| Brothers v New York State Elec. & Gas Corp. |
| 2007 NY Slip Op 07116 [43 AD3d 1309] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Paul Brothers, Respondent, v New York State Electric and GasCorporation, Appellant, et al., Defendants. |
—[*1] Hiscock & Barclay, LLP, Buffalo (Darryl J. Colosi of counsel), for Niagara Mohawk PowerCorporation and Ward Norris Heller & Reidy LLP, Rochester, for Rochester Gas & ElectricCorporation, amici curiae.
Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), enteredAugust 14, 2006 in a personal injury action. The order, insofar as appealed from, granted in partplaintiff's motion for partial summary judgment against defendant New York State Electric andGas Corporation and denied the motion of that defendant for summary judgment dismissing thecomplaint against it.
It is hereby ordered that the order insofar as appealed from be and the same hereby isunanimously reversed on the law without costs, plaintiff's motion is denied in its entirety, themotion of defendant New York State Electric and Gas Corporation is granted and the complaintagainst that defendant is dismissed.
Memorandum: Plaintiff commenced this action to recover damages for injuries he sustainedduring the course of his employment when he was struck by an aerial lift truck operated by acoworker. New York State Electric and Gas Corporation (defendant) had contracted withplaintiff's employer, Tamarack Forestry Service, Inc. (Tamarack), to furnish all necessary labor,supervision and equipment to clear trees and brush along certain of defendant's electric lines,including those in the area in which plaintiff was working at the time of the accident. Defendantroutinely obtained annual blanket highway work permits from the New York State Department ofTransportation (DOT) for work to be performed along state highways, and had obtained such awork permit for the location where plaintiff was injured. Pursuant to the terms of the workpermit, defendant was required to comply with various federal and state worker safetyregulations.
Supreme Court erred in granting that part of plaintiff's motion for partial summary [*2]judgment on the issue of defendant's negligence and in denying themotion of defendant for summary judgment dismissing the complaint against it. Generally, "aparty who retains an independent contractor, as distinguished from a mere employee or servant,is not liable for the independent contractor's negligent acts" (Kleeman v Rheingold, 81NY2d 270, 273 [1993]; see Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d663, 668 [1992], rearg dismissed 82 NY2d 825 [1993]). There are exceptions to thatgeneral rule in instances in which the employer's duty is held to be nondelegable, in which casethe employer is liable for an independent contractor's negligence (see Rosenberg, 79NY2d at 668). Plaintiff contends that the exception to the general rule pursuant to which theemployer has assumed a contractual duty applies in this case (see id.), because the workpermit issued to defendant is a contract pursuant to which defendant voluntarily assumed anondelegable duty to comply with various federal and state worker safety regulations. We rejectthat contention. While in certain instances a DOT permit may constitute a contract (seegenerally Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93NY2d 584, 589-591 [1999], rearg denied 93 NY2d 1042 [1999]), the work permit atissue in this case does not constitute a contract. The DOT did not contract with defendant for treetrimming and removal. Rather, defendant hired Tamarack to trim and remove trees for the benefitof defendant in maintaining its electric lines. Defendant merely sought the permission of DOT toperform that work within state highway rights-of-way. Thus, the work permit is merely a licenseissued by the DOT to defendant inasmuch as it "confers only the nonexclusive, revocable right toenter the land of the licensor to perform an act" (Nextel of N.Y. v Time Mgt. Corp., 297AD2d 282, 282 [2002]), and defendant therefore did not assume any duty running to plaintiffunder the work permit. Further, the work performed for defendant by Tamarack was for thebenefit of defendant and not the general public, and Tamarack, as an employer, has the duty toprovide its employees with a safe workplace (see generally Labor Law § 200). Wethus discern no public policy reason to expand the exception for contractually assumed duties toinclude work permits such as the one obtained by defendant. Rather, to do so would expand thescope of duty of an electric utility company such as defendant beyond any reasonable limit.Because defendant cannot be held vicariously liable for the negligence of Tamarack, it is entitledto summary judgment dismissing the complaint against it.
In light of our decision, we need not reach defendant's remaining contentions.Present—Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.