Martinez v City of New York

[*1] Martinez v City of New York 2009 NY Slip Op 50427(U) [22 Misc 3d 1134(A)] Decided on February 10, 2009 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2009
Supreme Court, Richmond County

Jose Martinez, Plaintiff, The City of New York, GSF Energy, LLC, Fresh Gas LLC and UUP, Inc., DQE, Interstate Industrial Corporation, Paulus, Sokolowski and Santor Engineering, P.C., Defendants. GSF Energy, LLC, Fresh Gas, LLC and DQE Financial Corp., Third-Party Plaintiffs, Waste Energy Technology LLC, Third-Party Defendants.



11068/02

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion of defendant Interstate Industrial Corporation for summary judgment dismissing the complaint and any cross claims against it is granted.

This action was commenced to recover damages for personal injuries allegedly sustained by plaintiff on August 8, 2001 at the Fresh Kills Landfill in Staten Island, New York, while in the employ of third-party defendant Waste Energy Technology LLC (hereinafter "Waste Energy"). At the time of the incident, plaintiff was in the process of "isolating" ( i.e., shutting down) the flow of gas to flare station 2/8 by closing the valves in the pipeline in order to allow defendant Underground Utility Pipelines, Inc. (hereinafter "UUP") to connect a prefabricated pipeline to the existing methane recovery system. According to plaintiff, one of the valves in question was not equipped with a pull-chain and was located approximately eighteen feet above the ground. As a result, plaintiff alleges that he had to climb onto an existing section of horizontal piping to turn the wheel which closes the valve. It is further alleged that said valve wheel was not working properly, and as plaintiff attempted to step down, the valve wheel onto which he was holding broke off its shaft, causing him to fall to the ground.

By way of background, the City of New York, the owner of the subject landfill, acting by and through its Department of Sanitation (hereinafter "DOS") entered into a "Gas Rights Concession Agreement" dated October 29, 1998 with GSF Energy, LLC (hereinafter "GSF") wherein the City granted GSF the right to operate a landfill gas recovery facility within the Fresh Kills Landfill, i.e., to collect and purify landfill gas for sale to third parties. Previously, DOS contracted with defendant Interstate Industrial Corporation (hereinafter "Interstate") for the design and construction of the gas collection and flaring [*2]systems at the landfill, and the latter retained defendant Paulus, Sokolowski and Santor Engineering, P.C. (hereinafter "PSS") to prepare plans and specifications for the construction of the initial four flare stations, which were completed in the late 1990's. It is uncontroverted that this group of four included flare station 2/8.

Several years later, UUP was retained by defendant DQE, the site manager and alleged parent company of GSF, to assemble and install a prefabricated piping system for a refrigeration unit intended to "upgrade" the flare stations. According to plaintiff, this new equipment could not be "tied into" or connected to the existing system unless the gas flow to the flare stations was interrupted by manually closing the valves in the existing pipeline, and it was in the process of "securing" this flare station that plaintiff was injured. To the extent relevant, plaintiff's employer, Waste Energy, was retained by GSF pursuant to a certain "Operating and Maintenance Agreement" dated May 1, 2000, to provide the latter with "all operations, monitoring and maintenance services...necessary to efficiently operate and maintain each of the facilities."

In his complaint, plaintiff alleges that defendants were negligent in their ownership, maintenance, management, operation and/or control of the subject premises, and that they failed to provide him with a safe workplace in violation of the common-law and Labor Law §§ 240(1), 241(6) and 200. In addition, plaintiff claims, inter alia, that flare station 2/8 was defectively designed and/or constructed in that the valve wheel which broke was not equipped with a chain mechanism so that it could be operated from the ground, and that no other provision was made so that the elevated valve wheel could be reached safely.

In prior motion practice in which the moving defendant failed to appear, this Court held in a Decision and Order dated August 7, 2008, that plaintiff's activity at the time of the accident did not constitute the "erection" or "altering" of a structure within the meaning of Labor Law §240(1), since it involved, in the words of the Court of Appeals in Joblon v Solow (91 NY2d 457, 465 [emphasis in original]), no "significant physical change to the configuration or composition of the...structure." This Court further held that at the time of his injury, plaintiff was performing a task encompassed within his usual maintenance duties rather than participating in "construction" as it is understood under Labor Law §241(6), citing Nagel v D & R Realty Corp. (99 NY2d 98, 101).

With this much established, that branch of defendant Interstate's motion which is for summary judgment dismissing any claims against it under Labor Law §§240(1) and 241(6) must be granted.

As for the balance of the instant motion, Interstate relies upon the deposition testimony of its plumbing foreman, David Thierry, to demonstrate that it is also entitled to dismissal of the claims against it under Labor Law §200 and for common-law negligence. According Mr. Thierry, who supervised its initial construction in 1998, the subject flare station was equipped with "butterfly" hand valves to close, isolate and/or keep gas out of certain sections of the piping system when the flare station was undergoing repairs and maintenance. He further explained that (1) a sprocket and "steel" chain mechanism was installed on each of the valve wheels at flare station 2/8 which were located more than six feet above the ground; (2) the sprockets were "bolted onto [each] wheel" with three brackets located at the 12:00, 4:00 and 7:00 o'clock positions; and (3) the chain mechanism extended to within "about a foot off the floor, two feet off the floor."

According to Mr. Thierry, each of the wheel chains was tested upon completion of the construction of the flare stations and "everything was operational." In addition, the [*3]witness stated that Interstate's work was supposed to have been inspected by PSS, which prepared the plans and specifications for its construction, and that daily inspections of the project were conducted by the purported construction manager, O'Brien & Kreitzberg. The witness also testified that Interstate did not fabricate the wheels, valves, or chain mechanisms; that these were purchased from an unknown supplier; that the flare system was also purchased as a prefabricated "package" from a company known as "John Zinc", and that it was assembled onsite by Interstate pursuant to "drawings" by PSS, whose plans for the flare station allegedly indicated the location of each of the valves, but did not include the installation of chain mechanisms (see Movant's Exhibit "I", pp 102-103; see also p 95). Instead, that the plans and specifications provided that all of the work be "code compliant". According to the witness, this meant that any valves located more than six feet above the ground required the installation of safety equipment consistent with their operation.[FN1] In this regard, it was stated that chains were installed on the wheel valves since common practice in the industry was "not [to] attach a ladder to a pipe." Finally, the witness testified that he never received any complaints about the work that was performed by Interstate at flare station 2/8, and that it was completed before 2001, the year of plaintiff's injury.

In opposition to the motion, defendants GSF, Fresh Gas and DQE argue that Interstate's claim that it did not operate, maintain or perform any work at the site for a period of two years prior to the accident is belied by the terms of its December 1996 contract with DOS for the "design, construction and one year operation of the gas collection and flaring system" at the Fresh Kills landfill. That contract expressly provides in article 2.03 that "for a period of one year after system start-up", Interstate was responsible for maintenance of the system. In addition, it is claimed that certain purported "letter agreements" between PSS and Interstate in January 1998, July 1998, August 1999 and April 2000 (Defendants' Exhibit "C") prove that Interstate had an ongoing presence and supervisory responsibility at the site until the year 2000. Additionally, these defendants have submitted certificates of insurance which indicate that Interstate continued to renew the commercial, general and automobile liability policy it obtained in connection with the 1996 DOS contract until February 1, 2000. Also submitted by defendants are unauthenticated copies of certain photographs allegedly depicting the flare pads as originally constructed by Interstate, with no wheel chain mechanisms in evidence (see Defendants' Exhibit "E").

Finally, defendants GSF, Fresh Gas and DQE have submitted a copy of the deposition testimony of Timothy Conlon, a mechanical engineer employed by PSS during the initial construction of the flare stations, to confirm Mr. Thierry's testimony that the plans prepared by PSS did not specify the installation of chain wheel mechanisms for the elevated valves or any other means of achieving OSHA compliance, and "left it up to the contractor" (i.e., Interstate), which "chose to install chain wheels."In further opposition, plaintiff argues that the "blanket" statements of Interstate's witness with regard to the installation of chain mechanisms on the valves at the subject flare station are insufficient to satisfy Interstate's burden of proof since such testimony was "without specific detail" and unsupported by documentary evidence.

In the opinion of this Court, the uncontroverted deposition testimony of Interstate's witness is sufficient to satisfy the burden of establishing its right to judgment as a matter of law under Labor Law §200 and for common-law negligence. Moreover, singly or in [*4]combination, the proof submitted in opposition to the motion fails to rebut the moving defendant's prima facie showing that it (1) was not present at the work site where plaintiff was injured at the time of the accident, (2) was not responsible for the repair or maintenance of the subject flare station at the time in question, or (3) did not fail to properly install a chain wheel mechanism on the subject valve or otherwise act negligently in the construction of the flare stations. Accordingly, they have failed to demonstrate the presence of a triable issue of fact.

In this regard, it is critical to the determination that the deposition testimony of Interstate's witness is unrefuted. In fact, his testimony is corroborated by that of a witness cited by the opposition, PSS engineer Tom Conlon, as well as DQE's site coordinator (Phil Britton) and the City's project engineer (Brij Shrivastava), each of whom also testified that Interstate's work and presence at the landfill ended in 1999. In fact, there is no nonspeculative basis for extending Interstate's presence beyond the year 2000. In addition, while Interstate's foreman testified that (1) the valves and chains required monthly maintenance, (2) it was "general industry practice" to "check them...every month..[or] every ten times you use the thing" and (3) they require preventive maintenance, there is no evidence that Interstate was responsible for such preventive maintenance at or immediately preceding the time of plaintiff's accident.

Moreover, both DQE's site coordinator (Britton) and the PSS engineer (Conlon) agreed that Interstate was not involved with any of the later construction performed at flare pad 2/8, which included the construction of an underground transmission line in 2000, and the upgrade that was taking place at the time of plaintiff's injury. So, too, were these witnesses in agreement that Interstate did not construct the horizontal pipe on which plaintiff was standing when he attempted to turn the valve wheel.

It is also worthy of note that the photographs proffered by defendants, purportedly depicting the flare stations upon completion, are unauthenticated. Similarly lacking in probative value is the conclusion of plaintiff's expert to the effect that a chain mechanism had not been installed on the elevated valve at issue, since his opinion is based upon an inspection of the site conducted six months after the accident, i.e., on January 22, 2002. Critically, there is no proof before the Court that the conditions alleged to have existed in August 2001 were the same as those which existed at the time Interstate completed its work. Additionally, the documentary evidence submitted is not probative as to Interstate's status at the landfill facility at the time of plaintiff's accident. Thus, the only admissible evidence before the Court is that wheel chains were installed on each of the elevated valves before construction was completed in 1999. Finally, neither the OSHA regulations cited in plaintiff's bill of particulars, nor the provisions cited in the report of plaintiff's expert are applicable to the facts of this case. Consonant with the foregoing, Interstate must also be seen as having demonstrated its prima facie entitlement to summary judgment on any cross claims asserted against it for either contractual or common-law indemnification. Having established its freedom from actual negligence and its lack of authority to direct, supervise or control the injured plaintiff's work, Interstate cannot be made to indemnify its co-defendants in the event of a judgment against any of them (see generally Kader v City of NY Hous. Preserv. & Dev., 16 AD3d 461, 463)

Accordingly, it is

ORDERED, that the motion of defendant Interstate Industrial Corporation for summary judgment dismissing the complaint and all cross claims as against it is granted; and it is further [*5]

ORDERED, that the complaint and all cross claims against said defendant are hereby severed and dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

Dated: February 10, 2009_/s/______________________

Thomas P. Aliotta

J.S.C. Footnotes

Footnote 1: According to Mr. Thierry, such equipment was required both by local codes and OSHA regulations.