Gannon Personnel Agency, Inc. v. City of New York
| Citation | 57 A.D.2d 538,394 N.Y.S.2d 5 |
| Parties | GANNON PERSONNEL AGENCY, INC. v. The CITY OF NEW YORK et al. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. v. PARK ROW CAFE, INC., d/b/a Ryan's Bar. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. v. 25 ASSOCIATES, INC., et al. (and 41 other captioned actions). |
| Decision Date | 28 April 1977 |
| Court | New York Supreme Court Appellate Division |
Before MARKEWICH, J. P., and LUPIANO, SILVERMAN and LANE, JJ.
The various motions for resettlement to affirm the finding of liability as to defendants-appellants other than the City of New York are granted to the extent indicated in the following memorandum decision, substituted for that of November 29, 1976, hereby recalled.
Appeal from the order, Supreme Court, New York County, entered February 4, 1975, which, inter alia, ordered the actions set down for an assessment of damages, unanimously dismissed, as moot, without costs and without disbursements.
In these 43 negligence actions for wrongful death, personal injury, and property damage, arising out of a gas explosion which occurred at 7-11 Ann Street, New York County, on December 11, 1970, defendants-appellants, The City of New York (City), Consolidated Edison Company of New York, Inc. (Con Ed), Schlink Plumbing & Heating Company, Inc. (Schlink), and Albert Bold (Bold) appeal from an interlocutory judgment of the Supreme Court, New York County. The action was dismissed by the Court against all other defendants, except China Dynasty Enterprises, Inc. (Dynasty) which defaulted. A severance and inquest was ordered as to Dynasty.
Dynasty was engaged in constructing a restaurant and had hired Schlink and Bold (collectively hereinafter called the "plumbers") to do the plumbing, which included installation of gas pipelines. Schlink, an unlicensed plumber, performed the work and signed the name of the licensed plumber, Bold, to the application filed with the City. The Administrative Code requires the City inspector to inspect all service piping to make certain it complies with code requirements. Upon a finding of compliance by the City inspector, the City issued to Con Ed a "blue card" allowing Con Ed to supply gas through the new piping. Thereafter, two unknown individuals criminally opened a curb valve box located in front of 7-11 Ann Street. Gas flowed through an uncapped two-inch header pipe into piping in the basement of the building. The piping was not equipped with a safety valve (cut-off valve) after entering the building. The explosion followed.
Testimony was adduced at trial that failure to cap the header and failure to install the cut-off valve were improper plumbing. Furthermore, the safety valve is said to be required by the Administrative Code of the City of New York. At trial there was testimony that the pipe was left uncapped for nine days; that the plumbers installed the pipe contrary to law; and that both Con Ed and the City could be found to have been negligent in allowing the situation to remain and in failing to require the cut-off valve and the capping of the header.
The City's contention that it is immune from liability because it merely failed to perform a statutory governmental function is not supported by the record. See Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19, 268 N.E.2d 763, which held the City liable because of its knowledge of a dangerous condition created during construction of a sewer and the City's failure to act even though an inspector was at the site. See also Runkel v. City of New York, 282 App.Div. 173, 123 N.Y.S.2d 485, and Runkel v. Homelsky, 286 App.Div. 1101, 145 N.Y.S.2d 729, aff'd, 3 N.Y.2d 857, 166 N.Y.S.2d 307, 145 N.E.2d 23. In the case at bar, the record can support a finding that the City had actual knowledge of the potential danger created by improper gas piping and failed to take proper protective action even though its inspector was at the site and issued the blue card allowing the gas to be turned on.
Con Ed's liability rests upon its responsibility for the piping under Public Service Commission Regulations. Further, Con Ed planned the piping, gave the plumbers its plans, and supervised the installation of the piping....
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