Kwasnik v. 160 Water Street, Inc.

57 F. Supp. 3d 328, 2014 U.S. Dist. LEXIS 152991
CourtDistrict Court, S.D. New York
DecidedOctober 28, 2014
DocketCase No. 07-cv-11291
StatusPublished
Cited by2 cases

This text of 57 F. Supp. 3d 328 (Kwasnik v. 160 Water Street, Inc.) 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
Kwasnik v. 160 Water Street, Inc., 57 F. Supp. 3d 328, 2014 U.S. Dist. LEXIS 152991 (S.D.N.Y. 2014).

Opinion

ORDER AND OPINION DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT TO DISMISS THE COMPLAINT

ALVIN K. HELLERSTEIN, District Judge:

In this action, Plaintiff Wladyslaw Kwas-nik asserts 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 Kwasnik 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. Kwasnik 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 owners, managing agents, and lessees moving for summary judgment are: 160 Water Street, Inc., 160 Water Street Associates, Inc., G.L.O. Management, Inc., General Reinsurance Corp., the National Association of Securities Dealers, Inc., Boston Properties, Inc., 90 Church Street, L.P., Brookfield Financial Properties, Inc.,1 and 59 Maiden Lane Associates, LLC (collectively, the “Owner Defendants”). The environmental consultants moving for summary judgment are: Hillmann Environmental Group, LLC and Ambient Group, Inc. (together, the “Environmental Consultant Defendants”). The contractors moving for summary judgment [333]*333are Structure Tone, Inc.,2 (“Structure Tone”) and Blackmon-Mooring Steamatic Catastrophe, Inc. (“BMS”). For the following reasons, the Defendants’ motions are granted in part and denied in part.

1. 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 the relevant background facts 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 issues particular to the motions at issue here.

A. 1 World Financial Center

1 World Financial Center is located southwest of the World Trade Center site, across West Street. On and after September 11, 2001, the building was owned by Brookfield Properties One WFC Co. LLC and managed by Brookfield Financial Properties, LP (together, “Brookfield 1 WFC”). See Decl. William J. Smith Supp. Brookfield Mot. Summ. J. (“Smith Decl.”), Exh. G at 24:1-25:18. 1 World Financial Center sustained moderate damage consisting of several hundred broken windows and an infiltration of World Trade Center dust and debris. See Cannata Decl., Exh. 7 at 7-2, Exh. 18A. Brookfield hired Hill-mann Environmental Group, LLC (“Hill-mann”) as its environmental consultant.4 See Smith Deck, Exh. F at 53:8-54:18. On September 20, 2001, Hillmann tested the dust and debris for asbestos. See Cannata Deck, Exh. 86. That test revealed asbestos levels below 1%. See Smith Deck, Exh. J. Although the debris was not considered “asbestos-containing material” by regulation, a report prepared by Hillmann noted that “Brookfield [1 WFC] opted to clean all heavily dusty areas using asbestos abatement methodologies and licensed asbestos contractors as a safety precaution.” Cannata Deck, Exh. 86.

Brookfield 1 WFC alleges that it hired Hillmann to advise it on how to treat the building’s remediation and to develop procedures for implementing the remediation. See Smith Deck, Exh. F at 53:19-54:5. The record does not reflect whether a safety and remediation protocol was developed or who developed it. There is nothing in the record that suggests Hill-mann tested the pH level of the dust. See id., Exh. J; Cannata Deck, Exh. 86. The parameters for the ongoing testing were “selected by Hillmann based upon the directions of Brookfield Financial Properties, consultation with accredited laboratories, and Hillmann’s professional judgment.” Id., Exh. 86.

Brookfield 1 WFC retained BMS, PAL Environmental Services (“PAL”), and ETS Contracting, Inc. (“ETS”) to conduct the remediation work. See Smith Deck, Exh. F at 140; Cannata Deck, Exh. 86. BMS performed remediation work at 1 World [334]*334Financial Center from November 21, 2001 to January 19, 2002 and, again, from April 15, 2002 to May 9, 2002. See Decl. Frank Keenan Supp. BMS Mot. Summ. J. (“Keenan Decl.”), Exh. 5 at 18-19.

Kwasnik worked at 1 World Financial Center for ETS for eight hours the week of April 1, 2002. See Smith Deck, Exh. E. His work consisted of cleaning dust and debris. See Cannata Decl., Exh. 47 at 147:14-21. Other workers removed contaminated ceiling tiles and flooring, and covered broken windows. See id., Exh. 20A, Exh. 53 at 217:8-218:24, Exh. 59 at 525:20-526:3. While Kwasnik testified that he did not perform any asbestos removal, he was provided with asbestos-specific safety equipment. See Smith Decl., Exh. B at 147:14-150:4. He alleges that his supervisors refused to provide him with replacement filters, see Cannata Decl., Exh. 47 at 162:11-163:18, and that he was not informed the World Trade Center dust was hazardous, see id., Exh. 47 at 150:9-17.

B. 3 World Financial Center

3 World Financial Center is located west of the World Trade Center site, across West Street. On September 11, 2001, 3 World Financial Center sustained substantial damage consisting of hundreds of broken windows, fagade damage, and an infiltration of World Trade Center dust and debris. See Cannata Deck, Exh. 138. Both ETS and BMS were retained to perform the remediation work. Kwasnik performed general abatement work for ETS at 3 World Financial Center from February 18, 2002 to March 18, 2002. See Keenan Deck, Exh. 2. BMS performed work between February 28, 2002 and March 21, 2002. See Keenan Deck, Exh. 5. BMS’s work was limited to removing computer equipment on the third and eleventh floors. See Keenan Deck, Exh. 6. BMS did not utilize any labor provided by ETS and did not, at any point, supervise Kwas-nik. See Keenan Deck, Exh. 8.

C. 1 Liberty Plaza

1 Liberty Plaza is located one block east of the World Trade Center sité. At the time of the World Trade Center attacks it was owned by Brookfield Properties OLP Co. LLC and managed by Brook-field Financial Properties, LP (together, “Brookfield OLP”). See Smith Deck, Exh. M at 24:1-25:18. The building sustained moderate damage, consisting of broken windows and an infiltration of World Trade Center dust and debris. See Cannata Deck, Exh. 7 at 7-2, Exh. 19H. Pursuant to an oral agreement, Brookfield OLP retained Hillmann Environmental Group, LLC (“Hillmann”) to test the dust and debris for multiple toxins, prepare a “health and safety plan,” and “coordinate environmental clean-up.” See id., Exh. 80 § 2.3; Deck Salvatore J. Calabrese Supp. Hillmann’s Mot. Summ. J. (“Calabrese Deck”), Exh. C ¶ 48.

On September 16, 2001, Hillmann tested the asbestos content of the dust.

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57 F. Supp. 3d 328, 2014 U.S. Dist. LEXIS 152991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kwasnik-v-160-water-street-inc-nysd-2014.