Foley v. Consol. Edison Co. of N.Y. Inc.

• Decision Date: 05 May 2011
• Citation: 923 N.Y.S.2d 57,84 A.D.3d 476,2011 N.Y. Slip Op. 03737
• Parties: Patrick Noel FOLEY, Plaintiff–Respondent–Appellant,v.CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant–Respondent,andTech–Tronics Inc., et al., Defendants,John Deere Consumer Products, Inc., et al., Defendants–Appellants–Respondents.John Deere Consumer Products, Inc., et al., Third–Party Plaintiffs–Appellants,v.Roadway Contracting, Inc., Third–Party Defendant–Respondent.[And a Second Third–Party Action].
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 476
923 N.Y.S.2d 57
2011 N.Y. Slip Op. 03737

Patrick Noel FOLEY, Plaintiff–Respondent–Appellant,
v.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant–Respondent,andTech–Tronics Inc., et al., Defendants,John Deere Consumer Products, Inc., et al., Defendants–Appellants–Respondents.John Deere Consumer Products, Inc., et al., Third–Party Plaintiffs–Appellants,
v.
Roadway Contracting, Inc., Third–Party Defendant–Respondent.[And a Second Third–Party Action].

Supreme Court, Appellate Division, First Department, New York.

May 5, 2011.

[923 N.Y.S.2d 58]

Gallagher, Walker, Bianco & Plastaras, Mineola (Robert J. Walker of counsel), for appellants-respondents/appellants.O'Dwyer & Bernstien, LLP., New York (Steven Aripotch of counsel), for respondent-appellant.Kenney Shelton Liptak & Nowak, LLP, New York (Michael L. Stonberg of counsel), for Consolidated Edison Company of New York, Inc., respondent.Camacho Mauro Mulholland, LLP, New York (Kathleen Mulholland of counsel), for Roadway Contracting, Inc., respondent.TOM, J.P., MAZZARELLI, ACOSTA, DeGRASSE, ROMÁN, JJ.

[84 A.D.3d 477] Order, Supreme Court, Bronx County (John A. Barone, J.), entered October 6, 2010, which granted defendant Consolidated Edison's (Con Edison) motion for summary judgment dismissing the complaint and any cross claims against it, granted third-party defendant Roadway Contracting, Inc.'s (Roadway) motion for summary judgment dismissing defendant John Deere Consumer Products, Inc., Homelite, Inc., Homelite Consumer Products Holding, Inc., and Ryobi Technologies, Inc.'s (John Deere) third-party action against it, and denied John Deere's motion to strike

[923 N.Y.S.2d 59]

the complaint and Roadway's third-party answer as spoliation sanctions, unanimously affirmed, without costs.

Plaintiff commenced this action to recover for burn injuries he sustained while excavating a trench in lower Manhattan for his employer Roadway, which was a subcontractor for Con Edison. Plaintiff was burned when a hand-held saw manufactured by John Deere caught on fire 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 plaintiff, which cannot form a basis for the imposition of liability ( see Goodwin v. Comcast Corp., 42 A.D.3d 322, 840 N.Y.S.2d 781 [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...