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Post-Trial Dismissal of Plaintiff’s Claims Adhered to Upon Motion for Rehearing and Reargument Supreme Court, New York County, March 12, 2015

In this NYCAL case, a New York City jury found that Con Edison, as the premises owner, was 30 percent responsible for the plaintiff’s asbestos-related injuries under New York’s Labor Law § 200(1). On a post-trial motion, the trial court ruled that “absent legally sufficient evidence demonstrating, as a matter of law, that Con Edison supervised or controlled Brown’s work at Ravenwood, defendant sustained its burden of proving that the jury could not have reached its verdict on the issue of Con Edison’s liability pursuant to Labor Law § 200 on any fair interpretation of the evidence.”

The plaintiff moved to renew and/or for a rehearing of the trial court’s decision, arguing in part that requiring the use of asbestos-containing products by Con Edison was sufficient supervision to impose liability under Labor Law § 200. The court rejected that argument, stating: “And again, plaintiff does not and did not cite authority for the proposition that requiring the use of asbestos-containing materials is equivalent to controlling the manner of the performance of an employee's work. In any event, such a proposition is untenable, given the absence of any evidence here that asbestos-containing materials, in and of themselves, are dangerous. Rather, it was alleged that their use and manipulation created a dangerous condition.” The trial court concluded that Con Edison created no dangerous condition: “Plaintiff appears to conflate ‘supervision and control’ with creating a dangerous condition, which plaintiff concedes is not the issue here. Certainly, a premises owner may be found liable for creating a dangerous condition on the premises. Here, however, Con Edison created no condition. Rather, it was Brown's conduct in mixing asbestos-containing cement and cutting asbestos-containing pipe covering that created the asbestos dust he inhaled. As I observed in my decision, ‘[l]ike the water that improperly sprayed onto the floor on which the plaintiff slipped in Cappabianca [v. Skanska USA Bldg. Inc., 99 AD3d 139 (1st Dept 2012)], the asbestos dust ‘would not have been present but for the manner and means of [Brown's] injury-producing work’ [and therefore] as in Cappabianca, Con Edison's liability may be predicated solely on its control over that work.’”

Read the original decision here.

Read the most recent decision here. 

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