Crane v. Crane Co. (2013)

Our plain-English summary of Crane v. Crane Co. (New York Supreme Court, February 11, 2013).

Paul Crane developed mesothelioma, and he and his wife sued Long Island Lighting Company (LILCO) and others over his asbestos exposure. Crane testified that from 1975 to 1979 he worked for a steamfitting subcontractor, Courter & Co., at LILCO's Shoreham facility. He wrapped pipes in pure asbestos blankets and, after training as a welder, kept using them for protection. In about 1977 LILCO replaced them with Novatex asbestos-containing blankets. The plaintiffs claimed LILCO failed to provide a safe workplace under Labor Law § 200 and the common law. LILCO had lost its earlier summary judgment motion in September 2012 and asked the court to reconsider. The court allowed reargument. It dismissed the Labor Law § 241(6) claim because the plaintiffs had not opposed that argument. It kept the Labor Law § 200 and common law claims, because LILCO directed the switch to Novatex blankets without precautions. It only began safety measures in 1980, after a NIOSH investigation. The court said these facts support inferences that LILCO supervised and controlled the materials and their use.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: February 11, 2013
• Citation: 2013 NY Slip Op 30311(U)
• Docket: Docket No. 190082/2011, Motion Seq. 009
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. On reargument, the court granted LILCO's summary judgment motion only as to the Labor Law § 241(6) claim, which was dismissed as unopposed, and otherwise denied it, so the Labor Law § 200 and common law claims by the Cranes against LILCO continue.

What the court held. A premises owner may be liable under Labor Law § 200 and the common law where inferences can be drawn that it exercised supervision and control over the materials and the subcontractor workers' use of them; reargument is limited to matters of fact or law overlooked or misapprehended.

Issues decided: Premises Owner Liability, Trial Procedure and Discovery.

The people and their exposure

• Paul J. Crane: mesothelioma; died

The defendants

• National Grid Generation, LLC, sued herein as Long Island Lighting Company (LILCO) (premises owner)
• Crane Co. (manufacturer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2013 NY Slip Op 30311(U)

ARLENE G. CRANE, Individually and as Executrix of the Estate of PAUL J. CRANE, deceased,

Plaintiffs,

v.

CRANE CO., etal. Defendants.

Docket No. 190082/2011, Motion Seq. 009.

February 7, 2013.

Filed February 11, 2013.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos personal injury action, defendant National Grid Generation, LLC, sued herein as Long Island Lighting Company ("LILCO"), moves pursuant to CPLR 2221(d) for leave to reargue the prior decision of this court, dated September 5, 2012 and entered September 6, 2012, and upon reargument, granting its underlying motion for summary judgment. LILCO's motion for leave to reargue is granted, and upon reargument, the underlying motion for summary judgment is hereby granted in part and denied in part.

Plaintiffs' decedent Paul Crane ("Crane") developed mesothelioma. Crane and his wife commenced the underlying action against LILCO and others to recover for personal injuries arising from Crane's exposure to asbestos-containing materials. Crane testified that from 1975 to 1979 he worked for steamfitting subcontractor Courter & Co. ("Courter") at LILCO's Shoreham facility ("Shoreham") and was responsible for wrapping pipes in pure asbestos blankets, among other tasks. He testified that he was later trained as a welder and continued to use pure asbestos blankets in that capacity to protect himself while he worked. In or about 1977, LILCO replaced the pure asbestos blankets with Novatex asbestos-containing blankets. It is alleged that under Labor Law §§ 200 et seq. and the common law, LILCO is liable to plaintiffs for failure to provide a safe workplace and that Crane was injured by reason of his exposure to such products.

By notice of motion dated January 12, 2012, LILCO moved for summary judgment on the ground that it was not liable because it did not supervise or control the work that led to Crane's injuries. LILCO argued that Crane took direction from a Courter employee, not LILCO, and that LILCO controlled the use of the asbestos-containing blankets at Shoreham only after receiving notice that improper use of such blankets could be a health hazard. LILCO further alleged it was not liable to plaintiffs pursuant to Labor Law § 241(6). Plaintiffs did not oppose LILCO's Labor Law § 241(6) argument in the underlying motion and this court did not then address it. Accordingly, LILCO's motion is hereby granted insofar as it seeks dismissal of plaintiffs' Labor Law § 241(6) claim. LILCO's motion is denied, however, insofar as it seeks dismissal of plaintiffs' Labor Law § 200 and common law claims.

Plaintiffs argued that LILCO was liable pursuant to Labor Law § 200 because it exercised supervision and control over the steamfitters' use of asbestos-containing products at Shoreham. Plaintiffs pointed to, among other things, the facts that LILCO's contracts with its subcontractors show that it retained managerial and supervisory control over the construction site; that the contracts show that LILCO controlled the furnishing of the materials used at Shoreham; that LILCO implemented the switch from pure asbestos blankets to Novatex asbestos-containing blankets; that based on recommendations to LILCO from a National Institute for Occupational Safety and Health ("NIOSH") investigation, LILCO advised its site supervisors that unnecessary uses of Novatex blankets should be discontinued; and that LILCO's later implementation of safety handling and disposal guidelines for Novatex were provided to all of the steamfitters, including Crane.

By decision dated September 5, 2012, this court denied LILCO's motion for summary judgment because there were issues of fact regarding its supervision and control at Shoreham. LILCO now seeks to reargue that decision.

"Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided. . . or to present arguments different from those originally asserted." William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 (1st Dept 1992) (Internal citations omitted). CPLR 2221(d) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Motions to reargue are addressed to the sound discretion of the trial court. William P. Pahl Equip. Corp., supra, at 27.

On this motion, LILCO emphasizes that Crane took direction from Courter employees, not LILCO employees, and that LILCO's choice of blankets used at Shoreham does not establish sufficient supervision and control to trigger the provisions of Labor Law § 200, particularly because LILCO owned the facility and would have been responsible for furnishing equipment to the construction site in any event.

LILCO's position with respect to Labor Law § 200 is without merit. To reiterate, it was LILCO that directed the switch from pure asbestos blankets to Novatex asbestos-containing blankets in 1977 without taking precautions for the safety of the workers during the replacement process. It was not until 1980 that LILCO even began to implement safety features with respect to its asbestos blankets in an attempt to alleviate the unsafe conditions created by these hazardous products, and only then in response to NIOSH's involvement. Contrary to LILCO's contentions, clear inferences can be drawn that LILCO did in fact exercise supervision and control over the materials that are alleged to have caused Mr. Crane's injuries and the steamfitters' use of those materials.

Accordingly, it is hereby

ORDERED that LILCO's motion for leave to reargue is granted, and upon such reargument, LILCO's motion for summary judgment is granted in part only with respect to plaintiffs' Labor Law § 241(6) claim against it, and is otherwise denied; and it is further

ORDERED that plaintiffs' Labor Law § 241(6) claim is hereby dismissed as against LILCO; and it is further ORDERED that, as set forth in this court's decision and order dated September 5, 2012, LILCO's motion for summary judgment in respect of the plaintiffs' claims against it under Labor Law § 200 and the common law is denied; and it is further ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the court.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites