Martinez v. City of N.Y.

• Decision Date: 18 May 2010
• Citation: 73 A.D.3d 993,901 N.Y.S.2d 339,2010 N.Y. Slip Op. 04346
• Parties: Jose MARTINEZ, appellant-respondent,v.CITY OF NEW YORK, et al., respondents-appellants,UUP, Inc., respondent, et al., defendants(and a third-party action).
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 993

901 N.Y.S.2d 339

2010 N.Y. Slip Op. 04346

Jose MARTINEZ, appellant-respondent,

v.CITY OF NEW YORK, et al., respondents-appellants,UUP, Inc., respondent, et al., defendants(and a third-party action).

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

May 18, 2010.

Bosco, Bisignano & Mascolo, Staten Island, N.Y. (Anthony A. Mascolo of counsel), for appellant-respondent.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for respondent-appellant City of New York.Ahmuty, Demers & McManus, Albertson, N.Y. (Deborah DelSordo and Brendan T. Fitzpatrick of counsel), for respondents-appellants GSF Energy, LLC, Fresh Gas, LLC, and DQE.James J. Toomey, New York, N.Y. (Eric P. Tosca of counsel), for respondent.PETER B. SKELOS, J.P., FRED T. SANTUCCI, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), entered August 7, 2008, as granted those branches of the motion of the defendants GSF Energy, LLC, Fresh Gas, LLC, and DQE, and the cross motion of the defendant City of New York, which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against each of them, and granted the separate cross motion of the defendant UUP, Inc., for summary judgment dismissing the complaint insofar as asserted against it, and the defendants GSF Energy, LLC, Fresh Gas, LLC, and DQE cross-appeal, as limited by their brief, from so much of the same order as denied those branches of their motion which were for summary judgment dismissing the causes of action to recover damages for a violation of Labor Law § 200 and common-law negligence insofar as asserted against them, and the defendant City of New York separately cross-appeals, as limited by its brief, from so much of the same order as denied those branches of its cross motion which were for summary judgment dismissing the causes of action to recover damages for a violation of Labor Law § 200 and common-law negligence insofar as asserted against it and on its cross claims for contractual and common-law indemnification asserted against the defendant GSF Energy, LLC.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendant UUP, Inc., payable by the plaintiff.

As the owner of the Fresh Kills Landfill in Staten Island, the defendant City of New York entered into a “Gas Rights Concession Agreement” in 1998 with the defendant GSF Energy, LLC (hereinafter GSF), a subsidiary of the DQE Financial Corp., sued herein as DQE (hereinafter DQE). Pursuant to this agreement, the City granted GSF the sole and exclusive right to conduct methane gas recovery operations at the landfill, and to sell the collected landfill gas and gas products to third parties. GSF then contracted with the defendant Fresh Gas, LLC (hereinafter Fresh Gas), for the sale of all collected landfill gas. GSF also contracted with the plaintiff's employer, Waste Energy Technology, LLC (hereinafter WET), to, among other things, operate, monitor, and maintain the gas recovery facilities at the landfill, including the onsite “flare stations” where the collected gas was burned.

In 2001 GSF subcontracted with the defendant UUP, Inc. (hereinafter UUP), to have UUP upgrade the gas collection facilities by installing, among other things, refrigeration units and accompanying piping systems designed to cool collected gas at the flare stations. Before any alterations could be made to the flare stations, gas flow to the burners had to be stopped so that the new equipment could be joined to the existing equipment without causing a gas leak or explosion. This was done, in part, by manually closing certain valves in the existing gas lines, a process performed by WET, the plaintiff's employer.

On the day of the accident, the plaintiff's supervisor instructed him to assist in turning all of the valve wheels at one of the flare stations to the closed position, so that UUP could begin its work. According to the plaintiff, one of the valve wheels was located approximately 18 feet above the ground. In order to reach this valve wheel, the plaintiff climbed onto the existing horizontally installed gas pipes, and began to turn the valve wheel. The plaintiff alleged that the wheel eventually broke off its shaft and caused him to fall to the ground, resulting in personal injuries. Although some of the elevated valve wheels at the flare station could be operated from ground level by pulling on a chain mechanism attached to the wheel itself, the one which the plaintiff was turning by hand at the time of his accident did not.

The plaintiff commenced this action against, among others, the City, GSF, Fresh Gas, DQE, and UUP, alleging violations of Labor Law §§ 200, 240(1), and 241(6) and common-law negligence. GSF, Fresh Gas, and DQE moved for summary judgment dismissing the complaint insofar as asserted against them. UUP cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. The City also cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it, and on its cross claim for common-law and contractual indemnification. GSF, Fresh Gas, and DQE thereafter separately cross-moved for summary judgment on their cross claim for contractual indemnification asserted against the City.

The Supreme Court granted those branches of the motion of the defendants GSF, Fresh Gas, and DQE which were for summary judgment dismissing the plaintiff's Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against them, but denied those branches of the same motion which were for summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence causes of action insofar as asserted against them. The Supreme Court also granted those branches of the City's cross motion which were for summary judgment dismissing the plaintiff's Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against it, but denied those branches of the same cross motion which were for summary judgment dismissing the plaintiff's Labor Law § 200 and common-law negligence causes of action insofar as asserted against it and on its cross claims for contractual and common-law indemnification asserted against GSF. The Supreme Court granted UUP's cross motion in its entirety, awarding it summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court also denied the separate cross motion of the defendants GSF, Fresh Gas, and DQE for summary judgment on their cross claim against the City for contractual indemnification. The plaintiff appeals. GSF, Fresh Gas, and DQE cross-appeal, and the City separately cross-appeals. We affirm the order insofar as appealed and cross-appealed from.

“While the reach of section 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” ( Martinez v. City of New York, 93 N.Y.2d 322, 326, 690 N.Y.S.2d 524, 712 N.E.2d 689 [citation and internal quotation marks omitted]; see LaGiudice v. Sleepy's Inc., 67 A.D.3d 969, 970–971, 890 N.Y.S.2d 564; Karaktin v. Gordon Hillside Corp., 143 A.D.2d 637, 638, 532 N.Y.S.2d 891). The statute provides “no protection to a plaintiff injured before any activity listed in the statute was under way” ( Panek v. County of Albany, 99 N.Y.2d 452, 457, 758 N.Y.S.2d 267, 788 N.E.2d 616; see Enos v. Werlatone, Inc., 68 A.D.3d 713, 890 N.Y.S.2d 109). Although the act of closing the gas valve may have been necessary in order for UUP to begin its renovation work at the flare station, Labor Law § 240(1) affords the plaintiff no protection in this case, as he had closed similar valves in the past as part of his regular maintenance duties as an employee of WET ( see Petermann v. Ampal Realty Corp., 288 A.D.2d 54, 55, 733 N.Y.S.2d 9), and his work was to be completed before the commencement of work by the subcontractor UUP ( see Panek v. County of Albany, 99 N.Y.2d at 457, 758 N.Y.S.2d 267, 788 N.E.2d 616; Enos v. Werlatone, Inc., 68 A.D.3d 713, 890 N.Y.S.2d 109; Karaktin v. Gordon Hillside Corp., 143 A.D.2d at 638, 532 N.Y.S.2d 891). Moreover, neither the plaintiff nor his employer had been contracted to perform the renovation work at the flare station, nor was the plaintiff permitted or suffered to perform the renovation work at issue here ( see Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d 321, 322–323, 798 N.Y.S.2d 38; Petermann v. Ampal Realty Corp., 288 A.D.2d at 55, 733 N.Y.S.2d 9; Paradise v. Lehrer, McGovern & Bovis, 267 A.D.2d 132, 133–134, 700 N.Y.S.2d 25). As such, the plaintiff cannot be regarded as a person “employed” to perform an activity enumerated under Labor Law § 240(1) ( see Martinez v. City of New York, 93 N.Y.2d at 326, 690 N.Y.S.2d 524, 712 N.E.2d 689). Accordingly, the Supreme Court properly granted those branches of the respective motions and cross motions which were for summary judgment dismissing the Labor Law § 240(1) cause of action.

Moreover, the provisions of Labor Law § 241(6) also are inapplicable to the facts of this case. Specifically, the accident did not arise from construction, excavation, or demolition work ( see Labor Law § 241 [6]; Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 101, 752 N.Y.S.2d 581, 782 N.E.2d 558; Enos v. Werlatone, Inc., 68 A.D.3d 713, 890 N.Y.S.2d 109). “To support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial...