This action arises out of an industrial accident that occurred on November 15, 2008, resulting in the death of Plaintiff's decedent, Matthew R. Row. Pending before the Court are multiple applications for summary judgment, pursuant to CPLR §3212.

Third-Party Defendant, Cameron International Corporation ("Cameron"), is in the business of designing, manufacturing, and testing large centrifugal air compressors based on specifications received from its customers. At the time of his death, Mr. Row was working in the scope of his employment for Cameron, as a test engineer at Cameron's facility located in the Town of Cheektowaga, New York (the "Facility").

Upon completing the design and assembly of a compressor, Cameron tested it to ensure that it met customer-specific requirements. At the time of the accident, there were four (4) test labs at the Facility, known as Product Test Centers. Mr. Row's accident happened in Product Test Center No. 4 ("PTC-4"). At the time of the accident, PTC-4 consisted of three (3) structurally-divided areas, including (i) a test stand and the surrounding area where the compressor is positioned during the course of testing ("Test Lab"); (ii) a control room, in which the test personnel, which included Mr. Row, control and monitor the testing process ("Control Room"); and (iii) a room which supplies the air that is drawn into the compressor via a high velocity air intake pipe during the testing process ("Plenum Room").At the time of the accident, the Plenum Room measured 15' x 25', with a windowless man-door located on the east wall and a large opening on the north wall that allowed test mechanics to insert and remove one or more air inlet pipes required for compressor testing. The Plenum Room functioned by drawing air from outside the Facility, and mixing it with air inside the Plenum Room to reach a uniform temperature before being sent through the compressor being tested. Mr. Row was killed upon being partially drawn into the end of the air intake pipe in the Plenum Room during a compressor test.

On a motion for summary judgment, the facts must be viewed "in the light most favorable to the non-moving party" (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment is to be granted only where the moving party has "tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). The moving party must do so by tender of evidentiary proof, in admissible form (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). If the moving party satisfies this burden, then the burden shifts to the non-moving party "to establish the existence of material issues of fact which require a trial of the action" (Alvarez, [*2]at 324). "Normally, if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof, in admissible form" (Friends of Animals, Inc., at 1067-68].

Plaintiff alleges that Defendant, Lehigh Construction Group, Inc. ("Lehigh"), failed to exercise reasonable care in the performance of its duties as the general contractor that participated in the design and construction of the Plenum Room.

In 1997, Lehigh and Cooperturbo Compressor (Cameron's predecessor) entered into a contract (the "Cameron/Lehigh Contract" or "Contract") to construct PTC-4 (the "Project"). Lehigh contends that it cannot be liable to Plaintiff, because the scope of the Cameron/Lehigh Contract was narrow and did not require Lehigh to contemplate, design, or construct safety devices, such as, inter alia, an interlock at the entry to the Plenum Room;^[FN1] warnings on the Plenum Room door; or emergency stops within the Plenum Room. Lehigh contends that it was hired to merely "build a box." Plaintiff, on the other hand, contends that Lehigh's responsibilities under the Contract far exceeded the mere building of a box.

The Contract required Lehigh to retain its own architect, and Lehigh contracted with Defendant, Douglas Michael Scheid d/b/a Scheid Architectural ("Scheid Architectural") to perform the design work on PTC-4.

Douglas Scheid, the principal of Scheid Architectural, described the Project as a "team sport" that involved interplay between the owner (Cameron), the contractor (Lehigh), and the architect (Scheid Architectural). In this regard, Lehigh (and Scheid Architectural) were, or should have been aware of PTC-4's purpose, that the Plenum Room would be under significant negative air pressure during compressor testing, and the inherent dangers associated with the Plenum Room during compressor testing.

As designed and constructed, the Plenum Room is located immediately beneath the Control Room, and there is no way for those individuals conducting and monitoring a compressor test in the Control Room to view the Plenum Room. Despite this knowledge, the Plenum Room, as constructed, did not include, inter alia, an interlock; warnings on the Plenum Room door; or emergency stops within the Plenum Room.

Moreover, the Cameron/Lehigh Contract's scope of work is not as narrowly defined as Lehigh contends. Rather, the "SCOPE OF THE WORK" is stated to be

Similarly, the Project's Purchase Order (between Cooperturbo Compressor and Lehigh), [*3]dated January 24, 1997, provides, in relevant part, as follows:

Lehigh may be held liable to Mr. Row for any flaws or defects in its work (see Adams v. White Constr. Co., 299 NY 641 [1949] [a contractor may be held liable in negligence to third parties with whom it was not in privity for injuries resulting in a flaw or defect in the contractor's work] see also, Murphy v. Omer Constr. Co., 242 AD2d 964 [4th Dept 1997] [contractor's liability for unsafe conditions caused by flawed or defective work survives owner's acceptance of the work]). In this regard, material issues of fact exist as to whether Lehigh failed to exercise due care in discharging its contractual duties and in doing so created a dangerous condition thereby launching a force or instrument of harm which proximately caused Mr. Row's death (see Espinal,98 NY2d 136).Whether Lehigh owed a duty of care to Mr. Row is an issue of law, not fact (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 [2002]). At a minimum, material questions of fact exist as to whether Lehigh owed Mr. Row a duty of care under the Cameron/Lehigh Contract, because, as demonstrated above, the record is not consistent with Lehigh's contention that it was contracted to merely "build a box," with no regard for safety concerns.

Finally, Lehigh contends that, as a matter of law, it cannot be liable for Mr. Row's death, because Mr. Row's decision to enter the Plenum Room during an ongoing compressor test was the sole proximate cause of his death (Hernandez v. Town of Hamburg, 83 AD3d 1507 [4th Dept 2011]). Plaintiff's decedent in Henandez, Charles Lee, was killed when a trench that was being excavated during a sewer project collapsed and crushed him. In determining that Mr. Lee was the sole proximate of his death, the court reasoned that

Plaintiff alleges that Scheid Architectural failed to exercise reasonable care in the performance of its duties as an architect in designing the Plenum Room. Like Lehigh, Scheid also contends that it cannot be liable to Plaintiff because the scope of its work was limited to designing the Plenum Room's "shell." The record, however, contains evidence demonstrating that Scheid Architectural's involvement in the Project exceeded designing a mere shell with no regard for safety features.

In addition to the evidence described above in the context of Lehigh's application, Mr. Scheid testified, inter alia, that, generally, part of his role on an architectural design project is to become aware of the intended use of the structure to be constructed, and that, with respect to the instant matter, he was aware of the intended purpose of PTC-4 and that Cameron intended to use it to test large compressors; there was no documentation limiting the scope of Scheid Architectural's work; and no one from Cameron instructed him to ignore safety issues. Indeed, Scheid Architectural designed the air intake system that led into the Plenum Room.

Mr. Scheid also testified that in designing the Control Room, he determined to incorporate windows that faced the Test Lab; utilize bullet-resistant glass; and incorporate steel plating into the walls in order to protect those working in the Control Room from the debris possibly being launched at a high velocity during compressor testing. These features are not merely "building a mere shell." Rather, they relate to process and safety, and reflect Scheid Architectural's awareness of how tests proceeded at the Facility (including the Plenum Room) and that it made decisions based on that information.

Scheid Architectural failed to consider process and safety issues regarding the Plenum [*5]Room. For example, Scheid Architectural failed to, inter alia, incorporate a means of viewing the Plenum Room from the Control Room; design or suggest signage on the Plenum Room door; or incorporate an interlock on the Plenum Room door. Scheid Architectural also determined that a window was not required in the Plenum Room's door.

For the reasons stated above in connection with Lehigh's application (see also, Hughes v. Nussbaumer, Clarke & Velzy, 140 AD2d 988, 989 [4th Dept 1988] ["design engineer may be held liable to those endangered by the engineer's negligence irrespective of privity"], Scheid Architectural's application for summary judgment is also hereby denied.^[FN2] Finally, Defendant, Scheid Architectural, PLLC, contends that its application for summary judgment should be granted because it was not formed until 2010, which post-dates Mr. Row's fatal accident. Scheid Architectural, PLLC, however, has not submitted any evidence in admissible form showing when Scheid Architectural, PLLC was formed.SPECIALTY TECHNICAL CONSULTANTS' APPLICATION

Plaintiff alleges that Defendant, Specialty Technical Consultants ("Specialty"), failed to exercise reasonable care in the performance of its health, safety, and environmental review of the Facility in 2006 (the "Audit"), and that Mr. Row, as a Cameron employee who worked at the Facility up until the time of his death approximately two and a half (2.5) years later, was an intended beneficiary of the Audit.

In April 2006, Cameron contracted with Specialty's predecessor, CoVeris, to audit certain of Cameron's plants throughout the United States, including the Facility. From June 12 through 15, 2006, Specialty's three (3) member team of auditors conducted the on-site Audit.

Specialty contends that its Audit cannot form the basis for liability to Plaintiff, because the auditors may not have inspected PTC-4's Plenum Room, they were not permitted to enter the Plenum Room during a compressor test, and Cameron's management informed them that [*6]Cameron's employees were not allowed to enter the Plenum Room during a compressor test. Accordingly, Specialty contends that it cannot be faulted for failing to recommend that no one be permitted to enter the Plenum Room during a compressor test, because it was working under the impression that Cameron's then-existing policy barred entry into the Plenum Room during a compressor test.

Clause Fasting, Cameron's corporate director for health, safety, and environmental affairs in 2006, testified that he commissioned the Audit to alert Cameron to the existence of non life-threatening and life-threatening physical, operational, and environmental hazards so that Cameron could take the steps necessary to control or remedy them for the benefit of its employees. Curt Johnson, Specialty's Senior Program Manager, confirmed, generally, that audits, such as the Audit conduced at the Facility, are intended to make the client's plant safer for its employees. Accordingly, Mr. Row was a third-party beneficiary of the Audit (Logan-Baldwin v. L.S.M General Contractors, Inc., 94 AD3d 1466 [4th Dept 2012] [while privity remains a predicate for imposing liability for non-performance of contractual obligations, an obligation rooted in contract may create a duty owing to those not in privity when the contracting party knows that the subject of the contract is intended for the benefit of others]). Moreover, "it is not necessary that the third-party beneficiary be identified or identifiable at the time of the making of the contract" (981 Third Ave. Corp. v. Beltramini, 108 AD2d 667, 669 [1st Dept 1985], affirmed, 67 NY2d 739 [1986]).^[FN3]

As a third-party beneficiary, Plaintiff (via Mr. Row), may interpose a tort claim against Specialty (New York Cent. Mut. Fire Ins. Co. v. Glider Oil Corp., 90 AD3d 1638 [4th Dept 2011]). The Glider Oil court held that the plaintiff insurer, as subrogee of the property owner whose building was destroyed by a gas explosion, could recover tort damages from the installer of the gas system. In so holding, the Court stated the following:

Moreover, the "nature of [Specialty's] services" (see quotation from Glider Oil immediately above) is to perform safety audits for the benefit of its client's employees. As previously stated, OSHA determined that PTC-4's configuration at the time of Mr. Row's death violated 29 CFR §1910.212(a)(1) (see OSHA's Citation and Notification of Penalty, issued to Cameron on May 12, 2009). To the extent PTC-4's configuration during the Audit in 2006 was similar to its configuration at the time of Mr. Row's death a few years later, Specialty - in performing the Audit - failed to advise Cameron of this potential OSHA violation. Thus, Specialty may be liable in tort to Mr. Row, as an intended beneficiary of the Audit, by virtue of the "nature of its services" (Glider Oil, at 1641).Specialty contends that Plaintiff may not rely on the Audit as having conferred a benefit on Mr. Row, because paragraph 11 of the General Terms and Conditions of the Audit contract between CoVeris and Cameron negates enforcement by Plaintiff ("Paragraph 11"). Paragraph 11 provides, in relevant part, as follows:

Plaintiff seeks to submit surreply papers (which this Court does not permit as a matter of right), objecting to Specialty's reliance on Paragraph 11, because Plaintiff contends that Specialty is relying on it "[f]or the first time in the history of this case," and that Specialty did not raise the applicability of Paragraph 11 in its moving papers. Accordingly, Plaintiff urges the Court to ignore Paragraph 11.

Plaintiff's position is misplaced. Specialty's reference to Paragraph 11 directly responds to Plaintiff's argument, in opposition to Specialty's application for summary judgment, that Mr. Row was an intended beneficiary of the Audit. However, under the circumstances, the Court shall consider Specialty's contention that Paragraph 11 bars Mr. Row from being deemed an intended third-party beneficiary of the Audit. The Court shall also consider Plaintiff's surreply, because it is helpful to the Court.

The Court does not interpret Paragraph 11 as barring Plaintiff (via Mr. Row) from relying on the Audit. Specialty's duty of care to Cameron's employees as third-party beneficiaries, including Mr. Row, arises from the Audit's principal objective, which was to directly benefit the employees by identifying unsafe work conditions at the Facility so that Cameron could rectify them. The cases relied upon by Specialty, which interpret contract clauses similar to Paragraph 11, all involve third parties attempting to enforce contract rights (see, e.g., Board of Managers of Alexandria Condo v. Broadway/72nd Assocs., 285 AD2d 422 [1st Dept 2001] LaSalle National Bank v. Ernst & Young, LLP, 285 AD2d 101 [1st Dept 2001] Godlewska v. HDA, Human Dev. Ass'n, Inc., 2006 WL 1422410 [EDNY 2006]). Plaintiff's action, however, sounds in tort, and it is undisputed that Mr. Row was a member of the class of parties for whom the Audit was performed.Contrary to Specialty's contentions, Mr. Fasting, who was present at the Facility during the Audit, testified as follows about the Audit: that he and Specialty's auditors inspected PTC-4, including the Plenum Room, during the Audit; he observed that the Plenum Room was equipped with an air intake pipe for compressor testing and associated testing equipment; a [*7]Cameron employee explained the testing process to Mr. Fasting and the auditors; and the auditors were given free rein to inspect the Facility on their own and speak to Cameron's employees, including test engineers, about its procedures.

Cameron employees testified that, as of the time of Mr. Row's death, they were required to enter, and did enter the Plenum Room, and that they were trained to do so. Specialty's 2006 Audit Report (the "Report") reflects that the auditors interviewed hourly and managerial employees. Accordingly, while Specialty contends that Cameron's management informed it that employees were not permitted in the Plenum Room during compressor testing, a material issue of fact exists as to whether they should have known, through interviewing Cameron's employees, that employees actually did enter the Plenum Room during compressor tests.Plaintiff's experts have opined that Specialty's auditors could and should have determined how Cameron conducted compressor tests at the Facility, and that their need to have looked beyond management's suppositions as to how the employees conducted such tests was particularly strong, because Cameron had not adopted a formal written policy prohibiting entry into the Plenum Room during a test. Moreover, Specialty's President, Barbara Ruble, testified that PTC-4's Plenum Room was a hazardous workplace due to the velocity of the air being drawn into the inlet pipe, and that the only way to protect employees from that hazard was through an interlock that would have shut the compressor down in the event someone opened the Plenum Room's door.

For the foregoing reasons, issues of material fact exist, regarding, inter alia, the extent of information Specialty possessed about Cameron's operation at the Facility; whether Specialty failed to obtain the necessary correct information to adequately perform the Audit; and whether Specialty failed to exercise reasonable care in performing the Audit. Accordingly, Specialty's application for summary judgment is hereby denied.

Applications by the following parties are not opposed:

Plaintiff does not oppose Hanes' application for summary judgment. The Court has reviewed Hanes' application and has determined that it demonstrates prima facie entitlement to the relief requested (Id.). Accordingly, Hanes' application is granted.

Hanes has asserted a cross-claim against Sumner for indemnification. While Sumner opposes that portion of Hanes' application, in granting Sumner's application for summary judgment, the Court dismissed Hanes' cross-claim.^[FN6]

For the foregoing reasons, it is hereby

ORDERED, that the applications made by Lehigh, Scheid Arcitectural, and Specialty are denied; and it is further

ORDERED, that the applications made by Hendel, Carmody, Optimation, Schenk, Ferguson, Danforth, Sumner, and Hanes are granted; and it is further

ORDERED, that the application made by Cameron is granted with respect to those third-party actions against it having been commenced by Optimation, Schenk, Ferguson, Danforth, and Sumner; and it is further

ORDERED, that the application made by Cameron is denied with respect to those third-party actions against it having been commenced by Lehigh, Scheid Architectural and Specialty.

This constitutes the Decision and Order of this Court. Submission of an order by the Parties is not necessary. The mailing of a copy of this Decision and Order by this Court shall not