Opinion
Index 190162/2019
01-10-2022
ANGELA MOORECUMMINGS, Plaintiff, v. AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC., AMERICAN HONDA MOTOR CO., INC. (AHM), AMTRAK, BORGWARNER MORSE TEC LLC, CERTAINTEED CORPORATION, DANA COMPANIES, LLC. FORD MOTOR COMPANY, GENERAL ELECTRIC COMPANY, HONEYWELL INTERNATIONAL, INC., F/K/A ALLIED SIGNAL, INC./BENDIX, NISSAN NORTH AMERICA, INC., PFIZER, INC. (PFIZER), TENNECO AUTOMOTIVE OPERATING COMPANY INC. TOYOTA MOTOR SALES U.S.A., INC., U.S. RUBBER COMPANY (UN1ROYAL), UNION CARBIDE CORPORATION, Defendant. MOTION SEQ. No. 002
ADAM SILVERA JUDGE.
Unpublished Opinion
PRESENT: HON. ADAM SILVERA Justice.
DECISION + ORDER ON MOTION
ADAM SILVERA JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 112, 113, 114, 115. 116, 117, 118, 119, 120, 121, 122, 123, 124, 125 were read on this motion to/for JUDGMENT-SUMMARY.
Upon the foregoing documents, defendant Amtrak's motion for summary judgment, pursuant to CPLR 3212, seeking to dismiss the instant action on the grounds that said defendant has made a prima facie case demonstrating lack of duty, breach, or causation is decided below. Plaintiff opposes and moving defendant replies.
Plaintiff commenced this action seeking monetary damages for personal injuries sustained as a result of his exposure to asbestos. Here, defendant Amtrak's motion contends that plaintiff Ernest Cummings failed to establish that moving defendant is liable under New York Labor Law §§200 and 241(6) and that plaintiff has made no showing of negligence on the part of moving defendant. Defendant Amtrak argues that plaintiff is unable to establish a defective condition or, alternatively, that defendant Amtrak had notice of such defective condition. According to defendant Amtrak, there is no evidence establishing that it directed or controlled the tile work at Pennsylvania Station (hereinafter referred to as "Penn Station"). Moving defendant further argues that plaintiff does not fall into the protections of the Labor Law as defendant Amtrak did not supervise or control plaintiffs work, or the tile work, and thus owed no duty to plaintiff.
The standards of summary judgment are well settled. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, 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 tender an acceptable excuse for his failure...to do [so]". Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980).
In order to establish negligence, a plaintiff is required to prove "the existence of a duty, that is, a standard of reasonable conduct in relation to the risk of reasonably foreseeable harm; a breach of that duty and that such breach was a substantial cause of the resulting injury". Baptiste v. New York City Tr. Auth., 28 A.D.3d 385, 386 (1st Dep't 2006), citing Palsgraf v. Long Is. R.R. Co., 248 NY 339 (1928). Moreover, the defective condition must be created by the owner, or the owner had actual or constructive notice of the defect. Such notice must be more than general notice of any defective condition. See Lopez v. Dagan, 98 A.D.3d 436, 438 (1st Dep't 2012). Labor Law §241(6) states that
"[a]ll...owners and their agents...when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following
requirements:... (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
Labor Law §200 is a codification of the common law duty that a landowner or general contractor is to provide workers with a reasonably safe place to work. See Russin v. Louis N. Picciano & Son, 54N.Y.2d 311. 316-317 (1981). "An implicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury". Comes v. New York State Elec. and Gas Corp., 82 N.Y.2d 876, 877 (1993)(internal citations omitted). The First Department has consistently held that motions for summary judgment be granted where there is no evidence that [a defendant] supervised or controlled a plaintiffs work. See Philbin v. A.C. & S., Inc., 25 A.D.3d 374, 374 (1st Dep't 2006). The Appellate
Division, First Department, held in Philbin that "the mere presence of [defendant's] personnel at the work site, while perhaps indicative of a general right of inspection, does not suffice to create an inference of supervisory control." Id. (internal citations omitted). In opposition, plaintiff argues that it is defendant Amtrak's burden to establish that it did not create the defective condition or have actual or constructive notice of it. According to plaintiff, defendant Amtrak has failed to meet such burden. Plaintiff was diagnosed lung cancer, which plaintiff alleges was caused by his exposure to ultra-hazardous asbestos dust when he worked as a train conductor with the Long Island Railroad from 1971 to 1996 and made stops at Penn Station. Defendant Amtrak took ownership of Penn Station in 1976. Plaintiff testified that during his over two decade career, all of his train routes went through Penn Station and that there was always renovation in the main concourse. Plaintiff further testified that tile work was performed in Penn Station at all hours of the day and that he frequently spent time in the main concourse during his time in between routes and during his lunch break where he would walk right along the construction areas. Plaintiff testified that during these times he would see debris everywhere and asbestos dust in the air. According to plaintiff, he observed boxes of tile in the construction area which were labeled asbestos.
A careful review of all the papers reveal that defendant Amtrak relies upon, inter alia, plaintiffs testimony to establish that moving defendant was not supervising or directing the work. When asked who directed the work, plaintiff testified "I would go with Amtrak, Amtrak owned Penn Station." Affirmation in Opposition to Defendant Amtrak's Motion for Summary Judgment, Exh. 3, Depo. Tr. of Ernest Cummings, p. 695, In. 20-23. Plaintiff further testified, when asked who the workers reported to, "I would say Amtrak supervisors, whoever was in charge of the job." Id. at p. 695 In. 24-p. 696 In.5. The Appellate Division has held that "[a] defendant can...establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident. A plaintiffs inability in a premises liability case to identify the cause. ..is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately cause the plaintiffs injuries would be base on speculation." Gani v. Ave. R Sephardic Congregation, 159 A.D.3d 873, 874 (2nd Dep't 2018)(internal citations omitted). The Appellate Division in Gani held that a defendant may establish entitlement to summary judgment through the use of plaintiff s deposition transcript. Id. Here, defendant Amtrak relies upon plaintiffs speculative testimony in establishing that moving defendant did not have control and did not supervise the work performed in Penn Station. Plaintiffs speculative testimony alone is insufficient to establish that defendant Amtrak directed or supervised the work.
The instant action involves the potential of dust from construction work done in Penn Station either traveling to the train where plaintiff was working or being inhaled by plaintiff as he was on a break from work. Here, no issue of fact raised has been raised that defendant Amtrak was directing or supervising the work being done in Penn Station. Moreover, the Court finds that plaintiff was not working within the original zone of the tile work. Thus, defendant Amtrak's motion for summary judgment, pursuant to CPLR 3212, for a finding in favor of said defendant on the grounds that said defendant made a prima facie case demonstrating lack of duty, breach, or causation and to dismiss the complaint and all cross-claims against it is granted.
Accordingly, it is
ORDERED that defendant Amtrak's motion for summary judgment seeking to dismiss plaintiffs complaint and all cross-claims against it is granted; and it is further
ORDERED that the complaint is dismissed in its entirety as against defendant Amtrak with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that within 30 days of entry, defendant Amtrak shall serve a copy of this Decision/Order upon plaintiff with notice of entry.
This Constitutes the Decision/Order of the Court .