ADDITIONAL CASES Citnalta Construction Corp. Plaintiff, v. L&L Painting Co., Inc, Defendant; Third-Party 590041/2014 Tishman Construction Corporation, Aecom Technology Corporation, Lend Lease Corporation Limited f/k/a Bovis Lend Lease Lmb, Inc., Plaintiff, v. The City of New York, The Metropolitan Transportation Authority, The New York City Transit Authority, L & L Painting Co., Inc., Defendant; Second Third-Party 595292/2014 Queens Ballpark Company, LLC., Plaintiff, v. L&L Painting Co., Inc., Defendant; Third Third-Party 595633/2014 The following e-filed documents, listed by NYSCEF document number (Motion 009) 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION The motion by defendant the City of New York (the “City”) for a protective order cancelling its deposition and to dismiss all third-party claims and cross-claims against it is granted. The motion (incorrectly denominated as a cross-motion) by the Metropolitan Transportation Authority (“MTA”) and the New York City Transit Authority (“NYCTA”) for a protective order and to dismiss all third-party claims against it is granted. Background This action arises out of plaintiff Velimir Zic’s work as a painter. Mr. Zic claims that he developed lung cancer and suffered from lead poisoning as a result of working for L&L Painting at various worksites from June 2001 through April 2011. Plaintiffs have no direct claims remaining against the City (those claims were previously dismissed on the ground that plaintiff failed to serve a timely Notice of Claim). Plaintiff’s claims against the MTA and NYCTA were also dismissed. The City attaches an affidavit from Dr. Howard Sandler, who observes that he “conducted a review of published, peer-reviewed studies regarding the relationship between lung cancer and the exposures plaintiff alleges to have sustained during the course of his employment as a lead paint abatement worker and painter” (NYSCEF Doc. No. 276, 9). He also consulted “published, peer-reviewed studies regarding lead paint exposure and the incidence of disease in adults, including lead poisoning, based on the exposures plaintiff alleged to have sustained” (id. 10). Dr. Sandler notes that Mr. Zic “was pathologically diagnosed with lung cancer, specifically moderately differentiated squamous cell lung cancer on April 14, 2011 from a biopsy performed during a bronchoscopy. At the time of the diagnosis, the tumor was significant at 3.6 x 2.5 x 2.0 cm, indicating that the tumor initially developed a number of years prior to the clinical diagnosis of lung cancer by biopsy” (id. 14). He added that “Lung cancer has a minimum latency period of ten to twenty years depending on the carcinogen involved, the extent of exposure and other likely factors” (id. 15). Dr. Sandler theorized that the “The latency in this case therefore reflects that it takes a minimum of fifteen to twenty years following first exposure to recognized lung cancer carcinogens to develop a solid tumor such as squamous cell carcinoma. This does not conflict with my ten to twenty year latency period noted above as that was based on the latency of cigarette smoking not being a painter” (id.). “Given the dates of the first alleged exposure in 2001, I conclude with a reasonable degree of medical certainty that plaintiff Velimir Zic’s squamous cell lung cancer cannot have been caused by any alleged exposures from 2001 or later, as the period between first claimed exposure in 2001 and the development of symptoms of lung cancer in early 2011 is not sufficient as it does not meet the minimum medically accepted latency period for lung cancer (id. 16). Dr. Sandler also suggested that the likely cause of plaintiff’s cancer was an HPV infection from 1975 (id. 18). With respect to the lead poisoning issue, Dr. Sandler reviewed the blood tests conducted on plaintiff (as required by OSHA) and found that his blood lead levels were substantially below the levels commonly associated with lead poisoning (id.
