| Stagno v 143-50 Hoover Owners Corp. |
| 2008 NY Slip Op 01329 [48 AD3d 548] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Sandra Stagno, Respondent, v 143-50 Hoover OwnersCorp. et al., Defendants and Third-Party Plaintiffs-Appellants, Marek Jurysek, Respondent, et al.,Defendants. SBC, Inc., Third-Party Defendant-Respondent. |
—[*1] Mann & Bent, P.C., White Plains, N.Y. (Francis B. Mann, Jr., of counsel), forplaintiff-respondent Sandra Stagno. James R. Pieret, Garden City, N.Y., for defendant-respondent Marek Jurysek and defendantthird-party defendant-respondent SBC, Inc.
In an action to recover damages for personal injuries, the defendants third-party plaintiffs143-50 Hoover Owners Corp. and Metro Management Development, Inc., appeal from an orderof the Supreme Court, Queens County (Hart, J.), entered January 31, 2007, which denied theirmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them, or alternatively, for summary judgment on their claim for common-lawindemnification against the defendant third-party defendant SBC, Inc.
Ordered that the order is reversed, on the law, with costs, that branch of the appellants'motion which is for summary judgment dismissing the complaint and all cross claims insofar asasserted against them is granted, and the alternate branch of the motion which is for summaryjudgment on their claim for common-law indemnification against the defendant third-partydefendant SBC, Inc., is denied as academic.
The plaintiff allegedly sustained injuries to her right hand when the defendant Marek Jurysekattempted to close her balcony door shut. Jurysek was an employee of the defendant third-partydefendant SBC, Inc., which had been retained by the owner of the building, the defendantthird-party [*2]plaintiff 143-50 Hoover Owners Corp. (hereinafterHoover Owners), and its managing agent, the defendant third-party plaintiff Metro ManagementDevelopment, Inc. (hereinafter Metro), to perform various work to the exterior of the building,including the removal of the plaintiff's balcony enclosure. The plaintiff leased the apartment fromthe unit owner, the defendant Hoover Assets, Inc.
Hoover Owners and Metro contend, inter alia, that the Supreme Court erred in denying theirmotion for summary judgment because they cannot be held vicariously liable for the allegednegligence of the independent contractor hired to perform repair work to the exterior of thebuilding. We agree. One who hires an independent contractor is not liable for the independentcontractor's negligent acts because the employer has no right to control the manner in which thework is to be done (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; Mercado vSlope Assoc., 246 AD2d 581 [1998]; Zedda v Albert, 233 AD2d 497 [1996]). Theplaintiff's submissions in opposition to the appellants' establishment, prima facie, of theirentitlement to judgment as a matter of law failed to raise an issue of fact as to whether thedefendants exercised any control over the method or manner in which the independent contractorperformed its duties, and were thus insufficient to raise a triable issue of fact as to whetherHoover and Metro supervised the independent contractor for vicarious liability purposes.Furthermore, although an exception to the general rule against vicarious liability exists where alandlord breaches its nondelegable duty under Multiple Dwelling Law § 78 to maintain thepremises in good repair, this exception is not applicable under the circumstances of this casewhere the plaintiff's injuries were not the result of the premises being in disrepair (see Taylorv Park Towers S. Co., 293 AD2d 668, 669 [2002]; Mercado v Slope Assoc., 246AD2d at 581-582). Accordingly, the Supreme Court should have granted that branch of theappellants' motion which was for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them.
In light of our determination that the Supreme Court should have granted that branch of theappellants' motion which was for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them, the appellants' contentions concerning their claim forcommon-law indemnification against the defendant third-party defendant SBC, Inc., have beenrendered academic.
The plaintiff's remaining contention is without merit (see generally Vaniglia v NorthgateHomes, 106 AD2d 384 [1984]; Lockowitz v Melnyk, 1 AD2d 138 [1956]). Rivera,J.P., Ritter, Dillon and Carni, JJ., concur.