Opinion
11068/02.
Decided August 1, 2008.
Upon the foregoing papers, (1) the motion (No. 3475) for summary judgment of defendants GSF Energy, LLC, Fresh Gas LLC and DQE Financial Corp. s/h/a/ DQE dismissing the complaint as against them is granted, in part, and denied, in part; (2) the cross motion (No. 490) for like relief of defendant UUP, Inc. is granted; (3) the cross motion (No. 1061) of defendant The City of New York for summary judgment dismissing the complaint as against it or, in the alternative, for summary judgment on its cross claims for common-law and contractual indemnification is granted, in part, and denied, in part; and (4) the cross motion (No. 1173) for summary judgment of defendants GSF Energy, LLC, Fresh Gas LLC and DQE Financial Corp. on their cross claims for common-law and contractual indemnification as against The City of New York is denied.
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 shutting down flare station 2/8 (i.e., "isolating" the gas flow to the flare by shutting off the valves in the pipeline) in order for defendant Underground Utility Pipelines, Inc. (hereinafter "UUP") to connect a prefabricated pipeline to the existing methane recovery system. Plaintiff claims that each of the defendants was negligent in its ownership, maintenance, management, operation and/or control of the subject premises, and failed to provide him with a safe workplace in violation of Labor Law §§ 240(1), 241(6), 200. In addition, plaintiff alleges that the facility was defectively designed, i.e., certain elevated valves were not equipped with chain mechanisms so they could be operated from the ground and/or "built-in" ladders or platforms provided so that elevated valves could be reached safely.
By way of background, the City of New York (hereinafter the "City"), 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. Subsequently DOS contracted with defendant Interstate Industrial Corporation (hereinafter "Interstate") for the design and construction of the gas collection and flaring 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 initial construction of the four flare stations which were completed in the late 1990's. Among these is flare station 2/8. Several years later, as part of a project which involved the upgrade and modification of the flare stations, UUP was retained by defendant DQE, the alleged parent company of GSF, to assemble and install a prefabricated piping system for a refrigeration unit. However, it is alleged that this new equipment could not be "tied into" or connected to the existing system unless the gas flow to the flare was isolated, i.e., by manually closing the valves in the existing pipeline.
The process of "securing" the flare station was to be performed by plaintiff's employer, Waste Energy. This third-party defendant 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, with the objectives of minimizing cost and maximizing production and sales of landfill gas and processed gas." Pursuant to a later "Landfill Gas Purchase and Sale Agreement" dated January 10, 2001, defendant Fresh Gas LLC (hereinafter "Fresh Gas") agreed with GSF to buy landfill gas for processing and resale to the Brooklyn Union Gas Company. This Purchase and Sale Agreement further provided, inter alia, that "each party shall be solely responsible for the operation, maintenance, repair and insuring of its respective properties and facilities at its own expense", and that the buyer (Fresh Gas) "shall repair, operate and maintain buyer's facility in accordance with the terms and conditions of the Concession Agreement."
In this action, plaintiff alleges that on August 8, 2001, he was instructed by his supervisor at Waste Energy to assist in shutting down flare station 2/8. In an attempt to close one of the valves, which was not equipped with a pull-chain and was located approximately eighteen feet above the ground, plaintiff climbed onto an existing section of horizontal piping and proceeded to turn the wheel which would close the valve. According to plaintiff and his supervisor, who purportedly witnessed the accident, said valve wheel was not working properly, and as plaintiff stepped down, the wheel broke off its shaft, causing him to fall to the ground.
Although plaintiff claims that nearest ladders were located in a plant nearly two miles away, there is conflicting deposition testimony from both UUP's supervisor (Robert Grecco) and DQE's site coordinator (Phil Britton), each of whom testified, in effect, that several ladders and other safety equipment, e.g., harnesses and slings, were located inside the "control room" at flare station 2/8. However, the report of plaintiff's engineering expert suggests that even an A-frame or extension ladder would not have provided plaintiff with a stable platform from which to operate the valve wheel, as both hands were needed to turn the wheel. Thus, it was the expert's opinion that, even if available, a ladder could not have been safely and properly be positioned in the space where the valve was located.
In their separate motions, GSF, Fresh Gas, DQE, UUP and the City each assert the following arguments in support of dismissal and/or summary judgment: (1) that plaintiff was engaged in routine maintenance at the time of his accident, i.e., closing a shut-off valve, and therefore, was not a protected worker under Labor Law §§ 240 and 241(6); (2) that plaintiff's own negligence, i.e., his failure to use a readily available ladder was the sole proximate cause of his accident; (3) that the cited provisions of the Industrial Code and OSHA either were not violated or were per se inapplicable to the facts of this case; (4) that plaintiff's employer, Waste Energy, was in sole control of the means and methods of plaintiff's work; (5) that Labor Law § 200 is inapplicable to defendants GSF, Fresh Gas and/or DQE, whose representatives were not even present at the work site on the day in question; and (6) that liability may not be imposed under common-law negligence, since plaintiff has failed to establish that defendants either created the alleged hazardous condition or had actual or constructive notice thereof. Alternately, defendants GSF, Fresh Gas, DQE, and the City also maintain that they are entitled to summary judgment on their respective cross claims for common-law and contractual indemnification. Notably, the contractual indemnification claims are predicated upon certain reciprocal indemnification provisions in the Gas Rights Concession Agreement dated October 29, 1998, entitled "Grantee [GSF] Indemnification" and "Grantor [City] Indemnification".
Turning first to the seminal issue of whether plaintiff's work constituted a protected activity under Labor Law §§ 240(1) and 241(6), i.e., went beyond mere maintenance, it is well recognized that while "[t]he intent of the[se] statute[s] was to protect workers employed in the enumerated acts, even while performing [ancillary] duties" ( Prats v Port Auth. of NY N.J., 100 NY2d 878, 882; see Spadola v 260/261 Madison Equities Corp. , 19 AD3d 321, 323, lv denied 6 NY3d 770), the evidence establishes that plaintiff was neither "a member of a team that undertook an enumerated activity under a construction contract" nor was employed by "a company engaged under a contract to carry out an enumerated activity" ( Prats v Port Auth. of NY N.J., 100 NY2d at 882, 883; see also Spadola v 260/261 Madison Equities Corp., 19 AD3d at 323). Pertinent in this regard, is plaintiff's uncontroverted deposition testimony that his duties involved "only maintenance work", and that he never performed any actual construction work at the facility. In fact, when asked if he assisted any entity that was engaged in any of the [new] construction, he responded "we're not supposed to work for . . . anybody", and added that on the day of the accident "we were supposed to turn off the valves and secure the flares so the contractor will come and do the work [emphasis supplied]." Plaintiff also acknowledged that he had gone through the process of shutting down/turning-off a given flare station "numerous times" for routine maintenance. The only difference was that on this occasion, he was required to "shut down every valve."
Based on the foregoing, it is the opinion of this Court that plaintiff's activity at the time of his accident did not constitute the "erection" or "altering" of a structure within the meaning of Labor Law § 240(1), since it involved no " significant physical change to the configuration or composition of the . . . structure" ( Joblon v Solow, 91 NY2d 457, 465 [emphasis in original]; see e.g. Martinez v City of New York, 93 NY2d 322; Petermann v Ampal Realty Corp., 288 AD2d 54). In so finding, this Court rejects plaintiff's argument that although he "was normally a maintenance worker", he was "involved in an integral portion of preparatory work, the removal of gas from a supply line so that further piping could be installed." To the contrary, in this case plaintiff's alleged "preparatory" work was not actually part of the construction or alteration itself, but is more properly characterized as a "separate, sequential phase involving different employees working for different contractors . . . [that is] easily distinguishable from . . . the larger . . . project" ( Prats v Port Auth. of NY N.J., 100 NY2d at 881). Therefore, it does not fall within the purview of Labor Law § 240(1), which provides "no protection to a plaintiff injured before any activity listed in the statute is underway" ( Panek v County of Albany, 99 NY2d 452, 457; see Rivera v Santos , 35 AD3d 700, 701-702).
Moreover, plaintiff's contention that his activity at the time of the occurrence "was integral to the alteration of the flare plant [since] that could only be accomplished once the gas was shut off" is also unpersuasive. In this regard, the Court adopts the rationale set forth in Adair v Bestek Light. Staging Corp., ( 298 AD2d 153, 153) as instructive:
Plaintiff's work cannot be brought within the scope of the statute by deeming it "integral," "necessary" or "incidental" to the [construction or alteration work]. The Court of Appeals, in holding that "the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" in order to fall within the statute ( Martinez v City of New York, 93 NY2d 322, 326), has expressly rejected an "integral and necessary" test as "improperly enlarg[ing] the reach of the statute beyond its clear terms( id.). Thus, as we implicitly recognized in Petermann v Ampal Realty Corp. ( 288 AD2d 54, 55), we should not use such an analysis to bring within the statute non construction activity incidental to construction work.
For essentially the same reasons, i.e., that plaintiff was employed by the maintenance company rather than any of the entities taking part in the actual construction, and considering that the injury occurred during the performance of a discrete task that was indistinguishable from his regular maintenance duties, plaintiff has failed to show his entitlement to protection under Labor Law § 241(6), as well ( see Spadola v 260/261 Madison Equities Corp., 19 AD3d at 323; Petermann v Ampal Realty Corp., 288 AD2d at 55; see also Paradise v Lehrer, McGovern Bovis, 267 AD2d 132). In this regard, it is the Court's opinion that defendants have adequately established that 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). As the Court of Appeals stated in Nagel v D R Realty Corp. ( 99 NY2d 98, 101), Labor Law § 241(6) was "meant to protect workers engaged in duties connected to the inherently hazardous work of construction, excavation or demolition" rather than routine maintenance work. In fact, plaintiff at bar admitted that extinguishing the flare at station 2/8 in preparation for the contractor to perform its work was part of his routine maintenance duties ( see Nagel v D R Realty Corp., 99 NY2d at 99). Hence, the dismissal of all of his causes of action predicated upon the alleged violation of this statute is warranted ( see Goad v Southern Elec. Intl., 304 AD2d 887, 888).
As a result, the alleged violations of the Industrial Code provisions enumerated in the complaint and bill of particulars are irrelevant to the matter at hand ( see Esposito v New york City Indus. Dev. Agency, 1 NY3d 526, 528; Nagel v D R Realty Corp., 99 NY2d at 103; Gallello v MARJ Distrib. Inc. , 50 AD3d 734). In any event, the cited Industrial Code and OSHA regulations purportedly violated herein either lack the required specificity or are factually inapplicable to the cause of action pleaded under Labor Law § 241(6) ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-505; Rivera v Santos, 35 AD3d at 701-702).
With respect to plaintiff's claims predicated on the alleged violation of Labor Law § 200 and/or common-law negligence, it is well settled that such liability may be predicated only "upon the manner in which the work is performed or actual or constructive notice of a dangerous condition inherent in the premises" ( Markey v C.F.M.M. Owners Corp., ___ AD3d ___; 2008 NY Slip Op 4477 *2; see Keating v Nanuet Bd. of Educ., 40 AD3d at 708). More specifically, Labor Law § 200 represents a codification of the common-law duty of owners and contractors with control over the work to provide construction workers with a safe workplace, and may be held liable for injuries sustained as a result of the manner in which the work was performed, or irrespective of whether it had supervisory control over plaintiff's work, based on a dangerous condition of which it had actual or constructive notice ( see Nasuro v PI Assoc., LLC , 49 AD3d 829, 831; Payne v 100 Motor Parkway Assoc., LLC ,45 AD3d 550, 553; Keating v Nanuet Bd. of Educ., 40 AD3d at 708-709). Consonant with these principles, since it is alleged in the case at bar that the accident occurred as a result of a dangerous condition inherent in the premises themselves, whether or not the moving defendants exercised supervisory control over the manner of plaintiff's work is irrelevant for the purpose of imposing common-law liability ( see Piazza v Shaw Contract Flooring Serv., Inc., 30 AD3d 1218, 1219).
In view of the foregoing, the City's reliance upon the affidavit of Ted Nabavi is unavailing. According to Mr. Nabavi, the City's project manager at the facility, subsequent to the execution of the Gas Rights Concession Agreement, DOS and its employees had neither supervisory control over the flare stations or matters relating to the operation and maintenance of the facility. In addition, DOS had no involvement in the modification or maintenance of the gas transfer lines at flare station 2/8. Similarly unavailing, and for the same reason, is the deposition testimony of DQE's site coordinator, Phil Britton, to the effect that (1) GSF and Fresh Gas had no employees at the landfill during the entire month when plaintiff was injured, (2) GSF, DQE and Fresh Gas did not supervise UUP's construction work or coordinate its work with any other contractor, (3) neither DQE nor GSF was responsible for inspecting UUP's work, and (4) the valve wheels were installed during the initial construction in the 1990's and had not been "changed" since then. Accordingly, the third-party defendants have failed to establish their prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence causes of action ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Pertinent to the foregoing, the Court would note that the defendant owner and the various operators/managers at the landfill gas recovery facility have failed to establish as a matter of law that any of them lacked control over the instant flare station (i.e., the worksite) and its gas recovery operation, or that they had, inter alia, neither actual nor constrcutive notice of the defective and/or unsafe condition of the valve in question, i.e., that it was (1) inoperative, (2) unequipped with a chain mechanism for remote operation, and/or (3) lacked an adjoining platform or an affixed ladder from which it could be safely operated. In this regard, the Court has been aided by the photographs annexed to the moving and opposing papers, which clearly depict the difficulty in reaching the subject valve wheel from the ground. Under these circumstances, it cannot be said as a matter of law, that the injury of a workman dispatched to close said valve in the manner attempted by plaintiff was an unforeseeable consequence of these defendants' alleged negligence ( see Goad v Southern Elec. Inter., Inc., 304 AD2d at 888-889).
However, with regard to the defendant contractor, UUP, the papers are devoid of any evidence upon which liability under Labor Law § 200 and/or common-law negligence may be predicated. Not only has plaintiff conceded that shutting-off the valves was not part of UUP's work, he also unequivocally acknowledged that he never received any instructions, directions or equipment from UUP ( see Russin v Louis N. Picciano Son, 54 NY2d 311, 316-317). Moreover, the uncontroverted deposition testimony of UU's site supervisor, Robert Grecco, establishes as a matter of law that UUP had no control over the area in which the injury occurred, and no factual basis upon which actual or constructive notice of the alleged defect can be based ( cf. Lane v Fratello Constr. Co., ___ AD3d ___, 2008 NY Slip Op 5483; Kerinsv Vassar Coll., 15 AD3d 623, 625). Thus, UUP is entitled to summary judgment dismissing these causes of action, as well ( cf. Wein v Amato Properties, LLC , 30 AD3d 506, 507-508).
Finally, in order to establish their entitlement to judgment as a matter of law on their respective cross claims against each other for common-law indemnification, the putative indemnitees, i.e., the City and third-party defendants GSF, DQE and Fresh Gas, were individually required to proffer evidence demonstrating both its freedom from negligence, but also that the prospective indemnitors' failure to exercise due care contributed to plaintiff's injury ( see Nasuro v PI Assoc., LLC , 49 AD3d 829, 832; Benedetto v Carrera Realty Corp. ,32 AD3d 874, 875). No such showing has been made herein.
Finally, given the cross movants' inability to establish, prima facie, their freedom from negligence, as a matter of law, these defendants are similarly barred from receiving summary judgment on their respective cross claims against each other for contractual indemnification ( see Keating v Nanuet Bd. of Educ., 40 AD3d at 709).
Accordingly, it is
ORDERED, that the motion of defendants GSF Energy, LLC, Fresh Gas LLC and DQE for summary judgment dismissing the complaint as against them is granted as to those causes of action predicated on Labor Law §§ 240(1) and 241(6), and is otherwise denied; and it is further
ORDERED, that the cross motion of defendant UUP, Inc. for summary judgment dismissing the complaint is granted, and the complaint as against this defendant is hereby severed and dismissed; and it is further
ORDERED, that the cross motion of defendant The City of New York for summary judgment dismissing the complaint as against it and/or for summary judgment on its cross claims for common-law and contractual indemnification is granted solely to the extent of dismissing the causes of action pleaded against it under Labor Law §§ 240(1) and 241(6), and is otherwise denied; and it is further
ORDERED, that each of the dismissed causes of action are hereby severed; and it is further
ORDERED, that the balance of the motion and cross motions, including that of defendants GSF Energy, LLC, Fresh Gas LLC and DQE Financial Corp for summary judgment on their cross claims for common-law and/or contractual indemnification as against The City of New York, are denied; and it is further
ORDERED, that the action shall continue as to the remaining causes of action; and it is further
ORDERED, that the Clerk enter judgment accordingly.
The foregoing constitutes the Decision and Order of the Court.