| Nostrom v A.W. Chesterton Co. |
| 2009 NY Slip Op 00581 [59 AD3d 159] |
| February 3, 2009 |
| Appellate Division, First Department |
| Judith Nostrom, Individually and as Personal Representative of theEstate of Donald Nostrom, Deceased, Appellant, v A.W. Chesterton Company et al.,Defendants, and Central Hudson Gas & Electric Corporation et al.,Respondents. |
—[*1] Thompson Hine LLP, New York (Joseph B. Koczko of counsel), for Central Hudson Gas &Electric Corporation, respondent. Office of Richard W. Babinecz, New York (Andrew J. Czerepak of counsel), forConsolidated Edison Company of New York, Inc. and Orange and Rockland Utilities, Inc.,respondents. Landman Corsi Ballaine & Ford P.C., New York (William G. Ballaine of counsel), forSequoia Ventures, Inc., respondent.
Orders, Supreme Court, New York County (Helen E. Freedman, J.), entered January 29,2008 and February 5, 2008, which, in an action arising out of plaintiff's decedent's allegedexposure to asbestos in the workplace, insofar as appealed from, granted defendants-respondents'motions for summary judgment dismissing as against them plaintiff's Labor Law § 241 (6)claims based on 12 NYCRR 12-1.4 (b) (3), (4) and 12-1.6 (a), unanimously affirmed, withoutcosts.
We hold that owner/contractor vicarious liability under Labor Law § 241 (6) cannot bebased on the Industrial Code (12 NYCRR) part 12 regulations invoked by plaintiff. Theprovisions of 12 NYCRR part 23 ("Protection in Construction, Demolition and ExcavationOperations") were promulgated by the commissioner pursuant to the authority conferred byLabor Law § 241 (6), regulate construction, demolition and excavation work and expresslyapply to, inter alia, "owners, contractors and their agents." By contrast, part 12 ("Control of AirContaminants") applies without regard to whether construction, demolition or excavation work isperformed, and gives no indication either that it was promulgated pursuant to Labor Law §241 (6) or that it contemplates owner/contractor vicarious liability (see 12 NYCRR12-1.2). We note that plaintiff does not invoke 12 NYCRR 23-1.7 (g), a part 23 regulation thatprohibits work in an "unventilated confined area" where dangerous air [*2]contaminants may be present unless the atmosphere of such area isfirst tested by the employer in accordance with part 12, and makes such areas otherwise subjectto part 12 (see Piazza v Frank L.Ciminelli Constr. Co., Inc., 2 AD3d 1345, 1347-1348 [4th Dept 2003], citing, interalia, Mazzocchi v International Bus. Machs., 294 AD2d 151, 152 [1st Dept 2002]; see also Rivera v Ambassador Fuel & OilBurner Corp., 45 AD3d 275, 275 [2007]). This specific provision of part 23 reinforcesour conclusion that the provisions of part 12 do not—except to the extent incorporated bypart 23—support an action under Labor Law § 241 (6). Alternatively, we hold thatthe two regulations invoked by plaintiff are not sufficiently specific to support a section 241 (6)claim for asbestos-related injury (contra Piazza). Neither contains specific methods,standards, directives or controls on work processes involving asbestos-containing materials.Concur—Gonzalez, J.P., Buckley, Catterson, McGuire and Acosta, JJ.