Fattorusso v Esplanade Gardens, Inc.

[*1] Fattorusso v Esplanade Gardens, Inc. 2008 NY Slip Op 51389(U) [20 Misc 3d 1118(A)] Decided on July 2, 2008 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2008
Supreme Court, New York County

Richard Fattorusso, Plaintiff,

against

Esplanade Gardens, Inc. and ESPLANADE GARDENS ASSOCIATION, INC., Defendants.



107564/06

Carol Robinson Edmead, J.

Defendants Esplanade Gardens, Inc. and Esplanade Gardens Association, Inc. ("defendants") move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Richard Fattorusso ("plaintiff").

Plaintiff's complaint asserts three causes of action: (1) violation of Labor Law § 241(6),[FN1] (2) violation of Labor Law § 200, and (3) common law negligence.

Plaintiff's Deposition

Plaintiff was at the time of his accident, and is employed by Ace Atlas Corp. ("Ace") (p. 8). Plaintiff reported to the subject premises the morning of his accident because there was a scheduled inspection of the boiler later that morning (p. 18). Plaintiff had worked on this type of boiler before, and he worked on the specific boiler (boiler No.1) before the date of his accident. Several days before his accident, plaintiff set the boiler up for inspection, including making sure the right equipment, pins and plate to the meter were in place (p. 21). One of defendants' employees, Patrick Neils ("Neils") was with plaintiff when plaintiff noticed a leak from boiler #

1 (p. 28). He noticed the leak about 15 minutes after he arrived. The leak of water and steam was coming from the rear smoke hood (p. 29) at the back of the boiler (p. 30). After plaintiff saw the leak, Neils went and closed the king valve, shut the water pump that feeds to that boiler and opened up the drain to drain the water out (p. 31). Plaintiff did not see Neils close the king valve, but Neils told plaintiff that he had closed the king valve (p. 35). Neils also drained the water out of the boiler (p. 36). But plaintiff did not see Neils turn off the water pumps (p. 37). Plaintiff saw Neils drain the water from the main valve. What came out was a combination of steam and water. While Neils was doing this, plaintiff was in the front loosening the bolts from the rear smoke hood (p. 38). After plaintiff removed the bolts, Neils and another of defendants' employees (Winston Pile "Pile") helped plaintiff remove the door. After the door was removed, [*2]water was still in the boiler because the water was still draining out (p. 42). Plaintiff waited for the tube to stop leaking so that the water was below it. Neils gave plaintiff a plug to plug the back of the boiler. They put the back plug in (p. 44). At the time plaintiff put the plug in, there was still water in the boiler; it was still draining, steaming, it was hot (p. 47). After plaintiff put the front plug in, before he hammered the plug, the plug popped out (p. 52). Plaintiff was then sprayed with the hot water and steam (p. 53).

Plaintiff had done this type of repair before hundreds of times over thirty years. The way he performed this repair was the same manner he has always performed such a repair. In doing this type of repair it is necessary to let the boiler drain (p. 56). Plaintiff believes that the king valve did not hold; someone put the water pump on. He did not see anybody put the water pump on (p. 57). Plaintiff had worked in this boiler room approximately 15-20 times (p. 85). He has worked on boiler #

1 previously. He had never done work on boiler #

1 related to the king valve in the past (p. 86).

Deposition of Patrick Neils

Neils has been employed at Esplanade Gardens since 1990, and has been a supervisor (p. 6) since 2001. Prior to that, he did boiler maintenance (p. 8). At the time of plaintiff's accident, plaintiff was plugging a tube (p. 10). Boiler #

1 had been installed four years before plaintiff's accident (p. 11). Neils was in the boiler room because that is where he works. Neils and Pile were present while plaintiff was in the boiler room (p. 15). Plaintiff had been there all week getting the boilers ready to pass the NYC inspection (p. 16). Neils, Pile and plaintiff were all working on the boiler. Pile was on one ladder with a vacuum hose vacuuming the water, plaintiff was getting ready to plug the back of the boiler. Neils was holding the ladder for Pile (p. 19). It was necessary for Neils to open the main valve under the boiler before plaintiff began working (p. 21). Neils does not know who turned off the king valve (p. 22). Neils does not know if anyone turned off the water pump. When plaintiff finished plugging the back of the boiler, plaintiff and Neils came to the front. Plaintiff got up on the burner. Neils gave him a plug and the sledge hammer and Neils was vacuuming water on the ground (p. 23) Neils heard a scream and saw plaintiff jumping up and down. The water came out of the tube and sprayed plaintiff in the chest. Neils does not know if the water was turned off (p. 24). Plaintiff had already plugged the back of the boiler and was plugging the front of the boiler when the accident happened (p. 24). While plaintiff was in the front of the boiler, Piles was in the back of the boiler closing the doors, bolting them up (p. 25). Neils does not know if Pile at any time opened the main valve under the boiler (pp. 28-29). Before plaintiff's accident, plaintiff and Pile closed the king valve (p. 29). The king valve needed to be turned off in order for plaintiff to perform his work. Both before and after plaintiff's accident, Pile told Neils that he and plaintiff turned off the king valve together (p. 30). Pile shut the feed pump off (p. 31).

Defendants' Contentions

Plaintiff was employed as a boiler mechanic for Ace, a non-party, and was injured during the course of his employment. At the time of his accident, plaintiff was plugging up a leak in a boiler in preparation for an inspection by the New York City Department of Air Resources. Plaintiff had been working on the boiler for several days in anticipation of the scheduled inspection. [*3]

Plaintiff's acts were the sole proximate cause of this accident. Plaintiff claims that the defendants were negligent in failing to close the main valve [a/k/a the "king valve"] of the boiler, or negligently opened the king valve after it was closed, or it malfunctioned. Plaintiff also claimed that someone must have negligently opened the water pump after it was shut off, both of which caused hot steaming water to flow out from a fire tube he was in the process of plugging.

Defendants' expert engineer, Leonard Weiss, PE ("Weiss") states in his affidavit that neither of these theories has any merit and the only reason this accident occurred was because plaintiff did not wait long enough for the water inside the boiler to cool down sufficiently before performing any work on it.

There was nothing wrong with the boiler or the king valve or the water pump, and there is no evidence that either apparatus was not closed properly. If the king valve were defective or was not closed properly, steam and hot water would have flooded the entire boiler room. Since nothing like this occurred, the king valve must have been closed. And, there is no evidence that the water pump was turned on while plaintiff was working. According to Weiss, if a pump was turned on, because of the intense pressure, as soon as some of the bolts on the front access door were taken off, steam and hot water would have shot out because of the pressure created by the pump. Again, since nothing like this occurred, the water pump was working properly and was not turned on by anyone. Indeed, affidavits from Mr. Neils and Mr. Pile, the two Esplanade employees helping plaintiff that day, both expressly deny that they had turned on the king valve or water pump at any time after they were shut off. Weiss opines that plaintiff's accident was caused simply by his own negligence in failing to wait long enough for the water inside the boiler to completely finish draining before trying to perform any work that day. Plaintiff knew as he worked that day, that there was still some water left inside the boiler because it had not finished draining completely.

In his affidavit, Neils states that at no time did he see Pile open up the king valve or turn on the water pump after they shut down earlier.

Pile attests that on the date of plaintiff's accident, he, Neils and plaintiff shut down the boiler, shut off the main king valve, shut down the condenser return pump and opened ghe drain to allow the boiler water to drain out. The water was not completely drained from the boiler and the water was still very hot and steamy. At no time did he open the king valve or turn on the water pump after they were shut down earlier, nor did he see Neils open the king valve or turn on the water pump after they were shut down earlier.

Plaintiff's Opposition

There is a clear question of fact as to who closed the king valve on the subject boiler, and whether it was fully closed prior to plaintiff's accident. And, an issue of fact exists as to who shut off the feed water pump prior to plaintiff's accident. Further, the discrepancies between the testimony of the parties at deposition and in their submitted affidavits as to whom closed the king valve and who shut off the feed water pump prior to plaintiff's accident warrant denial of summary judgment.

As set forth in the affidavit of plaintiff's expert engineer, David Caggiano ("Caggiano"), it was necessary for the defendants to open the boiler steam vent valve to vent any residual steam that had been left inside the boiler for the plaintiff to safely work as required on the boiler. Thus, no matter what the source of the residual steam which ultimately caused the fire plug to pop off, the partially opened king valve as plaintiff suggests or the residual hot water which was not [*4]given sufficient time to cool as the defendants suggest, the opening of the steam vent valve would have vented the remaining steam from the boiler regardless of its source.

Caggiano further opines that it was the obligation of the defendants to perform the six steps detailed in his affidavit for the plaintiff to safely perform his job. Two of the six steps were never performed, the opening of the boiler steam vent valve and the closing of the feed water valve. Moreover, issues of fact exist as to two other steps, who closed the king valve and whether the king valve was fully closed; and who turned off the feed water pump.

Defendants' Reply

The court should reject Weiss' expert affidavit as plaintiff failed to disclose said expert prior to filing the note of issue.

Plaintiff's expert does not dispute defendants' argument that it was highly unlikely for the feed water pump to have been negligently left open or defective or negligently turned back on by defendants' employees. Plaintiff's silence on this issue can only mean that plaintiff's expert agrees with defendant's expert in this regard.

Further, plaintiff's expert's conclusion that the boiler steam vent valve should have been opened is based on nothing more than speculation and should be disregarded as without probative value.

With respect to inconsistencies between deposition and affidavit statements of defendants' employees, to the extent they exist, they are wholly irrelevant to the defendants' liability here.

And, there is no merit to plaintiff's claim that the defendants were negligent in failing to have a written protocol for shutting down the boiler and executing a tagout/lockout procedure simply because there is no physical evidence that the king valve or feed water pump or feed water valve was open, partially or otherwise, or defective or negligently opened after they were closed. Such conclusory arguments are routinely rejected by the courts.

Defendants also reject plaintiff's argument that plaintiff had no duty or authority to shut down the boiler. It is Weiss' opinion that plaintiff was in "control" of boiler #

1, and plaintiff knew the procedure to be followed, written or otherwise, as he testified he had done this type of repair hundreds of times over a period of 30 years.

Analysis

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002] [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be [*5]supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212[b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Opponent "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (Kornfeld v NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984]).

Labor Law 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]" ( Miller v Wilmorite, Inc., 231 AD2d 843, 843 [1996] ). However, it is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]" ( Riccio v Shaker Pine, Inc., 262 AD2d 746, 748 [1999], lv denied 93 NY2d 1042 [1999] ). Additionally, the fact of "[m]ere retention of contractual inspection privileges or a general right to supervise does not amount to control sufficient to impose liability, and that where the injury is due to the method of work, Labor Law § 200 and common law negligence claims must be dismissed in the absence of proof of the owner's actual control, notwithstanding the existence of questions of fact regarding an owner's contractual right of control [citations omitted] )" ( Brown v New York City Economic Dev. Corp., 234 AD2d 33 [1996]; emphases added).

Defendants argue that plaintiff was the sole proximate cause of his accident. However, notwithstanding the Weiss expert affidavit, based on the record before this court, issues of material fact exist as to whether this plaintiff was the sole proximate cause of the accident, including who closed the king valve on the subject boiler, and whether it was fully closed prior to plaintiff's accident. And, an issue of fact exists as to who shut off the feed water pump prior to plaintiff's accident ( see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 790 NYS2d 74, 823 NE2d 439 [2004]; Gonzalez v Rodless Props., L.P., 37 AD3d 180, 829 NYS2d 77 [2007] ).

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion of defendants Esplanade Gardens, Inc. and Esplanade Gardens Association, Inc. for an order, pursuant to CPLR 3212, granting summary judgment [*6]dismissing the complaint of plaintiff Richard Fattorusso is granted to the extent that plaintiff's Labor Law 241(6) claim is dismissed; and it is further

ORDERED that counsel for defendants shall serve a copy of this Order with notice of entry within twenty days of entry on counsel for plaintiff.

Dated:July 2, 2008

__________________________________

Carol Robinson Edmead, J.S.C. Footnotes

Footnote 1: Plaintiff voluntarily discontinues this cause of action.