FILED: NEW YORK COUNTY CLERK 0311112015 11:02 AM
`FILED: NEW YORK COUNTY CLERK 03/13/2015 11:02 AM
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`NYSC1F DOC. NO. 496
`NYSCEF DOC. NO. 496
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`O. 190415/2012
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`INDEX N
`INDEX NO. 190415/2012
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`R1.C1.IV1.D \IYSC.
`3F: 03/13/2015
`RECEIVED NYSCEF: 03/13/2015
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`SUPREME COURT OF THE STATE OF NEW YORK
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`NEW YORK COUNTY
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`PRESENT:
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`BARBARAUAFFE
`J-S-C~
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`Jusfice
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`
`index Number: 19041512012
`BROWN, HARRY E.
`VS.
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`BELL & GOSSETI' COMPANY
`SEQUENCE NUMBER : 018
`RENEWAL
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`/ l
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`PART
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`INDEXNO.M Q
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`MOTION DATE
`MOTION SEQ. NO.
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`Q '2 I2;
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`The following papers, nII Terefio T , were read on this motion to/for
`Notice of Motion/Order to Show Cause —— Affidavits - Exhibits
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`Answering Affidavits — Exhibits
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`Replying Affidavits
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`INoIsI 4ng E1?I
`INoIs).
`(Ig/ I I?
`INoIsI _EI___
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`UmnmumwdmpwusflhmmmdmflmkmMMMs
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`NEW“
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`MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICE
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`FORTHEFOLLOWINGREASON(S):
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`Dated:
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`I L I5
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`, J.S.C.
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`ON-FINAL DISPOSITION
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`A—fi
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`S GRANTED IN PART
`fiTHER
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`SUBMIT ORDER
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`FIDUCIARY APPOINTMENT
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`[:3 REFERENCE
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`VENIED
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`1. CHECKONE: .....................................................................fiASE DISPOSED
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`2. CHECK AS APPROPRIATE: ...........................MOTION IS! D GRANTED
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`3. CHECK IF APPROPRIATE: ................................................ T SETTLE 0RD
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`DO NOT POST
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`SUPREME COURT OF THE STATE OF NEW YORK
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`IAS PART 12
`COUNTY OF NEW YORK :
`————————————————————————————————————————————————————————————————————x
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`PHYLLIS BROWN, as Administratrix of the Estate
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`Index No. 190415/ 12
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`of HARRY E. BROWN, and PHYLLIS BROWN,
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`Individually,
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`Mot. seq. no. 018
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`Plaintiff,
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`DECISION AND ORDER
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`- against -
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`BELL & GOSSETT COMPANY, et al.,
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`Defendants.
`_____________________________________________________________________x
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`BARBARA JAFFE, J .2
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`For plaintiff:
`Alani Golanski, Esq.
`Weitz & Luxenberg, PC
`700 Broadway
`New York, NY 10003
`212-558-5500
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`‘
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`For defendant Con Edison:
`Timothy M. McCann, Esq.
`Consolidated Edison
`4 Irving Fl.
`New York, NY 10003
`212-460-2164
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`By notice of motion, plaintiff administratrix moves for an order granting leave to reargue
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`and/or renew her opposition to defendant Consolidated Edison Company of New York, Inc’s
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`post-trial motion for an order setting aside the jury verdict rendered against it, and upon renewal
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`and reargument, vacating the decision and order dated August 29, 2014, and denying Con
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`Edison’s motion.
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`In moving for leave to renew, plaintiff offers portions of the full appellate record in two
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`decisions on which I relied in my opinion, claiming that I “may not have had access to” them,
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`and that as a result, I misconstrued both decisions. (NYSCEF 465). In moving for leave to
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`reargue,plaintiff claims that I misapprehended certain appellate decisions, and erroneously
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`reduced the award for loss of consortium. She also seeks modification and vacatur of that part of
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`my order holding that she waived any defect in Con Edison’s motion. (Id.).
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`I. MOTION FOR LEAVE TO RENEW
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`A. Decision
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`In my decision, I held, in pertinent part, that “absent legally sufficient evidence
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`demonstrating, as a matter of law, that Con Edison supervised or controlled Brown’s work at
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`Ravenswood, defendant has sustained its burden of proving that the jury could not have reached
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`its verdict on the issue of Con Edison’s liability pursuant to Labor Law § 200 on any fair
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`interpretation of the evidence.” (NYSCEF 466).
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`I specified as follows:
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`Squarely on point here is Matter ofNew York City Asbestos Litig. (Tortorella).
`There, the plaintiffs alleged that Con Edison was liable for Tortorella’s mesothelioma
`pursuant to Labor Law § 200 based on Tortorella’s exposure to visible asbestos dust at
`Con Edison’s Astoria powerhouse, which emanated from leaks in the building’s ducts
`and coverings. In opposition to Con Edison’s motion for summary judgment dismissing
`the claim against it, the plaintiffs argued that Con Edison could be held liable for failing
`to maintain a safe work area, observing that asbestos dust permeated the air when
`Tortorella was there, that only Con Edison could have taken precautions to ensure the
`safety of workers in its plant, and that Tortorella did not use asbestos-containing products
`in his work at the premises. Then, the plaintiffs added, by supplemental opposition, that
`Tortorella was exposed to asbestos through his own electrical work handling asbestos-
`containing products, and asserted that Con Edison supervised and controlled the work by
`providing him and his co-workers with asbestos-containing materials, by overseeing and
`correcting the work, and by furnishing specification MP 5620 R—2, reflecting that Con
`Edison retained supervision and control over workers, including the ability to reject
`materials or work not in compliance with drawings or specifications. The motion court
`denied Con Edison’s motion, finding that Con Edison had general control over
`Tortorella’s work and other work that was being performed on the premises, and had a
`duty to provide a safe place to work. (Sup Ct, New York County, June 14, 2005,
`Freedman, J ., index No. 100297/02).
`
`On appeal, the Appellate Division, First Department, reversed and dismissed the
`Labor Law § 200 claim against Con Edison, observing that the asbestos exposure at issue
`“would have resulted from work done by insulation contractors or [Tortorella]” that was
`ongoing when Tortorella was there. The Court held that:
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`[t]here is no evidence that Con Edison exercised supervisory control over the
`work of either the insulation contractors or [the plaintiff] or that Con Edison
`coordinated the work of the various trades .
`.
`. Nor is there any evidence that the
`alleged asbestos exposure resulted from a workplace condition created by, or
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`2
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`

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`known to, Con Edison, rather than from the contractors’ work methods.
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`(25 AD3d 375 [1St Dept 2006]).
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`Likewise, in In re Philbin V AC. and S., Inc, the Appellate Division, First
`Department, dismissed the plaintiff’ s Labor Law § 200 claim against Con Edison which
`was based on allegations that Philbin had been exposed to asbestos while cutting material
`at a Con Edison facility and that Con Edison’s specifications established its supervision
`and control over the plaintiff’s work. The Court found that there was no evidence that
`Con Edison had supervised or controlled Philbin’s work, or that the exposure arose from
`a workplace condition created by or known to Con Edison rather than from the
`contractor’s own work methods. (25 AD3d 374 [lSt Dept 2006]).
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`(NYSCEF 466).
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`B. Contentions
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`Although plaintiff acknowledges that counsel’s argument to the motion court on behalf of
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`the plaintiff in Tortorella was partly based on the same specification (MP 5620 R—2) in issue
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`here, she now proffers the record on appeal in that case, claiming that the specification is not
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`annexed (NYSCEF 476), and that therefore, the evidence presented to the trial court and to the
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`Appellate Division does not mirror the evidence before the jury here and thus, cannot be squarely
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`on point (id.). Plaintiff levels the same allegation with respect to Philbin. (NYSCEF 465).
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`In opposition, Con Edison argues that as it had relied on both appellate decisions in its
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`pre-trial motion for summary judgment, in its motion for a directed verdict during trial, and in its
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`post-trial motion, the proffered records on appeal do not constitute new facts of which plaintiff
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`could not or should not have been aware when she opposed its post-trial motion. Con Edison
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`thus claims that plaintiff offers no reasonable excuse for not including the records on appeal in
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`her opposition. In any event, it maintains that plaintiffs assertion that the specification in issue
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`here was not in issue in Tortorella or in Philbin is false, as the law firm representing plaintiff
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`here represented the plaintiffs in Tortorella and in Philbin. Con Edison also argues that plaintiff
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`3
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`offers no authority for the proposition that a contract specification requiring the use of an
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`asbestos-containing product constitutes evidence of control of the means and methods of the
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`work performed sufficient to prove supervisiOn and control within the meaning of Labor Law
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`§ 200. Thus, it argues that the alleged new evidence would not change my prior determination.
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`(NYSCEF 493).
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`In reply, plaintiff maintains that she had no reason to reference the Tortorella or Philbin
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`records on appeal in her opposition to Con Edison’s post-trial motion because Con Edison only
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`cited them as cases that were dismissed for insufficient evidence of supervision and control,
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`without reference to specifications, and thus she could not have anticipated that I would examine
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`the records on appeal for my decision. (NYSCEF 495).
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`C. Analysis
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`Pursuant to CPLR 2221(e), a motion for leave to renew must be based on new facts not
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`offered in the prior motion that would change the prior determination, and must contain a
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`reasonable justification for failure to present such facts. Although a motion to renew is generally
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`based on newly discovered facts “that could not be offered on the prior motion, courts have
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`discretion to relax this requirement and to grant such a motion in the interest ofjustice.” (Mejia v
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`Nanni, 307 AD2d 870, 871 [1St Dept 2003]; Sirico v FGG Prod, Inc.,71 AD3d 429, 433—434 [1St
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`Dept 2010]). Even so, the Supreme Court lacks discretion to grant renewal where the moving
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`party does not offer a reasonable justification for failing to present the new facts on the original
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`motion. (Sabin v Tylutki, 59 AD3d 701 [2d Dept 2009] ; see also Hines v New York City Tr.
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`Auth, 112 AD3d 528 [151 Dept 2013]).
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`Although Con Edison cited both Tortorella and Philbin in its motion to set aside the
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`verdict here, it did not cite them for the proposition that a contract specification requiring the use
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`of an asbestos-containing product is insufficient to establish supervision and control, nor did it
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`set forth the facts underlying those decisions. In opposing the motion, plaintiff did not cite either
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`case.
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`While it may be argued that plaintiff, who is represented by the law firm that represented
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`the plaintiffs in Tortorella and Philbin, could have or should have reasonably anticipated that the
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`records on appeal in those cases would become pertinent in this case, given the absence of
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`prejudice to Con Edison, I consider the records on appeal as new evidence. (Hines v New York
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`City Tr. Auth. , 112 AD3d 528 [1St Dept 2013] [court has discretion to relax requirement and grant
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`leave to renew based on newly discovered facts, absent prejudice to opposing party resulting
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`from delay]; Mejia, 307 AD2d at 871 [same]).
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`The record on appeal now provided by plaintiff reflects that the specification in issue here
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`was not among the documents annexed by the plaintiff, although it is listed in the tables of
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`contents of the record, and was the subject of his supplemental argument and exhibits below.
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`(See NYSCEF 477, 11 16).1 However, as the plaintiff in Tortorella apparently abandoned the
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`1 Thus, plaintiff errs in contending that the specification was not addressed in Tortorella
`below. Consequently, the only reasonable inference to be drawn from the absence of the
`specification from the record on appeal is that appellate counsel abandoned the argument.
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`Moreover, as the plaintiff’ s counsel in Tortorella cites the specification in her
`supplemental affirmation, she did not likely err in stating that the specification was included
`among the exhibits accompanying the supplemental affirmation below, and counsel’s allegation
`that she erred lacks probative value as he neither offers the basis of his knowledge nor any
`supporting documentation. Again, the absence of the specification from the records on appeal
`was more likely the product of a determination that an argument based on it would not have
`succeeded.
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`Also, the justice who rendered the decisions below in Tortorella and in Philbin
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`5
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`argument based on the specification on appeal, plaintiff correctly contends that the appellate
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`decision is not squarely on point. However, having failed to offer any authority for the
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`proposition that a specification requiring the use of an asbestos—containing product constitutes
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`sufficient proof of supervision and control, plaintiff has not offered new evidence that would
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`change my decision. (See infra, II.3.b.).
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`II. MOTION FOR LEAVE TO REARGUE
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`Pursuant to CPLR 2221(d)(2), a motion for leave to reargue must be based on fact or law
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`misapprehended or overlooked by the court in determining the prior motion, and shall not include
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`facts not previously offered. Whether to grant reargument rests within the sound discretion of the
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`court, and a motion to reargue may not “serve as a vehicle to permit the unsuccessful party to
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`argue once again the very questions previously decided.” (Foley v Roche, 68 AD2d 558, 567-568
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`[1St Dept 1979], lv denied 56 NY2d 507 [1982]). Nor may the movant advance new arguments
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`not previously presented. (Kent v 534 E. 1 I“ St, 80 AD3d 106 [1St Dept 2010]; Mazinov v Rella,
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`79 AD3d 979 [2d Dept 2010]).
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`A. Labor Law § 200
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`LDLiSiOQ
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`I also held as follows:
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`And even assuming that the evidence permitted the jury to conclude that the
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`subsequently decided in Held v A. 0. Smith Water Prods. that evidence of specifications requiring
`the use of asbestos-containing materials was insufficient to defeat summary judgment in favor of
`Con Edison, citing both appellate decisions in Tortorella and Philbin in support of thereof. (Sup
`Ct, New York County, September 20, 2006, Freedman, J ., index No. 104048/05). She too
`apparently believed that the Appellate Division in Tortorella and in Philbin decided that such a
`specification does not prove supervision and control within the meaning of Labor Law
`§ 200. (Id).
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`

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`specifications at issue here were Con Edison’s, rather than Combustion’s, the Appellate
`Division in Tortorella and Philbin did not find that the specifications constituted
`sufficient evidence of supervision and control, nor did other courts, and plaintiffs cite no
`authority to the contrary. (See Held v A. O. Smith Water Prods, Sup Ct, New York
`County, September 20, 2006, Freedman, J., index No. 104048/05 [“(w)hile Con Edison
`.
`.
`. may have at one point included asbestos in specifications, that is insufficient to defeat
`summary judgment (citing Philbin and Tortorella) .
`.
`. It is the method of work, not the
`specifications, that give rise to liability”]).
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`And in a footnote, I observed as follows:
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`When instructing a jury on a cause of action based on Labor Law § 200, “[c]are must be
`taken in distinguishing between accidents arising from premises conditions and those
`arising from the manner in which the work was performed.” (NY PJI 2:216). Liability for
`a dangerous condition on premises generally pertains to “a defect inherent in the
`property,” not to the manner in which the work is performed. (Cappabianca v Skanska
`USA Bldg. Inc, 99 AD3d 139, 144 [1St Dept 2012]; see Comes v New York State Elec.
`and Gas Corp. , 82 NY2d 876 [1993] [“But more to the point, this Court has not .
`.
`.
`imposed liability under the statute solely because the owner had notice of the allegedly
`unsafe manner in which the work was performed.”]; see also Bisram v Long Is. Jewish
`Hosp, 116 AD3d 475 [1St Dept 2014] [plaintiff’s Labor Law § 200 claim dismissed as
`dangerous condition that caused plaintiffs accident arose from means and methods of his
`work]; Farrell v Okeic, 266 AD2d 892 [4th Dept 1999] [4th Dept 1999] [recognizing
`distinction between injury caused by defective condition of premises and injury resulting
`from defect “not in the land itself but in the equipment or its operation”]).
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`As an insulator, Brown regularly applied asbestos insulation to various components at
`Ravenswood, and was exposed to asbestos dust from his own work and from that of his
`co-workers. Like the water that improperly sprayed onto the floor on which the plaintiff
`slipped in Cappabianca, the asbestos dust in issue here “would not have been present but
`for the manner and means of [Brown’s] injury-producing work.” Thus, as in
`Cappabianca, Con Edison’s liability may be predicated solely on its control over that
`work.
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`(NYSCEF 466, n 1).
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`2. Contentions
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`Plaintiff argues that I misapprehended the decision of the Appellate Division, First
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`Department, in Held, overlooked other case law on supervision and control and portions of the
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`testimony, and failed to accord sufficient weight to other testimony that she claims proves that
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`the promulgation of specifications requiring the use of asbestos evidences “the authority to
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`control the activity bringing about the injury to enable it to avoid or correct an unsafe condition.”
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`She also asserts that I failed to consider “[Con Edison’s] complete responsibility for the use of
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`asbestos products at plaintiff’s work site,” and that such responsibility is equivalent to exercising
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`supervision and control. (NYSCEF 465). Plaintiff thus asserts that I inappropriately Viewed the
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`evidence in the light most favorable to Con Edison and substituted my view of the evidence for
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`the jury’s. And, according to plaintiff, no court “has ever deemed .
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`.
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`. a top-down mandate
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`tortiously requiring use of the exact injury-producing materials at issue, as insufficient to sustain
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`a jury’s verdict finding Section 200 accountability.” She concedes, however, that this case “is a
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`‘work methods’ case [rather than a ‘dangerous condition’ case] and was tried as such.” (Id).
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`Con Edison maintains that plaintiff misapprehends the relevant facts and law, that Brown
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`never testified that Con Edison controlled the manner or performance of his work, that other trial
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`'
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`testimony demonstrated that it only exercised general supervision over Brown’s work, which is
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`insufficient as a matter of law to hold it liable pursuant to Labor Law § 200, and that plaintiff
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`offers no authority to support the proposition that mandating the use of an asbestos-containing
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`product is sufficient to impose liability. (NYSCEF 493).
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`In reply, plaintiff maintains that my construction of the term “supervision and control” is
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`too narrow as it implies that a plaintiff may meet the standard only upon a demonstration that a
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`site owner “physically told him what to do while he was at work.” (NYSCEF 495). She argues
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`that by issuing the specification and requiring the use of asbestos-containing materials in its
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`contract, Con Edison went far beyond supervision and control by “compell[ing] and creat[ing]
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`the very hazard that infected Mr. Brown’s activities at Ravenswood.” She thus contends that the
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`
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`evidence establishes Con Edison’s “explicit and unequivocal creation of the ultrahazardous
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`nature of plaintiffs work methods and its imposition upon plaintiff and those similarly situated
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`of a hazardous work operation, and its authority to control that hazard,” and that “[n]o New York
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`ruling has ever deemed such evidence insufficient to impose Labor Law § 200 liability.” (Id.).
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`3. Analysis
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`The determination on a motion to set aside a verdict as a matter of law is whether the
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`evidence was legally sufficient to support the verdict. (CPLR 4404[a]).
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`a. Factual issues
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`I address each factual argument as follows:
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`1 . Brown’s testimony
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`The testimony set forth by plaintiff was addressed in my decision, and she omits Brown’s
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`testimony that he was supervised only by his employer, Keasbey. Brown’s testimony that Con
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`Edison was “in charge” of the powerhouses does not, as a matter of law, prove that Con Edison
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`supervised and controlled his work at Ravenswood.
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`2. Specifications
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`While Con Edison’s own specifications required the use of asbestos-containing materials,
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`the evidence presented at trial, through the testimony of Lapinski, Scherer, and Marx, established
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`that the specification used by Brown and his fellow Keasbey employees was created by the
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`general contractor, Combustion Engineering, and not by Con Edison.
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`Absent any evidence that the allegedly overlooked specifications were addressed or cited
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`in plaintiff’s opposition to this motion, or that they would change my previous determination,
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`plaintiff fails to demonstrate that I overlooked any matters of fact.
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`3. Testimony of Marx, DiPaola, and Scherer
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`Plaintiff does not address the salient points of Marx’s testimony, namely, that the
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`specification governing Brown’s work was created by Combustion, not Con Edison, and that “no
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`one from Con Edison instructed the insulators as to how to do their work.” (Tr. 4912, 4915).
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`Although DiPaola worked as a construction inspector for Con Edison at various facilities
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`including Ravenswood, he did not testify about his job duties at Ravenswood. Thus, his
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`testimony was irrelevant to my consideration of whether the evidence at trial demonstrated that
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`Con Edison exercised supervision and control over Brown’s work at Ravenswood.
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`Plaintiff also selects the testimony given by Scherer that is most favorable to her, ignoring
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`testimony I referenced, and failing to acknowledge that the testimony she cites was referenced in
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`my decision. For example, plaintiff quotes the following testimony from Scherer’s deposition:
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`Q:
`A
`
`Q.
`A:
`
`And in some cases, it was just specifications from the utility; is that correct?
`Well, in the case of [Con] Edison, the specifications were always their
`specifications, yes.
`And you could have specifications from the contractor, as well; is that correct?
`No. When they came to [Con] Edison, the specifications were theirs. They had -
`the insulation specification would be given to use; there was no specification from
`the contractor.
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`Scherer next testified that “[t]hey were [Con] Edison’s specifications or in the case of the boiler,
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`they were Combustion Engineering boiler specifications or turbines would be General Electric or
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`[Allis] Chambers.” (Tr. 5257).
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`Sensing a contradiction, the deposing attorney states, “maybe I misspoke.” Follow—up
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`questioning ensued:
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`FEW???
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`Would you consider Combustion Engineering to be a contractor?
`Sometimes they were, yes.
`And as a contractor, they would install boilers at [Con] Edison; is that correct?
`When they were contractors on the boiler. Mainly, they were a manufacturer of
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`10
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`boilers.
`
`Q:
`A:
`Q:
`
`A:
`
`But they did installation work at Con Ed[ison]?
`Sometimes.
`And if they did the insulation work at Con Ed[ison], they had their own
`specification; is that correct?
`Yes.
`
`(Tr. 5258-9).
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`Thus, while plaintiff asserts that Scherer testified that Con Edison always issued and used
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`its own specifications, a full reading of his testimony, as clarified by counsel’s questioning,
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`reveals that the specifications followed by Keasbey were actually Combustion’s. Moreover,
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`plaintiff’s citations to Scherer’s testimony about specifications generally is irrelevant absent any
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`context; Scherer was asked about specifications, but not if the specification at issue was used at
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`Ravenswood or was issued by Con Edison.
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`Given the pertinent legal standard, it is irrelevant whether there is “some” evidence that
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`supports plaintiff” s argument, as the evidence, taken as a whole, was insufficient to demonstrate
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`that Con Edison exercised supervision and control over Brown’s work. (See eg Cahill v
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`Triborough Bridge & Tunnel Auth, 31 AD3d 347 [15‘ Dept 2006] [court should have set aside
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`jury verdict finding owner liable on Labor Law § 200 claim, as no liability attaches where alleged
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`dangerous condition arises from contractor’s methods and owner exercises no supervisory
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`control over work; evidence showed that plaintiffs work was supervised and controlled
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`exclusively by plaintiffs employer, not by owner, and no evidence that anyone employed by
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`owner instructed plaintiff in manner of performing his work; “since plaintiff failed to show that
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`[owner] exercised direct supervision or control over the injury-producing work, the § 200 claim
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`should have been dismissed”]; Pilch v Bd. ofEduc. of City ofNew York, 27 AD3d 711 [2d Dept
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`2006], lv denied 8 NY3d 958 [2007] [verdict set aside on Labor Law § 200 claim as there was no
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`11
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`evidence at trial showing that defendants general contractor and owner directed or controlled
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`manner in which plaintiff conducted his work]; Bommariio v Park Ave. Plaza C0., 307 AD2d
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`944 [2d Dept 2003], lv denied 1 NY3d 504 [verdict set aside as plaintiff’ s claim pursuant to
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`Labor Law § 200 should have been dismissed absent evidence that defendant owner exercised
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`supervisory control over contractor’s operations]; see also Lazier v Strickland Ave. Corp. , 50
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`AD3d 641 [2d Dept 2008], lv denied 10 NY3d 717 [in order to establish entitlement to judgment
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`as matter of law notwithstanding verdict, defendant required to demonstrate that there was no
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`valid line of reasoning by which jury could have concluded that it had authority to supervise or
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`control injury-producing work]; Jenkins v Jones, 255 AD2d 805 [3d Dept 1998] [Labor Law §
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`200 claim dismissed; while plaintiffs coworkers stated that defendant owner had supervisor in
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`charge on job site, plaintiffs attempt to raise factual issue as to direction and control was
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`undermined by his testimony wherein he conceded that he received no instructions from anyone
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`but his employer, and that he never spoke to supervisor nor overheard conversations between
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`supervisor and employer, had no personal knowledge of supervisor’s role on job site, and
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`supervisor neither directed nor controlled his work nor provided him with equipment]).
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`b. Case law
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`As the court observed in Held, “[w]hile Con Edison (and Bechtel) may have at one point
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`included asbestos in specifications, that is insufficient to defeat summary judgment as the First
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`Department in Philbin v AC&S, 25 AD3d 374 (1St Dept 2006) and Tortorella v AC&S, 25 AD3d
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`375 (1St Dept 2006) [held]. It is the method of work, not the specifications, that gives rise to
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`liability .
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`.
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`. ” Plaintiff did not appeal that decision with respect to Con Edison. Thus, the
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`Appellate Division in Held had no opportunity to determine whether a specification requiring the
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`12
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`use of asbestos—containing materials, as a matter of law, proves supervision and control under
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`Labor Law § 200.
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`In arguing that Con Edison should be held summarily liable for supervising and
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`controlling the plaintiffs’ work in both Saccomano v A. 0. Smith Water Prods., Sup Ct, New
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`York County, July 20, 2007, Freedman, J ., index No. 113299/06, and in Greico v A.0. Smith
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`Water Prods, March 15, 2005, Freedman, J ., index No. 120250/03, the plaintiffs submitted, inter
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`alia, evidence of Con Edison’s specifications that included the use of asbestos-containing
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`products. (NYSCEF 102). In each case, the court granted summary judgment to Con Edison,
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`finding in Saccomcmo that there was “inadequate evidence that Con Edison supervised or
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`controlled the work of the various contractors who may have been using asbestos containing
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`materials,” and in Greico that Labor Law § 200 requires the owner to exercise “some supervision
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`or control over the premises or work,” and that inspection rights or duties are insufficient. That
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`the court did not mention the specifications is of no moment as they were offered in evidence by
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`the plaintiffs and were presumably found not to have constituted evidence of supervision and
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`control.
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`Comes v N. Y. State Elec. & Gas Corp. is not only on point, but supports the construction
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`of the term “supervision and control” utilized in my decision. There, the plaintiff was injured
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`when he lifted a steel beam; no evidence was offered that the premises owner exercised
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`supervisory control or “had any input” into how the beam was to be moved. The Court thus held
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`that the owner could not be liable even though it hired a construction inspector to visit the
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`worksite, as the inspector’s duties were limited to observing the work and reporting safety
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`violations. It stated that, “[w]here the alleged defect or dangerous condition arises from the
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`contractor’s methods and the owner exercises no supervisory control,” the owner may not be held
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`liable. (82 NY2d 876 [1993]).
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`In Rizzuto v LA. Wenger Contr. Co., the Court found a triable issue as to whether the site
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`owner had “control over the methods of the subcontractors and other worksite employees” by
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`virtue of its ability to coordinate the workers’ activities, its capacity to exclude workers from
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`working in certain areas of the work site, or its authority to direct workers to refrain from
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`working while another potentially hazardous activity was taking place in a particular immediate
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`area. (91 NY2d 343 [1998]). Not only is Rizzuto distinguishable, but it does not support a
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`broader construction of the term “supervision and control.” In any event, the evidence in Rizzuto
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`is absent here. (See Tortorella, 25 AD3d at 375 [no evidence that Con Edison exercised
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`supervisory control over work of either contractors or decedent, or that it coordinated work of
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`various trades or had authority to exclude workers from particular sites]).
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`Similarly, the Appellate Division, First Department, in Hughes v Tishman Constr. Corp,
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`observed that general supervisory authority does not constitute supervisory control, and that “it
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`must be demonstrated that the [owner or contractor] controlled the manner in which the plaintifl
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`performed his or her work, i.e., how the injury-producing work was performed.” (40 AD3d 305
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`[15t Dept 2007] [emphasis in original]). Here, no evidence was offered that Con Edison
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`controlled the manner in which Brown performed his work.
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`Thus, plaintiff has not shown that I misapprehended the law in finding that Con Edison’s
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`general supervisory authority at Ravenswood was insufficient to hold it liable here. (See eg,
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`Francis v Plaza Coast. Corp, 121 AD3d 427 [1St Dept 2014] [no evidence that contractor’s
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`employees ever gave specific instructions to plaintiff or his subcontractor—employer]; Grifliths v
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`FC-Cdnal, LLC, 120 AD3d 1100 [1St Dept 2014] [plaintiff testified that only person who gave
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`him instruction over his work was his supervisor]; Suconota v Knickerbocker Props, LLC, 116
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`AD3d 508 [1St Dept 2014] [plaintiff testified that he worked solely under supervision of his
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`employer’s foreman and did not receive direction from anyone else]; Pipia v Turner Constr. Co. ,
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`114 AD3d 424 [151 Dept 2014] [plaintiff testified that his supervisor was person who instructed
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`him on how to do his work]; Estrella v GIT Indus., Inc., 105 AD3d 555 [lSt Dept 2013] [plaintiff
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`testified that no one directed the manner in which he performed his work]; Alonzo v Safe
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`Harbors ofthe Hudson Hous. Dev. Fund Co., 104 AD3d 446 [1St Dept 2013] [plaintiff worked
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`under direction of his own employer’s foreman, and was not supervised by anyone else];
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`Dalanna v City ofNew York, 308 AD2d 400 [1St Dept 2003] [no evidence that contractor gave
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`anything more than general instructions on what needed to be done, not how to do it]).
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`And again, plaintiff does not and did not cite authority for the proposition that requiring
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`the use of asbestos—containing materials is equivalent to controlling the manner of the
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`performance of an employee’s work. In any event, such a proposition is untenable, given the
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`absence of any evidence here that asbestos-containing materials, in and of themselves, are
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`dangerous. Rather, it was alleged that their use and manipulation created a dangerous condition.
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`Plaintiff appears to conflate “supervision and control” with creating a dangerous
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`condition, which plaintiff concedes is not the issue here. Certainly, a premises owner may be
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`found liable for creating a dangerous condition on the premises. Here, however, Con Edison
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`created no condition. Rather, it was Brown’s conduct in mixing asbestos-containing cement and
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`cutting asbestos-containing pipe covering that created the asbestos dust he inhaled. As I
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`observed in my decision, “[l]ike the water that improperly sprayed onto the floor on which the
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`plaintiff slipped in Cappabianca [v Skanska USA Bldg. Inc., 99 AD3d 139 (1St Dept 2012)], the
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`asbestos dust ‘would not have been present but for the manner and means of [Brown’s] injury-
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`producing work’ [and therefore] as in Cappabianca, Con Edison’s liability may be predicated
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`solely on its control over that work.” (See also Ocampo v Bovis Lend Lease LMB, Inc. , 123
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`AD3d 456 [lSt Dept 2014] [plaintiff slipped and fell on water that froze on floor of worksite;
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`evidence established that general contractor did not exercise supervisory control over means and
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`methods of work, as work required that subcontractor use water, and ice would not have formed
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`absent required use of water]).
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`Thus, even if Con Edi