Henderson v. City of New York

• Decision Date: 03 December 1991
• Parties: Greg HENDERSON, Plaintiff-Appellant, v. The CITY OF NEW YORK and The New York City Transit Authority, Defendants-Respondents. The NEW YORK CITY TRANSIT AUTHORITY, Third-Party Plaintiff, v. CONSOLIDATED EDISON, Third-Party Defendant-Respondent. The CITY OF NEW YORK, Fourth-Party Plaintiff, v. CONSOLIDATED EDISON, Fourth-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 562

576 N.Y.S.2d 562

178 A.D.2d 129

Greg HENDERSON, Plaintiff-Appellant, v. The CITY OF NEW YORK and The New York City Transit

Authority, Defendants-Respondents.

The NEW YORK CITY TRANSIT AUTHORITY, Third-Party Plaintiff, v. CONSOLIDATED EDISON, Third-Party Defendant-Respondent.

The CITY OF NEW YORK, Fourth-Party Plaintiff, v. CONSOLIDATED EDISON, Fourth-Party Defendant.

Supreme Court, Appellate Division,

First Department.

Dec. 3, 1991.

Before ELLERIN, J.P., and WALLACH, KUPFERMAN and ROSS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about June 6, 1990, which, inter alia, granted the motion of third-and fourth-party defendant Consolidated Edison for summary judgment, dismissing the complaint against defendants, City of New York (City) and New York City Transit Authority (NYCTA), as well as the third-and fourth-party complaints against Consolidated Edison, granted the cross-motion of defendant and fourth-party plaintiff City for summary judgment, dismissing the complaint and cross-complaints, and denying the cross-motion of plaintiff for summary judgment, is unanimously modified, on the law and on the facts, to the extent of denying the motion of Consolidated Edison and the cross-motion of the City for summary judgment, reinstating the complaint only against the City, and reinstating the fourth-party complaint of the City against Consolidated Edison, and otherwise affirmed, without costs.

On or about July 17, 1986, in the vicinity of 40 Maiden Lane, New York County, Mr. Greg Henderson, twenty years of age, an employee of Consolidated Edison, was using a pneumatic drill (jackhammer), to enlarge an excavation beneath the roadway, to expose a steam leak. Suddenly that drill struck a live 13,500 volt electric main feeder cable, and the resulting explosion allegedly caused serious injuries to various parts of his body.

In November 1987, Mr. Henderson (plaintiff) commenced an action against the City of New York (City) and the New York City Transit Authority (NYCTA) to recover damages for his injuries, based upon theories of negligence, and violations of the Labor Law for failure to provide a safe place to work (see, Labor Law, §§ 200, 240 and 241). The complaint alleges, inter alia, that the land above and below the said roadway was owned by defendant City, and the cable, which had been struck by the plaintiff's drill, was owned by defendant NYCTA. Thereafter, defendants NYCTA and the City commenced third-and fourth-party actions against Consolidated Edison, seeking indemnification and/or contribution.

Following joinder of issue, and after the completion of some discovery, third-and fourth-party defendant Consolidated Edison moved for summary judgment, dismissing the complaint against defendants City and NYCTA, as well as the third-and fourth-party complaints against Consolidated Edison, defendant and fourth-party plaintiff City cross-moved for summary judgment, dismissing the complaint and cross-complaints, and plaintiff cross-moved for summary judgment. By order, entered on or about June 6, 1990, the IAS Court, inter alia, granted the motion of Consolidated Edison, the cross-motion of the City and denied the cross-motion of plaintiff. Plaintiff appeals.

We stated, in Gibson v. Am. Export, 125 A.D.2d 65, 74, 511 N.Y.S.2d 631 (1st Dept.1987), that "[a]s repeatedly held, the remedy of summary judgment is a drastic one, which should not be granted where there is any doubt as to the existence of a triable issue ... [citation omitted] or where the issue is even arguable ... [citation omitted], since it serves to deprive a party of his day in court. Relief should be granted only where no genuine triable issue of fact exists ... [citation omitted] ..." [material in brackets added]. Further, on a defendant's motion for summary judgment, opposed by plaintiff, we are required to accept the plaintiff's pleadings, as true, and our decision "must be made on the version of the facts most favorable to ... [plaintiff] ..." (Strychalski v. Mekus, 54 A.D.2d 1068, 1069, 388 N.Y.S.2d 969 (1976), and McLaughlin v. Thaima Realty Corp., 161 A.D.2d 383, 384, 555 N.Y.S.2d 125 (1st Dept.1990)) [material in brackets added].

Although the plaintiff alleged in the complaint that defendant NYCTA owned the subject cable, our examination of the record indicates that he has neither presented any evidence to support that conclusion, nor any evidence indicating that any NYCTA employees had anything to do with causing his accident. In fact, the undisputed evidence indicates that third-and fourth-party defendant Consolidated Edison owned said cable (see, Record on Appeal (RA), at 118). Accordingly, since we find no triable issue of fact, we agree with the IAS determination dismissing the complaint against defendant NYCTA, and the third-party complaint of NYCTA against Consolidated Edison (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 (1974)).

During his examination before trial (EBT), plaintiff testified, in substance, that shortly before the accident, Mr. Richard Yako, who was his foreman, and three unidentified City inspectors were present at the scene, and, while those inspectors were reviewing City maps and permits, he overheard them say to Mr. Yako "[t]hat there were no energized cables below the surface of the excavation ..." (see, RA, at 147-149, 151, 189-190) [material in brackets added]. Further, plaintiff stated that his foreman had told him to follow the instructions he received from the City inspectors, and therefore, pursuant to their instructions, "I lowered the...