| Kagan v BFP One Liberty Plaza |
| 2009 NY Slip Op 03938 [62 AD3d 531] |
| May 19, 2009 |
| Appellate Division, First Department |
| Boris Kagan et al., Appellants, v BFP One Liberty Plaza etal., Respondents. (And a Third-Party Action.) |
—[*1] Mendes & Mount, LLP, New York (Robert J. Brown of counsel), for respondents.
Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered April 14, 2008,inter alia, dismissing the complaint, unanimously affirmed, without costs.
Plaintiffs failed to raise an issue of fact whether defendants either created or caused thecondition complained of or exercised supervision or control over the work performed by theinjured plaintiff and had actual or constructive notice of the condition so as to sustain the LaborLaw § 200 and common-law negligence claims (see Buckley v Columbia Grammar & Preparatory, 44 AD3d 263,272 [2007], lv denied 10 NY3d 710 [2008]). The dust and debris that accumulated in theoffice building in which plaintiff performed fine cleaning resulted not from any act or omissionof defendants but from the terrorist attacks that caused the Twin Towers of the World TradeCenter to collapse. Nor, by submitting an affidavit by plaintiff that contradicts his prior sworntestimony, did plaintiffs raise a genuine issue of fact whether defendants, rather than plaintiff'semployer, third-party defendant Triangle Services, Inc., supervised or controlled his work(see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Lupinsky vWindham Constr. Corp, 293 AD2d 317, 318 [2002]). In any event, the fact thatrepresentatives of defendants gave general instructions as to what needed to be done andperformed monitoring and oversight of the timing and quality of the work is insufficient tosupport these claims (see Dalanna v City of New York, 308 AD2d 400, 400 [2003]). Asto the issue of notice, defendants' duty to reasonably inspect the air quality in the building wassatisfied by their consultant's report that the samples analyzed for airborne toxins were all withinacceptable levels. Plaintiffs' expert's conclusory opinion that the consultant's monitoring andtesting were inadequate and that the indoor environment of the building was hazardous andunsafe is of no probative value since it is based entirely on his review of documents and fails toindicate that he conducted any testing during the relevant time period (see Diaz v New YorkDowntown Hosp., 99 NY2d 542, 544 [2002]; Machado v Clinton Hous. Dev. Co., Inc., 20 AD3d 307, 307-308[2005]).
Plaintiffs' Labor Law § 241 (6) claim fails because the injured plaintiff was not"engaged in duties connected to the [*2]inherently hazardouswork of construction, excavation or demolition" (Nagel v D & R Realty Corp., 99 NY2d98, 101 [2002]). Plaintiffs also failed to raise an issue of fact whether the injuries wereproximately caused by a violation of an applicable Industrial Code or other regulation that setsforth a specific standard of conduct rather than a general statement of common-law principles(see Padilla v Frances Schervier Hous. Dev. Fund Corp., 303 AD2d 194, 196 [2003]).Plaintiffs have conceded that the regulations they relied on in the motion court are eithernonexistent or inapplicable. To the extent that they allege violations of arguably applicableIndustrial Code violations for the first time on appeal, these provisions have no basis in therecord and cannot be considered as predicates for the Labor Law § 241 (6) cause of action(compare Padilla, 303 AD2d at 196 n 1 [considering violations first raised by plaintiff inopposition to motion to dismiss]). In any event, these provisions do not avail plaintiffs. IndustrialCode (12 NYCRR) § 23-1.7 (g) is inapplicable to the facts of this case since it expresslyapplies to work in any "unventilated confined area" (emphasis added), such as a sewer,pit, tank, or chimney, "where dangerous air contaminants may be present or where there may notbe sufficient oxygen to support life," and the provisions of 12 NYCRR part 12, standing alone,are not sufficiently specific to support a cause of action under Labor Law § 241 (6) (Nostrom v A.W. Chesterton Co., 59AD3d 159 [2009]).
We have considered plaintiffs' remaining contentions and find them unavailing.Concur—Andrias, J.P., Saxe, Nardelli and Freedman, JJ.