| Foley v Consolidated Edison Co. of N.Y., Inc. |
| 2011 NY Slip Op 03737 [84 AD3d 476] |
| May 5, 2011 |
| Appellate Division, First Department |
| Patrick Noel Foley, Respondent-Appellant, v ConsolidatedEdison Company of New York, Inc., Respondent, and John Deere Consumer Products, Inc., etal., Appellants-Respondents, et al., Defendants. John Deere Consumer Products, Inc., et al.,Third-Party Plaintiffs-Appellants, v Roadway Contracting, Inc., Third-PartyDefendant-Respondent. (And a Second Third-Party Action.) |
—[*1] O'Dwyer & Bernstien, LLP., New York (Steven Aripotch of counsel), forrespondent-appellant. Kenney Shelton Liptak & Nowak, LLP, New York (Michael L. Stonberg of counsel), forConsolidated Edison Company of New York, Inc., respondent. Camacho Mauro Mulholland, LLP, New York (Kathleen Mulholland of counsel), forRoadway Contracting, Inc., respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered October 6, 2010, whichgranted defendant Consolidated Edison's (Con Edison) motion for summary judgment [*2]dismissing the complaint and any cross claims against it, grantedthird-party defendant Roadway Contracting, Inc.'s (Roadway) motion for summary judgmentdismissing defendant John Deere Consumer Products, Inc.'s, Homelite, Inc.'s, HomeliteConsumer Products Holding, Inc.'s, and Ryobi Technologies, Inc.'s (John Deere) third-partyaction against it, and denied John Deere's motion to strike the complaint and Roadway'sthird-party answer as spoliation sanctions, unanimously affirmed, without costs.
Plaintiff commenced this action to recover for burn injuries he sustained while excavating atrench in lower Manhattan for his employer Roadway, which was a subcontractor for ConEdison. Plaintiff was burned when a hand-held saw manufactured by John Deere caught on fireas he was attempting to cut through a pipe.
The record evidence demonstrated that Con Edison did not control the method and means ofplaintiff's work and at most exercised general supervisory powers over plaintiff, which cannotform a basis for the imposition of liability (see Goodwin v Comcast Corp., 42 AD3d 322 [2007]). In particular,while Con Edison directed Roadway crews to excavate certain sites, Roadway controlled themethods and means of such excavation. Further, and most significant to the claims in this action,Roadway furnished its own tools and equipment to complete its work, including the saw whichcaught on fire, and Con Edison had no control over the equipment used by plaintiff to enable it toavoid or correct the alleged unsafe condition of the saw (see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352 [1998]).
Although it is true that Con Edison inspectors were always on site, the mere presence of ConEdison's personnel on site is insufficient to infer supervisory control (see Matter of New York City AsbestosLitig., 25 AD3d 374 [2006]). Nor is a triable issue presented by the fact that Con Edisonemployees may have inspected the excavations and admonished Roadway employees to hurry thework (see Haider v Davis, 35 AD3d363 [2006]). Moreover, there is no evidence that Con Edison "gave anything more thangeneral instructions on what needed to be done, not how to do it, and monitoring and oversight ofthe timing and quality of the work is not enough to impose liability under [Labor Law § ]200" (Dalanna v City of New York, 308 AD2d 400, 400 [2003]). Finally, the fact thatCon Edison had the authority to stop work for safety reasons is insufficient to raise a triable issueof fact with respect to whether it exercised the requisite degree of supervision and control overthe work being performed to sustain a claim under Labor Law § 200 or for common-lawnegligence (see Hughes v TishmanConstr. Corp., 40 AD3d 305 [2007]).
Contrary to John Deere's contention, the contract between Con Edison and Roadway does notevidence that Con Edison had a contractual right of control sufficient to establish that it exercisedcontrol or supervision over plaintiff's work. The contractual terms relied on by John Deeremerely establish that Con Edison had general supervisory authority and do not establish that ConEdison controlled how plaintiff performed the injury-producing work.
We further find that Supreme Court properly dismissed the Labor Law § 241 (6) claimagainst Con Edison. Plaintiff failed to plead any specific Industrial Code violations, and did notaddress the issue in opposition to Con Edison's motion. Thus, plaintiff has indicated an intentionto abandon this theory of liability (seeBrown v Christopher St. Owners Corp., 2 AD3d 172 [2003], lv dismissed 1NY3d 622 [2004]). Assuming, without deciding, that John Deere has a basis to assert violationsof Industrial Code sections in support of its cross claim against Con Edison, we find that thesections cited by John Deere—12 NYCRR 12-1.7, 23-9.2 (a) and 23-10.3—areinapplicable to this case.
Supreme Court properly granted Roadway's motion for summary judgment dismissing [*3]John Deere's third-party action. The written contract in evidencecontaining an indemnification clause was between Con Edison and Roadway and thus JohnDeere cannot claim indemnification based on that agreement. Further, Roadway established thatit could not be liable for contribution or indemnification on the ground that plaintiff sustained a"grave injury" as defined in Workers' Compensation Law § 11. In particular, Roadwayestablished that there was no evidence that plaintiff sustained permanent or severe facialdisfigurement as a result of his burns.
Supreme Court providently exercised its discretion in denying John Deere's motion todismiss the complaint and Roadway's third-party answer as sanctions for spoliation of evidenceand in granting John Deere leave to seek an adverse inference charge at trial (see Ortega v City of New York, 9NY3d 69, 76 [2007]). There was no evidence that plaintiff had control of the saw followingthe accident, and once he was released from the hospital nearly a month following the accident,he attempted to locate and preserve the saw from his employer to no avail. We also find no basisto preclude Roadway from moving for summary judgment based on the Workers' CompensationLaw.
Plaintiff and John Deere are equally affected by the loss of the saw; neither party has reapedan unfair advantage in the litigation as neither party can inspect the saw (see De Los Santos v Polanco, 21 AD3d397, 398 [2005]). Further, because plaintiff's action is based on design defect and failure towarn claims, the unavailability of this particular saw does not prejudice John Deere's ability todefend itself in this action, as the same alleged defect would appear in other products of the samedesign (see Rodriguez v PelhamPlumbing & Heating Corp., 20 AD3d 314, 315-316 [2005]).
We have considered appellants' remaining claims and find them unavailing.Concur—Tom, J.P., Mazzarelli, Acosta, DeGrasse and RomÁn, JJ.