Defendant Contractor Denied Summary Judgment for Plaintiff’s Work Performed at World Trade Center

Supreme Court of New York, New York County, November 30, 2020

The plaintiff, Walter Cannon, filed a complaint against defendant Tishman Realty & Construction Co., Inc., among others, alleging that his lung cancer was caused by his exposure to asbestos when he worked as an electrician installing lighting fixtures at the World Trade Center (WTC) in the 1970s. The plaintiff was employed by Forest Electric at the WTC on weekends for approximately two-and-a-half to three months, shortly before the WTC opened. While working at the WTC, the plaintiff testified that he was exposed to asbestos from scraping off asbestos insulation that had been sprayed on steel beams to hang lighting fixtures. Tishman avers that it has never mined, milled, manufactured, sold, distributed, installed, or supplied any asbestos containing materials at the WTC. Further, Tishman noted that it contracted with the Port Authority to be its Agent in connection with the original construction of portions of the WTC. Tishman claimed that based on the plaintiff’s description of the WTC during his alleged time of exposure, it can be inferred that the plaintiff worked at the WTC in 1974 and not during the original construction.

Before the court is Tishman’s motion for summary judgment, pursuant to CPLR 3212. The plaintiff opposes the motion. Tishman argued the plaintiff failed to establish that Tishman is liable under New York Labor Law 200, specifically that the plaintiff failed to show negligence on the part of Tishman. Tishman claimed that since the plaintiff was an employee of Forest, Tishman did not supervise or control the plaintiff’s work and therefore owed no duty to the plaintiff.

To demonstrate that Tishman did indeed have the authority to controlthe plaintiff’s work removing asbestos at the WTC, the plaintiff provided a contract between Port Authority and Tishman. The plaintiff claimed that pursuant to the contract, it was only responsible for “assist[ing] the [Port] Authority in providing all labor, materials . . . in conformity with the plans and specifications prepared or to be prepared by architects and engineers selected by [Port] Authority.” Tishman argued that this clause of the contract makes clear that it was not Tishman’s decision to use asbestos containing materials at the WTC site.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). The elements of a common-law negligence cause of action are a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting therefrom. Jiminez v. Shahid, 83 A.D.3d 900 (2d Dept 2011). Labor Law § 200 is a codification of the common law duty that a landowner or general contractor is to provide workers with a reasonably safe place to work. Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316-317 (1981). An implicit precondition to this duty “is that the party charged with that responsibility have the authority to control the activity bringing about the injury.” Comes v. New York State Elec. and Gas Corp., 82 N.Y.2d 876 (1993).

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. In re New York City Asbestos Litigation. Philbin v. A.C. & S., Inc., Consol. Edison Co. of New York, Inc., 25 A.D.3d 374, 374, 807 N.Y.S.2d 84, 85 (1st Dept 2006).

The crux of the court’s analysis of the present motion hinged on whether Tishman was in fact the general contractor/construction manager (as an agent to the Port Authority via the contract) at the WTC during the time te plaintiff performed work removing asbestos at the WTC. In order for liability to be incurred for the injuries sustained by an employee of a subcontractor, it must be proven, for purposes of common-law negligence and NYLL §200, that Tishman exercised actual supervision and control over plaintiff’s activity. 

Tishman’s argument that it completed its role as general contractor while electrical work was installed at the WTC is in direct contrast to the plain language of the contract. Tishman had a responsibility to oversee and control the electrical work performed by the plaintiff, which created a duty to provide a safe work place for the plaintiff. The court found that the plaintiff raised issues of fact concerning Tishman’s knowledge of the dangers associated with the use of asbestos product at the WTC and concerning the contract sufficient to deny Tishman summary judgment. 

The court also found Tishman’s argument that it was under no obligation to the plaintiff as general contractor because its work had finished during the stage of construction in which the plaintiff worked at the WTC to be unavailing. The contract clearly stated that Tishman was responsible for all construction work necessary including electrical work. While the contract is silent on a defined term or year of completion for the WTC project, the contract holds Tishman responsible for “all construction work . . . including . . . electrical.” Accordingly, the court denied Tishman’s Motion.