Vill. of Tarrytown v. N.Y. State Dep't of Labor

• Decision Date: 21 January 2015
• Citation: 124 A.D.3d 788,2015 N.Y. Slip Op. 00543,2 N.Y.S.3d 172
• Parties: In the Matter of VILLAGE OF TARRYTOWN, petitioner, v. NEW YORK STATE DEPARTMENT OF LABOR, et al., respondents.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 788

2 N.Y.S.3d 172

2015 N.Y. Slip Op. 00543

In the Matter of VILLAGE OF TARRYTOWN, petitioner,

v.NEW YORK STATE DEPARTMENT OF LABOR, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 21, 2015

Bond, Schoeneck & King, PLLC, New York, N.Y. (John S. Ho of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Terri Gerstein and Seth Kupferberg of counsel), for respondents New York State Department of Labor and New York State Industrial Board of Appeals.

Steven A. Crain and Daren J. Rylewicz, Albany, N.Y. (Aaron E. Kaplan of counsel), for respondent Civil Service Employees Association, Inc.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Industrial Board of Appeals dated February 14, 2013, made after a hearing, which affirmed a notice of violation and order to comply of the New York State Department of Labor, dated December 16, 2010, finding that the petitioner willfully violated 29 CFR 1910.146(c)(3) and (4).

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

On September 6, 2010, an employee of the petitioner's Department of Public Works (hereinafter DPW) descended into a 20–foot–deep manhole in an attempt to remedy a sewer blockage. During his descent, he lost consciousness and fell to the bottom. In an attempted rescue, one of the petitioner's volunteer firefighters also lost consciousness and fell. Both men died of asphyxiation.

Following an investigation conducted by the Public Employee Safety and Health Bureau of the New York State Department of Labor (hereinafter the DOL), the DOL issued the petitioner a notice of violation and order to comply, finding, inter alia, that the petitioner willfully violated two sections of 29 CFR 1910.146 pertaining to the protection of employees from the hazards of entry into permit-required confined spaces. The petitioner appealed the DOL's findings to the New York State Industrial Board of Appeals (hereinafter the IBA). Following a hearing, the IBA affirmed the DOL's findings that the petitioner willfully violated 29 CFR 1910.146(c)(3) with respect to DPW employees , and 29 CFR 1910.146(c)(4) with respect to its volunteer firefighters.

“If [an] employer decides that its employees will not enter permit spaces, the employer shall take effective measures to prevent its employees from entering the permit spaces” and shall, inter alia, warn exposed employees of the existence and location of such spaces and the danger posed by them (29 CFR 1910.146[c][3]; see 29 CFR 1910.146[c][2] ). Further, “[i]f the employer decides that its employees will enter permit spaces, the employer shall develop and implement...