Sellars v City of New York
Annotate this CaseDecided on May 20, 2013
Supreme Court, Queens County
Jack Sellars, Plaintiff,
against
The City of New York and New York City Department of Environmental Protection, Defendants.
412/11
Attorneys for Plaintiff:
Mallilo & Grossman, Esqs.
Jeffrey M. Blum, Esq.
163-09 Northern Boulevard
Flushing, New York 11358
Attorneys for Defendants (Movant):
Harris Beach PLLC
Brian A. Bender, Esq.
100 Wall Street, 23rd Floor
New York, New York 10005
Kevin J. Kerrigan, J.
The following papers numbered 1 to 12 read on this motion by defendants for summary judgment.
Papers
Numbered
Notice of Motion-Affidavit-Exhibits................ 1-4
Memorandum of Law.................................. 5
Affirmation in Opposition-Affidavit-Exhibits....... 7-10
Reply.............................................. 11-12
Upon the foregoing papers it is orderedthat the motion is decided as follows:
Motion by the City (sued herein as the City of New York and New York City Department of Environmental Protection) for summary judgment dismissing the complaint is granted. [*2]
Plaintiff, a construction surveyor employed by WDF, Inc., a non-party, allegedly sustained injuries as a result of being exposed to an unknown toxic substance while working in the basement of the Hypochlorite Building of the Jamaica Wastewater Treatment Plant, which is owned by the City, on April 5, 2010. On said date, plaintiff was performing layout work at the plant which work he describes as marking the floor of the basement of the plant with chalk line where concrete pads were going to be installed. To measure and snap the chalk line, plaintiff kneeled down on the floor onto his left knee approximately eight times that day over the course of one hour. He testified in his deposition that the concrete floor was covered in "very suspicious dust" and that he smelled sewage while he was in the basement of the building. While working in this capacity on said date at the plant, over the course of 30 minutes, plaintiff began to experience the onset of flu-like symptoms. When he left work that day, he began to feel a burning sensation on the outside of his left calf. Thereafter, he found a 2 X 3-inch red sore on his leg. He reported to work on April 6-9, 2010 notwithstanding that the sore continued to grow larger. His primary care physician, Dr. Michael Sloane, diagnosed him with cellulitis and a systemic infection related thereto. He was subsequently treated for cellulitis at New York Hospital Queens and discharged with a prescription for antibiotics. He has since undergone three procedures to treat his ulcerated leg: two debridements and one vein stripping.
Plaintiff commenced the present action against the City alleging causes of action under §§240(1), 241(6) and 200 of the Labor Law and common law negligence.
Plaintiff has discontinued his cause of action under §240(1). However, he maintains his causes of action under §241(6), 200 and common law negligence.
In order to establish a cause of action pursuant to §241(6) of the Labor Law, it must be demonstrated both that there was a violation of a specific rule or regulation of the Industrial Code and that such violation was a proximate cause of plaintiff's injuries (see Parisi v. Loewen Dev. of Wappinger Falls, 5 AD3d 648 [2nd Dept 2004]). Plaintiff predicates his cause of action under §241(6) upon violation of 12 NYCRR 23-1.7(h) and 1.8(c)(4) of the Industrial Code.
Section 23-1.7(h) states: "Corrosive substances. All corrosive substances and chemicals shall be so stored and used as not to endanger any person. Protective equipment for the use of such corrosive substances and chemicals shall be provided by the employer."
The evidence presented, on this record, is that the only corrosive substance used at the Plant was hypochlorite, and that said chemical was not stored or used in the basement where plaintiff was working. Moreover, plaintiff was not using this chemical or any other chemical so as to be required to have protective clothing. Indeed, plaintiff does not contend and demonstrate that his alleged ailment was caused by exposure to hypochlorite or any other identified substance. Therefore, this section of the Industrial Code is inapplicable to the facts of this case.
Moreover, even were it alleged and shown that plaintiff came into contact with hypochlorite, [*3]the City has proffered unrebutted affidavits of physicians who concluded, based upon objective findings, that plaintiff's condition was unrelated to exposure to this or any other chemical, toxic or bacteriological agent, but rather that it was the result of pre-existing venous insufficiency and obesity which caused an idiopathic necrotizing soft tissue infection that developed into cellulitis. No probative evidence to the contrary is proffered by plaintiff so as to raise a triable issue of fact as to whether plaintiff's complainded-of infection was proximately caused by exposure to any substance at the plant.
The affidavits of plaintiff's physicians annexed to plaintiff's opposition, to the extent that they opine that plaintiff's infection was caused by contamination on the floor are wholly speculative and unsupported by any objective findings. Indeed, they also note that plaintiff suffered from a pre-existing venous insufficiency and obesity and fail to discuss whether such pre-existing condition was the cause of plaintiff's infection. Plaintiff's experts fail to establish or proffer any objective evidence that plaintiff was exposed to any particular toxic or infectious substance so as to establish a causal connection between plaintiff's infection and exposure to any substance in his work area, and they fail to rule out, or even to discuss, whether plaintiff's pre-existing condition was the cause of the infection of which he is complaining.
With respect to §23-1.8(c)(4) of the Industrial Code, said section states: "Protection from corrosive substances. Every employee required to use or handle corrosive substances shall be provided with and shall be required to wear appropriate protective apparel as well as approved eye protection." Since it is not alleged, and it is undisputed, that plaintiff was not required to handle and was not engaged in handling any corrosive substances, this section of the Industrial Code is clearly inapplicable to the facts of this case.
Therefore, the City is entitled to dismissal of plaintiff's cause of action under §241(6) of the Labor Law.
Plaintiff's cause of action under Labor Law §200 must also be dismissed. That section is a codification of the common-law duty of an owner or contractor to maintain a safe construction area (see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343 [1998]). Where the unsafe condition of the work site was caused by the methods used by the contractor in performing the work, it must be established that the owner or contractor had supervisory control over the performance of the work in order to be liable under §200 (see Griffin v. NYC Transit Auth., 16 AD3d 202 [1st Dept 2005]; Rippolo v. Mitsubishi Motor Sales of America Inc, 278 AD2d 149 [1st Dept 2000]).
The City has presented sufficient unrebutted evidence to show that it did not supervise or control plaintiff's work, thus establishing its prima facie entitlement to summary judgment dismissing plaintiff's cause of action against it based upon a violation of §200 of the Labor Law. [*4]
Plaintiff's counsel's contention that there is an issue of fact as to whether the City exercised the requisite supervision and control by virtue of the fact that the construction manager hired by it performed regular inspections of the construction site and performed sampling tests and had general supervisory control is without merit.
"The general duty to supervise the work and ensure compliance with safety regulations does not amount to supervision and control of the work site such that the supervisory entity would be liable for the negligence of the contractor who performs the day-to-day operations" (Buccini v. 1568 Broadway Assocs., 250 AD2d 466, 469 [1st Dept 1998]). Moreover, "the construction manager's authority to stop the contractor's work, if the manager notices a safety violation, does not give the manager a duty to protect the contractor's employees" (Peay v. New Yor City School Const. Authority, 35 AD3d 566, 567 [2nd Dept 2006], quoting Warnitz v. Liro Group, Ltd., 254 AD2d 411, 412, quoting Buccini v. 1568 Broadway Assocs., 250 AD2d 466 at 468-469, supra).
In the absence of any evidence showing that it had any direct control over the day-to-day work of plaintiff, the City may not be held liable under Labor Law §200(see Peay v. New York City School Const. Authority, 35 AD3d supra; Warnitz v. Liro Group, Ltd., 254 AD2d supra; Buccini v. 1568 Broadway Assocs., 250 AD2d supra; Sainato v. City of Albany, 285 AD2d 708 [3rd Dept 2001]).
Plaintiff's counsel also contends that supervisory control was no required to establish a cause of action under §200 of the Labor Law because there was a defect in the premises by virtue of the presence of a toxic substance.
Where the allegedly unsafe condition was not caused by the contractor's unsafe work practices, liability may only be imposed upon the owner under either §200 or the common law if the owner created the dangerous condition or, where the condition was a defect of the premises itself as opposed to one created by the contractor, if it is shown that the owner had actual or constructive notice of the condition (see Bradley v. Morgan Stanley & Co, 21 AD3d 866 [2nd Dept 2005]).
The City has met its initial burden of demonstrating that it neither created the alleged unsafe condition nor had actual or constructive notice of it (see Verel v. Ferguson Electric Const. Co., 41 AD3d 1154 (4th Dept 2007]). As heretofore noted, the unrebutted evidence presented on this motion is that the only identified corrosive chemical substance at the plant was hypochlorite, and that said chemical was not present in the area where plaintiff was working. Although the [*5]deposition testimony presented was that said chemical flowed through pipes running through the basement, there was no indication that the pipes leaked or that puddles of the substance were on the floor. Indeed, plaintiff himself testified that the only substance he observed on the floor was dust which he characterized as "suspicious". Since the evidence presented was that there was no hypochlorite chemical in the area where plaintiff was working, there is, consequently, no issue of a dangerous condition of the premises and no issue of actual or constructive notice. Moreover, in the total absence of any evidence of any leaks of hypochlorite, the mere existence of this chemical in the treatment plant does not constitute a "defect" of the premises, since the premises is a waste treatment plant that is designed to treat sewage waste with said chemical.
In opposition, plaintiff has failed to show that he was exposed to sufficient levels of any toxins so as to cause the injuries he claims (see Parker v Mobil Oil, 7 NY3d 434 [2006]; Cleghorne v City of New York, 99 AD3d 443 [1st Dept 2012]).
Therefore, the City is entitled to summary judgment dismissing plaintiff's §200 claim. In addition, since §200 of the Labor Law is a codification of common law principles of negligence, plaintiff's cause of action based upon common law negligence must also be dismissed.
Accordingly, the motion is granted and the action is dismissed.
Dated: May 20, 2013
KEVIN J. KERRIGAN, J.S.C.
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