| Cotrone v Consolidated Edison Co. of N.Y., Inc. |
| 2008 NY Slip Op 03099 [50 AD3d 354] |
| April 8, 2008 |
| Appellate Division, First Department |
| Michael Cotrone, Appellant, v Consolidated EdisonCompany of New York, Inc., Respondent. |
—[*1] Mary Schuette, New York (Richard A. Levin of counsel), for respondent.
Order, Supreme Court, New York County (Harold B. Beeler, J.), entered October 2, 2006,which, after a nonjury trial, rendered a verdict in defendant's favor and dismissed the complaint,unanimously affirmed, without costs.
It cannot be said that the verdict could not have been reached under any fair interpretation ofthe evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The provisions ofLabor Law § 740 regarding retaliatory discharge are to be strictly construed (see Noblev 93 Univ. Place Corp., 303 F Supp 2d 365, 373 [SD NY 2003]). Although leaving tankertrucks with hazardous materials unattended on a public street violated 49 CFR 397.5, thisviolation did not create a substantial and specific danger to the public health or safety. The claimthat the violation would present such a risk was improperly based on mere speculation (see Nadkarni v North Shore-Long Is.Jewish Health Sys., 21 AD3d 354 [2005]). The statute "envisions a certain quantum ofdangerous activity before its remedies are implicated" (Peace v KRNH, Inc., 12 AD3d 914, 915 [2004], lv denied 4NY3d 705 [2005]). Plaintiff pointed to two isolated incidents where these trucks had been leftunattended for a short period of time, in the presence of other employees who concededly did nothave tanker truck driver training. Aside from the fact that these incidents led to no adverseconsequence, they did not rise to the level of dangerous activity. Concur—Tom, J.P., Saxe,Nardelli and Williams, JJ.