Reed v. N.Y.S. Elec. & Gas Corp.

• Decision Date: 28 May 2020
• Docket Number: 528342
• Citation: 125 N.Y.S.3d 475,183 A.D.3d 1207
• Parties: Andy R. REED, Individually and as Administrator of the Estate of Benjamin Reed, Deceased, Appellant, v. NEW YORK STATE ELECTRIC & GAS CORPORATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1207

125 N.Y.S.3d 475

Andy R. REED, Individually and as Administrator of the Estate of Benjamin Reed, Deceased, Appellant,

v.NEW YORK STATE ELECTRIC & GAS CORPORATION et al., Respondents.

528342

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

Calendar Date: March 27, 2020

Decided and Entered: May 28, 2020

Sidney P. Cominsky, LLC, Syracuse (Sidney P. Cominsky of counsel), for appellant.

Ward Greenberg Heller & Reidy LLC, Rochester (Joshua M. Agins of counsel), for New York State Electric & Gas Corporation, respondent.

Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for Village of Horseheads, respondent.

Barclay Damon LLP, Elmira (Alan R. Peterman of counsel), for County of Chemung, respondent.

Lynch Law Office, PLLC, Syracuse (Thomas J. Lynch of counsel), for Town of Horseheads, respondent.

Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER AND MOTION

Reynolds Fitzgerald, J.

(1) Appeals (a) from an order of the Supreme Court (O'Shea, J.,) entered August 29, 2018 in Chemung County, which, among other things, granted motions by defendant County of Chemung and defendant Town of Horseheads for summary judgment dismissing the complaint against them, and partially granted a motion by defendant New York State Electric & Gas for summary judgment dismissing the complaint against it, and (b) from an order of said court, entered November 14, 2018 in Chemung County, which, among other things, partially granted a motion by defendant New York State Electric & Gas Corporation to preclude certain witness testimony, and (2) motion to strike portions of plaintiff's brief and reply brief.

On January 26, 2011, an explosion occurred at a home in the Town of Horseheads, Chemung County. As a result of the explosion, plaintiff's 15–month–old son (hereinafter the child) was killed and the child's mother and great grandfather were seriously injured; the explosion occurred at the great grandfather's house. An investigation conducted thereafter concluded that the explosion was the result of a gas leak in the service line, which allowed gas to accumulate in the basement of the home. When the furnace switched on, the gas exploded. The great grandfather later stated that he had smelled gas the night before, but could not locate the source. When the smell seemed to go away, he stopped looking and did not report the smell to defendant New York State Electric & Gas Corporation (hereinafter NYSEG). Also, in the early morning hours of the day of the explosion, a resident who lived approximately three blocks away had reported an odor of gas to NYSEG. NYSEG responded to that home, located the problem and tagged it for repair. After the explosion, the gas service line was excavated, and it was discovered that there were multiple areas where the line was wrapped in what resembled "electrical tape" and "field wrap." A fracture – covered with tape – was found approximately 35 feet from the home. Additionally, the line had "sags" where the gas line crossed the municipal water and sewer lines. The water lines were installed by defendant Town of Horseheads and are maintained by defendant Village of Horseheads. Defendant County of Chemung installed and maintains the sewer lines.

Plaintiff, both individually and as administrator of the child's estate, commenced this action against NYSEG, the County, the Town and the Village. In July 2018, all defendants moved for summary judgment dismissing the complaint. Plaintiff cross-moved for summary judgment on the issue of liability. By order entered in August 2018, Supreme Court partially granted NYSEG's motion by dismissing all claims that were not based on negligence, as well as plaintiff's claim for punitive damages. Supreme Court also granted the County's and the Town's motions in their entirety. Further, Supreme Court denied plaintiff's cross motion, as well as the Village's motion.

Shortly thereafter, NYSEG, the Village and plaintiff each submitted motions in limine seeking to preclude certain evidence and testimony at trial. By order entered in November 2018, Supreme Court granted NYSEG's motion to preclude certain testimony by plaintiff's expert, Ronald Reiber. Additionally, the court granted that part of plaintiff's motion seeking to preclude the County and the Town from appearing on the verdict sheet, but denied that part of plaintiff's motion seeking to preclude evidence of the potential responsibility of the County and the Town. Further, Supreme Court partially granted plaintiff's request to preclude the admission of any evidence of the great grandfather's contributory negligence as a means of reducing plaintiff's damages, but allowed it in as a defense to plaintiff's res ipsa loquiter claim. Plaintiff appeals both the August 2018 and November 2018 orders.

Initially, NYSEG has moved to strike various statements in plaintiff's brief for being outside the scope of the record and to strike portions of plaintiff's reply brief for raising issues for the first time on appeal. It is well settled that this Court is limited to reviewing "facts contained in the record and any arguments based thereon" and we will therefore not consider arguments "founded upon information outside the record" ( Bullock v. Miller , 145 A.D.3d 1215, 1216, 43 N.Y.S.3d 201 [2016] [internal quotation marks and citation omitted]; see Gagen v. Kipany Prods. , 289 A.D.2d 844, 845, 735 N.Y.S.2d 225 [2001] ). Additionally, this Court may not review an issue raised for the first time in a reply brief (see Matter of Fuller–Astarita v. ABA Transp. Holding Co. , 176 A.D.3d 1530, 1531, 112 N.Y.S.3d 812 [2019] ; Matter of Jay's Distribs., Inc. v. Boone , 148 A.D.3d 1237, 1241, 48 N.Y.S.3d 551 [2017], lv denied 29 N.Y.3d 918, 2017 WL 4015519 [2017] ). NYSEG seeks to strike references in plaintiff's brief to the maintenance of its corrosion prevention and cathodic protection system, as well as those referencing a gas leak and explosion that occurred in the Town of Horseheads in 2005. However, the record is replete with these factual statements in an engineer's affidavit, the Public Service Commission report and deposition transcripts. Further, to the extent that plaintiff argues that the 2005 gas leak and explosion put NYSEG on notice of systemic issues with its gas service line, this is a permissible legal argument rather than an impermissible factual assertion. As to plaintiff's reply brief, assertions therein that NYSEG had constructive notice of the potentially hazardous condition of the service pipe, as well as its response to the 2005 gas leak and explosion, are permissible responses to assertions raised in NYSEG's brief that it was not put on notice of the possible hazardous condition and "it did not have a duty to dig up pipes following one explosion." As such, NYSEG's motion is denied.

Turning to the August 2018 order, we are unpersuaded that Supreme Court erred in dismissing plaintiff's claim for punitive damages. "Punitive damages are recoverable in a negligence action only where the conduct in question evidences a high degree of moral culpability, or the conduct is so flagrant as to transcend mere carelessness and constitutes willful or wanton negligence or recklessness" ( Kraycar v. Monahan , 49 A.D.3d 507, 508, 856 N.Y.S.2d 123 [2008] [internal quotation marks and citations omitted] ). Supreme Court found that NYSEG's actions were not so egregious as to evince a high degree of moral turpitude to support such a claim.

"On a motion for summary judgment, the movant has the initial burden to establish its prima facie entitlement to summary judgment as a matter of law by submitting evidentiary proof in admissible form, demonstrating the absence of any material issues of fact" ( Matter of Martirano , 172 A.D.3d 1610, 1612, 102 N.Y.S.3d 120 [2019] [citation omitted] ). If the movant makes such a showing, thereby satisfying this burden, the burden then shifts to the nonmovant to demonstrate that a triable issue of fact exists (see id. ; Aretakis v. Cole's Collision , 165 A.D.3d 1458, 1459, 86 N.Y.S.3d 626 [2018] ). "[This Court] must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" ( Aretakis v. Cole's Collision , 165 A.D.3d at 1459, 86 N.Y.S.3d 626 ). The Public Service Commission did not cite NYSEG for violating any gas safety laws after either explosion. In addition, NYSEG promptly responded to a complaint of an odor of gas in the early morning hours of the 2011 explosion and NYSEG took various actions after the 2005 explosion, including excavating similarly situated residences and implementing/enhancing safety programs (see Cleveland v. Perry , 175 A.D.3d 1017, 1020, 108 N.Y.S.3d 602 [2019] ; Dawson v. YMCA of Long Is., Inc. , 120 A.D.3d 748, 749, 991 N.Y.S.2d 360 [2014] ; Trudeau v. Cooke , 2 A.D.3d 1133, 1134, 769 N.Y.S.2d 322 [2003] ). We agree with Supreme Court that the record is devoid of any evidence that NYSEG acted wantonly or so recklessly as to constitute a conscious disregard of decedent's rights and, as such, this claim was properly dismissed.

Plaintiff next contends that Supreme Court erred in dismissing his claims against the County and the Town based on the statute of limitations. Specifically, the court dismissed all claims for negligent design and installation against the County as untimely and all claims against the Town as untimely. As relevant here, a plaintiff in a personal injury action against a county or a town must commence the action "within [1] year and [90] days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death " ( General Municipal Law § 50–i[1] [emphasis added]; see EPTL 5–4.1[1] ). Despite the statute providing for a two-year limitations period commencing at the date of death, Supreme Court applied the...