| United Servs. Auto. Assn. v Wiley |
| 2010 NY Slip Op 04576 [73 AD3d 1160] |
| May 25, 2010 |
| Appellate Division, Second Department |
| United Services Automobile Association,Respondent, v Ed Wiley et al., Respondents, and Kate O'Brian et al., Appellants, et al.,Defendant. (Action No. 1.) Edward Powers III, Respondent-Appellant, and Molly Spencer,Respondent, v Ed Wiley et al., Respondents, Kate O'Brien et al., Appellants-Respondents, andEastchester Fire District, Appellant, et al., Defendant. (Action No. 2.) State Farm Fire andCasualty Company, Respondent, v Ed Wiley Slate Co. et al., Defendants, and Eastchester FireDistrict, Appellant. (Action No. 3.) State Farm Fire & Casualty Company, Respondent, v Villageof Bronxville et al., Defendants, and Eastchester Fire District, Appellant. (Action No.4.) |
—[*1] Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (SusanWeihs Darlington of counsel), for appellant Eastchester Fire District. Graubard Miller, New York, N.Y. (Nancy R. Sills, Peter A. Schwartz, and Caryn L. Marcusof counsel), for respondent-appellant in action No. 2. Stuart D. Markowitz, P.C., Jericho, N.Y. (Kristen Renzulli of counsel), for respondent StateFarm Fire & Casualty Company.
Motion by the appellant Eastchester Fire District, inter alia, for leave to reargue an appeal[*2]from an order of the Supreme Court, Westchester County,entered July 13, 2007, which was determined by decision and order of this Court dated March31, 2009, or in the alternative, for leave to appeal to the Court of Appeals from the decision andorder of this Court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, itis,
Ordered that the branch of the motion which is for leave to reargue is granted and the motionis otherwise denied; and it is further,
Ordered that, upon reargument, the decision and order of this Court dated March 31, 2009(United Servs. Auto. Assn. v Wiley, 60 AD3d 1042 [2009]), is recalled and vacated, andthe following decision and order is substituted therefor:
In four related actions to recover damages for injury to property, (1) Kate O'Brian andThomas Smith appeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (O. Bellantoni, J.), entered July 13, 2007, as denied their motion forsummary judgment dismissing the complaints and all cross claims insofar as asserted againstthem in actions No. 1 and 2, (2) the Eastchester Fire District separately appeals from so much ofthe same order as denied its motion for summary judgment dismissing all complaints and crossclaims insofar as asserted against it, and (3) Edward W. Powers III cross-appeals from so muchof the same order as denied that branch of his cross motion which was for summary judgment onthe issue of liability against the defendants Kate O'Brian and Thomas Smith in action No. 2.Justice Sgroi has been substituted for former Justice Ritter (see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed insofar as appealed from, on the law, the motion of KateO'Brian and Thomas Smith for summary judgment dismissing the complaints and all crossclaims insofar as asserted against them in actions No. 1 and 2 is granted, and the motion of theEastchester Fire District for summary judgment dismissing all complaints and cross claimsinsofar as asserted against it is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to Kate O'Brian, Thomas Smith, and the EastchesterFire District, payable by Edward Powers III.
These related actions arise from a fire that damaged, inter alia, three attached townhouseslocated at 9, 11 and 13 Willow Circle in Bronxville. Thomas Smith, the owner of 9 WillowCircle, hired Ed Wiley, doing business as Ed Wiley Slate Co. (hereinafter Wiley), on behalf ofhimself and Kate O'Brian, the owner of 11 Willow Circle, to perform work on a shared roof.During the course of the work, a fire apparently started when an open flame being used to soldercopper gutters ignited a wood fascia board. The fire caused damage to the units owned byO'Brian, Smith, and Edward W. Powers III, who owned 13 Willow Circle. The fire wasextinguished by the Eastchester Fire District. After insurance claims were paid, actions werebrought by and on behalf of Powers against, among others, O'Brian, Smith, Wiley, andEastchester Fire District, and on behalf of O'Brian and Smith against, among others, Wiley andthe Eastchester Fire District. After the actions were directed to be jointly tried, the EastchesterFire District moved for summary judgment dismissing all complaints and cross claims insofar asasserted against it on the ground that it could not be held liable in the absence of a "specialrelationship" with an injured party, which was lacking. O'Brian and Smith moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them inactions No. 1 and 2 on the ground that they were not negligent in the happening of the fire andcould not be held vicariously liable for the alleged negligence of Wiley, who was an independentcontractor. Powers cross-moved for summary judgment on the issue of liability against Wiley,O'Brian, and Smith. Powers argued that Wiley was negligent in the happening of the fire and thatO'Brian and Smith could be held vicariously liable for such negligence. The Supreme Court,inter alia, granted that branch of Powers' motion which was for summary judgment on the issueof liability as against [*3]Wiley, but denied the remainingbranches of Powers' motion and the motions of the Eastchester Fire District and O'Brian andSmith. We modify.
O'Brian and Smith demonstrated their prima facie entitlement to judgment as a matter of lawby submitting evidence that they were not negligent in the happening of the fire and that Wileywas an independent contractor for whose alleged negligence they could not be held liable(see Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663 [1992]; Lofstadv S & R Fisheries, Inc., 45 AD3d 739 [2007]; Chou v A to Z Vending Serv. Corp.,36 AD3d 745 [2007]; Abreu v Schneilwert, 303 AD2d 527 [2003]). In opposition, noparty raised a triable issue of fact as to whether Wiley was an independent contractor, or whetherany exception to the general rule of nonliability applied (see Lofstad v S & R Fisheries,Inc., 45 AD3d 739 [2007]; Abreu v Schneilwert, 303 AD2d 527 [2003]). Thus,O'Brian and Smith should have been awarded summary judgment dismissing the complaints andall cross claims insofar as asserted against them in actions No. 1 and 2.
The Eastchester Fire District demonstrated, prima facie, that it was entitled to summaryjudgment dismissing all complaints and cross claims insofar as asserted against it. "Governmentaction, if discretionary, may not be a basis for liability, while ministerial actions may be, butonly if they violate a special duty owed to the plaintiff, apart from any duty to the public ingeneral" (McLean v City of New York, 12 NY3d 194, 203[2009]). Here, in theabsence of a special relationship with an injured party, the Eastchester Fire District could not beheld liable for the actions of its employees. The Eastchester Fire District demonstrated, primafacie, that such a relationship was lacking as to any injured party (see Dinardo v City of NewYork, 13 NY3d 872, 874[2009]; McLean v City of New York, 12 NY3d at 203;Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Clarke v City of New York,18 AD3d 796, 797 [2005]). In opposition, no triable issue of fact was raised (see generallyAlvarez v Prospect Hosp., 68 NY2d 320 [1986]). Thus, the Eastchester Fire District's motionfor summary judgment should have been granted.
The parties' remaining contentions are without merit. Rivera, J.P., Covello, Angiolillo andSgroi, JJ., concur.