Foley v. Consolidated Edison Co.Foley v. Consolidated Edison Co.
Plaintiff commenced this action to recover for burn injuries he sustained while excavating a trench in lower Manhattan for his employer Roadwаy, which was a subcontractor for Con Edison. Plaintiff was burned when a hand-held saw manufactured by John Deere caught on firе as he was attempting to cut through a pipe.
The record evidence demonstrated that Con Edison did not control the method and means of plaintiff‘s work and at most exercised general supervisory powers over plаintiff, which cannot form 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 the methods 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 thе saw which caught on fire, and Con Edison had no control over the equipment used by plaintiff to enable it to avoid оr 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 Con Edison‘s personnel on site is insufficient to infer supervisory control (seе Matter of New York City Asbestos Litig., 25 AD3d 374 [2006]). Nor is a triable issue presented by the fact that Con Edison employees may have inspected the excavations and admonished Roadway employees to hurry the work (see Haider v Davis, 35 AD3d 363 [2006]). Moreover, there is no evidence thаt Con Edison “gave anything more than general instructions on what needed to be done, not how to do it, and monitoring and oversight of the timing and quality of the work is not enough to impose liability under
Contrary to John Deere‘s contention, the contract between Con Edison and Roadway does not evidence that Con Edison had a contractual right of control sufficient to establish that it exercised control or supervision ovеr plaintiff‘s work. The contractual terms relied on by John Deere merely establish that Con Edison had general supervisory authority and do not establish that Con Edison controlled how plaintiff performed the injury-producing work.
We further find that Supreme Court properly dismissed the
Supreme Court properly granted Roadway‘s motion for summary judgment dismissing John Deere‘s third-party action. The written contract in evidence containing an indemnification clause was between Con Edison and Roadway and thus John Deere cannot claim indemnification based on that agreement. Further, Roadwаy established that it could not be liable for contribution or indemnification on the ground that plaintiff sustained a “grave injury” as defined in
Supreme Court providently exercised its discretion in denying John Deere‘s motion to dismiss the complaint and Roadway‘s third-party answer as sanctions for spoliation of evidence and in granting John Deere leave to seek an adverse inference charge at trial (see Ortega v City of New York, 9 NY3d 69, 76 [2007]). There was no evidence that plaintiff had control of the saw following the accident, and once he was released from the hospital
Plaintiff and John Deere are equally affected by the loss of the saw; neither party has reaped an unfair advantage in the litigation as neither party can inspect the saw (see De Los Santos v Polanco, 21 AD3d 397, 398 [2005]). Further, because plaintiff‘s action is based on design defect and failure to warn claims, the unavailability of this particular saw does not prejudice John Deere‘s ability to defend itself in this action, as the same alleged defect would appear in other products of the same design (see Rodriguez v Pelham Plumbing & 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.