| Rackowski v Realty USA |
| 2011 NY Slip Op 02099 [82 AD3d 1475] |
| March 24, 2011 |
| Appellate Division, Third Department |
| Richard Rackowski, Appellant, v Realty USA, Respondent, et al.,Defendant. |
—[*1] Taylor & Associates, Albany (Paul J. Catone of counsel), for respondent.
Malone Jr., J. Appeal from an amended order of the Supreme Court (Ferradino, J.), enteredMarch 29, 2010 in Saratoga County, which granted a motion by defendant Realty USA forsummary judgment dismissing the complaint against it.
In September 2004, plaintiff was injured by a hatch door while he was descending into abasement of a home for sale during an open house that was hosted by a salesperson associatedwith defendant Realty USA (hereinafter defendant). Plaintiff thereafter commenced this actionagainst defendant and the seller of the home seeking damages for his injuries.[FN*]Following discovery, defendant successfully moved for summary judgment dismissing thecomplaint against it, and plaintiff appeals.
We affirm. " '[L]iability for an injury caused by a dangerous or defective condition onproperty is generally predicated upon ownership, occupancy, control or special use of the [*2]property [and] [w]here none is present, a party cannot be held liable'" (Gadani v Dormitory Auth. of State ofN.Y., 64 AD3d 1098, 1102 [2009], quoting Seymour v David W. Mapes, Inc., 22 AD3d 1012, 1013 [2005]; see Battaglia v Town of Bethlehem, 46AD3d 1151, 1154 [2007]; see also Butler v Rafferty, 291 AD2d 754, 755-756[2002], affd 100 NY2d 265 [2003]). Here, defendant demonstrated that it listed theproperty for sale with an independent salesperson associated with defendant who had advertisedthe sale and hosted an open house, with the homeowners present. Under these circumstances,defendant's connection to the property is insufficient to support a finding that defendant occupiedor controlled it (see Schwalb vKulaski, 29 AD3d 563, 564 [2006]; Pirie v Krasinski, 18 AD3d 848, 850 [2005]). Accordingly,defendant had no duty to warn plaintiff of any alleged danger the hatch door may have posed(see Hendrickson v Ryan, 262 AD2d 930, 930 [1999]).
Regarding plaintiff's claim that defendant is liable for any alleged negligence of thesalesperson who hosted the open house, defendant presented sufficient proof, which was notrefuted by plaintiff, to establish that the salesperson was an independent contractor and that it didnot direct and control her work (see Chainani v Board of Educ. of City of N.Y., 87 NY2d370, 380-381 [1995]; Birch vMcGhee, 79 AD3d 1296, 1297-1298 [2010]). As such, the general rule that principalsare insulated from the liability for acts of an independent contractor is applicable here (seeBirch v McGhee, 79 AD3d at 1298). We are unpersuaded by plaintiff's contentions thatconducting an open house is an inherently dangerous activity and that, as a result, an exception tothe general rule applies (see Chainani v Board of Educ. of City of N.Y., 87 NY2d at 381).Accordingly, we agree with Supreme Court that defendant was entitled to summary judgmentdismissing the complaint against it.
Plaintiff's remaining contentions have been considered and found to be unpersuasive.
Mercure, J.P., Peters, Spain and McCarthy, JJ., concur. Ordered that the amended order isaffirmed, with costs.
Footnote *: Apparently, the seller of thehouse was never served and, thus, the action proceeded solely against defendant.