Opinion
3529, 3530, 3531, 3532.
Decided May 4, 2004.
Orders, Supreme Court, New York County (Louis B. York, J.), entered July 28, July 28, 2003, August 6, 2003 and August 8, 2003, in four Labor Law actions arising out of the renovation of Grand Central Terminal, insofar as they sustained certain of plaintiffs' Labor Law § 241(6) claims against LMB, defendant owner Metropolitan Transportation Authority (MTA) and defendant management company Metro-North Railroad (MN) (collectively LMBMM); dismissed plaintiffs' common-law negligence, Labor Law § 200 and OSHA claims against LMBMM; dismissed LMBMM's claims for indemnification and contribution against plaintiff's employer, Casalino Interior Demolition; dismissed all claims against defendant and third-party defendant lead paint abatement subcontractor ETS Contracting; dismissed all claims for indemnification and contribution against third-party defendant lead paint subcontractor Northern Valley Contracting Co.; sustained LMBMM's claim for contribution against third-party defendant lead paint abatement supervisor and inspector Hygienetics Environmental Services; dismissed LMB's and sustained MTA's, MN's and various other parties' claims for contractual indemnification against Hygienetics; and denied plaintiffs' motions to amend their complaints to include claims for punitive damages, unanimously affirmed, without costs. Appeal from that part of said order which dismissed plaintiffs' claims against LMB for negligent supervision, unanimously dismissed, without costs, as academic in light of Supreme Court's dismissal of such claims in subsequent motion practice.
ACTION NO. 1 Newman Fitch Altheim Myers, P.C., New York (Michael H. Zhu of counsel), for appellants-respondents.
Alexander J. Wulwick, New York, James Wilson, Walter Hagins, Krzystzof Belzek, Ryszard Kruzynski, respondents-appellants. Wilson Elser Moskowitz Edelman Dicker, LLP, New York (Richard E. Lerner of counsel), for Hygienetics Environmental Services, Inc., respondent-appellant.
Clausen Miller, P.C., New York (Melissa A. Murphy-Petros of counsel), for ETS Contracting, Inc., respondent.
Rivkin Radler LLP, Uniondale (Merril S. Biscone of counsel), for Northern Valley Contracting Company, Inc., respondent.
Cozen O'Connor, New York (John J. McDonough of counsel), for Casalino Interior Demolition Corp., respondent.
Before: Nardelli, J.P., Andrias, Sullivan, Ellerin, JJ.
Plaintiffs, burners or burners' helpers, employed by third-party defendant Casalino to cut steel beams with acetylene torches, allege that, due to the improper abatement of steel painted with lead-based paint, they developed lead poisoning from exposure to fumes. The parties' various motions and cross motions were correctly decided. The circumstances here lack the character of spite, malice or evil motive required to sustain claims of punitive damage in a tort action ( see Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 479). ETS had no authority to supervise or control plaintiffs' work, an implicit precondition to liability under Labor Law § 200 ( Rizzuto v. LA Wenger Constr. Co., 91 N.Y.2d 343, 352). The sections of the Industrial Code rejected by the motion court are not sufficiently specific to support claims under Labor Law § 241(6) ( see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505). We have considered the parties' remaining contentions for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.