Speculative Testimony Fails to Establish Railroad Defendant Directed Tile Work

Supreme Court of New York, New York County, January 10, 2022

In this asbestos action, the plaintiff Ernest Cummings alleges that his lung cancer was caused by his exposure to asbestos dust when he worked as a train conductor with the Long Island Railroad from 1971 to 1996. During this time, he made stops at Penn Station, of which the defendant Amtrak took ownership in 1976. The plaintiff testified that during his more than two-decade career, all of his train routes went through Penn Station and that there was always renovation in the main concourse. Tile work was performed in Penn Station at all hours of the day, and the plaintiff frequently spent time in the main concourse walking along construction areas in between routes and during his lunch break. During these times, he would see debris everywhere and asbestos dust in the air, and he also observed boxes of tile in the construction area which were labeled “asbestos.”

Amtrak moved for summary judgment, arguing that the plaintiff failed to establish that Amtrak is liable under New York Labor Law §§ 200 and 241(6) and that the plaintiff has made no showing that Amtrak was negligent. Amtrak further argued that the plaintiff is unable to establish a defective condition or, alternatively, that Amtrak had notice of any such defective condition. According to Amtrak, there is no evidence that it directed or controlled the tile work at Penn Station. Further, Amtrak argued that the plaintiff does not fall into the protections of the Labor Law as Amtrak did not supervise or control the plaintiff’s work or the tile work, and thus owed no duty to the plaintiff.

The court examined the applicable standard for summary judgment, as well as a plaintiff’s burden of proof to make a claim for negligence. Specifically, any defective condition must be created by the owner, or the owner must have had actual or constructive notice of the defect. Such notice must be more than general notice of any defective condition. Lopez v. Dagan, 98 AD3d 436, 438, 949 N.Y.S.2d 671 (1st Dep’t 2012). The court further considered Labor Law §§ 200 and 241(6), specifically the duties of owners and contractors to provide workers with a reasonably safe workplace. However, “[a]n implicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury”. Moorecummings v. Amchem Prods., Inc., 2022 NY Slip Op 30104(U), ¶ 3 (Sup. Ct.) (internal citations omitted). The First Department has consistently held that motions for summary judgment be granted where there is no evidence that a defendant supervised or controlled a plaintiff’s work. See Philbin v. A.C. & S., Inc., 25 AD3d 374, 374, 807 N.Y.S.2d 84 (1st Dep’t 2006). Further, “the mere presence of [defendant’s] personnel at the work site, while perhaps indicative of a general right of inspection, does not suffice to create an inference of supervisory control.” Id. (internal citations omitted).

In opposition, the plaintiff argued that it is Amtrak’s burden to establish that it did not create the defective condition or have actual or constructive notice of it. The court reviewed the plaintiff’s deposition, at which he testified that he believed that Amtrak directed the tile and construction work at Penn Station. However, the court considered the plaintiff’s testimony to be speculative and held that that alone was insufficient to establish that Amtrak directed or supervised the work.

Without further evidence, the court found that no issue of fact was raised that Amtrak was directing or supervising the work being done in Penn Station. Moreover, the court found that the plaintiff was not working within the original zone of the tile work. Therefore, the court granted the defendant Amtrak’s motion for summary judgment pursuant to CPLR 3212, on the grounds that Amtrak made a prima facie case demonstrating lack of duty, breach, or causation.

Read the full decision here.