Gain v. Eastern Reinforcing Service, Inc.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: MAHONEY
• Citation: 603 N.Y.S.2d 189,193 A.D.2d 255
• Decision Date: 28 October 1993
• Parties: Christine GAIN et al., as Coadministratrices of the Estate of Karl W. Haeussel Jr., Deceased, Appellants-Respondents, v. EASTERN REINFORCING SERVICE INC., et al., Respondents-Appellants.

Page 189

603 N.Y.S.2d 189 193 A.D.2d 255 Christine GAIN et al., as Coadministratrices of the Estate
of Karl W. Haeussel Jr., Deceased, Appellants-Respondents,
v.
EASTERN REINFORCING SERVICE INC., et al., Respondents-Appellants. Supreme Court, Appellate Division,
Third Department. Oct. 28, 1993.

Page 190

[193 A.D.2d 256] Rosenblum, Ronan, Kessler & Sarachan (George L. Sarachan, of counsel), Albany, for appellants-respondents.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski (Susan DiBella Harvey, of counsel), Albany, for Eastern Reinforcing Service Inc. and others, respondents-appellants.

Hiscock & Barclay (Robert L. Adams, of counsel), Albany, for Niagara Mohawk Power Corp., respondent-appellant.

Before WEISS, P.J., and MERCURE, CARDONA, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Cross appeals from an order of the Supreme Court (Keegan, J.), entered November 4, 1992 in Albany County, which, inter alia, partially granted plaintiffs' motion for partial summary judgment.

Karl W. Haeussel Jr. (hereinafter decedent) was electrocuted when, while assisting defendant Joe Sokol, an employee of defendant Eastern Reinforcing Service Inc. (hereinafter Eastern), in removing a truckload of steel rings, the wire cable of the boom truck Sokol was using to lift the rings off decedent's delivery truck came in contact with an overhead high-voltage power line. This accident furnished the occasion for the instant suit against Eastern, its president Kathleen

Page 191

Rivette, supervisor Ronald Rivette (hereinafter collectively referred to as the Eastern defendants), Sokol and Niagara Mohawk Power Corporation. Recovery was premised upon the theory of common-law negligence and upon the novel theory that defendants' actions violated Labor Law § 202-h, the "High-Voltage Proximity Act", which, according to plaintiffs, creates a statutory cause of action imposing absolute liability. ¹ [193 A.D.2d 257] Following joinder of issue and the completion of discovery, plaintiffs, the administratrices of decedent's estate, moved for summary judgment on the issue of liability and, in addition, sought further deposition of Kathleen Rivette. Defendants opposed with Sokol and the Eastern defendants additionally cross-moving for summary judgment dismissing the statutory cause of action on the ground that Labor Law § 202-h does not create a private right of action. Supreme Court partially granted plaintiffs' motion, directing summary judgment against Niagara Mohawk and the Eastern defendants on the issue of their liability under section 202-h, denied the motion for summary judgment against Sokol and denied the cross motion. It did not address the motion for further deposition. These cross appeals ensued.

Addressing first the Labor Law § 202-h claim, while the violation of a statute may give rise to absolute liability, it is axiomatic that not every statute that commands or prohibits particular conduct is within the principle of absolute liability. To qualify, the statute must evidence "an intention express or implied that from disregard of [its] command a liability for resultant damages shall arise 'which would not exist but...