| Lopez v Allied Amusement Shows, Inc. |
| 2011 NY Slip Op 03097 [83 AD3d 519] |
| April 19, 2011 |
| Appellate Division, First Department |
| Lesly Lopez, Appellant, v Allied Amusement Shows, Inc.,Respondent, et al., Defendants. |
—[*1] Siler & Ingber, LLP, Mineola (Isaac J. Burker of counsel), for respondent.
Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about October 6,2009, which granted defendant Allied Amusement Show, Inc.'s motion for summary judgmentdismissing the complaint, unanimously affirmed, without costs.
Defendant contracted with a local organization to provide amusement rides for a street fair.Defendant hired a subcontractor, who provided a slide and workers to operate the ride. Plaintiffwas injured when she came to the end of the slide and put her feet down on the concrete to stopthe momentum. She alleges that the workers placed a slippery substance on the slide just prior toher descent and failed to provide a buffer or cushion at the end of the ride to bring riders to a safestop.
Liability for a dangerous condition is generally predicated on either ownership, control or aspecial use of the property (see Balsam v Delma Eng'g Corp., 139 AD2d 292, 296[1988]). The evidence presented by defendant indicated that it did not own or control theslide. Nor may defendant be held liable for any alleged negligence on the part of the companythat provided and operated the slide since there is no evidence that defendant had any controlover that entity.
Control of the method and means by which the work is to be performed is a critical factor indetermining whether a party is an independent contractor or an employee for the purposes of tortliability (see Goodwin v ComcastCorp., 42 AD3d 322, 322-323 [2007]). The mere retention of general supervisorypowers over an independent contractor cannot form a basis for the imposition of liability againstthe principal (id.). However, if the employer assumes control over the details of the workor some part of it, then the general rule will not apply, and the employer may be liable(id.).
Plaintiff asserts that defendant violated a nondelegable duty to "provide amusement rides" forthe local group. A nondelegable duty may be imposed by regulation or statute, or when theresponsibility is so important to the community that the employer should not be permitted totransfer it to another (see Kleeman v Rheingold, 81 NY2d 270, 274-275 [1993]). [*2]Plaintiff cites no regulation, statute or case which makes the "duty"to provide amusement rides nondelegable, and it does not appear that this contractualresponsibility is so important to the community as to impose that requirement.Concur—Gonzalez, P.J., Saxe, Catterson, Acosta and Manzanet-Daniels, JJ.