These motions arise from an action by plaintiff Patrick Foley for injuries sustained in a work place accident.

FACTS

Mr. Foley was an employee of Roadway Contracting, Inc. Roadway was doing road excavation as a subcontractor for Con Edison on a project on Barclay Street between West and Greenwich Streets in lower Manhattan. Roadway's job was to excavate a trench at the locations to expose the gas main lying in the street bed so that Con Edison crews could gain access to the gas main valve. On September 20, 2001, Mr. Foley was using a gasoline powered Homelite MP88 multipurpose demolition saw provided by Roadway to cut a pipeline at the project. Mr. Foley was familiar with that saw and had used it many times before.

The saw's gas cap appeared to have come off and the saw began leaking gasoline. Sparks from the saw then ignited the gasoline and Mr. Foley, despite wearing a fire retardant jacket, was badly burned. An employee of the Verizon Corporation, also on site, used a fire extinguisher probably from Roadway's compressor truck to put out the flames. Plaintiff thereafter brought suit against the named defendants. The named defendants then sought to implead Roadway as a third-party defendant. A number of motions have been filed in connection with the lawsuit.

Con Edison's Motion

Plaintiff has sued Con Edison pursuant to §200 of the Labor Law. That section imposes upon employers a "general duty to protect health and safety of employees". Con Edison has filed a motion to dismiss this action. With respect to the duty imposed by Labor Law §200 the Court of Appeals has ruled that "an implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." Russin v. Louie N. Picciano & Son, 54 NY2d 311, 316-317. "Recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation." Ross v. Curtis Palmer Hydro-Elec. Co., 81 NY2d 494, 505.

In this case there is no evidence that Con Edison exercised more than general authority. Nor is there any claim that it directly supervised plaintiff in his work. "General supervisory authority is insufficient to constitute supervisory control" Hughes v. Tishman Construction Corp., 40 AD3d 305; 306; also, Geonie v. ODLP NY Ltd., 50 AD3d 444.

More specifically plaintiff's injuries allegedly were caused by a defective saw which was part of the working inventory of Roadway, but as the First Department has ruled, "duty to provide a safe work [*2]place is not breached where, as here, plaintiff's injuries arose out of an alleged defect in his employer's tools and methods...and the owner exercises no supervisory control over the operation." Cruz v. Toscano, 369 AD2d 122. The general duty to supervise the workplace and ensure compliance with safety regulations is not sufficient to create liability for the day to day operations of a subcontractor Conforti v. Bovis Lend Lease LMB Inc., 37 AD3d 35. See also, Cambizca v. NYC Tr. Authority, 57 AD3d 701; Lombardi v. Stout, 80 NY2d 294. Although plaintiff has not actively pursued a claim under Labor Law §241(a) co-defendant John Deere seeks to affix liability to Con Edison based on that statute. Claims under that statute require specific citation of violations under the State Industrial Code. Reilly v. Newireen Assocs., 303 AD2d 214. Plaintiff cites no such violations. John Deere purports to do so, however, the code provisions cited are not germane to the facts of this case.

Specifically John Deere cites 12 NYCRR §23-10.3 which deals with the maintenance of internal combustion engines but only with respect to the leaking of gasses which create noxious fumes; 12 NYCRR §12-1.7 which relates to concentrations of vapors in enclosed areas; 12 NYCRR §23.9.2(a) which deals with heavy equipment. The purport of Part 12 is to control air contaminants not to regulate gasoline leaks. Furthermore the hand saw in question was neither owned or used by Con Edison and the Court of Appeals has ruled that these sections of the Code impose a duty upon employer to correct by repair or replacement of a structural defect or unsafe condition in equipment or machinery upon discovery or actual notice. Misicki v. Caradonna, 12 NY3d 511. In the opinion of this court none of the cited sections pertain to the situation with respect to Con Edison in this case.

Accordingly, Con Edison's motion for summary judgment is granted and plaintiff's complaint and any cross-claims against Con Edison are dismissed.

Roadway's Motion

Defendant Roadway has moved for summary judgment dismissing Deere's third-party action against it. Roadway had complied with its statutory obligation under the Workers Compensation Law as such it is shielded from third party actions absent a "grave injury" as defined by that statute or a written indemnification agreement between employer and a third-party.

The Workers Compensation defines a grave injury as

"death, permanent and total loss of an arm, leg, hand or foot,...

permanent and severe facial disfigurement..."

The categories set up by the statute are deliberately narrow and completely described. Fleming v. Graham, 10 NY3d 296. The only arguably "grave injury" as statutorily defined that is set forth by plaintiff would be "permanent and severe facial disfigurement" but this injury is set forth only in the most general terms in plaintiff's Bill of Particulars. Plaintiff describes it simply as burns to the face. This does not meet the statutory requirements of the Workers Compensation Law. To qualify a facial injury must be "abhorrently distressing, highly objectionable, shocking or extremely unsightful." Fleming v. Graham, supra. Roadway met its statutory burden by submitting hospital records which indicate that while being treated for burns to his chest, abdomen and right hand there was no evidence of "permanent and severe facial disfigurement". Moreover plaintiff testified at his deposition as to skin grafts to his hand, leg, chest and abdomen but not to his face.

As to any alleged indemnity for the benefit of John Deere, no written contract has been introduced into evidence as required by law Rodriguez v. N & S Bldg., Contr., Inc., 5 NY3d 427. [*3]

Roadway's motion for summary judgment is granted. John Deere's third-party action against Roadway is dismissed. However, that portion of Roadway's motion which seeks attorney's fees is denied.

John Deere's Motion

John Deere has moved to strike plaintiff's complaint and third-party defendant Roadway's answer is based upon a theory of spoliation of evidence, specifically, the failure to locate and produce the excavation saw which caused the accident. Plaintiff requested that the saw be produced two months after his release from the hospital. He was apparently, informed by Roadway's shop mechanic that the saw had been repaired, used for a while, and then discarded.

Plaintiff's claims against John Deere were based on alleged design defects in this particular model saw and of failure to warn of said defects. In cases alleging general design defects the manufacturer is not automatically prejudiced by failure to produce the particular instrumentality that caused the accident since, presumably the same defects will appear in other products of the same design. Rodriguez v. Pelham Plumbing & Heating Corp., 20 AD3d 314; Kirkland v. NYC Housing Authority, 236 AD2d 170.

John Deere has not shown that the loss of the subject saw would prejudice its ability to defend itself in this action because such defects, if they exist, would be exhibited by other products of the same design. Dismissal of pleadings is a drastic action and movant must show that the disposal of the evidence fatally compromises its ability to defend the case. Lawson v. Aspen Ford, Inc., 15 AD3d 628. In considering the prejudice resulting from spoliation courts must determine whether such an extreme remedy is required as a matter of fundamental fairness. Utica Mut. Ins. Co., v. Berkoski Oil Co., 58 AD3d 717. In this case the destruction of the particular saw has not left John Deere bereft of appropriate means to defend the claim, Masciotto v. Morse Diesel Int'l Inc., 303 AD2d 309, nor was there any showing of willful or contumacious conduct on the part of plaintiff or Roadway. Sienkiewicz v. 370 APW Owners Corp., 902 NYS 2d 615.

John Deere's motion to strike the pleadings is denied, however, John Deere is not precluded from requesting an adverse inference charge at trial. Rodriguez v. 551 Realty LLC, 35 AD3d 221.

Con Edison's motion for summary judgment is granted.

Roadway's motion for summary judgment is granted except that Roadway's claim for costs and legal fees in connection with its motion is denied.

John Deere's motion to strike the pleading is denied but John Deere is not thereby precluded from requesting an adverse inference charge at trial.

This constitutes the decision of this Court.

Date:

John A. Barone, JSC