LEONARDO v. All-Nu General Contracting Corp., Defendant-Appellant, (2001)

Supreme Court, Appellate Division, First Department, New York.

William LEONARDO, et al., Plaintiffs-Respondents, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al., Defendants-Respondents, All-Nu General Contracting Corp., Defendant-Appellant,
The Archdiocese of New York, Defendant. CMA Enterprises, Ltd., Third-Party Plaintiff, v. Dynamic Plumbing Consultants Corp., Third-Party Defendant-Appellant.
[And Another Action] Jechil Kopf, etc., Plaintiff-Respondent, v. CMA Enterprise, Ltd., et al., Defendants-Respondents, All-Nu General Contractors Corp., Defendant-Appellant, Weil-McClain Company, Inc., etc., et al., Defendants. [And other actions]

Decided: January 11, 2001

SULLIVAN, P.J., NARDELLI, WILLIAMS, MAZZARELLI and SAXE, JJ.

Helman R. Brook, for defendants-respondents Consolidated Edison Co. of New York. Denise A. Rubin, for defendant-appellant. Anita Nissan Yehuda, for third-party defendant-appellant. Herman Schmertz, for plaintiff-respondent Jechil Kopf.

Order, Supreme Court, Bronx County (George Friedman, J.), entered on or about December 17, 1998, which, inter alia, set aside a jury verdict finding all defendants negligent but that the negligence of third-party defendant Dynamic Plumbing Consultants Corp. and its employee plaintiff William Leonardo was not a proximate cause of the accident, and held that Leonardo and Dynamic were negligent as a matter of law and that their negligence proximately caused the incident, and ordered a new trial on apportionment and damages only, unanimously affirmed, without costs.

The court properly set aside the verdict since plaintiff William Leonardo, president of defendant Dynamic Plumbing Consultants Corp., conceded that the explosion occurred after he flicked a lighter in a room into which gas had escaped. Although plaintiffs' expert, the only expert to testify at trial, offered the opinion that Leonardo's actions were not the proximate cause of the accident, expert testimony, even when uncontroverted, is not necessarily conclusive (see, 'Galimberti v. Carrier Indus., 222 A.D.2d 649, 635 N.Y.S.2d 698). Indeed, given the dispositive nature of Leonardo's concession, the court properly decided the proximate cause issue as a matter of law (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666; cf., Browne v. Pikula, 256 A.D.2d 1139, 682 N.Y.S.2d 750). The court also properly determined that Leonardo's act did not constitute a supervening act negating the negligence of defendants Con Edison and All-Nu in permitting gas to escape into the room where the explosion occurred (see, Derdiarian v. Felix Contr. Corp., supra, at 315-316, 434 N.Y.S.2d 166, 414 N.E.2d 666; Gonzalez v. Lovett Assocs., Ltd., 252 A.D.2d 355, 675 N.Y.S.2d 72, lv. denied 92 N.Y.2d 816, 684 N.Y.S.2d 187, 706 N.E.2d 1211).

We have considered the defendants-appellants' remaining contentions for affirmative relief and find them unavailing.

MEMORANDUM DECISION.

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