| Duhe v Midence |
| 2008 NY Slip Op 01064 [48 AD3d 244] |
| February 7, 2008 |
| Appellate Division, First Department |
| James Maxfield Duhe, an Infant, by His Father and NaturalGuardian, Joseph James Duhe, III, et al., Appellants, v Horacio J. Midence, Defendant,and The New York Times et al., Respondents. |
—[*1] Churbuck Calabria Jones & Materazo, P.C., Hicksville (Robert B. Churbuck of counsel), forThe New York Times, respondent. Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead (Thomas G.Leverage of counsel), for Publishers Circulation Fulfillment, Inc. and Tri-State NewspaperService, Inc., respondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 31, 2006,which, to the extent appealed from as limited by the briefs, granted the motion of defendant NewYork Times upon reargument and the cross motion of the two other corporate defendants forsummary judgment dismissing the complaint as against them, unanimously affirmed, withoutcosts.
Defendant Tri-State entered into a contract with the Times to distribute the latter'snewspapers. Defendant Midence had an independent contract with Tri-State, giving him soleresponsibility and control over the manner and means of delivering the papers. Tri-State did notexercise sufficient control over the actual delivery process to raise a triable issue of fact as towhether it was vicariously liable for Midence's acts (Marino v Vega, 12 AD3d 329 [2004]). The record reveals nothingmore than general supervisory control, which cannot be the basis for imposing liability againstany of the corporate defendants for the acts and omissions of the [*2]independent contractor (id.; see also Santella vAndrews, 266 AD2d 62 [1999], lv denied 94 NY2d 762 [2000]).Concur—Andrias, J.P., Nardelli, Williams, McGuire and Acosta, JJ.