Opinion
08-04-2016
In re NEW YORK CITY ASBESTOS LITIGATION. Charles D. North, as Executor of the Estate of Ralph P. North, Plaintiff–Respondent, v. Air & Liquid Systems Corporation successor by merger to Buffalo Pumps, Inc., et al., Defendants, National Grid Generation, LLC, Defendant–Respondent–Appellant, O'Connor Constructors, Inc., Defendant–Appellant–Respondent.
Coughlin Duffy LLP, New York (Kevin T. Coughlin of counsel), for appellant-respondent. Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich of counsel), for respondent-appellant. Levy Konigsberg LLP, New York (Jerome H. Block of counsel), for respondent.
Coughlin Duffy LLP, New York (Kevin T. Coughlin of counsel), for appellant-respondent.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich of counsel), for respondent-appellant.
Levy Konigsberg LLP, New York (Jerome H. Block of counsel), for respondent.
MAZZARELLI, J.P., MOSKOWITZ, MANZANET–DANIELS, GESMER, JJ.
Judgment, Supreme Court, New York County (Martin Shulman, J.), entered January 28, 2015, after a jury trial, awarding plaintiff, inter alia, $3,500,000,00 in damages for future pain and suffering as against defendant National Grid Generation, LLC, unanimously affirmed, without costs. Order, same court and Justice, entered March 13, 2015, which granted National Grid's motion for summary judgment on its claim against defendant O'Connor Constructors, Inc. for indemnification, except for attorneys' fees, and denied O'Connor's motion for summary judgment dismissing National Grid's indemnification claim as against it, unanimously modified, on the law, to grant National Grid's motion as to attorneys' fees solely in connection with its defense against plaintiff's action, and otherwise affirmed, without costs.
The jury verdict is based on sufficient evidence and is not against the weight of the evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498–499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). The evidence demonstrates that LILCO, defendant National Grid's predecessor in interest, issued detailed specifications directing contractors in the means and methods of mixing and applying asbestos-containing concrete and insulation at the power plant, thus supporting the jury's finding of a violation of Labor Law § 200 (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). It is of no consequence that LILCO ensured that its directives were followed by supervising the superintendents, rather than by supervising the workers directly. Further, LILCO was admittedly in charge of trade coordination, i.e., directing the trades as to where and when to do their work, which resulted in plaintiff's working in close contact with the asbestos-dust-producing insulators (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352–353, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ).
The jury's finding that O'Connor, which settled with plaintiff before trial, was negligent but that its negligence was not a proximate cause of plaintiff's injuries and that LILCO was 100% responsible was a fair interpretation of the evidence in light of LILCO's supervision and control of the injury-producing activity (see Matter of New York Asbestos Litig. [Marshall], 28 A.D.3d 255, 812 N.Y.S.2d 514 [1st Dept.2006] ).
The award for future pain and suffering does not deviate materially from what would be reasonable compensation (CPLR 5501 ; see e.g. Matter of New York City Asbestos Litig. [Konstantin & Dummit], 121 A.D.3d 230, 255, 990 N.Y.S.2d 174 [1st Dept.2014], motion to dismiss appeal
denied 24 N.Y.3d 1216, 4 N.Y.S.3d 598, 28 N.E.3d 33 [2015] ; Penn v. Amchem Prods., 85 A.D.3d 475, 925 N.Y.S.2d 28 [1st Dept.2011] ).
While, as National Grid argues, it was error to permit the jury to deliberate on a theory of a defective condition of the premises under Labor Law § 200 and on the issue of LILCO's recklessness, these errors are harmless in light of the jury's other findings. Any error in the wording of the charge directing the jury not to find plaintiff's employers liable during the time he was employed by them is unpreserved.
The trial court correctly granted National Grid summary judgment on its claim against O'Connor for contractual indemnification (see Balbuena v. New York Stock Exch., Inc., 49 A.D.3d 374, 376, 853 N.Y.S.2d 330 [1st Dept.2008], lv. denied 14 N.Y.3d 709, 2010 WL 1794943 [2010] ; Urbina v. 26 Ct. St. Assoc., LLC, 46 A.D.3d 268, 847 N.Y.S.2d 67 [1st Dept.2007] ). The clause in the contract between LILCO and O'Connor (which predates the enactment of General Obligations Law § 5–322.1 ) provided for indemnification of LILCO by O'Connor for “all losses, damages, claims, liens and encumbrances, or any or all of them, arising out of or in any way connected with the work,” whether or not LILCO was negligent. The clause was triggered by the trial evidence. O'Connor's contention that National Grid is not a successor in interest to LILCO on the contract is without merit.
Although National Grid is not entitled to attorneys' fees incurred in prosecuting the indemnification claim against O'Connor (see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ), it is entitled to attorneys' fees incurred in defending against plaintiff's action (see e.g. DiPerna v. American Broadcasting Cos., 200 A.D.2d 267, 612 N.Y.S.2d 564 [1st Dept.1994] ; Breed, Abbott & Morgan v. Hulko, 139 A.D.2d 71, 531 N.Y.S.2d 240 [1st Dept.1988], affd. 74 N.Y.2d 686, 543 N.Y.S.2d 373, 541 N.E.2d 402 [1989] ).
We have considered defendants' remaining arguments for affirmative relief and find them unavailing.
The Decision and Order of this Court entered herein on June 28, 2016, as corrected on July 13, 2016, is hereby recalled and vacated (see M–3774, 2016 WL 4133450 decided simultaneously herewith).