Allison Gammons, Respondent,v.City of New York, et al., Appellants.BriefN.Y.November 17, 2014Supreme Court, Kings County Index Number 1901/09 To be argued by MICHAEL SHENDER 15 Minutes Requested COURT OF APPEALS STATE OF NEW YORK ALLISON GAMMONS, Plaintiff-Respondent, -against- CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT, Defendants-Appellants. APPELLANTS' BRIEF JEFFREY D. FRIEDLANDER, Acting Corporation Counsel of the City of New York, Attorney for Defendants- Appellants, 100 Church Street, New York, New York 10007. (718) 222-2371 or (212) 356-0827 KRISTIN M. HELMERS, MARGARET G. KING, MICHAEL SHENDER, of Counsel. January 24, 2014 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 JURISDICTIONAL STATEMENT 3 CERTIFIED QUESTION FOR APPEAL 3 STATEMENT OF FACTS 3 RELEVANT PROCEDURAL HISTORy 7 Motion Practice 7 The Supreme Court's Decision 7 Decision of the Appellate Division, Second Department 8 STATUTORY FRAMEWORK AND RELEVANT PROVISIONS OF LAW 9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 LABOR LAW § 27-a(3) IS NOT A VALID PREDICATE FOR PLAINTIFF'S GML § 205-e CAUSE OF ACTION. WHILE SECTION 27-a ESTABLISHES A COMPREHENSIVE ADMINISTRATIVE PROGRAM FOR WORKPLACE SAFETY INSPECTIONS, IT DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION FOR VIOLATION OF ITS TERMS AND THEREFORE CANNOT FORM THE BASIS FOR THE CITY'S LIABILITY 17 Occupational Safety and Health Act of 1970 18 Public Employee Safety and Health Act of 1980 22 General Municipal Law § 205-e 28 CONCLUSION 48 i TABLE OF AUTHORITIES Cases: Barrientos v. UT-Battelle, LLC, 284 F.Supp.2d 908 (S.D. Ohio 2003) 21 Capers v. Giuliani, 253 A.D.2d 630 (1st Dept.), lv. denied, 93 N.Y.2d 868 (1998) 34, 41, 44 Capotosto v. City of New York, 288 A.D.2d 419 (2 nd Dept. 2001) 43 Crane v. Conoco, Inc., 41 F.3d 547 (9 ili Cir. 1994) 20 n.4 Cruz v. Long Is. Rail Rd. Co., 22 A.D.3d 451 (2 nd Dept. 2005) 46 Cusumano v. City of New York, 15 N.Y.3d 319 (2010) 30 Desmond v. City of New York, 88 N.Y.2d 455 (1996) 29 Donovan v. OSHCR, 713 F.2d 918 (2d Cir. 1983) 18 Ellis v. Chase Communications, 63 F.3d 473 ( th· )6 Clr. 1995 20 n. 4 Estate of Rosen v. Prince George's Bd. of Educ., 1996 U.S. App. LEXIS 4980 (4 th Cir 1996) 37 Farash v. Sykes Datatronics, Inc., 59 N.Y.2d 500 (1983) 43 Farella v. City of New York, 2007 U.S. Dist. LEXIS 63087 (S.D.N.Y. 2007), aff'd 323 Fed. Appx. 13 (2d Cir. 2009) 35, 41 Gain v. E. Reinforcing Serv., 193 A.D.2d 255 (3 rd Dept. 1993) 39 Gaines v. White River Envtl. P'ship, 66 Fed. Appx. 37 (7 th Cir. 2003) 20 n.4 Galapo v. City of New York, 95 N. Y. 2d 568 (2000) 28, 29, 31 n. 24 and pa s s im -i'" Gasper v. Ford Motor Co., 13 N.Y.2d 104 (1963) 46 Gilson v. Metropolitan Opera, 5 N.Y.3d 574 (2005) 46 Gonzalez v. Iocovello, 93 N.Y. 2d 539 (1999) 43 Grasso v. Forrest Edward Empl. Servs., 2 0 0 2 U. S. Dis t. LEX I S 8 5 9 8 (S . D . N . Y. 2 0 02) 2 0 n. 4 Hartnett v. New York City Transit Authority, 86 N.Y.2d 438 (1995) 22, 23 n.9 Jeter v. St. Regis Paper Co., 507 F. 2d 973 (5th Ci r. 1975)................................ 19 Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323 (Wash. 1978) 19 Link v. City of New York, 34 A.D.3d 757 (2 nd Dept., 2006) 31 n. 25 Lombardi v. Stour, 80 N.Y.2d 290 (1992) 46 Lubecki v. City of New York, 304 A.D.2d 224 (1st Dept. 2003) 47 Minichello v. U.S. Industries, Inc., 7 5 6 F. 2d 2 6 (6 th Ci r. 19 8 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0 New York City Transit Auth. v. New York State DOL, 88 N.Y.2d 225 (1996) 25 New York State Inspection, Sec. & Law Enforcement Emples., Dist. Council 82 v. Cuomo, 64 N. Y. 2d 233 (1984) 26 Pedraza v. Shell Oil Co., 942 F.2d 48 (1st Cir. 1991) .......... 19 Perez v. Ormiston, 364 Fed. Appx. 93 (5 th Cir. 2010) 20 n.4 Pomahac v. TrizecHahn 1065 Ave. of the Ams., LLC, 65 A.D.3d 462 (1st Dept. 2009) 46 Ries v. AMTRAK, 960 F.2d 1156 (3 rd Cir. 1992) 20 n.4 Rivera v. Horizon Offshore Constrs., Inc., - ii~ 2005 U.S. Dist. LEXIS 27455 (S.D.N.Y. 2005) 21 Russell v. Bartley, 494 F.2d 334 (6 th Cir. 1974) 19 Santangelo v. State of New York, 71 N.Y.2d 393 (1988) .... 28 n.21 Scarborough v. Aegis Communs. Group, Inc., 2 0 00 U. S. App. LEX I S 14 3 21 (4 th Ci r. 2 0 0 0) . . . . . . . . . . . . . . 2 0 n. 4 Shaw v. Baldowski, 192 Misc.2d 635 (Sup. Ct., Albany Co. 2002) 37, 41 Sutka v. Conners, 73 N.Y.2d 395 (1989) 33 Taylor v. Brighton Corp., 616 F.2d 256 (6 th Cir. 1980) 45 Thomas v. Women Aware, Inc., 2005 U.S. Dist. LEXIS 14162 (W. D. Ky. 2005) 21 Transamerica Mortg. Advisors v. Lewis, 444 U.S. 11 (1979) ..... 45 Wadler v. City of New York, 14 N.Y.3d 192 (2010) . Williams v. City of New York, 2 N. Y. 3d 352 (2004) 17, 22, 29 and pa s s im State Statutes and Regulations: General Municipal Law § 205-e 2, 7, 8, 9, 28 and passim General Obligations Law § 11-106 16, 29 n.22 Labor Law § 27-a ("PESHA") 2,22,27 and passim Labor Law § 27-a(2) 10, 33 n.27 and passim Labor Law § 27-a(3) (a) (1) 2, 7, 8, 11 and passim Labor Law § 27-a(5) 11, 23 n.10, 24 nn.11-14 and passim Labor Law § 27-a(6) 13, 24 nn. 15-16 and passim Labor Law § 27-a(7) 15, 25 Labor Law § 27-a(10) 23 n. la, 34 -iv- 12 NYCRR § 800. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Federal Statutes and Regulations: 29 U.S.C. §§ 651-678 ("OSHA") 18 29 U.S.C. § 654 (a) (1) 23 COURT OF APPEALS STATE OF NEW YORK ALLISON GAMMONS, Plaintiff-Respondent, -against- CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT, Defendants-Appellants. APPELLANTS' BRIEF PRELIMINARY STATEMENT In this personal inj ury matter, the City of New York ("Ci ty"), also sued herein as New York City Police Department ( "NYPD"), a non- suable entity, moved for summary judgment to dismiss the claims of plaintiff-respondent Allison Gammons ("plaintiff"), a New York City police officer, who fell off an NYPD flatbed truck while in the process of loading barriers. After Supreme Court, Kings County (Sherman, J.), denied the City's motion for summary jUdgment (8-15) ,I the City appealed to the Appellate Division, Second Department, which, in a decision and order dated and entered July 17, 2013, unanimously affirmed the denial of summary judgment (482-494). The Second Department thereafter, by an order dated November 12, 1 Unless otherwise indicated, numbers in parentheses refer to pages in the Record on Appeal. 2013, granted the City leave to appeal to this Court on a certified question (480). The City argues on appeal that plaintiff's complaint should be dismissed on the ground that Labor Law § 27-a, entitled the Public Employee Safety and Health Act ("PESHA"), is not a proper predicate for plaintiff's General Municipal Law ("GML") § 205-e cause of action because PESHA established a government workplace inspection scheme in which the State's ,Commissioner of Labor has exclusive jurisdiction to determine whether a violation of the statute has occurred. In the order under review, while the Appellate Division correctly recognized that "Labor Law § 27-a(3) (a) (1) does not provide an injured worker with a private right of action based upon an alleged violation of its provisions," it nonetheless allowed plaintiff's suit to proceed, reasoning that plaintiff was not seeking "to recover damages for a Labor Law § 27-a (3) (a) (1) violation," but rather alleging this violation as a predicate under GML § 205-e. Irrespective of this context, however, courts lack subj ect matter jurisdiction to determine whether a section 27-a violation has occurred since the Legislature exclusively vested that power in the Department of Labor ( "DOL") . Accordingly, Labor Law § 27-a, which does not provide a private right of action for violations of its terms, cannot form the basis for municipal liability under GML § 205-e. -2- JURISDICTIONAL STATEMENT The City appeals pursuant to an order of the Appellate Division, Second Department, dated November 12, 2013, granting leave to appeal to this Court pursuant to CPLR 5602(b) (1). CERTIFIED QUESTION FOR APPEAL Pursuant to CPLR § 5713, the Appellate Division, Second Department, certified the following question for appeal (480) : "Was so much of the opinion and order of this Court dated July 17, 2013, as affirmed so much of the order of the Supreme Court, Kings County, dated February 25, 2011, as denied that branch of the appellants- respondents' motion which was for summary judgment dismissing the cause of action to recover damages based upon a violation of General Municipal Law § 205-e properly made?" STATEMENT OF FACTS On September 8, 2009, the date of the accident, plaintiff, a City police officer, was assigned to "barrier truck detail," which she described from prior experiences as " [1] oading and unloading wooden barriers or metal barriers" to or from an NYPD flatbed truck (131-136). Plaintiff testified that, on the occasion at issue, the NYPD assigned a flatbed truck approximately 20 feet long and 8 feet wide (137-138). The truck was equipped with emergency turret lights and bore an NYPD logo (138). It was also equipped with side railings, measuring -3- approximately three feet in height, while the back of the flatbed remained open (139-140) The truck's flatbed surface consisted of grooved metal (140-141) . The NYPD uses two different models of trucks for barrier detail, one of which is longer than the truck used on the day of incident (143). While longer trucks accommodate the entire length of the barriers, the flatbed truck used on the day of incident was approximately one foot shorter than the length of the barriers (143, 270). On the day of the accident, plaintiff worked with four other police officers: Officer DeSimoe, who operated the truck, and Officers Antonellis, Chapman and Pattason (144). Upon arrival at the barrier pickup location, plaintiff and the three other assigned officers exited the truck, while the driver remained in the vehicle to move it forward during the barrier pickup process (145). At one point, plaintiff and Officer Antonellis mounted the flatbed to retrieve barrier planks from the two other officers, who remained on the ground (147). Just prior to the accident, as plaintiff and Officer Antonellis were stacking a barrier plank, Officer Antonellis pushed the plank into plaintiff's chest, causing her to falloff the rear of the truck. follows (148-149): Plaintiff recalled this incident as Antonellis and I truck. I was in the cab. Officers were positioned on the the rear, he was towards Chapman and Pattason were -4- handing the barriers up to us. We're supposed to interlock them so we can stack them like on height [sic], and as he was getting his barrier, he [Officer Antonellis] pushed me forward and I fell backward off the back of the truck. In relevant part, plaintiff explained (158-159) Q. Did he push it hard, was it a light push, or something else? A. It was a hard push. Q. When he pushed it, did he push the beam towards the back of the truck, towards the rear of the truck? A. Towards me. Q. Where in relation to your body were you holding the beam? Was it up by your chest, by your waist, below your waist or something else? A. By my chest. Q. Prior to your accident, did Officer Antonellis warn you that he was going to be pushing the beam? A. No. Q. On any of the occasions on that day prior to your accident, had Officer Antonellis pushed a wooden beam towards you? A. No. Q. Did you expect Officer Antonellis to push the wooden beam towards you? A. No. Q. When Officer Antonellis pushed the wooden beam, did the end of the beam make contact with your body? -5- A. Q. body? A. Yes. Where did it make contact with your My chest. After the accident, Officer Antonellis was "very apologetic and sorry" because, as plaintiff explained, "he pushed me and caused me to fa [11]" (l69). Neither plaintiff, nor anyone else to plaintiff's knowledge, had ever complained about the length of the police barrier truck (274). Plaintiff had previously worked the barrier detail "[n]umerous times" (137), and was never injured during these assignments (256). Consistent with plaintiff's testimony, Officer Antonellis recalled the plank getting "staggered" and that he pushed the barrier towards plaintiff, accidentally "causing her to loose her balance and fall" (364-365) In his witness statement Officer Antonellis wrote that he "pushed the barrier towards [plaintiff] causing her to lose her balance and fall" (402 ) Officer Antonellis admittedly apologized to plaintiff for the happening of the accident (370). -6- RELEVANT PROCEDURAL HISTORY Motion Practice Upon the completion of discovery and the filing of a note of issue, by notice of motion dated July 29, 2010 (18-19), supported by the affirmation of an Assistant Corporation Counsel (21-52), and relevant exhibits (53-402), the City moved for summary judgment, seeking dismissal of the complaint. The City argued, among other things, that Labor Law § 27-a(3) was not a valid predicate for plaintiff's GML § 205-e suit because PESHA does not provide a private right of action. In opposition to the City's motion, plaintiff submitted an affirmation dated October 20, 2010, with exhibits (404-465) . Relying on Appellate Division caselaw that had permitted the use of PESHA as a GML § 205-e predicate, plaintiff argued that Labor Law § 27-a(3), PESHA's "general duty" clause, is a proper predicate, and further, that a fall from an unguarded flatbed truck is a "recognized hazard" within the meaning of section 27-a(3) (416-432) The Supreme Court's Decision In a decision and order (one paper) dated February 25, 2011, and entered March 18, 2011 (8-15), the Supreme Court, Kings County (Sherman, J.), inter alia, rejected the City's contention. Citing Appellate Division caselaw holding that "Labor Law § 27-a may serve as a proper predicate for a cause of -7- action alleging a violation of General Municipal Law § 205-e," the Court denied the City's motion. Decision of the Appellate Division, Second Department2 In an opinion and order dated July 17, 2013, the Appellate Division, inter alia, affirmed the Supreme Court's decision and the propriety of using Labor Law § 27-a(3) as a statutory predicate for a GML § 205-e suit (482-494). While observing that this Court "has not yet addressed [the City's] specific contention that the general duty clause in Labor Law § 27-a(3) (a) (1) is not a proper predicate under General Municipal Law § 205-e," the Appellate Division rejected the City's argument. In particular, while recognizing that "Labor Law § 27- a(3) (a) (1) does not provide an injured worker with a private right of action based upon an alleged violation of its provisions," the Appellate Division reasoned that (491): the plaintiff has not asserted a cause of action to recover damages for a Labor Law § 27-a(3) (a) (1) violation, [but r]ather, the plaintiff has alleged that the defendants' Labor Law § 27-a (3) (a) (1) violation is a predicate for her General Municipal Law § 205-e cause of action. 2 The Appellate Division's decision is reported at 109 A.D.3d 189. -8- STATUTORY FRAMEWORK AND RELEVANT PROVISIONS OF LAW General Municipal Law § 205-e. Right representatives officers. of action to of certain certain inj ured or deceased police 1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any police department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the police commissioner however, that nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law. 2. Notwithstanding any other provision of law, including sections fifty-e and fifty-i of this chapter, section thirty-eight hundred thirteen of the education law, section ten of the court of claims act and the provisions of any general, special or local law or charter requiring as a condition precedent to commencement of an action or special proceeding that a notice of claim be filed or presented, every cause of action or special proceeding that a notice of claim be filed or presented, every -9- cause of action for the personal injury or wrongful death of a police officer which was pending on or after January first, nineteen hundred eighty-seven, or which was dismissed on or after January first, nineteen hundred eighty-seven because this section was not yet effective, or which would have been actionable on or after January first, nineteen hundred eighty-seven had this section been effective is hereby revived and an action thereon may be commenced at any time provided that such action is commenced on or before June thirtieth, [fig 1] two thousand. 3. This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department. Labor Law § 27-a(2) Application. A safety or health standard promulgated under the provisions of this section shall apply to every public employee and the commissioner shall have exclusive authority to enforce such standard in accordance with the provisions of this chapter, notwithstanding any other safety or health standard or any other provision in this chapter or in any other general, local or special law or charter. However, this section shall not supersede any inconsistent provision of the education law, as applied to any school building certified by the commissioner of education as being in compliance with such law, and the regulations promulgated pursuant thereto, on the effective date of this section, or as applied to any application for certification -10- which is pending before the effective date of this section. § 27-a(3) Duties. a. Every employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and (2) comply with the safety and health standards promulgated under this section. In applying this paragraph, fundamental distinctions between private and public employment shall be recognized. § 27-a(5) Inspections. a. Any employee or representative of employees who believes that a violation of a safety or health standard exists, or that an imminent danger exists, may request an inspection by giving notice to the commissioner of such violation or danger. Such notice and request shall be in writing, shall set forth with reasonable particularity the grounds for the notice, shall be signed by such employee or representative of employees, and a copy shall be provided by the commissioner to the employer or the person in charge no later than the time of inspection, except that on the request of the person giving such notice, his name and the names of individual employees or representatives of employees shall be withheld. Such inspections shall be made forthwith. b. A representative of the employer and an authorized employee representative shall be given the opportunity to accompany the commissioner during an inspection for the purpose of aiding such inspection. Where there is no authorized employee -11- representative, the commissioner shall consult with a reasonable number of employees concerning matters of safety and health in the workplace. c. The authority of the commissioner to inspect premises pursuant to such an employee complaint shall not be limited to the alleged violation contained in such complaint. The commissioner may inspect any other area of the premises in which he has reason to believe that a violation of this section exists. d. No employee who accompanies commissioner on an inspection shall any reduction in wages. the suffer e. The commissioner may, upon his own initiative, conduct an inspection of any premises occupied by a public employer if he has reason to believe that a violation of this section has occurred or if he has a general administrative plan for the enforcement of this section, including general schedule inspections, which provide a rational administrative basis for such inspecting. Wi thin ninety days of enactment of this paragraph the commissioner shall publish the general administrative plan and shall adopt regulations on the conduct of inspections in locker rooms and other areas involving the personal property and privacy rights of public employees. f. Any information obtained commissioner under this section obtained with a minimum burden employers. by shall upon the be the 5-a. Notwithstanding any other provisions of law, when a request for an inspection has been made in a situation where there is an allegation of an imminent danger such that an employee would be subj ecting himself or herself to serious injury or death because of the hazardous condition in the workplace, -12- the inspection shall be given the highest priority by the department and shall be carried out immediately. § 27-a(6} Enforcement procedures. a. If the commissioner determines that an employer has violated a provision of this section, or a safety or health standard or regulation promulgated under this section, he or she shall with reasonable promptness issue to the employer an order to comply which shall describe particularly the nature of the violation including a reference to the provision of this section, standard, regulation or order alleged to have been violated, shall fix a reasonable time for compliance and may establish the penalty to be assessed for failure to correct the violation by the time fixed for compliance. An employer who fails to correct a non- serious violation by the time fixed for compliance may be assessed a civil penalty of up to fifty dollars per day until the violation is corrected. An employer who fails to correct a serious violation by the time fixed for compliance may be assessed a civil penalty of up to two hundred dollars per day until the violation is corrected. Pursuant to section 18(k} of the United States Occupational Safety and Health Act of 1970 (Public Law, 91-596) , a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. A non-serious violation shall be defined as any violation that does not fall under the definition of serious violation. The commissioner shall not assess a penalty against an employer for -13- failure to correct a violation of a standard which is the subject of an application for a temporary order granting a variance or a violation which is the sUbject of a petition to modify an order to comply, provided however, that upon issuance by the commissioner of a determination denying such variance or petition to modify, or upon expiration of a temporary variance or modified compliance period, the time fixed for compliance shall recommence and the employer become liable for the penalties provided herein. b. Where the commissioner issues to an employer an order to comply, the employer shall post such order or a copy' thereof in a conspicuous place at or near each place of violation cited in the order I where it is clearly visible to affected employees. The commissioner shall make such order available to employee representatives. c. Any employer, or other party affected by a determination of the industrial commissioner issued pursuant to this section may petition the industrial board of appeals for review of such determination in accordance with section one hundred one of this chapter. Judicial review of the decision of the industrial board of appeals may be obtained by any party affected by such decision by commencing a proceeding pursuant to article seventy-eight of the civil practice law and rules within sixty days after such decision is issued. d. If the time for compliance with an order of the commissioner issued pursuant to this section has elapsed, and the employer has not complied with the provisions of the order, the commissioner shall seek judicial enforcement of such order by commencing a proceeding pursuant to article seventy-eight of the civil practice law and rules. Where an employer has complied with an order in all respects other than the payment of a -14- penalty imposed pursuant to this subdivision, the commissioner may file with the county clerk of the county where the employer has its place of business the order of the commissioner continuing the amount of civil penalty found to be due. The filing of such order shall have the full force and effect of a judgment duly docketed in the office of such clerk. The order or decision may be enforced by and in the same manner, and with like effect, as that prescribed by the civil practice law and rules for the enforcement of a money judgment. § 27-a(7) Injunction proceedings. a. The supreme court of the state shall have jurisdiction, upon petition of the industrial commissioner, pursuant to the civil practice law and rules to restrain any conditions or practices in any place of public employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated' through the abatement procedures otherwise provided for by this section. Such proceeding shall be brought in the county in which the violation is alleged to exist. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary, to permit such to be accomplished in a safe and orderly manner. The employer may contest such order pursuant to the civil practice law and rules. -15- b. Whenever and as soon as an inspector concludes that conditions or practices described in paragraph a of this subdivision exist in any place of public employment, he shall inform the affected employees and employers of the danger and that he is recommending to the industrial commissioner that relief be sought. c. If the industrial commissioner fails to seek relief under this section within forty- eight hours of being notified of such condition, any employee who may be injured by reason of such failure, or the authorized employee representative of such employees, may seek injunctive relief as provided in paragraph a of this subdivision. General Obligations Law § 11-106. Compensation police officers and estates. for inj ury or death to firefighters or their 1. In addition to any other right of action or recovery otherwise available under law, whenever any police officer or firefighter suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity, other than that police officer's or firefighter's employer or co-employee, the police officer or firefighter suffering that injury or disease, or, in the case of death, a representative of that police officer or firefighter may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury, disease or death. -16- ARGUMENT LABOR LAW § 27-a(3) IS NOT A VALID PREDICATE FOR PLAINTIFF'S GML § 205-e CAUSE OF ACTION. WHILE SECTION 27-a ESTABLISHES A COMPREHENSIVE ADMINISTRATIVE PROGRAM FOR WORKPLACE SAFETY INSPECTIONS, IT DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION FOR VIOLATION OF ITS TERMS AND THEREFORE CANNOT FORM THE BASIS FOR THE CITY'S LIABILITY. (1 ) In Williams v. City of New York, 2 N.Y.3d 352 (2004), this Court expressly reserved decision on whether Labor Law § 27-a(3) (a) (1), PESHA's general duty clause, may serve as a statutory predicate for private tort actions brought under GML § 205-e. 3 Based on PESHA's plain language and the intent of New York's Legislature to provide an exclusively administrative regulatory program analogous to existing federal law, we respectfully submit that it may not. Although the issue before this court is one of first impression, the Occupational Safety and Health Act ("OSHA"), the federal legislation which served as a model for Labor Law § 27-a, offers a practical starting point 3 Noting that "the City originally argued that Labor Law § 27- a(3) (a) (1), the 'general duty' clause, was not a proper predicate under section 205-e but waived this argument on appeal," this Court issued a decision "by assuming, without deciding, that that this particular provision of the Labor Law is a proper predicate." Id. at 365 n.3. -17- for analysis. See id. at 367 ( "for PESHA, New York has adopted OSHA's workplace safety standards"). Occupational Safety and Health Act of 1970 In 1970, the United States Congress passed the Occupational Safety and Health Act ("OSHA"), codified at 29 U.S.C. §§ 651-678, to provide "every working man and woman in the Nation safe and healthful working conditions." 29 U. S. C. § 651 (b) . To accomplish this goal, the Act permitted the United States Secretary of Labor to obtain abc?-tement orders requiring employers to correct unsafe working conditions, and to impose civil penalties on any employer maintaining an unsafe working environment. Donovan v. OSHRC, 713 F.2d 918, 926 (2d Cir. 1983). While OSHA granted employees specific rights, including the rights to participate in rule-making proceedings and to request workplace inspections when a violation is suspected or an imminent danger exists, it did not provide employees with a private right of action. Rather, the Act subordinates the Secretary's function to the rights of employees in only two specific situations: first, employees have the right to challenge the period for abatement noted in a citation, and second, employees have the right to bring a mandamus action against the Secretary for a failure to enjoin an imminent danger at their workplace. Id. at 926-927. -18- Interpreting OSHA's statutory scheme in conjunction with its legislative history, federal courts across the United States have uniformly held that the Act did not create a private right of action for violations of its terms. See Jeter v. St. Regis Paper Co., 507 F.2d 973, 976 (5th Cir. 1975) ("[n]owhere in the language of the Act, i ts legislative history, or in the statutory declaration of purpose and policy in the Act itself is there the slightest implication that Congress considered OSHA creating a private right of action for violation of its terms") i Russell v. Bartley, 494 F.2d 334, 336 (6th Cir. 1974) ("there is no legislative history or case law to support appellant's proposition that OSHA created a private civil remedy"). Thus, "every court faced with the issue has held that OSHA creates no private right of action." Pedraza v. Shell Oil Co., 942 F.2d 48, 52 (1st Cir. 1991). As one court explained: The Occupational Safety and Health Act places a duty on all employers under the act to furnish a hazard-free place of employment and to comply with safety regulations promulgated pursuant to the statute. The statute creates a government program to enforce compliance I but does not crea te a private cause of action for persons injured as a resul t of noncompliance. OSHA and the regulations promulgated thereunder therefore do not create a duty to employees enforceable in a private cause of action. Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 334-335 (Wash. 1978) (emphasis added) . -19- Congressional intent to create a regulatory government program enforced only by administrative action is evidenced in section 653(b) (4) of the Act, which proscribes the use of OSHA "to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." 29 U.S.C. § 653 (b) (4). Consequently, federal circuit courts of appeals have held that "OSHA regulations can never provide a basis for liability," Minichello v. U.S. Industries, Inc., 756 F.2d 26, 29 (6th Cir. 1985), because "[u]nder OSHA, employees do not have a private right of action." Donovan, 713 F.2d at 926. 4 4 See also Perez v. Ormiston, 364 Fed. Appx. 93, 94 (5th Cir. 2010) ("OSHA does not give rise to a private cause of action") i Scarborough v. Aegis Communs. Group, Inc., 2000 U.S. App. LEXIS 14321 (4th Cir. 2000) ("there is no private right of action under OSHA"); Gaines v. White River Envtl. P'ship, 66 Fed. Appx. 37, 4 a (7th Cir. 2003) (plaintiff "cannot state a claim under OSHA because that statute offers him no private right of action") i Ellis v. Chase Communications, 63 F.3d 473, 478 (6th Cir. 1995) (employee who fell to his death while working on a transmission tower did not have a private right of action under OSHA); Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir. 1994) ("OSHA violations do not themselves constitute a private cause of action for breach") i Ries v. AMTRAK, 960 F.2d 1156, 1162 (3d Cir. 1992) ("If a violation of an OSHA regulation could constitute negligence per se [] it would be almost axiomatic that the effect would be to 'enlarge or diminish or affect' the statutory duty or liability of the employer") i Grasso v. Forrest Edward Empl. Servs., 2002 U. S. Dist. LEXIS 8598 (S. D. N. Y. 2002) ("The Occupational Safety and Health Act [] does not create a private right of action for damages"). -20- In further deference to OSHA's exclusively administrative framework, federal district courts have declined to exercise subject matter jurisdiction for asserted OSHA violations. See Rivera v. Horizon Offshore Contrs., Inc., 2005 U.S. Dist. LEXIS 27455 (S.D.N.Y. 2005) ("pleading a violation of OSHA as an element of a cause of action for negligence d [oes] not establish federal subj ect matter jurisdiction because OSHA did not create a private cause of action"). Thus, in Thomas v. Women Aware, Inc., 2005 U.S. Dist. LEXIS 14162 (W.D. Ky. 2005) f where plaintiff fell at her workplace and sought damages for an alleged violation of OSHA's "general duty" clause, 5 the Court dismissed the suit on jurisdictional grounds because "nowhere in the statute or in the record of the debate on the Act in Congress is there any mention of a private civil remedy against anyone for damages suffered by an employee because of a violation of the Act." Id. at *4 - 5, citing Barrientos v. UT- Battelle, LLC, 284 F. Supp. 2d 908, 915 (S.D. Ohio 2003) (plaintiff's OSHA claim did not invoke federal question jurisdiction because OSHA did not create a cause of action) . Federal jurisprudence holding that an OSHA violation does not give rise to liability in a private suit is highly relevant here because OSHA served as a model for New York's 5 See infra, p. 23. -21- Legislature when, a decade later, it enacted PESHA. That no private right of action has been recognized under OSHA suggests that New York's Legislature did not enact PESHA to create a unique vehicle for municipal tort liability, especially because New York municipalities were already subj ect to liability for injuries sustained due to unsafe workplace conditions. Public Employee Safety and Health Act of 1980 In 1980, ten years after the passage of OSHA, New York's Legislature enacted PESHA, codified in Labor Law § 27-a, to provide public sector employees with workplace protections available in the private sector under OSHA. Hartnett v. New York City Transit Auth., 86 N.Y.2d 438, 442 (1995). To that end, in implementing standards for PESHA, New York has adopted OSHA's workplace safety standards. Williams, 2 N.Y.3d at 367, citing 12 NYCRR § 800.3. In addition to adopting OSHA's specific safety standards,6 Labor Law § 27-a(3) (a) (1), commonly referred to as PESHA's "general duty" clause, 7 and upon which the plaintiff herein relies to support her GML § 205-e claim, requires public employers to: furnish to each of its employees, employment and a place of employment which are free 6 Labor Law § 27-a(4). 7 See Williams, 2 N.Y.3d at 367. -22- from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees. This Labor Law subsection is identical to OSHA's general duty clause, which requires a private employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. ff 29 U. S. C. § 654 (a) (1) Under any employee or representative of employees who believes that a safety standard has been violated, or that an imminent danger exists, may request a DOL inspection by giving notice to its Commissioner. s PESHA "encourages employees and their representatives to report violations of health and safety standards ff9 by protecting them from any adverse employment action in connection with such reporting activities,lO Moreover, "when a request for an inspection has been made in a situation where there 1S an allegation of an imminent danger S Labor Law § 27-a(5) (a). 9 Hartnett, 86 N.Y.2d at 443. 10 See Labor Law § 27 -a (5) (d) (prohibiting reduction in wages for employees who accompany the Commissioner during inspections) and Labor Law § 27-a(lO) (a) ("No person shall discharge, or otherwise discipline, or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this section ff ). -23- such that an employee would be subjecting himself or herself to serious injury or death," PESHA mandates that "the inspection shall be given the highest priority by the department and shall be carried out immediately."ll The Act further allows employees "to accompany the commissioner during an inspection for the purpose of aiding such inspection.,,12 While PESHA encourages employees to report suspected violations, the Commissioner's broad inspection authority is not limited to a particular report or to areas of alleged violations. Instead, the Commissioner may, "upon his own initiative, conduct an inspection of any premises occupied by a public employer" 13 or, during an investigation of a reported violation, may inspect "any other area of the premises in which he has reason to believe that a [PESHA] violation" exists. 14 Thus, Labor Law § 27-a designates the Commissioner of Labor to determine, through a physical inspection, whether a statutory violation has occurred. 15 If, upon inspection, "the commissioner determines that an employer has violated [PESHA]," 16 11 Labor Law § 27-a (5-a) . 12 Labor Law § 27-a(5) (b) 13 Labor Law § 27-a(5) (e) 14 Labor Law § 27-a(5) (c) 15 Labor Law § 27-a(6) (a), (c) i see also § 27-a(lO) (b) . 16 Labor Law § 27-a(6) (a) . -24- the Act authorizes the Commissioner to issue remedial compliance orders and to impose penalties. Seel e.g' l New York City Transit Auth. v. New York State DOLI 88 N.Y.2d 225 1 230 (1996). Any affected employer or employee may petition the industrial board of appeals to review the Commissionerls order l and may subsequently seek judicial review under Article 78. 17 If an employer fails to comply with an order I the Commissioner may seek judicial enforcement under Article 78. 18 Subdivision 7 of the Act is particularly noteworthy because it vests jurisdiction in the Supreme Court to provide injunctive relief "to restrain any conditions or practices in any place of public employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the abatement procedures. If 19 Importantly I if the Commissioner fails to seek such relieC Labor Law § 27-a(7) (c) allows "any employee who may be injured by reason of such failure . [to] seek injunctive relief. 1f Construing this section l this Court has observed that: [S]ection 27-a (subd 7 1 par c) of the Labor Law establishes automatic standing for petitioners to enjoin working conditions 17 Labor Law § 27-a(6) (c). 18 Labor Law § 27-a (6) (d) . 19 Labor Law § 27-a (7) (a) . -25- which are hazardous, or present an imminent danger, in those instances where the Industrial Commissioner fails to seek relief upon notice of such condition. This remedy is essential to the protection of the basic right of all employees to work in an environment that is as free from hazards and risks to their safety as practicable. N. Y. State Inspection, Sec. & Law Enforcement Emples., Dist. Council 82 v. Cuomo, 64 N.Y.2d 233, 241 (1984). PESHA's subdivision 8 authorizes the public employer to seek a temporary variance from a standard promulgated under the law, directs the provision of alternative safety procedures during the life of the variance, and outlines procedures for obtaining a variance; subdivision 9 deals with the employer's obligation to keep records of workplace accidents ; subdivision 10 protects employees from retaliation, specifically authorizing explicit complaint procedures to address that situation; 20 subdivision 11 provides that notice be given to all workplace employee representatives when one is notif ied ; subdivision 12 directs the Commissioner to encourage voluntary compliance; subdivision 13 enables the Commissioner to promulgate procedures to effectuate section 27-a; subdivision 14 establishes a commission to report on section 27-a's operation; subdivision 15 creates the State occupational safety and health hazard 20 See Hartnett, 86 N.Y.2d at 442. -26- abatement board, and subdivision 16 charges the board with funding workplace hazards abatement programs. Labor Law § 27-a, as set forth above, is thus a comprehensive provision outlining an entirely administrative inspection, enforcement, and grievance scheme, with limited judicial review. The Legislature's purpose in enacting PESHA is expressed as follows (L.1980 c. 729 §1) (emphasis added) The legislature hereby finds and declares that it is a basic right of all employees to work in an environment that is as free from hazards and risks to their safety as is practicable, and it is the intent of the legislature to insure that this right is also afforded to employees of the state, its counties, cities, towns, villages and other public employers who serve the people of this state. A significant percentage of all of those employed in this state are employed by the state or by one of its political subdivisions; many of these public employees perform job functions comparable to those performed by workers in the private sector who are protected by the United States Occupational Safety and Health Act of 1970 (P.L. 91-596) [29 U.S.C.A. § 651 et seq.]. The legislature therefore finds it inappropriate to continue two standards for employee safety, one applicable to those who work in the private sector and one for those who are employed by the state or local government. The legislature has further determined that a safe place in which to work is economically advantageous to employers. Work related accidents and injuries, and the absence caused thereby, decrease employee productivity and increase workers' -27- compensation costs; unsafe premises increase the risk of financial liability to members of the public who public buildings. for injuries frequent our For these reasons, the legislature, in an exercise of the state's police power, charges the industrial commissioner with the responsibility to insure that all public employees are afforded the same safeguards in their workplaces as are granted to employees in the private sector. In enacting PESHA, the Legislature endowed the Commissioner with exclusive original jurisdiction and broad investigative and remedial powers, while PESHA neither authorizes, nor suggests the appropriateness of basing a tort claim on its "general duty" clause. General Municipal Law § 205-e In 1989, nine years after PESHA's enactment, in addressing New York's common-law rule prohibiting suits by police officers for injuries sustained in the line of duty,21 the Legislature passed GML § 205-e as a "limited exception to the common-law rule." Galapo v. City of New York, 95 N.Y.2d 568, 573 (2000) . In effect, section 205-e(1) partially abrogated the so- called "firefighter's rule," and provided a limited right of recovery to police officers injured by another's failure "to comply with the requirements of any of the statutes, ordinances, 21 See generally Santangelo v. State of New York, 71 N. Y. 2d 393 (1988) -28- rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus." rd. Although "section 205-e purports to authorize recovery for noncompliance with any governmental requirement," this Court has repeatedly cautioned that the statute "cannot reasonably be applied literally in accordance with its broad language." Galapo, 95 N.Y.2d at 574; Desmond v. City of New York, 88 N.Y.2d 455, 463-464 (1996) ("section 205-e was not intended to give police officers a right to sue for breaches of any and all governmental pronouncements" ) . Hence, despite the statute's "seemingly limitless" language, recovery is contingent upon proof of the defendant's noncompliance with a "well-developed body of law and regulation that imposes clear duties," Williams, 2 N.Y.3d at 364, and that contains "positive commands that mandate the performance or nonperformance of specific acts." Desmond, 88 N.Y.2d at 464. The significance of this requirement that actions under GML § 205-e be supported by a statutory predicate -- was reaffirmed with the subsequent passage of General Obligations Law ("GaL") § 11-106,22 which abolished the firefighter's rule 22 See GaL § 11-106 (2) ("Nothing in this section shall be deemed to expand or restrict the existing liability of an employer or co-employee at common-law or under sections two hundred five-a and two hundred five-e of the general municipal law"). -29- except as to actions against municipal employers and co- employees. See Wadler v. City of New York, 14 N. Y. 3d 192, 194 (2010). Notably, although the Legislature could have completely abolished the "firefighter's rule," it did not, rendering a statutory violation central to maintaining suits against municipal employers. See Williams, 2 N. Y. 3d at 363 (deeming it " [i] mportant []" that GOL § 11-106 "maintains the common-law bar on tort claims against the police officer's employer or co- employee") (internal quotations and citation omitted). Thus, unlike GOL § 11-106, GML § 205-e does not, by itself, provide relief. See Cusumano v. City of New York, 15 N.Y.3d 319, 325 (2010) (Lippman, C.J., concurring) ("liability [under GML § 205] does not stand alone but must be predicated on a violation of a separate legal requirement"). Rather, a proper statutory predicate is "a prerequisite to recovery," such that "[l]iability cannot be imposed under section 205-e unless a plaintiff has established that a statut lory predicate] was, in fact, violated." Williams, 2 N.Y.3d at 364-365. (2 ) Here, given that proof of a Labor Law § 27-a violation is "a prerequisite to recovery," the Appellate Division's reasoning that "plaintiff has not asserted a cause of action to recover damages for a Labor Law § 27-a(3) (a) (1) violation [but rather alleged a] Labor Law § 27-a(3) (a) (1) violation as a -30- predicate for her [GML] § 205-e cause of action," disregards the centrality of the asserted predicate as part of the plaintiff's prima facie case. This fine distinction is not meaningful, and the purported dichotomy ignores the fact that GML § 205-e "does not stand alone ,,23 and, , as this Court has noted in Williams, does not provide recovery unless a proper predicate has, in fact, been violated. While section 205-e enabled plaintiff to avoid the firefighter's rUle,24 any recovery of tort damages is wholly contingent upon the validity and relevance of the asserted predicate, 25 and upon proof of the alleged statutory violation. See Williams, 2 N.Y.3d at 365. Accordingly, in both form and substance, the subj ect suit against the City is a private tort action to recover damages for an alleged Labor Law § 27-a(3) violation. The issue presented, therefore, is not whether plaintiff, a police officer, may bring a lawsuit against the City, as the Appellate 23 Cusumano, 15 N.Y.3d at 319 (Lippman, C.J., concurring). 24 See Galapo, 95 N.Y.2d at 573 (GML § 205 is "a narrow passageway around the common-law rule"). 25 See, e.g., Link v. City of New York, 34 A.D.3d 757, 758 (2d Dep't 2006) (in a case where police officer alleged that the City failed to provide him with riot gear, held that "the complaint fails to allege a specific statute, ordinance, or regulatory predicate for relief pursuant to General Municipal Law § 205-e [as] [n] either the general public safety standard codified in Labor Law § 27-a nor the requirements of the New York City Police Department Patrol Guide are adequate for this purpose") . -31- Division's narrow analysis inevitably suggests. Such right has existed since 1989 with the passage of GML § 205-e, and was later preserved in GOL § 11-106. Nor does this appeal raise a question of whether PESHA provides a private right of action for a statutory violation -- it does not, and the Appellate Division has expressly recognized as much. The proper inquiry, we submit, is whether GML § 205-e's "narrow passageway around,,26 the firefighter's rule authorizes plaintiff to recover in tort for an alleged violation of Labor Law § 27-a(3). Our contention that section 27-a cannot form a basis for liability in a private tort action, including one under GML § 205-e, is consistent with PESHA's exclusively administrative inspection and enforcement program, subject to limited judicial review. A contrary conclusion would rewrite PESHA's detailed statutory scheme, which does not vest courts with plenary original jurisdiction to determine whether a PESHA violation has occurred. Nor does the· language of GML § 205-e suggest a legislative intent to override PESHA's pre-existing exclusive designation of the Labor Commissioner, rather than a common-law jury or judge, to determine whether a workplace condition constitutes a "recognized hazard." 26 Galapo, 95 N.Y.2d at 573. -32- The Legislature's intent to create an administrative scheme without a private right of action is also evident from the inclusion of section 27-a in Article 2 of the Labor Law, as well as by the tenor of its individual provisions. Article 2, entitled "Department of Labor," comprising Sections 10 through 43, all of which relate to legislatively-authorized actions to be taken by the Labor Commissioner to assure workplace safety in the State of New York. Labor Law § 21 charges the Commissioner to "enforce all the provisions of this chapter and [to] issue such orders as he finds necessary directing compliance with any provision of this chapter." None of the Article 2 sections, however, evince a legislative intent to create a vehicle for liability in the form of private tort actions. Thus, a public employer's obligation to provide a working environment "free from recognized hazards" should be read in the context where, "notwithstanding any other general, local or special law or charter," the Legislature vested the Commissioner of Labor with "exclusive authority,,27 to determine whether a violation has occurred, and to issue abatement orders and penalties as appropriate. See Sutka v. Conners, 73 N.Y.2d 395, 403 (1989) ("In matters of statutory interpretation legislative intent is the great and 27 Labor Law § 27-a(2) ("Application"). -33- controlling principle [and an] inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history") omitted) . (citations and internal quotations Accordingly, PESHA's plain language, the expressed legislative intent, and the broader context of Labor Law § 27- a(3) (a) (1), considered together, establish that the Commissioner of Labor is the sole entity empowered to determine whether a PESHA violation has occurred. See Labor Law § 27-a(6) (a) and (c) i Labor Law § 27-a(10) (b). The Commissioner's acts are subj ect only to administrative challenges by affected parties, and the Act limits judicial review to Article 78 proceedings and further, to specific instances as outlined above. 28 Consistent with the OSHA jurisprudence discussed at pp. 18-22, supra, moreover, New York courts have expressly held that PESHA does not provide a private right of action. For example, in Capers v. Giuliani·, 253 A.D.2d 630 (1st Dep't), Iv. denied, 93 N. Y. 2d 868 (1999), where plaintiffs contended, among 28 Labor Law § 27-a (6) (c) (judicial review of industrial board's decisions regarding Commissioner's determinations) I Labor Law § 27-a(6) (d) (judicial enforcement of Commissioner's orders), Labor Law § 27-a (7) (a) (injunctive relief upon petition by the Commissioner), Labor Law § 27-a(7) (c) (injunctive relief upon employee's petition where the Commissioner fails to seek), and Labor Law § 27-a(10) (b) (actions by Attorney General for discrimination) . -34- other things, that they were not provided with proper protective clothing and equipment, and were inadequately protected from traffic and other job hazards in violation of OSHA and PESHA, id. at 630-631, the Appellate Division held that Supreme Court should have dismissed the proposed class action. Noting that "plaintiffs' substantive claims are governed by the Public Employee Safety and Health Act, codified in the Labor Law," id. at 632, the Court held that administrative remedies were the sole legislatively authorized recourse under section 27-a. In relevant part, the Court concluded (id. at 633) (internal quotations and citations omitted, emphases supplied): when the Legislature has conferred exclusive original jurisdiction upon a specified agency in connection with the administration of a statutory regulatory program, the Supreme Court's power is limited to article 78 review . Moreover, whether defendants have violated health and safety rules manifestly is an interpretive exercise, requiring, in the first instance, the agency's review of the claims, and, if reasonably determined, judicial deference to the agency's findings. Since the very ma tters under review are inherently technical matters for which expertise is reposed in the Department of Labor I review by this Court without a prior agency determina tion will be inconsistent wi th sound principles of administrative review. The District Court's decision in Farella v. City of New York, 2007 U.S. Dist. LEXIS 63087 (S.D.N.Y. 2007), aff'd 323 Fed. Appx. 13 (2d Cir. 2009), is also instructive in this -35- regard. In Parella, several City police officers and firefighters incurred a variety of medical problems as a result of lead exposure at the NYPD's 24th Precinct's firing range. Id. at *1. They alleged, among other things, that defendants denied them access to the courts in violation of 42 USC § 1983, and violated GML § 205-e and Labor Law § 27-a. Id. at *2. The plaintiffs ultimately acknowledged that they could not obtain relief on any of their claims except for their denial of access to the courts claim, premised upon the City's alleged failure to make, keep, and disclose testing results mandated by Labor Law § 27-a. Id. at *3. In dismissing the denial of access claim, the Court held as follows (id. at *4-6) (internal quotations and citations omitted) : PESHA itself, as plaintiffs concede, does not provide a private right of action. Rather, the Commissioner of the New York State Department of Labor ("DOL") has exclusive authority to enforce the statute. A public employee who believes that a standard is violated may request an inspection upon notice to the commissioner f who is given enforcement capabilities upon a determination of a violation or that imminent danger exists. Because alleged violations of PESHA are inherently technical matters for which expertise is reposed in the Department of Labor, a state court' review of the DOL's determination is limited to Article 78 review. It is not disputed that plaintiffs did not make a request for an inspection to the Commissioner of DOL at any time before instituting this proceeding. As such, we are left with plaintiffs' unverified allegations that defendant -36- violated PESHA's provisions. Whether defendants have violated health and safety rules manifestly is an interpretive exercise, requiring, in the first instance, the agency's review of the claims, and, if reasonably determined, judicial deference to the agency's findings. Significantly, in contrast to the Appellate Division's decision here, the District Court did not permit the use of Labor Law § 27 -a as a basis for plaintiffs' 42 USC § 1983 denial of access claim, reasoning that (id. at *30): to permit plaintiffs to bring a denial of access claim based on alleged violations of PESHA would amount to a rewriting of the PESHA statute and its limited waiver of sovereign immunity. All agree that PESHA did not create a private right of action. Moreover, the statutory scheme requires a complaint to the Department of Labor, whose actions may only be reviewed in an Article 78 proceeding under New York's Civil Practice Law and Rules. See also Estate of Rosen v. Prince George's Bd. of Educ., 1996 U.S. App. LEXIS 4980 (4th Cir. 1996) (rejecting plaintiff's reliance on OSHA violations as predicates for a 42 USC § 1983 suit because the "OSHA statute does not create a private right of action"). And in Shaw v. Baldowski, 192 Misc. 2d 635 (Sup. Ct., Albany Co. 2002), the Court reached a similar result where a state employee commenced an action against the State pursuant to a collective bargaining agreement ("CBA") alleging a violation of Labor Law § 27-a. The State argued that under section 27-a, -37- "the Commissioner of Labor has the exclusive authority to enforce PESHA regulations . [and] CBA and Labor Law § 27-a allow plaintiff to grieve and pursue the alleged health and safety violations through the Commissioner of Labor. If Id. at 639. In opposition, plaintiff contended that she had a right to bring an action directly against the State for breach of the CBA based on alleged PESHA and OSHA violations. Id. The plaintiff in Shaw ultimately conceded that she did not have a private right of action under Labor Law § 27-a for the alleged violations of PESHA and OSHA regulations. The issue, therefore, was whether the plaintiff could indirectly sustain her claim for alleged PESHA and OSHA violations through the CBA. Id. at 640. Concluding that plaintiff could not, the Court explained (id. at 640) (internal quotation and citations omitted) : Labor Law § 27-a sets forth a statutory administrative procedure for the review of alleged PESHA and OSHA violations by a public employer such as the State. The review process may be commenced by any employee or representative of employees who believes that a violation of a safety or health standard exists. However, it is undisputed that plaintiff never availed herself of this administrative review procedure in regard to the PESHA and OSHA violations alleged in this instance. As a result, in view of [] Labor Law § 27-a, plaintiff has failed to exhaust her statutory administrative remedies. -38- Notably, the Court held that "plaintiff cannot utilize CBA § 15.1 as a means to determine whether the State is liable for alleged violations of PESHA and OSHA regulations [] when Labor Law § 27-a provide[s] that such regulations can only be reviewed through a separate and specific statutory scheme." Id. A corollary example is also provided in Gain v. E. Reinforcing Serv., 193 A.D.2d 255 (3d Dep't 1993), where the Third Department considered whether another Labor Law provision, also modeled after OSHA, authorized a private cause of action. In response to plaintiffs' allegation that their decedent was electrocuted as a result of defendants' violation of Labor Law § 202-h, the defendants sought dismissal on the ground that section 202 -h did not create a private right of action. Id. at 256-257. Noting that Labor Law § 202-h was enacted to provide "more stringent and specific standards than those provided by [OSHA] ,"29 and that "OSHA regulations consistently have been construed as not according a private right of action," the Court concluded that "the Legislature quite clearly did not intend section 202-h as a vehicle for civil liability." Id. at 259. The Court reasoned, in pertinent part, as follows (id. at 257- 29 The sole penalty under section 202-h is a civil penalty of up to $1,000 per day recoverable by the Commissioner of Labor in an administrative enforcement proceeding. Gain, 193 A.D.2d at 258, fn. 1. -39- 258) (internal citations and quotations omitted, emphasis supplied) : it is evident from a reading of Labor Law § 202-h in its entirety that no private right of action expressly is authorized a review of legislative history persuades us that an implied private action is not consistent with the legislative scheme. The stated purposes of Labor Law § 202-h are to provide more stringent and specific safety standards than those provided by the Federal Occupational Safety and Health Administration in an effort to avoid accidents endangering both persons and the quality of electrical service, to give the Commissioner of Labor enforcement power to ensure compliance and to make clear who must bear the cost of moving power lines when necessary. In our view, the inescapable conclusion to be drawn from this and from a plain reading of the sta tute is that the legislative goal is not to establish a vehicle for the compensation of persons injured by high-voltage electricity, but rather to achieve the prevention of such injuries through the imposition of generally applicable safety standards and the creation of a mechanism by which the Commissioner of Labor would have broad regula tory and remedial powers to intervene in an effort to insure compliance. Significantly, In the Appellate Division distinguished section 202-h, contained in Labor Law Article 7, from section § 240(1), contained in Labor Law Article 10, stating that \\ [i] n this regard, Labor Law § 202 -h stands in stark contrast to the absolute liability provisions of Labor Law § 240 (1), the stated purpose of which is not the prevention of injury through administrative -40- enforcement but rather the imposition of responsibility upon certain individuals for failure to provide adequate safety measures." Id. at 258. These decisions illustrate the error in allowing, in essence, a section 27-a claim to proceed simply because it is ci ted as the required statutory provision supporting a GML § 205-e suit. Although we had urged the Court to consider these precedents as instructive, the Second Department's decision did not distinguish or even mention these cases. The Court, consequently, overlooked that Farella and Shaw rej ected Labor Law § 27-a claims even though, as here, they were brought under the auspices of other vehicles for those suits. In Farella, the District Court declined to address the alleged PESHA violations supporting a 42 USC § 1983 denial of access claim as contrary to PESHA's administrative framework, under which, inter alia, a private right of action is not available, while the same concern led the court in §haw to reject plaintiff's reliance on a CBA as a vehicle to recover for a PESHA violation. So, too, Capers and Gain rejected Labor Law claims based both on legislative purpose and the nature of the underlying statutory provisions, not the lack of some "enabling" statute akin to GML § 205-e. In Capers, the First Department declined to review plaintiffs' PESHA claims because PESHA's exclusive mechanism for determining whether a violation has occurred rendered the sought judicial intervention "inconsistent -41- with sound principles of administrative review." 253 A. D. 2d at 633. And in Gain, the Third Department held that another Labor Law section modeled after OSHA "did not establish a vehicle for compensation of persons injured" because the Legislature sought "to achieve the prevention of such injuries through the imposition of generally applicable safety standards and the creation of a mechanism by which the Commissioner of Labor would have broad regulatory and remedial powers to intervene in an effort to insure compliance." 193 A.D.2d at 258. Here, the Appellate Division's recognition that "Labor Law § 27-a(3) (a) (1) does not provide an injured worker with a private right of action based upon an alleged violation of its provisions" is manifestly inconsistent with that Court's allowing plaintiff's suit seeking recovery for an alleged section 27-a(3) violation to proceed. Since proof of a section 27-a(3) violation is a "prerequisite to recovery," Williams, 2 N.Y.3d at 364-365, without which liability under GML § 205-e "does not stand," Cusumano, 15 N.Y.3d at 325, it cannot be said that "plaintiff has not asserted a cause of action to recover damages for a Labor Law § 27-a(3) (a) (1) violation." Under the Appellate Division's narrow rationale, any legislative pronouncement, regardless of legislative intent, may form the basis for municipal liability to police officers (and, by implication, to firefighters), although not to the general -42- public. But cf. Galapo, 95 N.Y.2d at 568 (section 205-e "was not, however, intended to give police officers greater rights and remedies than those available to the general public"). Such an outcome disregards OSHA's and PESHA's exclusively governmental regulatory and enforcement programs, cf. Desmond, 88 N.Y.2d at 464-465 (section 205-e was not "intended to give police officers a right to sue for breaches of any and all governmental pronouncements"), and permits plaintiff to do indirectly what could not be done directly. But see Farash v. Sykes Datatronics, Inc., 59 N.Y.2d 500, 508 (1983) ("plaintiff should not be allowed to do indirectly what he cannot do directly") i Capotosto v. City of New York, 288 A.D.2d 419, 420 (2d Dep't 2001) (plaintiffs could not use the Patrol Guide to establish a Penal Law violation as a predicate for a GML § 205-e claim, because "[t] 0 permit this would allow the plaintiffs to do indirectly what they cannot do directly"). GML § 205-e did not create an exception to PESHA's pre-existing comprehensive regulatory scheme and therefore does not vest lower courts with original jurisdictions to adjudicate alleged PESHA violations. Thus, while "a statute can serve as a predicate when it contains either a particularized mandate or a clear legal duty," Gonzalez v. Iocovello, 93 N.Y.2d 539, 551 (1999), Labor Law § 27-a which, notwithstanding "any other -43- general, local or special law or charter,"30 requires an administrative determination as to whether a violation has occurred here, exclusively through a DOL inspection -- cannot serve as a predicate in a personal injury suit where a court's or jury's conclusion would necessarily supplant the DOL's exclusive authority. It is in this significant respect that 205-e§from other accepted GMLPESHA markedly differs predicates. wi th PESHA, the Legislature sought to improve public workplace safety exclusively through DOL inspections and remedial compliance orders,31 subject to limited Article 78 review. For this reason, PESHA contains no provision for common law courts and juries to consider, on an ad hoc basis, a range of "inherently technical matters for which expertise is reposed in the Department of Labor." See Capers, 253 A.D.2d at 633. Nevertheless, in dereliction of PESHA's exclusive DOL inspection mechanism, the Appellate Division suggested that "[a] violation of section 27-a(3) (a) (1) may be proven to a trier of fact with, for example, proof of violations of industry-wide standards" (491) . The Court's decision effectively rewrites the Act's limited provision for jUdicial review and abolishes PESHA's 30 Labor Law § 27-a (2) . 31 See Labor Law § 27-a(6). -44- detailed regulatory framework in favor of a private suit, even though the Court had acknowledged that no private action for PESHA violations may be maintained. Applying the premise of our argument, one federal circuit court rejected a private action for violation of OSHA's anti-discrimination provision32 as "simply inconsistent with the enforcement plan provided by Congress." Taylor v. Brighton Corp., 616 F.2d 256, 262-263 (6th Cir. 1980) In that Court's view, a contrary result would be tantamount to concluding that "the enforcement mechanism Congress specified was not intended to be exclusive," and would violate "an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Id" citing Transamerica Mortg. Advisors v. Lewis, 444 U. S. 11 (1979) ( " [w] hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode") . Similarly, nothing in PESHA suggests that the Legislature adopted OSHA's general duty clause with the intention of creating a new basis for municipal tort liability. No such remedy existed under OSHA, while a duty to provide a safe workplace and concomitant tort liability existed well 32 PESHA's similar prohibition against retaliation for reporting a suspected PESHA violation is codified in Labor Law § 27-a(10). -45- before PESHA. See Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110 (1963) ("an employer had a duty to provide his employees with a safe place to work"). Nor did the Legislature intend the "general duty" clause to codify a common-law duty of care. Compare Lombardi v. Stout, 80 N.Y.2d 290, 294 (1992) ("Section 200 of the Labor Law is a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work") . An employer's duty under the common law is not synonymous with the duty described in section 27-a(3) (a) (1), as the latter is limited to instances involving a "recognized hazard." Lastly, the Appellate Division also erroneously concluded that section 27-a is a proper GML § 205-e predicate based on its prior holding in Cruz v. Long Is. Rail Rd. Co., 22 A.D.3d 451, 454 (2d Dep't 2005), that "an OSHA violation is properly admissible as evidence of negligence." The Court overlooked that even a defendant's violation of its own internal I rules or guidelines may, in a proper case, be admitted as evidence of negligence. Gilson v. Metropolitan Opera, 5 N. Y. 3d 574, 577 (2005); Pomahac v. TrizecHahn 1065 Ave. of the Ams., LLC, 65 A.D.3d 462,465 (1st Dep't 2009) ("defendant's failure to adhere to its own internal guideline or policy may be some evidence of negligence"). Yet, such rules could not serve as predicates for a GML § 205-e cause of action. -46- Thus, the admissibility of certain OSHA violations as some evidence of negligence does not support the use of PESHA as "a prerequisite to recovery" under GML § 205-e. Indeed, in Lubecki v. City of New York, 304 A.D.2d 224 (1st Dep't 2003), the Court admitted a Patrol Guide violation to determine whether the City was negligent, while three years earlier, in Galapo, this Court had rej ected the use of the same Patrol Guide as a GML § 205-e predicate. By analogy, that an OSHA violation may provide some evidence of negligence at trial does not mean that section 27-a is a proper GML § 205-e predicate, where recovery is conditional upon proof of the alleged PESHA violation. Based on the foregoing, a contention that PESHA's "general duty" clause may appropriately be used as a foundation for a tort claim is incompatible with its place in the overall scheme of the Labor Law and runs afoul of the jurisprudential consensus that PESHA violations do not establish a basis for liability in private tort actions. Both OSHA and PESHA encompass comprehensive government inspection programs and neither Act authorizes tort recovery in a private suit. Because plaintiff's suit seeking tort damages for an alleged PESHA violation contravenes PESHA's framework, including the Act's detailed mechanism for determining whether a violation has occurred and limited provisions judicial review, the certified question should be answered in the negative. -47- Dated: CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED, WITH COSTS, AND THE COMPLAINT AGAINST THE CITY SHOULD BE DISMISSED. New York, New York January 24, 2014 Respectfully submitted, JEFFREY D. FRIEDLANDER, Acting Corporation Counsel of the City of New York, Attorney for Defendants- A~peW~t~ By: \JU- MICHAEL SHENDER KRISTIN M. HELMERS, MARGARET G. KING, MICHAEL SHENDER, of Counsel, -48-