New York Telephone Co. v. Harrison & Burrowes Bridge Contractors, Inc.New York Telephone Co. v. Harrison & Burrowes Bridge Contractors, Inc.
Aрpeal from a judgment of the Supreme Court (Malone, Jr., J.), entered June 28, 2001 in Albany County, upon a decision of the court in favor of plaintiff.
Between 1948 аnd 1964, plaintiff installed six submarine telephone cables in the Hudson River between the City of Cohoes, Albany County, and the City of Troy, Rensselaer County. Each was laid on the bottom of the river in the vicinity of the 112th Street Bridge. On December 6, 1996, plaintiff received over 400 calls that its customers were out of service. Testing performed by plaintiffs employees revealed that the last cable installed (in 1964) was not transmitting signals and the problem area was in the river somе 400 to 500 feet from the manhole on the Cohoes side. Plaintiffs employee determined this to be in the vicinity of pier 2 under the bridge. Plaintiffs employee furthеr saw that defendant was the only entity working in the vicinity. On that morning, defendant’s employees were filling the pier protection assemblies around piers 2 and 3 with crushed stone. Their method of operation was to transport the stone in barges from the shore to the pier protection assembly where it was off-loaded. To secure the barges in the current, I-beams, called spud bars, weighing approximately 5,000 pounds, were used to anchor the barges to the river bed. Plaintiff abandoned the damaged cable, replacing it with a cable installed in a conduit beneath the bridge in order to restоre service to its customers.
Plaintiff commenced this action alleging that defendant damaged its cable while doing construction work. After issue was joined, defendant moved for summary judgment, which was denied. Following a nonjury trial, judgment was awarded to plaintiff. On this appeal, defendant asserts that (1) its motion for summary judgment should have been granted, (2) the verdict for plaintiff is against the weight of the evidence, and (3) damages are excessive.
With respect tо the summary judgment issue, we initially note that there is no merit to plaintiffs procedural argument that this issue is not properly before us (see CPLR 5501 [a]). Substantively, we agree with Supreme Court that defendant’s assertions that its barges were not working in the vicinity of plaintiffs cable were sufficiently refuted by plaintiffs eviden
With respect to the weight of evidence issue, defendant argues that Supreme Court’s verdict is analogous to or based on the doctrine of res ipsa loquitur. We disagree. The record clearly establishes that plaintiff did not employ this doctrine in seeking to establish defendant’s liability, but rather utilized circumstantial evidence to do so. A prima faсie case of negligence based on circumstantial evidence is established when plaintiffs evidence proves that it is “more likely” or “more reasonable” that the injury was caused by defendant’s negligence than by some other agency (see Gayle v City of New York,
Plaintiffs proof established the location of its cable and the point at which it was damaged, that defеndant was working in the vicinity where the damage occurred, that defendant’s method of operation employed 5,000 pound spud bars dropped intо the bed of the river, that plaintiffs submarine cables were specially constructed with galvanized steel armor coating, that their integrity was monitorеd by using air pressure measurements, and that on the morning in question, when defendant was the only entity working in the area, plaintiffs newest cable
With respect to the damage issue, defendаnt makes two arguments. First, defendant asserts that plaintiff has been unjustly enriched because the verdict contains a sum for rebates which the Public Servicе Commission (hereinafter PSC) has not yet ordered plaintiff to pay to its customers. Plaintiff and the PSC had in place an incentive regulation plan pursuant to which plaintiff had to pay rebates to customers who were out of service for more than 24 hours based on a sliding scale. The maximum allowаble failure threshold permitted 25.5% of plaintiffs customers to be out of service for more than one day before rebates would be ordered. Plаintiff had been performing at approximately 22% prior to the failure of this submarine cable, after which its rate jumped to 33.24%. When that occurred, all of plaintiffs customers in that sector, not just the ones whose service was interrupted, were entitled to a $45 rebate. Supreme Court’s calculаtion of this item of damage was correct as there is no merit to defendant’s first argument that it is responsible only for its “share,” presumably computed оn only those customers who were out of service due to the cable rupture. Moreover, the damages are not rendered uncertain by thе PSC’s decision to hold the rebate determination in abeyance pending the outcome of this lawsuit.
Defendant’s second argument is that plaintiff did not use the most cost effective remedy to repair the damage and wrongfully upgraded its infrastructure. While defendant correctly argues that plaintiff has a duty to mitigate damages, defendant must prove that plaintiff could have practically done so (see Rebh v Lake George Ventures,
Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, with costs.