Kowalewski v. Deutsche Bank Trust Co. Americas

44 F. Supp. 3d 445
CourtDistrict Court, S.D. New York
DecidedOctober 17, 2014
DocketCase No. 06-cv-01521
StatusPublished

This text of 44 F. Supp. 3d 445 (Kowalewski v. Deutsche Bank Trust Co. Americas) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kowalewski v. Deutsche Bank Trust Co. Americas, 44 F. Supp. 3d 445 (S.D.N.Y. 2014).

Opinion

ORDER AND OPINION DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT DISMISSING COMPLAINT

ALVIN K. HELLERSTEIN, District Judge.

In this action, Plaintiff Tadeusz Kowa-lewski and his wife, Beata Kowalewski, assert claims for common law negligence and violations of sections 200 and 241(6) of the New York Labor Law. The claims are based upon injuries Tadeusz Kowalewski allegedly suffered after working in numerous buildings in the vicinity of the World Trade Center site in the weeks, months, and years following the 9/11 terrorist attacks. Kowalewski asserts his claims against various owners, managing agents, lessees, environmental consultants, and contractors (collectively, “Defendants”) that allegedly owned, managed or worked in the buildings.

The Defendants have moved for summary judgment to dismiss the claims against them. The alleged owners, managing agents, and lessees moving for summary judgment are: the City of New York, Verizon New York Inc., Battery Park City Authority, Merrill Lynch & Co., Inc.,1 Liberty View Associates, L.P.,2 Related BPC Associates, Inc., Related Management Co., L.P., Deutsche Bank Trust Company Americas (f/k/a Bankers Trust Company), Deutsche Bank Trust Corporation (f/k/a Bankers Trust Corporation), and DB Private Clients Corp. (f/k/a BT Private Clients Corp.) (collectively, the “Owner Defendants”). The environmental consultants moving for summary judgment are: Hillmann Environmental Group, LLC, Weston Solutions, Inc. (together, the “Environmental Consultant Defendants”), and Indoor Environmental Technologies, Inc. (“IET”). The contractors moving for summary judgment are Tishman Interiors Corporation (“TIC”) and Blackmon-Moor-ing Steamatic Catastrophe, Inc. (“BMS”). The architectural firms William F. Collins, AIA Architects, LLP (“WF Collins”) and Syska Hennessy Group, Inc. (“Syska Hennessy”) have also moved for summary judgment. For the following reasons, the Defendants’ motions are granted in part and denied in part.

I. Background3

This opinion is one more in a series of opinions resolving numerous motions for summary judgment filed by defendants in cases arising from abatement work performed by various plaintiffs in the buildings surrounding the World Trade Center site in the aftermath of the September 11, 2001 terrorist attacks. I previously provided, in detail, the facts relevant to these motions in In re World Trade Center Lower Manhattan Disaster Site Litigation, 44 F.Supp.3d 409, No. 09-cv-680, 2014 WL 4446153 (S.D.N.Y. Sept. 9, 2014). For this reason, familiarity with the facts is presumed and this opinion will describe only the facts relevant to my disposition of the [452]*452issues particular to the motions at issue here.

A. 2 World Financial Center

2 World Financial Center is located directly west of the World Trade Center site. On September 11, 2001, Brookfield Financial Properties L.P. (“Brookfield”) owned WFP Tower B Co. L.P., which, in turn, owned 2 World Financial Center and leased the building to Merrill Lynch & Co., Inc. (“Merrill Lynch”). See Aff. Daniel M. Kindbergh Supp. Merrill Lynch Mot. Summ. J. (“Kindbergh Aff.”) ¶ 3. Battery Park City Authority (“BPCA”) was the ground lessor. See Deck Philip Goldstein Supp. Merrill Lynch Mot. Summ. J. (“Goldstein Deck”), Exh. EE at 16:13-18. 2 World Financial Center sustained substantial damage to its eastern fagade and a significant amount of dust and debris entered the building. See Goldstein Deck, Exh. Q. The “Winter Garden,” a glass-enclosed lobby connecting 2 World Financial Center and 3 World Financial Center, suffered severe structural damage including broken windows and demolished walls. See Deck Gregory J. Cannata Supp. Pis.’ Opp’n Defs.’ Mots. Summ. J. (“Cannata Deck”), Exh. 139.

Merrill Lynch retained Weston Solutions, Inc. (“Weston”) and GPS Environmental Consultants, Inc. (“GPS”) to test and analyze the dust and debris inside 2 World Financial Center. See Goldstein Deck, Exh. Q, Exh. Z at 118:13-119:15. Beginning September 26, 2001, Weston conducted comprehensive testing for numerous potential air contaminants, including asbestos, fibrous glass, heavy metals, and volatile organic compounds. See Gold-stein Deck, Exh. M. After both GPS’s and Weston’s air testing revealed the presence of asbestos, both allegedly advised Merrill Lynch to implement asbestos-specific procedures. See Goldstein Deck, Exh. Q, Exh. X at 103:18-105:18. Weston, however, denies that it advised Merrill Lynch with respect to the asbestos abatement. See Deck Nicholas Kauffman Supp. Weston Mot. Summ. J. (“Kauffman Deck”), Exh. O ¶¶ 5-7. There is no evidence that Weston tested the pH level of the dust. See, e.g., Cannata Deck, Exh. 123. While Weston denies directly supervising the abatement workers or developing a safety protocol for the general abatement work at 2 World Financial Center, see Kauffman Deck, Exh. O ¶¶ 5-7, it did create a remediation protocol and provided project monitoring for mold abatement conducted in the basement, see Kauffman Deck, Exh. O ¶ 8. Kowalewski also presents evidence that Weston oversaw “all phases” of the cleanup work at 2 World Financial Center. See Cannata Deck, Exh. 4 at 106:3-107:16.

Certain tenants at 2 World Financial Center retained Hillmann Environmental Group, LLC (“Hillmann”) as their environmental consultant. See Deck Salvatore J. Calabrese Supp. Hillmann Mot. Summ. J. (“Calabrese Deck”), Exh. C, ¶¶ 20-42. Hillmann did not have any agreement with Merrill Lynch nor did it perform any work for Merrill Lynch. See Calabrese Deck, Exh. C ¶ 20. However, Hillmann did conduct environmental monitoring during and after the cleanup and conducted an asbestos survey for Brookfield in the retail space. See Calabrese Deck, Exh. C ¶¶ 32, 43-46.

Merrill Lynch retained Pinnacle Environmental Corporation (“Pinnacle”) and BMS to conduct the cleanup work. See Goldstein Deck, Exh. O, Exh. Q. The project began on September 24, 2001 and consisted of three phases: bulk cleanup, fine cleaning, and cleaning of the building’s HVAC system. See Goldstein Deck, Exh. Q. Pinnacle workers also conducted the mold abatement in the basement levels. See Kauffman Deck, Exh. O ¶ 8. Because [453]*453initial environmental testing revealed asbestos levels above 1%, Pinnacle implemented asbestos abatement procedures during the cleanup. See Goldstein Decl., Exh. 0 at 2. BMS performed work at 2 World Financial Center between October 18, 2001 and August 27, 2002. See Decl. Jacqueline Cuozzo Supp. BMS Mot. Summ. J. (“Cuozzo Decl.”), Exhs. 10-13. During that time, BMS supervised certain Pinnacle workers. See Goldstein Decl., Exh. K, Exh. S. Throughout the remediation, GPS and Weston provided continuous air monitoring and safety consulting. See Goldstein Decl., Exh. I, Exh. Q, Exh. Z at 118:13-24,194:11-23.

On October 19, 2001, IET conducted a single post-cleanup testing of the HVAC system for asbestos, lead, and microbial contamination. See Aff. John Stanley Supp. IET Mot. Summ. J. (“Stanley Aff.”) ¶ 4, Exh. A. Beginning in February 2002, IET provided limited consulting services and project management for environmental testing of the HVAC system at 2 World Financial Center. See Stanley Aff., Exh. B, Exh. D.

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44 F. Supp. 3d 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kowalewski-v-deutsche-bank-trust-co-americas-nysd-2014.