Opinion
10981 Index 153937/12
02-11-2020
Venisha GARDNER, Plaintiff–Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondent.
Friedman, J.P., Renwick, Kern, Oing, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered January 3, 2018, which granted defendant's motion to set aside a jury verdict in favor of plaintiff, and dismissed the complaint, unanimously affirmed, without costs.
The trial evidence was insufficient as a matter of law to support the jury's verdict that defendant (Con Ed) was responsible for the injury plaintiff received when she bumped into a trash bag containing broken fluorescent bulbs in the store where she was working (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). Even if there was sufficient evidence to show that the person who changed the bulb and then discarded it in the bag was a Con Ed employee, plaintiff presented no evidence that the person was acting within the scope of his employment (see Davis v. City of New York, 226 A.D.2d 271, 641 N.Y.S.2d 275 [1st Dept. 1996], lv denied 88 N.Y.2d 815, 651 N.Y.S.2d 17, 673 N.E.2d 1244 [1996] ). Indeed, Con Ed presented unrefuted evidence that its employees did not change light bulbs, that its service ended at the building wall, that it did not own or maintain electrical equipment inside the building, that independent contractors provided the services for the energy efficiency program it sponsored, and that the subject building was not enrolled in that program at the time of the accident.