Premise Owner Denied Summary Judgment due to Issues of Fact

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Supreme Court of New York, New York County, May 10, 2021

Before the court is defendant National Grid Generation LLC d/b/a National Grid’s motion for summary judgment, pursuant to CPLR 3212, for a finding in favor of National Grid on the grounds that there is no merit to the allegations in the plaintiff’s complaint against National Grid, and there are no triable issues of fact against National Grid. 

By way of background, this matter arises from Alvin Smith’s (the decedent) diagnosis of malignant mesothelioma, which the plaintiff alleges was caused by the decedent’s exposure to asbestos dust from his work as an electrician from 1961 to 1994. Specific to National Grid, the plaintiff alleges that the decedent was exposed to asbestos when he worked as an electrician at the Northport Power Plant during 1967 and 1968. The plaintiff alleges that he worked under the supervision of Long Island Lighting Company (LILCO) and that National Grid is the successor in interest to LILCO. While working at the Northport, the decedent testified that he was exposed to and breathed in significant amounts of asbestos dust from working on and cleaning pump motors.

National Grid argues that the plaintiff failed to establish that National Grid is liable under New York Labor Law 200, a codification of the common law negligence law, and that the plaintiffs have made no showing of negligence on the part of National Grid. National Grid further argues that it did not cause the decedent’s mesothelioma and did not supervise or control the decedent’s work and thus owed no duty to the decedent. In support of their motion, National Grid attaches the decedent’s Social Security/Employment records, which indicate that from the first quarter of 1967 through and including the second quarter of 1968, the decedent was employed by Rao. National Grid notes that the decedent took direction from his area foreman, Abe Pfeffer, who worked for Rao/Arc. Moreover, while the decedent testified that LILCO personnel were present, he indicated they did not instruct the decedent on how to perform his work and that he had no information that LILCO told other trades at the work site how to work beyond compliance with contract requirements.

In opposition, the plaintiff raises an issue of fact as to LILCO’s involvement in oversight of work at Northport and thus on the issue of whether LILCO supervised or controlled the decedent’s work. The plaintiff avers that there is an overwhelming amount of evidence that LILCO controlled every aspect of the work being done with asbestos at Northport while Decedent was working there.

The court notes that LILCO had a responsibility to oversee and control the work performed by the decedent, which created a duty to provide a safe workplace for the decedent. Moreover, the plaintiff has raised issues of fact concerning LILCO’s exercise of control over the decedent’s work. Thus, the court denied National Grid’s motion for summary judgment.

Read the full decision here.