Iannielli v. Consolidated Edison Co.

• Decision Date: 02 June 1980
• Citation: 75 A.D.2d 223,428 N.Y.S.2d 473
• Parties: Doris IANNIELLI, as Administratrix, etc., Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY et al., Respondents, M. H. Treadwell Corp. et al., Respondents-Appellants, Consolidated Edison Company et al., Third-Party Plaintiffs-Respondents, Ingalls Iron Works Co., Third-Party Defendant-Respondent-Appellant, Ingalls Iron Works Co., Third-Party Plaintiff-Respondent-Appellant, Foster Wheeler Corp., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 473

428 N.Y.S.2d 473

75 A.D.2d 223

Doris IANNIELLI, as Administratrix, etc., Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY et al., Respondents M. H. Treadwell Corp. et al., Respondents-Appellants Consolidated Edison Company et al., Third-Party Plaintiffs-Respondents Ingalls Iron Works Co., Third-Party Defendant-Respondent-Appellant Ingalls Iron Works Co., Third-Party Plaintiff-Respondent-Appellant, Foster Wheeler Corp., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, Second Department.

June 2, 1980.

Sacks & Sacks, New York City (Harold M. Harkavy and Melvin Sacks, New York City, of counsel), for plaintiff-appellant.

Corcoran, Amabile & Cowin, Brooklyn (Paul M. DeCarlo and John J. Corcoran, Brooklyn, of counsel), for respondent-appellant M. H. Treadwell Corp.

Lester, Schwab, Katz & Dwyer, New York City (Steven B. Prystowsky, New York City, of counsel), for respondents Consolidated Edison Co. and Ebasco Services, Inc.

Grubbs, Leahy & Donovan, New York City (Michael Majewski and Joseph D. Ahearn, New York City, of counsel), for Ingalls Iron Works Co., defendant third-party plaintiff-defendant-respondent-appellant.

Before MOLLEN, P. J., and DAMIANI, LAZER and MARGETT, JJ.

MARGETT, Justice.

Plaintiff seeks to recover damages for the personal injuries sustained by her decedent Edward Iannielli, Sr. on July 19, 1973 in an industrial accident. ^*

The main question presented by this appeal is whether a certain memorandum, purported to be a statement made by plaintiff's decedent to an accident investigator some three days after the accident, was properly accepted into evidence by the trial court as a "past recollection recorded". We conclude that it was not and therefore plaintiff is entitled to a new trial.

Defendant Consolidated Edison Company (Con Ed), the owner of certain premises located in Astoria, Queens, entered into a contract with defendant Ebasco Services, Inc. (Ebasco), in which Ebasco agreed, among other things, to act as Con Ed's agent in the construction of a power plant on the property. Ebasco hired a number of subcontractors to work on the project, including defendants M. H. Treadwell Corp. (Treadwell), Ingalls Iron Works Co. (Ingalls), and Foster Wheeler Corp. (Foster Wheeler). Ingalls' task was to perform certain steel erection work required for the construction of the plant. Foster Wheeler was hired to perform other steel erection work after Ingalls left the site.

The plaintiff's decedent, Edward Iannielli, Sr., was a structural ironworker employed on the construction site, first by Ingalls and then by Foster Wheeler.

The construction site was divided into vertical elevations, the highest of which was termed the fifth elevation. In the course of its work, Ingalls covered a portion of the fifth elevation with planks as a safety measure. Ordinarily, the planks are placed at right angles to the steel beams of the building superstructure. Since the planks are long enough to rest on several beams, there is no need to tie or lash the planks to the beams. However, in this particular area of the fifth elevation, certain of the beams lay at a different height or elevation than others. To make the plank floor level, it was therefore necessary, as a preliminary step, to place a number of planks lengthwise on top of the beams of lower elevation, thereby bringing those beams up to the height of the beams of higher elevation. These lengthwise planks are called "sleeper" planks. Since the steel beams were eight inches wide and the planks twelve inches wide, the laying of the sleeper planks created an overlap of four inches. To prevent a sleeper plank from moving or tilting, it was tied to the beam with a specific type of wire (No. 9 wire). Once the sleeper planks were laid, other planks were placed crosswise upon them, creating a level floor.

Ingalls left the construction site in April, 1973. In preparation for its departure, Ingalls sold all its planks, including those installed on the fifth elevation, to Treadwell. Thereafter a jurisdictional dispute arose as to which subcontractor should remove the planks and Ebasco ordered Foster Wheeler to remove them. By July 19, 1973 much of the planking on the fifth elevation had been removed, apparently by Treadwell's employees, but a number of the sleeper planks were still in place.

On the morning of July 19, 1973 the decedent and his partner, Bruce Greenberg, were assigned to take up and remove the remaining sleeper planks at the fifth elevation. Greenberg, the only eyewitness to the accident, testified at the trial on behalf of the plaintiff that between 9 and 9:30 A.M. he and Iannielli got off the elevator at the fifth elevation (188 feet above street level) and walked out on the open steel beams toward the sleeper planks, with Iannielli approximately 10 feet ahead of him. Iannielli walked along one of the sleeper planks without incident. He had taken six or seven steps on a second sleeper plank when the plank tilted to the right causing him to fall from the plank onto a concrete roof 23 feet below. The plank came to rest on its narrow edge alongside the beam.

Greenberg further testified that before the accident occurred he had observed that a No. 9 wire was tied around each end of that plank and the underlying beam; after the plank tilted, it remained attached to the beam by the wire. He stated that he and Iannielli were following common usage and good practice, that an iron worker assumes that a plank tied with No. 9 wire is properly tied. He also stated that if the wire had been properly secured to the plank in the first place, the plank would not have moved or tilted when walked upon. The only time one would have knowledge that the plank was loosely tied was when one stepped on it. He examined the wire after the accident and it had not been untied at any time prior thereto. Greenberg concluded that the plank slipped because the No. 9 wire was loose.

The only evidence disputing Greenberg's account of the accident was a four page unsigned memorandum in the handwriting of one Michael Noto, who had been an investigator of industrial accidents for more than 30 years. The memorandum, dated July 22, 1973, purports to be the text of a statement made by the decedent to Noto while decedent was in the hospital. Noto testified that he had no independent recollection of visiting Elmhurst General Hospital in July, 1973 with regard to an accident at the Astoria power plant and his writing did not refresh his recollection as to whether he visited the decedent in that month. However, he testified that he interviewed claimants injured in industrial accidents in the course of his work and that it was his general practice to take statements in his own handwriting and to record immediately the exact response that the claimant made to his question. Upon completing the statement, he would request the person being interviewed to sign it. If the person refused to sign, he would retain the statement unsigned. The memorandum was received over objection as a past recollection recorded.

In a voir dire by the plaintiff's attorney taken outside of the presence of the jury, Noto testified that in 1973 he was employed by a Mr. Barecca, one of whose clients was an insurance carrier. It was in his (Noto's) "interest" to find out how the accident occurred and to protect the carrier's interest in any lawsuit. At the time, he was unaware that the carrier insured two of the defendants (Con Ed and Ebasco) and he was under the impression that this was a worker's compensation case.

A motion by the plaintiff's attorney to suppress the statement under CPLR 4519 was denied.

The unsigned memorandum, headed "July 22, 1973. Elmhurst General Hospital", purports to be Iannielli's account of the accident. The memorandum reads in part:

"On Thursday, July 19, 1973, I was working with a gang of about five men and we were removing the planks from the temporary flooring which our own ironworkers had installed perhaps five or six months prior. The flooring was installed for the purpose of providing a protective floor under the operations. We later installed all the work above that level, perhaps three or four levels, including the roof and now we were in the course of removing the safety floor.

"I do not know who put the planks over the stringers. Anyway, I was helping to pick up the planks which were wired to the stringers. While I was removing wires and a cable from the temporary beams, I was injured. I believe the planks were under the beams they were resting on which was impossible to see from the top. After removing a wire clamp, I stepped on the unsupported edge of a plank. The planks were 12-inches wide, but all different lengths. And I lost my balance as the plank tipped over and I fell a number of feet to the floor below. I don't recall landing and don't know what position by body was in as I was conscious but dazed" (emphasis supplied).

No deposition by the decedent was introduced in evidence. The Trial Judge charged the jury:

"If the plaintiff's version as testified to by the witness Bruce Greenberg is accepted by you as correct, then all the defendants are guilty of having violated the Labor Law and in that event your verdict should be for the plaintiff against all of the defendants.

"On the other hand, if you find that the version set forth in the statement allegedly obtained by investigator Noto allegedly from Mr. Iannielli is accepted by you as true, then your verdict should be against the plaintiff and in favor of all the defendants, because what that statement says is that the sleeper plank became unsafe only after Mr. Iannielli removed from it the No. 9 wire with which it had been lashed."

The jury returned a verdict in favor of the defendants.

An admission by a party is received at trial as evidence-in-chief as an exception to the hearsay rule (Rosario v. New York City Transit Authority, --- A.D.2d ---- (1980); Richardson, Evidence ...