Supreme Court of New York, New York County, March 28, 2019

NEW YORK — The sole issue on appeal “is the attribution of liability as between Con Ed and non-party Robert A. Keasbey, Co., (Keasbey).” For three months in 1958, the plaintiff’s decedent worked in close proximity to Keasbey employees, who used asbestos-containing concrete products, including Rex and Rakco concrete manufactured by Keasbey. From the winter of 1964 to the spring of 1965, the plaintiff’s decedent worked for Keasbey as an asbestos installer at a Con Ed plant in Ravenswood, Queens and used Rex and Rakco. The plaintiff’s decedent also worked for Keasbey from 1973-74.

The trial court apportioned liability based on Con Ed’s proposed jury instruction of “the percentage the jury found”, as opposed to the plaintiff’s submitted apportionment of 65 percent to Con Ed, a combination of 30 percent to Con Ed and 35 percent to Keasbey as his employer at the Con Ed sites. The plaintiff was barred from suing Keasbey under Workers’ Compensation grounds.

The appellate court rejected Con Ed’s argument that its jury instructions should stand for two reasons: One – that the jury understood Keasbey to have been included on the special verdict sheet only as a manufacturer; two – it was unlikely that the jury assessed 35 percent of the liability to Keasbey in any other capacity other than the plaintiff’s decedent’s employer at Con Ed’s Ravenswood Plant.

The appellate court held that plaintiff established a prima facie showing that CPLR 1062(4) applied, as Keasbey was Brown’s employer and Brown suffered a grave injury. “To the extent that the verdict is unclear as to whether the jury apportioned liability to Keasbey to any degree in its role as manufacturer, Con Ed, as the proponent of the theory that it could limit that proportion of Keasbey’s liability for which it was jointly and severally liable, failed to meet its burden to object to the verdict sheet and charges and to propose an appropriate and clarifying question.”