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Michael De Meo v. Consolidated Edison Company of New York

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 8, 2011

MICHAEL DE MEO,
APPELLANT,
v.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
RESPONDENT.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
THIRD-PARTY PLAINTIFF,
v.
VALI INDUSTRIES AND SICON CONTRACTORS, INC., THIRD-PARTY DEFENDANTS.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered September 14, 2009. The judgment, after a non-jury trial, dismissed the action.

De Meo v Consolidated Edison Co. of N.Y., Inc.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

ORDERED that the judgment is reversed, without costs, the complaint and third-party complaint are reinstated, judgment is awarded to plaintiff on the issue of defendant's liability, and the matter is remitted to the Civil Court for a new trial on the issue of plaintiff's damages and on the third-party complaint.

In this small claims action, plaintiff seeks to recover damages he incurred when he drove his car into an unmarked, unprotected hole in the roadway. At the non-jury trial, plaintiff testified about the occurrence of the accident, and stated that he had found a red and white barricade in the hole, which bore a piece of paper referencing a work permit that had been issued to defendant Consolidated Edison Company of New York, Inc. (Con Edison) or to third-party defendant Vali Industries. Although he sought to do so, plaintiff was not afforded an opportunity to present evidence of his damages.

There was also testimony that defendant had contracted with third-party defendant Sicon Contractors, Inc. to work at the accident site, and that Sicon Contractors, Inc. had a subcontract with third-party defendant Vali Industries to work at the same site. Defendant and third-party defendants in effect admitted that they had performed work at the accident site, including excavations, approximately two weeks prior to, as well as one day after, the accident. Although they claimed that they had restored the site to a safe condition as of the accident date, defendant and third-party defendants failed to produce any witness with direct knowledge of such restoration. Their representatives, who suggested that another, unknown entity had created the hole in the roadway, had no direct knowledge of the accident site or the work performed by their companies at that site, and they failed to introduce into evidence any corroborative documentary evidence of their contentions. At the close of trial, the Civil Court dismissed the action.

Even in the relatively relaxed and informal atmosphere of a small claims action, the plaintiff bears the burden of establishing his case by a preponderance of the evidence (Naclerio v Adjunct Faculty Assn., 1 Misc 3d 135[A], 2003 NY Slip Op 51644[U] [App Term, 9th & 10th Jud Dists 2003]). Negligence may be proven by circumstantial evidence that a defendant's actions were the more likely or reasonable cause of a plaintiff's injuries (see Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743 [1986]; Lopez v Adams, 69 AD3d 1162, 1165 [2010]). Moreover, the negligence of an agent may be imputed to its principal (see generally 2A NY Jur 2d, Agency and Independent Contractors §§ 298, 299). In these circumstances, where plaintiff attempted to offer circumstantial evidence at least of defendant Con Edison's and third-party defendant Vali Industries' involvement in the creation of the hole in the roadway, and where defendant and third-party defendants admitted that they had worked on the roadway where the accident occurred within two weeks of the accident but failed to produce witnesses or admissible evidence to corroborate their contention that they had restored the roadway to a safe condition prior to the time of the accident, we conclude that the dismissal of plaintiff's case failed to effect substantial justice between the parties according to the rules and principles of substantive law (CCA 1804, 1807), and that plaintiff was entitled to judgment on the issue of defendant's liability.

Although no appeal was taken from that portion of the judgment which, in effect, dismissed defendant's third-party complaint, the interests of justice dictate that the third-party complaint be reinstated (see Bardouille v Structure-Tone, Inc., 282 AD2d 635, 637 [2001]; Diaz v Ellerman Bucknall S.S. Co., 62 AD2d 961, 962 [1978]).

The judgment dismissing this case is, accordingly, reversed, the complaint and the third-party complaint are reinstated, judgment on liability is awarded to plaintiff against defendant Con Edison, and the case is remitted to the Civil Court for a new trial on the issue of plaintiff's damages and on the third-party complaint.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: July 08, 2011

20110708

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