| Fernandez v 707, Inc. |
| 2011 NY Slip Op 05180 [85 AD3d 539] |
| June 16, 2011 |
| Appellate Division, First Department |
| Jose Fernandez, Appellant-Respondent, v 707, Inc.,Respondent, and Biltmore Contracting, Inc., Respondent-Appellant. |
—[*1] Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), forrespondent-appellant. Kaufman Borgeest & Ryan LLP, New York (Dennis J. Dozis and Jacqueline Mandell ofcounsel), for respondent.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 22, 2010, whichgranted defendant 707, Inc.'s motion for summary judgment dismissing the complaint as againstit, unanimously affirmed, without costs. Order, same court and Justice, entered July 22, 2010,which denied defendant Biltmore Contracting, Inc.'s motion for summary judgment dismissingthe complaint as against it, unanimously reversed, on the law, without costs, and the motiongranted. The Clerk is directed enter judgment in Biltmore's favor dismissing the complaint asagainst it.
707, Inc. (707) obtained a "Builder's Pavement Plan" permit from the New York CityDepartment of Transportation, dated May 3, 2006, to rebuild the sidewalks abutting its BrucknerBoulevard property. By its agent Hagivah, 707 hired Biltmore to perform the work, instructingBiltmore to leave specified sections of the sidewalk open to accommodate tree wells. 707 alsoobtained a tree planting permit from the New York City Department of Parks & Recreation andhired another company to plant the trees.
Biltmore commenced work on or about August 24, 2006 and completed it on or aboutSeptember 14, 2006. On October 15, 2006, plaintiff allegedly was injured when he stepped into atree well that was not level with the sidewalk. At the time, the City had yet to sign off on thesidewalk, and no trees had been planted. Subsequently, on October 30, 2006, 707's projectengineer certified that the sidewalks had been constructed in accordance with the specificationsset forth in the rules and regulations of the Department of Highways.
Although Administrative Code of the City of New York § 7-210 (eff Sept. 14, 2003)imposes tort liability on property owners who fail to maintain abutting city-owned sidewalks in a[*2]reasonably safe condition, 707 cannot be held liable forplaintiff's injuries by virtue of its status as an abutting landowner because a property owner'sresponsibility for a sidewalk does not extend to tree wells (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521 [2008]; Grier v 35-63 Realty, Inc., 70 AD3d772 [2010]). The motion court correctly rejected plaintiff's argument that the area where hefell was not a tree well because at the time of the accident the City had yet to "sign off" on theproject and no tree had been planted. These considerations do not bear on the character of thearea, which the court described as "a square or rectangular dirt area surrounded by cementdesigned to accommodate one or more trees." Accordingly, 707 cannot be held liable forplaintiff's injuries unless it affirmatively created the dangerous condition, negligently maderepairs to the area, or caused the dangerous condition to occur through a special use of the area(see Vucetovic, 10 NY3d at 520).
A property owner ordinarily is not responsible for the negligence of an independentcontractor retained to work upon its property, unless the work is inherently dangerous, or theowner interferes with and assumes control over the work (see Kleeman v Rheingold, 81NY2d 270, 273 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663,668 [1992]; Laecca v New YorkUniv., 7 AD3d 415 [2004], lv denied 3 NY3d 608 [2004]). On its motion forsummary judgment, 707 submitted proof that it hired Biltmore to build the sidewalk and treewell. It also submitted the deposition transcript of Biltmore's president who testified that arepresentative of the owner gave him a layout showing where to leave the tree wells and that thepresident's uncle was present on a daily basis and supervised the work.
In opposition, plaintiff failed to raise a triable issue of fact whether any exception to the"independent contractor rule" applied (see Campbell v HEI Hospitality, LLC, 72 AD3d 860, 861 [2010]).A senior project manager for Hagivah testified at his deposition that he explained to Biltmorewhere to place the tree wells, and "that's it." Plaintiff did not submit any proof that would rebutthis or raise an issue whether 707 controlled the method and means of Biltmore's work. That707's architect or engineer may have drawn up the plans, or that 707 may have inspected thework, does not establish that 707 had supervisory authority (see Haefeli v Woodrich Eng'gCo., 255 NY 442, 450 [1931]). "[T]he mere retention of general supervisory powers over anindependent contractor cannot form a basis for the imposition of liability against the principal"(Goodwin v Comcast Corp., 42AD3d 322, 323 [2007]; Melbourne v New York Life Ins. Co., 271 AD2d 296, 297[2000]).
Biltmore made a prima facie showing of its entitlement to judgment as a matter of law bydemonstrating that it owed no duty of care to plaintiff (see Espinal v Melville SnowContrs., 98 NY2d 136, 140 [2002]). Biltmore's president testified at his deposition that whenBiltmore completed the work, approximately one month before the accident, the tree well waslevel with the sidewalk. While some of his responses suggested that he was referring toBiltmore's general custom or practice, others addressed the subject tree well. The record furtherindicates that 707 paid Biltmore's invoice and that its senior project manager had no problemwith Biltmore's work.
In opposition, plaintiff failed to raise a triable issue of fact whether Biltmore created thealleged hazardous condition (Espinal, 98 NY2d at 141-142; Peluso v ERM, 63 AD3d 1025[2009]). Although a contractor may be liable for an affirmative act of negligence that results inthe creation of a dangerous condition upon a public street or sidewalk (Barbitsch v City ofNew York, 241 AD2d 472 [1997]), "it would be mere speculation [on the record before us]to conclude that the allegedly dangerous condition which caused the plaintiff to trip and fall was[*3]caused by any affirmative act of negligence by [Biltmore]"(Kleeberg v City of New York, 305 AD2d 549, 550 [2003]; Humphreys vVeneziano, 268 AD2d 461 [2000]). There is no evidence that Biltmore breached itscontractual obligations, or that it assumed a continuing duty to return to the premises aftercompleting its work and remedy any defects that eventually developed there (see Horowitz vMarel Elec. Servs., 271 AD2d 572 [2000]; Long v Danforth Co., 236 AD2d 781[1997]). Concur—Andrias, J.P., Friedman, Catterson, Moskowitz and RomÁn, JJ.