Davis Polk Wins Motion for Summary Judgment for Con Edison In Connection with Tort Action
6/30/2017

On June 29, 2017, Davis Polk achieved a total victory in a litigation filed in New York state court against its client Consolidated Edison, Inc.

The case against Con Edison, captioned Al Ghaithi v. NEP West 119th Street, L.P., et al. (Sup. Ct. N.Y. Cty. Index No. 2007/114462), was brought by Rassas Al Ghaithi, on an individual basis and on behalf of his children and deceased wife, and alleged personal injury and loss of consortium caused by an October 6, 2007 explosion in their apartment at 10 West 119th Street. Plaintiffs alleged that Con Edison’s negligence was the cause of this tragic explosion and sought significant money damages.

Con Edison filed a motion for summary judgment, arguing that Con Edison was not liable for the explosion because it was caused by the ignition of gas leaking from a cracked flex hose connected to the stove in the Al Ghaithi family’s apartment. This flex hose was the property of the apartment building and not Con Edison, and Con Edison therefore could only be liable if it had been put on notice of the leak. Con Edison presented evidence demonstrating that the leak did not commence until shortly before the explosion occurred, was never reported to Con Edison, and could not have been detected by Con Edison when it was in the apartment building several months earlier to attend to a different issue.

Justice Richard F. Braun, in a decision issued from the bench, agreed with Con Edison’s arguments and granted summary judgment. The Court found that Con Edison had met its prima facie burden of demonstrating that the defective equipment that caused the explosion was not Con Edison’s and, accordingly, Con Edison could not be held liable for the explosion if it was not on notice of the leak. The Court further found that Plaintiffs had not raised an issue of fact sufficient to defeat summary judgment noting, among other things, that there was no evidence demonstrating that the gas leak was ever reported to Con Edison or that Con Edison could have detected the leak during the times that it had been in the apartment building to attend to other issues.

The Davis Polk litigation team representing Con Edison included partner Elliot Moskowitz (who argued the motion); associates Stefani Johnson Myrick, David J. Robles and Daniel Long Sockwell. The Davis Polk team is based in the New York and Washington DC offices.