Matter of New York Asbestos Litig. , 146 A.D.3d 461 ( 2017 )

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 29, 2014, which granted defendant Consolidated Edison’s (Con Edison) posttrial motion to set aside the verdict against it and direct that judgment be entered in its favor dismissing the complaint against it, and order, same court and Justice, entered March 13, 2015, which, to the extent appealed from as limited by the briefs, upon renewal and re-argument of Con Edison’s motion, adhered to the original determination, reversed on the law and facts, without costs, the posttrial motion denied, the verdict as against Con Edison reinstated, and a new trial on damages for loss of consortium ordered unless plaintiff stipulates, within 30 days after service of a copy of this order with notice of entry, to reduce the loss of consortium verdict to $360,000, and to entry of a judgment in accordance therewith.

The trial court improperly set aside the verdict in plaintiff’s favor on the Labor Law § 200 claim against Con Edison. The evidence at trial demonstrated that Con Edison had the “authority to control the activity bringing about the injury” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993] [internal quotation marks omitted]). “[A]n implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998] [internal quotation marks and emphasis omitted]).

In the recently decided case of Matter of New York City Asbestos Litig. (142 AD3d 408, 409 [1st Dept 2016] [North]), we upheld a jury verdict in the plaintiff’s favor on a section 200 claim in an asbestos case where a predecessor of one of the defendants had issued detailed specifications directing contractors in the means and methods of mixing and applying asbestos-containing concrete and insulation at a power plant. In so holding, we reasoned that it was of no consequence that the defendant had supervised the superintendents, rather than directly supervising the workers (id.).

Similarly, in Rizzuto, the Court of Appeals reversed an order granting the defendant general contractor’s motion for summary judgment dismissing, inter alia, section 200 and common-law negligence claims where an employee of a plumbing subcontractor was injured by diesel fuel that sprayed on him while he was in the process of removing and replacing a submersible pump in the fuel station area of a Transit Authority bus terminal (91 NY2d at 347-348). Although the general contractor did not have control over the subcontractor’s plumbing methods per se, the general contractor had control over the methods of the subcontractors and other site workers “in the sense that [it] had the ability to coordinate the work activity of its subcontractors and the Transit Authority, had the capacity to exclude the Transit Authority from working in the fuel station area of the depot, or had the authority to direct either its subcontractors or the Transit Authority to not engage in an operation while another potentially hazardous activity, i.e., pressure-testing an underground fuel tank, was taking place within the immediate area” (id. at 353; see also Bush v Gregory/ Madison Ave., 308 AD2d 360, 361 [1st Dept 2003] [presence of safety coordinator with authority to stop work if a dangerous condition arose raised triable issue of fact]).

Con Edison had the ability to prevent the hazard ultimately causing the plaintiff’s injury, namely, the application of asbestos-containing materials. Indeed, Con Edison’s specifications affirmatively required the use of hazardous asbestos-containing insulation materials, and Con Edison monitored work for compliance with those specifications. This is a far different situation from one in which a defendant has general workplace oversight, but there is no claim that the specifications themselves mandated that the contractor engage in the injury-producing activity.

This case is dissimilar to previous ones we have encountered involving injuries arising from the installation or removal of asbestos materials. Matter of New York City Asbestos Litig. (25 AD3d 375 [1st Dept 2006] [Tortorella]), Matter of New York City Asbestos Litig. (25 AD3d 374 [1st Dept 2006] [Philbin]), and Matter of New York City Asbestos Litig. (41 AD3d 177 [1st Dept 2007] [Held]), relied on by the trial court in overturning the jury’s verdict, are inapposite.

The order should be reversed to direct a new trial on damages unless plaintiff stipulates to reduce the loss of consortium verdict to $360,000, the amount suggested by the trial court (see Penn v Amchem Prods., 85 AD3d 475, 476 [1st Dept 2011] [loss of consortium award over 13 months reduced from $1,670,000 to $260,000 or $20,000 per month]).

Concur— Renwick, Manzanet-Daniels and Kapnick, JJ.