In Cerverizzo v City of New York, the Appellate Division, First Department affirmed the denial of defendant’s motion for summary judgment on plaintiff’s Labor Law 241(6) claim which was predicated on a violation of 12 NYCRR 23-1.7(g) pertaining to “oxygen deficient work areas.”
In this case:
Plaintiff Joseph Cerverizzo, an employee of third party defendant subcontractor Delta Installations, Inc., suffered injuries allegedly due to the inhalation of toxic fumes while he was installing brackets in an empty aeration tank at the Hunts Point Sewage Treatment Plant, owned by defendants New York City and the Department of Environmental Protection (DEP), which hired defendant Yonkers Construction Corp., as general contractor, to upgrade the plant.
Industrial Code section 23-1.7(g) provides:
Aircontaminated or oxygen deficient work areas. The atmosphere of any unventilated confined area including but not limited to a sewer, pit, tank or chimney where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life shall be tested by the employer, his authorized agent or by a designated person before any person is suffered or permitted to work in such area. Such testing shall be in accordance with the provisions of Industrial Code Part (rule) 12 relating to the “Control of Air Contaminants” and such areas shall be subject to the other pertinent provisions of Industrial Code Part (rule) 12 and of Industrial Code Part (rule) 18 relating to “Exhaust Systems”. (Emphasis added.)
The court held, as a matter of law, that the aeration tank in which plaintiff was working is “an unventilated confined area requiring air quality monitoring.” In addition:
Pursuant to 12 NYCRR 23-1.7(g), the atmosphere of an unventilated confined area must be monitored “where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life.” Here, the cement tank is a large container used to aerate and clean sewage. Entering the tank poses a potential hazard since, as admitted by a deputy superintendent for the DEP in his deposition, a person could experience oxygen depletion as gases “displace the oxygen.”
It rejected defendants’ argument “that in order for an area to be a confined space, as defined by 12 NYCRR 12-1.3(f), it must have a restricted means of access, such as a trap door or a manhole”:
An area does not need to be accessible only by a narrow opening in order to have a “restricted means of egress” (12 NYCRR 12-1.3[f]). Although the top of the tank was open to the air, access was still restricted as Cerverizzo needed to use a 20-foot ladder to enter and exit the tank. Therefore, given the tank’s use in the process of filtering sewage and its restricted means of access, 12 NYCRR 23-1.7(g) is applicable.
The evidence raised triable issues of fact as to whether defendants adequately monitored the tank for air quality, precluding summary judgment.
The court did dismiss, however, plaintiff’s Labor Law § 241(6) claim to the extent it was based on 12 NYCRR 23-1.8(b), since “Cerverizzo’s bracket installation work is not one of the activities requiring the use of a respirator pursuant to 12 NYCRR 23-1.26 and 23-2.8 and Cerverizzo has not pointed to any provision requiring a respirator for the work he was performing.”
The court also denied defendants’ motion for summary judgment on plaintiff’s common-law negligence and Labor Law § 200 claims “[b]ecause triable issues of fact exist as to whether defendants fulfilled their duty to adequately monitor the air quality in the subject tank, and thus, whether they had constructive notice of the fume condition that caused Cerverizzo’s injuries.”