In re World Trade Ctr. Lower Manhattan Disaster Site Litig., s. 09 CV 680AKH

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtALVIN K. HELLERSTEIN, District Judge
Citation44 F.Supp.3d 409
Docket Number21 MC 102AKH.,Nos. 09 CV 680AKH,s. 09 CV 680AKH
Decision Date09 September 2014

44 F.Supp.3d 409


Nos. 09 CV 680AKH
21 MC 102AKH.

United States District Court, S.D. New York.

Signed Sept. 9, 2014.

44 F.Supp.3d 416



In this action, Plaintiff Marek Socha, a licensed asbestos-abatement worker, asserts claims for common law negligence and violations of sections 200 and 241(6) of the New York Labor Law. Socha's claims are based upon injuries suffered after working in numerous buildings in the vicinity of the World Trade Center site in the weeks, months, and years following the 9/11 terrorist attacks. Socha asserts his claims against various owners, managing agents, lessees, environmental consultants, and contractors (collectively, “Defendants”) that owned, managed or worked in the buildings.

The Defendants have moved for summary judgment to dismiss the claims against them. The owners, managing agents, and lessees moving for summary judgment are: Boston Properties, Inc., 90 Church Street, L.P., 110 Church, LLC, Lionshead 110 Development LLC, Battery Park City Authority, Merrill Lynch & Co., Inc., 222 Broadway LLC, Crown 61 Associates, LP, Crown 61 Corp., Crown Broadway LLC, Crown Properties, Inc., American International Realty Corp., American International Realty Group, and various entities I will designate as the “Brookfield Defendants”1 (collectively, the “Owner Defendants”). The environmental consultants moving for summary judgment are:

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Ambient Group, Inc., Hillmann Environmental Group, Inc., Weston Solutions, Inc. (collectively, the “Environmental Consultant Defendants”), and Indoor Environmental Technologies, Inc. The only general contractor moving for summary judgment is Structure Tone, Inc. (“Structure Tone”). The only subcontractor moving for summary judgment is Blackmon–Mooring Steamatic Catastrophe, Inc. (“BMS”). For the following reasons, the Defendants' motions are granted in part and denied in part.

I. Background 2

On September 11, 2001, terrorists hijacked American Airlines Flight 11 and United Airlines Flight 175 and crashed the airplanes into the north and south towers of the World Trade Center. Within two hours, both towers collapsed, spewing debris and a large plume of dust into buildings throughout lower Manhattan. The dust plume that penetrated the buildings consisted of a complex mixture of pulverized cement, glass fibers, asbestos, crystalline silica, metals, volatile organic compounds, and other chemicals, some of which were known human carcinogens.See Decl. of Gregory J. Cannata in Supp. of Pls.' Opp'n to Defs.' Mots. for Summ. J. (“Cannata Decl.”), Exh. 1 at 7; In re WTC Disaster Site, 414 F.3d 352, 358 (2d Cir.2005). The hazard posed by the dust was allegedly due primarily to its high mass concentration, large particulate matter, and high alkalinity with a pH measurement of over 11. See Cannata Decl., Exh. 2 at 4, Exh. 8 at 7.

Of the buildings at issue here, those located in close proximity to the World Trade Center site suffered moderate to major damage when the World Trade Center towers collapsed, including structural damage and breaches in their façades. See Cannata Decl., Exh. 7 at 1–2. Those buildings located further away sustained little to no structural damage. See id. However, varying amounts of dust and debris entered all the buildings through open or broken windows, façade breaches, and the ventilation systems, which often circulated the dust throughout the buildings before being turned off. See, e.g., Cannata Decl., Exh. 3 at 147–48, Exh. 4 at 89–92. The amount of settled dust in the buildings ranged from less than an inch to 10 feet. See, e.g., id., Exh. 17A ¶ 4.

Following the 9/11 terrorist attacks, the owners, managing agents, and lessees of the affected buildings retained environmental consultants and contractors to test the dust and air, evaluate the condition of the buildings, and plan the cleaning and renovation. See, e.g., Cannata Decl., Exh. 191. On September 14, 2001, the New York City Department of Environmental Protection (“NYC DEP”) issued a letter to owners of buildings affected by the collapse of the World Trade Center towers. That letter indicated that the dust and debris should be tested for asbestos or assumed to be “asbestos-containing material.” See Goldstein Decl., Exh. D. Further, the NYC DEP required that all “asbestos-containing material” be handled by workers certified as “asbestos handlers.” Id.

Socha, as a licensed asbestos-abatement worker, was employed by various subcontractors retained to perform the clean-up of the dust and debris at the different buildings. He alleges that the building owners, environmental consultants, general contractors, and subcontractors, treated

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the cleanup work primarily as an asbestos-abatement project and failed to take account of the dangerous “high-alkaline” dust present in all buildings. See Pls.' Master Mem. in Opp'n to Defs.' Mots. for Dismissal of the Pls.' Labor Law Causes of Action (“Pls.' Master Opp'n Br.”) at 12–29. This singular focus, in turn, lead to the use of respiratory equipment and the implementation of safety practices that, while perhaps acceptable for asbestos abatement, failed to protect him from the “high-alkaline” World Trade Center dust. See id.; Cannata Decl., Exh. 8 at 11. More specifically, Socha presents evidence that he wore “asbestos-specific” respirators and was not provided with “powered air purifying respirators.” See Cannata Decl., Exh. 53 at 170, 217–18, 222, 247–49, 256–59, Exh. 54 at 295, 301, 311, 329, 345, 377. Moreover, Socha points to expert evidence that “asbestos-specific” respirators are prone to clogging when used in environments with “high-alkaline” dust—characterized by large particulate matter—leading to constrained air flow and leakage of contaminated air into the lungs. See id., Exh. 8 at 7. This problem was allegedly compounded by the occasional unavailability of replacement filters and decontamination units. See id., Exh. 8 at 11.

Over the months and years following Socha's work in the buildings, he has allegedly developed various disorders of the upper and lower respiratory tracts.See, e.g., Pl.'s 56.1 Statement of Disputed Facts Related to 110–120 Church Street ¶¶ 3–5. Socha contends that the inhalation of highly corrosive “alkaline-based” dust caused these various illnesses and seeks to hold Defendants liable under sections 200 and 241(6) of the New York Labor Law and common law negligence. Following fact discovery, Defendants moved for summary judgment. Because there are significant differences in the relevant facts pertaining to each building, I address each separately.

A. 110–120 Church Street

110–120 Church Street is located two blocks north of the World Trade Center site. On September 11, 2001, the property was owned by 110 Church LLC, which had leased the property to Lionshead Development LLC (“Lionshead”) (together, “110 Church LLC Defendants”). See Decl. of Leila Cardo in Supp. of 110 Church LLC's Mot. for Summ. J. (“Cardo Decl.”), Exh. D. On September 13, 2001, the property manager for Lionshead's parent company, Neal Cohen, inspected the building. Cohen discovered that the engine from Flight 175 had struck the 16th floor, tearing a 15 by 18 foot hole in the exterior of the building. See id., Exh. F at 27–29. In addition, dust and debris from the collapsing World Trade Center towers was present throughout the building. See id., Exh. F at 29–32. Cohen retained Environmental Monitoring and Consulting Associates (“EMCA”) to “test the debris and see if there is any asbestos in it.”3 Id. at 34. The contract between Lionshead and EMCA called for the “complete removal and disposal of all asbestos contaminated dust and the decontamination of all surfaces.” Cannata Decl., Exh. 95 at 5. EMCA agreed to provide all union labor and equipment necessary to complete the work. See id. The contract required the labor to consist of licensed asbestos-abatement workers, see id. at 6, and notifications were posted advising the public of the ongoing asbestos abatement project, see Cardo Decl., Exh. F at 48.

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Lionshead retained Socha's employer, Pinnacle Environmental Corp. (“Pinnacle”), to conduct the asbestos abatement and debris removal. See Cardo Decl., Exh. H. That contract similarly required the use of “asbestos-certified personnel.” See id. at 1. Socha worked for Pinnacle at 110 Church Street for a total of 189 hours from December 3, 2001 to December 10, 2001 and December 17, 2001 to December 24, 2001. See id., Exh. J. His work consisted primarily of removing dust, moldy sheetrock, and cleaning air ducts. See Cannata Decl., Exh. 53 at 236–39. Other Pinnacle workers demolished sheetrock and walls and removed a drop ceiling and floor tiles. See id., Exh. 35 at 31. In addition, Socha would momentarily place his head and upper body inside HVAC ducts in order to vacuum out dust. See id., Exh. 53 at 239–41. Socha alleges that asbestos-abatement procedures were followed. See id., Exh. 53 at 236. The 110 Church LLC Defendants did not directly supervise Pinnacle or EMCA. See Cardo Decl.,...

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