| Alini v Lucent Tech., Inc. |
| 2009 NY Slip Op 01072 [59 AD3d 471] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Mona Alini et al., Appellants, v Lucent Technologies, Inc.,et al., Respondents, et al., Defendant. |
—[*1] Hack, Piro, O'Day, Merklinger, Wallace & McKenna, P.A., New York, N.Y. (Rebecca K.Megna and Jeffrey Berson of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.),dated November 30, 2007, as granted that branch of the motion of the defendants LucentTechnologies, Inc., and Nassau Smelting & Refining Company, Incorporated, which was forsummary judgment dismissing the complaint insofar as asserted against the defendant NassauSmelting & Refining Company, Incorporated.
Ordered that the order is affirmed insofar as appealed from, with costs.
In March 2001 the plaintiff Mona Alini (hereinafter the plaintiff) worked for the defendantLucent Technologies, Inc. (hereinafter Lucent) through a temporary employment agency, atLucent's building in Staten Island, where it operated a business through its wholly-ownedsubsidiary Nassau Metals Corporations, sued herein as Nassau Smelting & Refining Company,Incorporated (hereinafter Nassau). On March 9, 2001 the plaintiff allegedly was injured whenshe slipped and fell on a wet, soapy portion of the floor of the building's cafeteria. Lucent andNassau moved for summary judgment dismissing the complaint insofar as asserted against them,asserting that workers' compensation was the plaintiff's exclusive remedy since she was theirspecial employee. Lucent and Nassau also contended that, in any event, they were not liable tothe plaintiffs since they did not create the alleged dangerous condition or have actual orconstructive notice thereof. The Supreme Court granted the motion, finding that the plaintiff wasa special employee of both Lucent and Nassau. On appeal, the plaintiffs assert only that theSupreme Court improperly granted that branch of the motion which was for summary judgmentdismissing the complaint insofar as asserted against [*2]Nassau.We affirm the order insofar as appealed from, albeit on a ground different than that upon whichthe Supreme Court based its determination.
The court erred in finding that the plaintiff was Nassau's special employee. In this regard,Lucent and Nassau failed to meet their initial burden of establishing that the plaintiff was aspecial employee of Nassau (see Workers' Compensation Law §§ 11, 29 [6];Thompson v Grumman Aerospace Corp., 78 NY2d 553, 560 [1991]; Bailey v Montefiore Med. Ctr., 12AD3d 545 [2004]; Martin v Baldwin Union Free School Dist., 271 AD2d 579, 580[2000]), or that Lucent and Nassau were acting as one corporation, as the record demonstratedthat Nassau "operated as a fully independent business" (see Shelley v Flow Intl. Corp.,283 AD2d 958 [2001]; Dennihy v Episcopal Health Servs., 283 AD2d 542 [2001]).
However, the Supreme Court nonetheless properly granted that branch of the motion whichwas for summary judgment dismissing the complaint insofar as asserted against Nassau. "Adefendant who moves for summary judgment in a slip-and-fall case has the initial burden ofmaking a prima facie showing that it neither created the dangerous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it" (Van Dina v St. Francis Hosp., Roslyn,N.Y., 45 AD3d 673, 674 [2007]; see Goldman v Waldbaum, Inc., 248 AD2d436, 437 [1998]). Lucent and Nassau made a prima facie showing of entitlement to judgment asa matter of law by presenting proof that Nassau did not have actual or constructive notice of, anddid not create, the wet, soapy condition that allegedly caused the plaintiff's accident. Theirsubmission of the plaintiff's deposition testimony, as well as that of a Lucent employee,established that an independent contractor, who was hired by Lucent to perform janitorialservices in the building, created the allegedly dangerous condition by mopping the area in closeproximity to the accident site approximately 5 to 10 minutes prior to the accident. "'[G]eneral[ly] . . . , one who engages an independent contractor is not liable for thelatter's negligence in performance' " (Gwyn v 575 Fifth Ave. Assoc., 12 AD3d 403, 404 [2004], quotingPannone v Burke, 149 AD2d 673, 675 [1989]; see Chainani v Board of Educ. of Cityof N.Y., 201 AD2d 693, 695-696 [1994]). Thus, Nassau would escape liability even if it,rather than Lucent, employed the contractor, since it would not be liable for any negligence onthe contractor's behalf, and the wet, soapy condition did not exist for a length of time sufficientto impute constructive notice to Nassau. In opposition to the showing made by Lucent andNassau, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]).
The plaintiffs' remaining contentions are either not properly before this Court or withoutmerit. Prudenti, P.J., Dillon, Covello and Leventhal, JJ., concur.