Barreto v. Metro. Transp. Auth.

• Decision Date: 05 April 2012
• Docket Number: No. 590145/06,Index No. 590440/07,Index No. 108233/05,590145/06
• Citation: 2012 NY Slip Op 30858
• Parties: RAUL BARRETO and DERLIM BARRETO, Plaintiffs, v. METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORK and IMS SAFETY, INC., Defendants. IMS SAFETY, INC., Third-Party Plaintiff, v. ANDRES SERVICES CORPORATION, Third-Party Defendant. METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY, Second Third-Party Plaintiffs, v. P.A.L. ENVIRONMENTAL SAFETY CORP., Second Third-Party Defendant.
• Court: New York Supreme Court

2012 NY Slip Op 30858

RAUL BARRETO and DERLIM BARRETO, Plaintiffs,

v.METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORKand IMS SAFETY, INC., Defendants.

IMS SAFETY, INC., Third-Party Plaintiff,

v.ANDRES SERVICES CORPORATION, Third-Party Defendant.

METROPOLITAN TRANSPORTATION AUTHORITY

and NEW YORK CITY TRANSIT AUTHORITY, Second Third-Party Plaintiffs,

v.P.A.L. ENVIRONMENTAL SAFETY CORP., Second Third-Party Defendant.

Index No. 108233/05

No. 590145/06

Index No. 590440/07

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 21

Dated: April 5, 2012

Third-Party Index

Second Third-Party

DECISION AND ORDER

Hon. Michael D. Stallman, J.S.C.:

Motions with sequence numbers Oil and 012 are hereby-consolidated for disposition.

On January 9, 2005, plaintiff Raul Barreto, then an asbestos laborer employed by second third-party defendant P.A.L.Environmental-Safety Corp. (PAL), fell through an uncovered manhole in the street in front of the Family Court courthouse at 60 Lafayette Street in Manhattan, and allegedly suffered injuries as a result of his fall. This action for damages for personal injuries ensued.

In motion sequence number Oil, defendant/third-party plaintiff IMS Safety, Inc. (IMS) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against it.¹ In motion sequence number 012, defendants/second third-party plaintiffs Metropolitan Transportation Authority (MTA) and the New York City Transit Authority (TA; together, defendants) move for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 200 causes of action, as well as the OSHA and Industrial Code sections that plaintiff alleges defendants violated.²

Defendant the City of New York (City) cross-moves for the dismissal of all causes of action as they relate to the City's alleged negligent maintenance of the premises, as well asthe dismissal of the complaint and cross claims as alleged against it. Plaintiff cross-moves for summary judgment on his complaint.

Plaintiff has discontinued his Labor Law § 200 and common-law negligence causes of action as against the City (Edwards 10/7/11 Affirm, in Opp. to City's Cross Motion, ¶ 3).

THE PLEADINGS

Plaintiff's amended complaint alleges causes of action sounding in common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). Plaintiff's wife's cause of action for loss of services has been discontinued per this court's Order dated September 20, 2011 (motion sequence number 009). The City's answer to the amended complaint asserts cross claims against defendants for contribution and contractual indemnification. Defendants' answers bring cross claim's against the City for contribution or common-law indemnification, and contractual indemnification. IMS has not asserted cross claims against defendants or the City, and defendants and the City have not asserted cross claims against IMS.

Third-party defendant Andres Services Corporation is in default. The second third-party action has been discontinued.

BACKGROUND

The City owns the street in front of 60 Lafayette Street, the New York County Family Court courthouse. By leasedated June 1, 1953, as amended several times since then, the City leased that area to the TA (Colt 10/3/11 Affirm., Ex. E). On December 16, 2002, the MTA, acting by the TA, entered into an agreement with PAL whereby PAL would perform environmental remediation services within the five boroughs of New York (Bass 6/15/11 Affirm., Ex. L). Pursuant to the agreement, PAL acted as the general contractor for the project of asbestos removal in manholes (Bass 6/15/11 Affirm., ¶ 2; Plaintiff's January 9, 2009 Depo. [Plaintiff's Jan. Depo.], at 72). By subcontract dated June 17, 2003, PAL retained IMS as the site safety consultant (Bass 6/15/11 Affirm., ¶ 2; id., Ex. I). IMS's responsibilities included enforcing safety and making sure that everyone worked in compliance with OSHA rules and regulations. The IMS supervisor also had the authority to stop work if he saw an unsafe or hazardous condition (Mazzurco Depo., at 27-28, 38, 101; Torres 8/8/11 Aff., ¶ 8; Plaintiff's Jan. Depo., at 81-82; but see Mazzurco Depo., at 53-54 [if there was a dangerous condition, IMS would tell PAL supervisor]; id. at 117-118 [IMS itself directly stopped work only when serious injuries or death could occur]). In addition, it was IMS's responsibility to monitor the levels of carbon dioxide, oxygen and methane in the subterranean work area before and during the asbestos removal (O'Loughlin Depo., at 13-14).

IMS is no longer in business (Mazzurco Depo., at 19).

At one point in his testimony, Mazzurco, who was IMS's president at the time, averred that IMS subcontracted its work on this project to Andres Inc. There is nothing in writing that evidences the subcontract or that PAL or the defendants were apprised of the change in safety contractor. However, Mazzurco identified two men, Manuel Fiallos and Diego Maldonado, who are elsewhere identified as IMS supervisors, as Andres employees, one of which, Diego, was on site at the time of plaintiff's accident (id. at 61-65, 98). According to Mazzurco, IMS had no employees on site on the day of plaintiff's accident (id. at 62).

Earlier in his deposition, Mazzurco attested that IMS did perform work on this particular project and that one IMS employee would be present at the site every day, performing the duties set forth above (id. at 37-38). The PAL supervisor for the project, Rafael Torres, identified the IMS employee that was present on site on the day of plaintiff's accident as Diego (Torres 8/8/11 Aff., ¶¶ 7, 10). Plaintiff identified Manuel as the IMS supervisor that was present on the day of plaintiff's accident (Plaintiff's Jan. Depo., at 79-80).

Defendants were present at the site in the person of Brian O'Loughlin, defendants' asbestos handler supervisor, whose job it was to monitor contractors and consultants on asbestos removal jobs, and to protect the public (O'Loughlin Depo., at 7-8). He showed contractors which hole to work in, but he did notdirect the work of the contractors or-consultants (id. at 8). If O'Loughlin saw that a contractor was not working properly, he told the consultant, and the consultant would tell the contractor. The consultant acted as a liaison between defendants and the contractors (id. at 8-9) .

Before asbestos removal could begin, a protective shelter, made of wood and plastic, had to be constructed around the manhole (Bass 6/15/11 Affirm., ¶ 12; Plaintiff's Jan. Depo., at 61-68; Plaintiff's November 22, 2010 Depo. [Plaintiff's Nov. Depo.], at 66-67). After the containment shelter was built, an MTA inspector would check that all electricity was turned off before the asbestos workers were allowed to go underground (Plaintiff's Jan. Depo., at 69-70; O'Loughlin Depo., at 13-14 [MTA checked to make sure there were no high tension positive feeders in the hole, i.e., nothing'more than 600 volts]), and IMS checked the air quality in the hole (O'Loughlin Depo., at 18-19). Only after the MTA and IMS inspectors gave permission were PAL workers allowed to remove the manhole cover, which they placed outside the enclosed work area (id. at 70-71; but see O'Loughlin Depo., at 18-19 [IMS supervisor would give the OK to open and close the hole]; but also see id. at 49 [IMS representative did not have to OK closure of manhole]). At the end of the shift, once everyone and all the equipment were out of the hole, the MTA supervisor would give the OK to cover the manhole, after whichthe PAT. workers would begin to deconstruct the protective containment area (Plaintiff's Nov. Depo., at 26-28; but see Plaintiff's Jan. Depo., at 96-97 [PAL, IMS and MTA supervisors were supposed to make sure the manhole was covered³ ]; O'Loughlin Depo., at 73-76 [PAL had to wait for IMS to remove air monitoring equipment; the hole was usually closed immediately thereafter; it was IMS's duty to give the OK to cover the manhole]; id. at 22 [at end of the day, IMS went into the containment area, and the hole was closed before the plastic was removed]; id. at 48 [IMS made sure manhole was closed before deconstruction began]; but also see Mazzurco Depo., at 40 [if containment barriers were up, IMS had no responsibility to ensure that the manhole was covered]).

On the day of his accident, the manhole was not covered before the deconstruction began, and when plaintiff walked toward the left back corner of the containment area to begin its dismantling, he fell into the open manhole (Plaintiff's Nov. Depo., at 62-70).

Plaintiff attested that only his PAL supervisor, Rafael Torres, told him what to do (Plaintiff's Jan. Depo., at 98). At the beginning of the project, Torres specifically told plaintiff not to work around the manhole if it was not covered, and again,on the day of the accident, Torres told him that the manhole had to be covered before deconstruction could begin (Torres 8/8/11 Aff., ¶ 9; Plaintiff's Nov. Depo., at 80). However, at the time of the accident, plaintiff "just did not notice" that the manhole was uncovered. "I just started to make the break down. At no time did I really pay attention to see if the cover was on or off, because the supervisor is supposed to do that" (Plaintiff's Jan. Depo., at 128; Plaintiff's Nov. Depo., at 125-127 [plaintiff did not check to see if the manhole was covered]). When asked how long he waited between the time he exited the manhole and the time he began taking down the plastic, plaintiff responded, "I did it right there. You come out and you begin taking it off" (Plaintiff's Nov. Depo., at 41-42). Between the time that plaintiff exited the manhole with his co-workers Charlie and Julio, and the start of their deconstruction wor"k, no one but the shop steward entered the containment area (id. at 42-43). Thus, none of the supervisors who had the responsibility to cover the manhole had entered the containment area to cover the manhole before plai...