Steel Inst. of N.Y. v. City of N.Y.

• Decision Date: 21 December 2011
• Docket Number: No. 09 civ. 6539 (CM).,09 civ. 6539 (CM).
• Citation: 832 F.Supp.2d 310
• Parties: STEEL INSTITUTE OF NEW YORK, Plaintiff, v. The CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

832 F.Supp.2d 310

STEEL INSTITUTE OF NEW YORK, Plaintiff,

v.The CITY OF NEW YORK, Defendant.

No. 09 civ. 6539 (CM).

United States District Court,

S.D. New York.

Dec. 21, 2011.

Brian A. Wolf, Smith, Currie & Hancock LLP, Fort Lauderdale, FL, James F. Butler, III, Smith, Currie & Hancock, LLP, Atlanta, GA, for Plaintiff.

Karen Beth Selvin, Sheryl Rebecca Neufeld, New York City Law Department, New York, NY, Gary Kenneth Stearman, United States Dept. of Labor, Washington, DC, for Defendant.

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S CROSS–MOTION, AND DISMISSING THE COMPLAINT

COLLEEN McKENNA, District Judge.

INTRODUCTION

Plaintiff Steel Institute of New York (“Plaintiff”), a trade organization with members in the construction industry, asks this Court to declare that certain statutes and regulations enacted and enforced by Defendant City of New York (the “City”) and its subdivisions concerning construction cranes are preempted by OSHA regulations. Before the Court are the parties' cross-motions for summary judgment.

For the reasons discussed below, Plaintiff's motion for summary judgment is DENIED, the City's cross-motion is GRANTED and the complaint in this matter is DISMISSED.

LEGAL AND FACTUAL BACKGROUND¹

A. The City Building Code and Crane Statutes

This case challenges statutes enacted by the City of New York to regulate cranes and derricks used in the construction and demolition of buildings, and regulations promulgated pursuant thereto by the New York City Department of Buildings (“DOB”). See generally N.Y. City Admin. Code §§ 28–3316, 28–3319, Reference Standard 19–2 (the “City Statutes”).

Prior to the passage of the first New York City Charter in 1897, City building regulation was a matter of State statute. For example, an 1882 Act set forth the rules for the construction of buildings in New York City, and made the City Fire Department responsible for their enforcement. L. 1882 ch. 410 § 471 et seq. An 1892 statute created the New York City DOB, from what had been known as the Fire Department's bureau of inspection of buildings, and vested it with the authority to enforce the provisions of what eventually became known as the New York City Building Code. L. 1892 ch. 275.

With the consolidation of New York City in 1897–98, and the enactment of the first City Charter in 1897, the enforcement of existing regulations, as well as the power to pass new ones, passed to City officials. City of New York v. M. Wineburgh Advertising Co., 122 A.D. 748, 107 N.Y.S. 478 (1st Dep't 1907) (discussing L. 1897, ch. 378, § 644 et seq.). As the New York Court of Appeals explained more than a century ago, “The [New York City] Building Code was enacted October 24, 1899. The revised charter of the city of New York of 1901 confirmed its provisions (L. 1901, ch. 466, § 407), which, therefore, are to be given the same force within the limits of the city, as a statute.” Racine v. Morris, 201 N.Y. 240, 244, 94 N.E. 864 (1911) (citing City of New York v. Trustees, etc., 85 App.Div. 355, 83 N.Y.S. 442 (1st Dep't 1903), aff'd on opn. below,180 N.Y. 527, 72 N.E. 1140 (1905)).

The purpose of the Building Code is, and always has been, to protect the public from the dangers posed by poorly constructed buildings: “The purpose of this code is to [regulate] building construction in the city of New York in the interest of public safety, health, welfare and the environment.” N.Y. City Admin. Code § 28–101.2 (emphasis added).

Statutes pertaining to cranes have long been part of New York City's Building Code. N.Y. City Admin. Code, Title 28, Chapter 7 (the “Building Code”). City hoisting regulations were first enacted in 1928, and have continually been in force since. Ocharsky Decl. ¶ 31; see also Selvin Decl., Ex. H (1928 City Ordinances), Ex. I (1940 City Ordinances), Ex. J (1969 City Law). The City Statutes were most recently revised, with respect to tower cranes, following a widely publicized accident in midtown Manhattan in 2008, in which seven people died and several surrounding buildings were heavily damaged; following the accident residents of eighteen buildings had to be evacuated. Ocharsky Decl. ¶ 81, Ex. A, Pictures 47–49.

The City's public safety concerns are hardly contrived. An engineer for the City explains that, because New York City is the most densely populated major city in the United States, construction worksites necessarily abut, or even spill over into adjoining lots and public streets. Cranes, which can be as tall as 1800 feet, and move loads as heavy as 825 tons ( id. ¶¶ 23, 28), do not confine themselves to the property on which they are being used when they break, or worse, collapse; they inevitably damage surrounding buildings and risk injuring people in their homes and on the street. The declaration of Jason Ocharsky, an engineer with the City's DOB, discusses several crane-related accidents, identifying more than 50 instances of objects falling while being hoisted outside a building in New York City in a five year span, resulting in 21 injuries and one fatality. Over the same five year span, there were more than 40 instances where hoisting machines, including cranes, fell over, resulting in more than 40 injuries, along with nine fatalities. Id., ¶¶ 7–12; see also id. ¶¶ 20–21, 24, 29, Pictures 7–10, 17–20. The economic damage caused by these accidents, though not detailed, is obviously substantial. Cranes therefore pose a unique risk to public safety in New York City-at least when they are used away from isolated commercial or industrial yards. Ocharksy Decl. ¶¶ 6, 13–14, 17–18, 25–27.

The City Statutes regulate cranes and derricks (and other “hoisting equipment”) used in the City through a system of certification, permitting, and inspection. See, e.g., N.Y. City Admin. Code § 28–3316.5 (“Hoisting equipment, its supports and runback structures shall be designed, constructed and inspected in accordance with rules promulgated by the commissioner.”). They are found in the New York City Building Code chapter addressed to the construction and demolition of buildings, and they are enforced by the DOB. N.Y. City Admin. Code, Title 7, Chapter 33, which provides:

The provisions of this chapter shall govern the conduct of all construction or demolition operations with regard to the safety of the public and property. For regulations relating to the safety of persons employed in construction or demolition operations, OSHA Standards shall apply.

N.Y. City Admin. Code § 28–3301.1; see also id. § 28–101.2 (“The purpose of this code is to [regulate] building construction in the city of New York in the interest of public safety, health, welfare and the environment.”). Chapter 33 specifically promulgates rules that address public safety concerns, leaving it to OSHA to promulgate worker protection standards.

Section 3316 regulates hoisting equipment generally, including cranes, and requires that, “Hoisting equipment, its supports and runback structures shall be installed, operated, and maintained to eliminate hazard to the public or to property,” and that hoisting machines be made inoperable for unauthorized use in a manner acceptable to the DOB. N.Y. City Admin. Code § 28–3316.2. In addition, section 3316 requires:

• That when there has been an accident involving hoisting equipment, the owner or the person in charge immediately notify the DOB, and take steps to assure that the broken equipment is not used or taken from the scene. Id. § 28–3316.3.

• That hoisting equipment be “constructed and inspected” in accordance with rules promulgated by the agency. Id. § 28–3316.5.

• That ropes used with hoisting machines be inspected and replaced in accordance with agency rules. Id. § 28–3316.6.

• That hoisting machines be operated in accordance with the stricter of manufacturers' requirements, or requirements promulgated by the City agency, and not be used to hoist loads while the hoisting machine is being “installed, jumped, dismantled or altered.” Id. § 28–3316.7.

• And, that hoisting machines be maintained in accordance with the stricter of manufacturer requirements, or requirements promulgated by the agency. Id. § 28–3316.8

Section 28–3319 of the Building Code, specifically N.Y. City Admin. Code § 28–3319.1, addresses cranes and derricks. See also Reference Standard (“RS”) 19–2.² City regulations define a “crane” as, “A power operated machine for lifting and lowering a load and moving it horizontally which utilizes wire rope and in which the hoisting mechanism is an integral part of the machine.” Reference Standard 19–2, § 2.19. A “derrick” is defined as “An apparatus consisting of a mast or equivalent members held at the top by guys or braces, with or without a boom, for use with a hoisting mechanism and operating rope, for lifting or lowering a load and moving it horizontally.” Id., § 2.21.

Section 28–3319 requires that all operators be licensed, New York City Administrative Code § 28–3319.2, and prohibits crane and derrick owners from putting their equipment into use, “without [1] a certificate of approval, [2] a certificate of operation and [3] a certificate of on-site inspection.” Id. § 28–3319.3.

There are several exceptions to the licensing and certification requirements, including one for “cranes or derricks used in industrial or commercial plants or yards not used for the construction of the facility.” Id. § 28–3319.3(6). Under the City Regulations, the DOB does not regulate cranes if the crane is not within a boom's length of an adjoining property line. RS 19–2, § 8.1.3. This exception is in keeping with the limited jurisdiction of the DOB, as set forth in the City Charter; section 643(3) of the Charter provides that the DOB shall only have jurisdiction to regulate cranes and derricks with respect to “the testing and approval of power-operated cranes and derricks used for construction, alteration, demolition, excavation and maintenance purposes, including such...