Nostrom v. Chesterton (N.Y. Sup. Ct., Jan. 25, 2008, as to Central Hudson Gas)

Our plain-English summary of Nostrom v. Chesterton (New York Supreme Court, January 25, 2008).

Donald Nostrom's estate and Judith Nostrom sued A.W. Chesterton and other defendants, including Central Hudson Gas & Electric Corporation. Mr. Nostrom was a boilermaker who died of mesothelioma after many years working for various contractors in power plants. He testified that he was exposed to asbestos at Central Hudson's Roselon Powerhouse in 1973 and its Danskammer Powerhouse in 1986. The claims against Central Hudson were based on New York Labor Law 241(6) and Labor Law 200. Central Hudson moved for summary judgment, and the court granted it. On the 241(6) claim, the court said this Department had never treated the general air-contaminant sections of the Industrial Code as a basis for liability. It also said asbestos fibers were not the kind of contaminant those rules covered, because the contractors' own work created them. On the Labor Law 200 claim, Central Hudson's general power to stop work did not amount to supervisory control over the particular work, and documents showed the contractors supervised the work. The claims against Central Hudson were dismissed.

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: January 25, 2008
• Citation: 2008 NY Slip Op 33618(U)
• Docket: No. 102120/07
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted summary judgment to Central Hudson Gas & Electric Corporation and dismissed the Nostrom plaintiffs' Labor Law 241(6) and 200 claims against it.

What the court held. General Industrial Code air-contaminant regulations (12 NYCRR 12-1.4 to 1.6) do not support Labor Law 241(6) liability in this Department, and a general authority to stop work is not the supervisory control over particular work needed for a Labor Law 200 claim.

Issues decided: Premises Owner Liability.

The people and their exposure

• Donald Nostrom: mesothelioma; died

The defendants

• Central Hudson Gas & Electric Corporation (premises owner)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Nostrom v. Chesterton (January 25, 2008). The court granted summary judgment to defendant Orange and Rockland Utilities, Inc., dismissing the Labor Law 241(6) claim brought by Judith Nostrom, individually and for the estate of Donald Nostrom.
• Nostrom v. Chesterton (February 4, 2008). The court granted summary judgment to defendant Sequoia Ventures, Inc. (formerly Bechtel Corporation) and dismissed the Nostrom plaintiffs' Labor Law 241(6) claims against it.

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.

2008 NY Slip Op 33618(U)

DONALD NOSTROM and JUDITH NOSTROM, Plaintiffs,

v.

A.W. CHESTERTON, etal., Defendants.

No. 102120/07.

January 25, 2008.

Supreme Court, New York County.

HELEN E. FREEDMAN, Judge.

Upon the foregoing papers, it is ordered that this motion for summary judgment by defendant Central Hudson Gas & Electric Corporation ("Central Hudson") is granted.

Plaintiff's decedent was a boiler maker who died of mesothelioma after many years of working for various contractors in power houses (electric generating plants). He testified that he was exposed to asbestos while working at Central Hudson's Roselon Powerhouse in 1973 and its Danskammer Powerhouse in 1986.

Plaintiffs claim is based on both Labor Law 241(6) and Labor Law 200. The Labor Law 241(6) claim rests on testimony that there was a lot of dust in the air and asbestos containing products were cut or used. The Labor Law 200 claim rests on Central Hudson's authority to shut down or delay work.

Plaintiff contends that sections 12 NYCRR 12-1.4-1.6 of the Industrial Code that regulate air contaminants renders Central Hudson liable for not providing a safe place to work. She cites Osorio v. Kenart Realty, Inc., 35 AD3d 561 (2 Dept. 2006) involving glue vapors and Piazza v. Frank L. Ciminelli Constr., Inc., 2 AD 3d 1345 (4th Dept. 2003) involving an acetylene gas leak in which the Second and Fourth Departments specifically found that Labor Law 241(6) applied to violations of 12 NYCRR 12-1.4-1.9. In one case the Court dismissed the claims under 12 NYCRR 23-1.7(g) but found that 12 NYCRR 12 applied, and in the other that both applied. Both cases involved injuries from explosions caused by fumes and occurring in narrow unventilated spaces,

This Department specifically rejected an asbestos claim based on 12 NYCRR 23-1.7(g) where there was, as here, no evidence that plaintiff had worked in a "confined" unventilated or tested area, See Mazzocclu v. International Business Machines, 294 AD2d 151 (1st Dept. 2002). Unlike the Second and Fourth Departments, this Department has never found sections 12 of the Industrial Code to be a basis for liability pursuant to Labor Law 241(6) inasmuch as these are general regulations. Moreover, even if these sections applied, asbestos fibers are not the type of air contaminants envisioned by those regulations because the fibers result from the work that various contractors arc doing rather than from an existing condition and, thus, are subject to the control of the contractors and not the premises owners.

With respect to Labor Law 200, plaintiff alleges that Central Hudson controlled the work sites during various construction phases because it ordered work stoppages for unrelated reasons. However, a general authority to order a work stoppage is not sufficient to establish supervisory control over particular work, See Hughes v. Tishman Constr. Corp., 40 AD3d 305 (1st Dept. 2007), holding that the supervision must be over the particular work at issue. Here, documents show that the contractors and not Central Hudson supervised the construction work.

For the foregoing reasons the claims against Central Hudson are dismissed and the Clerk is directed to enter judgment accordingly.

Sources

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