Opinion
March 19, 1996
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
The trial court properly set aside the verdict finding intentional acting in concert ( see, CPLR 1602). There was no evidence of a concerted effort to suppress information about asbestos injury or to deceive or mislead asbestos victims ( cf., City of New York v Lead Indus. Assn., 190 A.D.2d 173, 177-178). Plaintiffs did not demonstrate there was a common design or plan to commit a tortious act, or that any act in furtherance of such an agreed purpose was committed ( see, Rastelli v Goodyear Tire Rubber Co., 79 N.Y.2d 289, 295). No fair view of the evidence supports the conclusion that defendant Westinghouse acted with reckless disregard ( see, CPLR 1602) of the practical consequences of inaction as to asbestos safety. Furthermore, the evidence does not show this to be one of the "singularly rare cases" where punitive damages are warranted by "extreme aggravating factors such as improper state of mind or malice" ( Rand Paseca Mfg. Co. v Holmes Protection, 130 A.D.2d 429, 431, lv denied 70 N.Y.2d 615).
The trial court did not improvidently exercise its discretion in choosing the reverse-bifurcated format for this joint trial ( see, Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 188 A.D.2d 214, 224-225, affd 82 N.Y.2d 821). Although plaintiffs implicitly concede that the jury should not have been charged as to liability of defendant Mario DiBono under Labor Law § 200, the error was harmless. The correct principles regarding a party's nondelegable common-law duty when engaged in inherently dangerous activities ( see, Hermance v Daddy-O's Rest. Corp., 159 A.D.2d 924, 925), which a contractor owes to all on the site, including those employed by other parties ( see, Chainani v Board of Educ., 87 N.Y.2d 370), were adequately conveyed in the charge as a whole ( see, Schmeider v Montefiore Hosp. Med. Ctr., 122 A.D.2d 735, lv denied 69 N.Y.2d 605). The trial court properly declined, on the damages trial, to charge the jury in accord with Dafler v Raymark Indus. ( 259 N.J. Super. 17, 611 A.2d 136, affd 132 N.J. 96, 622 A.2d 1305), both in light of the expert testimony at bar, and as a matter of being "`"realistically fair"'" ( Five Towns Coll. v Citibank, 108 A.D.2d 420, 433) in the task of apportionment ( see also, Martin v Owens-Corning Fiberglas Corp., 515 Pa. 377, 384, 528 A.2d 947, 950).
We have considered the parties' remaining arguments for affirmative relief and find them to be without merit.
Concur — Sullivan, J.P., Wallach, Kupferman and Tom, JJ.