Oehl v City of New York

[*1] Oehl v City of New York 2005 NY Slip Op 50546(U) Decided on February 16, 2005 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2005
Supreme Court, New York County

CHRISTOPHER OEHL and KIMBERLY OEHL, Plaintiffs,

against

THE CITY OF NEW YORK, THE NEW YORK CITY BOARD OF EDUCATION, EASCO BOILER CORP., A.L. EASTMOND & SONS, INC., B.G. NATIONAL PLUMBING & HEATING, INC. and B.G. NATIONAL MECHANICAL CONTRACTING, INC., Defendants.



100102/02



For Plaintiff Oehl

Westermann, Hamilton, Sheehy, Esqs.

Garden City, New York 11530

For Defendants City of New York

Cozen & O'Connor, Esqs.

New York, New York 10006

For Defendants Easco Boiler Corp. A.L. Eastmond & Sons, Inc.,

B.G. National Plumbing & Heating, Inc. and B.G. National

Mechanical Contracting, Inc.,

Jacobowitz, Garfinkel & Lesman, Esqs.

New York, New York 10038

Michael D. Stallman, J.

Defendants The City of New York, The New York City Board of Education (together, the City), and B.G. National Plumbing & Heating, Inc. (BG) (collectively, the City defendants) move, pursuant to CPLR 2221, to reargue this Court's September 9, 2004 Order. Defendants Easco Boiler Corp. (Easco) and A.L. Eastmond & Sons, Inc. (AL) (together, Easco and AL) cross-move for the same relief.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion ..." (CPLR 2221 [d] [2]). Defendants allege that the Court erred in finding that defendants' prior motion and cross motion for summary judgment were untimely because defendants had neither sought to extend the statutory 120-day post-note of issue period for filing dispositive motions, nor had they shown good cause for such delay in making their motions (September 9, 2004 Order).

The motion and cross motion for leave to reargue are granted. The prior motion and cross motion for summary judgment were timely (see February 3, 2004 Order). Therefore, the Court will consider these motions on the merits.

THE PRIOR MOTIONS

Easco and AL move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against them.

The City defendants cross-move, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Christopher Oehl's (plaintiff) Labor Law claims.

BACKGROUND

Plaintiff worked as a custodian at the High School for Humanities located at 351 West 18th Street, New York, New York. The City defendants were engaged in converting the coal-burning [*2]heating system there to one powered by oil/gas. Plaintiff alleges that the City is the owner of the school. BG is a plumbing and mechanical firm that did boiler reconstruction work for the New York City School Construction Authority, and was installing the new boiler within the school. AL is a boiler manufacturer. Easco manufactures both temporary and permanent boiler systems, and installed a temporary boiler on the 19th Street sidewalk next to the school, to be used to provide heat to the building while the heating system conversion was taking place. Easco installed the boiler on a trailer. Access to the control room for the boiler was through a door approximately eight feet from the ground. To reach the control room, BG employees (during the day) and the school's custodial staff (at night) used an eight-foot, A-frame wooden ladder, which was placed on a laminate board. Part of plaintiff's duties on the night of January 24, 2001 was to turn the boiler on and off. He was injured when he slipped while descending the ladder after he had adjusted the boiler.

PLEADINGS

The complaint alleges six causes of action, the first four for violations of Labor Law §§ 200, 240, 241 (6), and common-law negligence; the fifth, asserted against Easco and AL alone, for strict products liability (manufacture of the boiler without a safe means of ingress and egress to its control room); and the sixth, for loss of consortium.

Easco and AL's answer asserts three cross claims against the City defendants, for contribution or common-law indemnification, contractual indemnification, and breach of contract by failure to procure insurance.

BG's answer alleges two cross claims against the City and Easco and AL, for common-law indemnification and contribution.

DISCUSSION

Section 200 (1) of the Labor Law provides, in relevant part: All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.

"Labor Law § 200 codifies 'the common-law duty imposed upon an owner or general contractor to maintain a safe construction site' [citations omitted]" (Carney v Allied Craftsman General Contractors, 9 AD3d 823, 824 [3d Dept 2004]).

Plaintiff has failed to state a cause of action under this statute. As plaintiff has testified, his duties prior to the conversion of the school's heating system included tending the boiler on the inside of the building. Once that boiler was turned off for the conversion, the sole source of heating for the school was the temporary boiler located in a fenced-in area on the sidewalk adjacent to the school. No evidence has been proffered that indicates that any construction, renovation, or similar work was being performed either in the area surrounding the temporary boiler, or to the boiler itself.

Neither was plaintiff engaged in any activity which could possibly come within the scope of this statute. He was a custodian at the school. His sole duties with respect to the temporary boiler [*3]were to do what was necessary to turn it on or off. The fact that he may have had to strike the boiler with a hammer, or other heavy object, at times to unstick a frozen float within the boiler, does not bring the area within the realm of a construction site, or his work within the realm of construction.

With respect to his negligence claim, plaintiff alleges that defendants directed and controlled the installation, maintenance, and operation of the temporary boiler, and that they were negligent in, among other things, failing to provide stairs that would allow plaintiff to safely access and exit from the temporary boiler's control room.

"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty, a breach of that duty, and that the breach of such duty was the proximate cause of his or her injuries. However, absent a duty of care, there is no breach and no liability" (Marasco v C.D.R. Electronics Security & Surveillance Systems Company, 1 AD3d 578, 580 [2d Dept 2003] [internal citation omitted]). "[A]n owner of real property has a duty to maintain the property in a reasonably safe condition" (Simmons v Elmcrest Homeowners' Association, 11 AD3d 447, 448 [2d Dept 2004]).

No cause of action in negligence has been stated against the City defendants. Although they were responsible for the maintenance of the sidewalk on which the trailer was situated, plaintiff has not alleged that the snow on the sidewalk caused his accident. There is no evidence that the City defendants had any knowledge of, or responsibility for, how the trailer and temporary boiler were set up. Therefore, the negligence claim is dismissed as against the City defendants.

However, there are questions of fact with respect to BG, Easco, and AL's ownership, direction, and control of the trailer and temporary boiler, and the way that the trailer and temporary boiler were set up and maintained. Therefore, summary judgment dismissing the negligence cause of action as against BG, Easco, and AL is denied.

"Labor Law § 240 (1) provides special protection to those engaged in the 'erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" (Prats v Port Authority of New York and New Jersey, 100 NY2d 878, 880 [2003]). As discussed above, plaintiff was not engaged in any of these enumerated activities. His contention that his turning the boiler on and off was work "necessary and integral" to the conversion process is unavailing. The Court of Appeals expressly rejected this argument in Martinez v City of New York (93 NY2d 322, 326 [1999]), wherein it found that an analysis which focuses on whether plaintiff's work was an "integral and necessary part" of a larger project "improperly enlarges the reach of [Labor Law § 240 (1)] beyond its clear terms."

Labor Law § 241 (6), by its express terms, applies only to "areas in which construction, excavation or demolition work is being performed," and, as such, is inapplicable to this matter.

A claim for loss of consortium is derivative of plaintiff's claims (see e.g. Pavon v Rudin, 254 AD2d 143, 144 n 1 [1st Dept 1998]). Plaintiff's claims against the City have been dismissed. Therefore, his wife's claim, as against the City, must also be dismissed.

Because plaintiffs' claims asserted as against the City have been dismissed, the City's cross motion for summary judgment dismissing the complaint as against it is granted.

In his fifth cause of action, plaintiff alleges that Easco and AL are liable under the theory of strict products liability because "the temporary boiler was defective in that the manufacturer failed to provide a safe means of ingress or egress to the control room of said temporary boiler" (Complaint, ¶ 86). Plaintiff also alleges that he "would not by the use of reasonable care have perceived the danger" (id., ¶ 87). [*4]

Plaintiff has not alleged that the control room was part of the boiler. There is no evidence, or even an allegation, that the "control room" was, or was not, anything more than a protective box around the boiler itself. Thus, a claim has not been stated with respect to whether the boiler was designed or manufactured in a defective manner.

Plaintiff has testified that there was snow on the ground in the area surrounding the trailer on which the boiler rested; that the only means of access to the boiler was by means of an eight-foot, A-frame ladder which was resting on a laminate board which had ice and snow on it; and that the area around the boiler was poorly illuminated. To say that he could not have perceived the possible danger in the situation he described does raise credibility issues. However, that danger relates to the common law negligence claims and not to a products liability claim that otherwise cannot be proven as indicated supra.

Because plaintiff's negligence claim, as against Easco and AL, remains, summary judgment dismissing BG's cross claims for common-law indemnification and contribution is denied.

CONCLUSION

Accordingly, it is

ORDERED that defendants' motion and cross motion for reargument of this Court's September 9, 2004 Order are granted; and it is further

ORDERED that upon reargument, the cross motion of The City of New York and The New York City Board of Education for summary judgment is granted, and the complaint is severed and dismissed as against these defendants, and the Clerk is directed to enter judgment in favor of these defendants, with costs and disbursements to defendants as taxed by the Clerk; and it is further

ORDERED that the remainder of the action shall continue; and it is further

ORDERED that the cross motion of defendant B.G. National Plumbing & Heating, Inc. for summary judgment dismissing the complaint is granted, except with respect to plaintiff's negligence cause of action; and it is further

ORDERED that the motion of Easco Boiler Corp. and A.L. Eastmond & Sons, Inc. for summary judgment is granted, except with respect to plaintiff's negligence cause of action, and defendant B.G. National Plumbing & Heating, Inc.'s cross claims for common-law indemnification and contribution.

Dated: February 16, 2005ENTER:

New York, New York

S/

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J.S.C.