| Liberty Mut. Fire Ins. Co. v Akindele |
| 2009 NY Slip Op 06317 [65 AD3d 673] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Liberty Mutual Fire Insurance Company, as Subrogee of LiliethChung, Appellant, v Carlene Akindele, Respondent. |
—[*1] Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), forrespondent.
In a subrogation action to recover damages for injury to property, the plaintiff appeals from(1) an order of the Supreme Court, Queens County (Taylor, J.), dated December 10, 2008, whichgranted the defendant's motion for summary judgment dismissing the complaint, and (2) ajudgment of the same court entered February 2, 2009, which, upon the order, is in favor of thedefendant and against it, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
Contrary to the plaintiff's contention, the defendant homeowner demonstrated her primafacie entitlement to judgment as a matter of law by establishing that the subject fire was causedby the negligence of an independent contractor, for which she was not liable (see Chainani vBoard of Educ. of City of N.Y., 87 NY2d 370, 380-381 [1995]; Kleeman vRheingold, 81 NY2d 270, 274 [1993]; Chorostecka v Kaczor, 6 AD3d 643, 644 [2004]). In opposition tothe motion, the plaintiff failed to raise a triable issue of fact as to whether the defendant wasnegligent in hiring the independent contractor, who had been recommended to her by a trustedfriend based upon his prior satisfactory work (see generally Farnsworth v Brookside Constr. Co., Inc., 31 AD3d1149, 1151 [2006]; Bellere v Gerics, 304 AD2d 687, 688 [2003]; Sanchez vUnited Rental Equip. Co., 246 AD2d 524, 525 [1998]; Dube v Kaufman, 145 AD2d595, 596 [1988]).[*2]
Similarly, the plaintiff failed to raise a triable issue offact as to its claim that the defendant assigned the performance of inherently dangerous work tothe independent contractor by hiring him to renovate her kitchen, and that she was aware orreasonably should have been aware of the alleged inherently dangerous nature of that work(see generally Chainani v Board of Educ. of City of N.Y., 87 NY2d at 381;Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 670 [1992];Farnsworth v Brookside Constr. Co., Inc., 31 AD3d at 1150). Rather, the record supportsthe conclusion that the fire occurred as the result of ordinary negligence by the independentcontractor in performing work which was not inherently dangerous (see Saini v TonjuAssoc., 299 AD2d 244 [2002]; MacDonald v Heuer, 253 AD2d 795 [1998]).Accordingly, summary judgment was properly awarded in favor of the defendant. Mastro, J.P.,Eng, Belen and Hall, JJ., concur.