Nostrom v. Chesterton (N.Y. Sup. Ct., Jan. 25, 2008, as to Orange and Rockland)

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

Judith Nostrom sued, individually and as representative of the estate of her husband Donald Nostrom, who died of mesothelioma. He was a boilermaker who worked for various contractors in electric generating plants. He testified that he was exposed to asbestos at Orange and Rockland Utilities' Bowline and Tompkins Cove Powerhouses at various times in the 1970s and 1980s. The claim against the utility rested on testimony that the air was dusty and that asbestos-containing products were cut or used. It was based on New York Labor Law 241(6), not Labor Law 200, because there was no evidence the utility supervised or controlled the work. The plaintiff argued that Industrial Code air-contaminant rules made the utility liable. The court granted the utility's motion for summary judgment. It noted that the First Department had never treated those rules as a basis for Labor Law 241(6) liability because they are general regulations. It also reasoned that even if they applied, asbestos fibers come from the contractors' own work, not from an existing condition, so the contractors and not the premises owner control them. The claims 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 33617(U)
• Docket: No. 102120/07
• Stage: Summary judgment
• State: New York

Outcome. 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.

What the court held. In the First Department, the Industrial Code air-contaminant sections (12 NYCRR 12-1.4 to 1.6) are general regulations that cannot support Labor Law 241(6) liability. Even if they applied, asbestos fibers created by contractors' own work are not the type of air contaminant they cover, and they are controlled by the contractors rather than the premises owner.

Issues decided: Premises Owner Liability.

The people and their exposure

• Donald Nostrom: mesothelioma; died

The defendants

• Orange and Rockland Utilities, Inc. (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 Central Hudson Gas & Electric Corporation and dismissed the Nostrom plaintiffs' Labor Law 241(6) and 200 claims against it.
• 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 33617(U)

JUDITH NOSTROM, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF DONALD NOSTROM,

and JUDITH NOSTROM, INDIVIDUALLY, 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 Orange and Rockland Utilities, Inc. ("O&R") 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 al O&R's Bowline and Tompkins Cove Powerhouses al various times in the 1970's and 1980's.

Plaintiffs claim is based on Labor Law 241(6) and not Labor Law 200 as there is no evidence of supervision or control of the work by O&R. The claim rests on testimony that there was a lot of dust in the air and asbestos containing products were cut or used. Plaintiff contends that sections 12 NYCRR 12-1.4-1.6 of the Industrial Code that regulate air contaminants renders O&R liable for not providing a safe place to work. She cites Osonu v. Kenart Realty, Inc., 35 AD3d 561 (2 Dept. 2006) involving glue vapors and Piazza v. Frank L. Ciminelli Constr., Inc., 2 AD3d 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 Mazzocchi 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 libers are not the type of air contaminated envisioned by those regulations because the fibers result from the work that various contractors, including those that plaintiff worked for, are doing rather than from an existing condition and, thus, are subject to the control of the contractors and not the premises owners.

For the foregoing reasons the claims against Keyspan arc 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