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JAMES WILSON, Plaintiff-Respondent-Appellant, v. THE CITY OF NEW YORK, ET AL., Defendants, METROPOLITAN TRANSPORTATION AUTHORITY, ET AL., Defendants-Appellants-Respondents, ETS CONTRACTING, INC., Defendant-Respondent. ETS CONTRACTING, INC., Third-Party Plaintiff Respondent, HYGIENETICS ENVIRONMENTAL SERVICES, INC., Third-Party Defendant-Appellant, NORTHERN VALLEY CONTRACTING COMPANY, INC., Third-Party Defendant-Respondent. METROPOLITAN TRANSPORTATION AUTHORITY, ET AL., Second Third-Party Plaintiffs-Appellants-Respondents, CASALINO INTERIOR DEMOLITION, CORP., Second Third-Party Defendant-Respondent, HYGIENETICS ENVIRONMENTAL SERVICES, INC., Second Third-Party Defendant-Respondent-Appellant. WALTER HAGINS, ET AL., Action No. 2 Plaintiffs-Respondents-Appellants,

Plaintiffs, burners or burners' helpers, employed by third-party defendant Casalino to cut steel beams with acetylene torches, allege that, due to the improper abatement of steel painted with lead-based paint, they developed lead poisoning from exposure to fumes. The parties' various motions and cross motions were correctly decided. The circumstances here lack the character of spite, malice or evil motive required to sustain claims of punitive damage in a tort action ( see Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 479). ETS had no authority to supervise or control plaintiffs' work, an implicit precondition to liability under Labor Law § 200 ( Rizzuto v. LA Wenger Constr. Co., 91 N.Y.2d 343, 352). The sections of the Industrial Code rejected by the motion court are not sufficiently specific to support claims under Labor Law § 241(6) ( see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505). We have considered the parties' remaining contentions for affirmative relief and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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WILSON v. CITY OF NEW YORK
(May 4, 2004)