect to Socha' s section 241 (6) claim arising from his work at 1
Liberty Plaza and 1 World Financial Center. The motion is DENIED with respect to Socha's
section 241(6) claim alleging violations oflndustrial Code Rules 23-l.5(c)(3), 23-l.7(h), 23l.8(c)(4), and 23-l.8(b)(l), and GRANTED with respect to alleged violations oflndustrial Code
Rules 23-2.l(b) and 23-l.7(g), arising from his work at 2 World Financial Center.
The motion filed by Environmental Consultant Defendant Weston Solutions, Inc.
is DENIED with respect to Socha's section 200 claim arising from his work at 222 Broadway, 2
World Financial Center, and 4 World Financial Center. The motion is GRANTED with respect
to Socha's section 241(6) claim arising from his work at 222 Broadway and 4 World Financial
Center. The motion is DENIED with respect to Socha's section 241(6) claim 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), and GRANTED
with respect to alleged violations oflndustrial Code Rules 23-2.l(b) and 23-l.7(g), arising from
his work at 2 World Financial Center.
The motion filed by Structure Tone, Inc. is DENIED with respect to Socha's
Section 200 claim arising from his work at 90 Church Street. The motion is DENIED with
respect to Socha's section 241(6) claim 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), and GRANTED with respect to alleged violations of
Industrial Code Rules 23-2.l(b) and 23-l.7(g).
The motion filed by Blackmon-Mooring Steamatic Catastrophe, Inc. is DENIED
with respect to Socha's Section 200 claim arising from his work at 2 World Financial Center.
50
The motion is DENIED with respect to Socha's section 241(6) claim alleging violations of
Industrial Code Rules 23-l.5(c)(3), 23-1.7(h), 23-l.8(c)(4), and 23-1.8(b)(l), and GRANTED
with respect to alleged violations oflndustrial Code Rules 23-2.l(b) and 23-l.7(g).
The Clerk shall mark the following motions in No. 09-cv-00680 as terminated:
Doc. No. 73, Doc. No. 80, Doc. No. 84, Doc. No. 90, Doc. No. 94, Doc. No. 98, Doc. No. 106,
Doc. No. 109, Doc. No. 115, Doc.
No. 120, Doc. No. 133, and Doc. No. 143.
SO ORDERED.
Dated:
New York, New York
September 9, 2014
AL VIN K. HELLERSTEIN
United States District Judge
51