Stevens v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 12 June 1978
• Parties: Jack STEVENS et al., Plaintiffs-Respondents, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant-Respondent, E. A. Kahn Company, Inc., Defendant Third-Party Plaintiff-Appellant, Astoria Star Welding Company, Third-Party Defendant-Respondent, et al., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 771

405 N.Y.S.2d 771

63 A.D.2d 979

Jack STEVENS et al., Plaintiffs-Respondents, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant-Respondent, E. A. Kahn Company, Inc., Defendant Third-Party Plaintiff-Appellant,

Astoria Star Welding Company, Third-Party

Defendant-Respondent, et al., Third-Party Defendant.

Supreme Court, Appellate Division,Second Department.

June 12, 1978.

Leahey & Johnson, New York City (Asher Marcus and Peter James Johnson, New York City, of counsel), for defendant third-party plaintiff-appellant.

Louis J. Castellano, Jr., Garden City, for plaintiffs-respondents.

Williams & O'Neill, New York City (Joseph J. Klem, New York City, of counsel), for defendant-respondent.

Alexander, Ash, Schwartz & Cohen, New York City (James B. Reich and Sidney A. Schwartz, New York City, of counsel), for third-party defendant-respondent.

Before HOPKINS, J. P., and MARTUSCELLO, RABIN and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendant third-party plaintiff, E. A. Kahn Company, Inc. (Kahn), appeals from an interlocutory judgment of the Supreme Court, Nassau County, dated April 13, 1977, as amended on May 16, 1977, which, after a jury trial limited to the issue of liability only (1) is in favor of plaintiffs and apportioned liability at 70% against it and 30% against the defendant Consolidated Edison Company of New York, Inc. (Con Ed), upon a jury verdict, (2) dismissed its third-party complaint against Astoria Star Welding Company (Astoria), (3) dismissed its cross claim against Con Ed and (4) granted judgment in favor of Con Ed on its cross claim for indemnification against Kahn.

Interlocutory judgment, as amended, affirmed, with one bill of costs jointly to respondents appearing separately and filing separate briefs.

Plaintiff Jack Stevens (Stevens) was injured by an explosion of natural gas in a manhole in which he was working. Stevens, who was the sole employee of Astoria working on the project, was under the direct supervision of Kahn. The record amply supports the jury determination that Kahn committed tortious acts which were the proximate cause of the explosion and that Stevens was free from contributory negligence. Other than permitting Stevens to work as a general welder for Kahn, Astoria had absolutely no involvement with the construction project. In agreeing to supply Kahn with an equipped welder, Astoria certainly did not assume the...