| Lombardi v Alpine Overhead Doors, Inc. |
| 2012 NY Slip Op 01590 [92 AD3d 921] |
| February 28, 2012 |
| Appellate Division, Second Department |
| Robert Lombardi, Appellant, v Alpine Overhead Doors,Inc., Defendant/Third-Party Plaintiff-Respondent, et al., Third-PartyDefendant. |
—[*1] Harris King & Fodera (Mauro Lilling Naparty LLP, Great Neck, N.Y. [Caryn L. Lilling andAnthony F. DeStefano], of counsel), for defendant/third-party plaintiff-respondent. Charles J. Siegel, New York, N.Y. (Peter Vairo of counsel), for third-partydefendant.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), datedDecember 14, 2010, as granted that branch of the defendant third-party plaintiff's motion whichwas for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured while working as a laborer in the construction of the100th Street bus depot in Manhattan. As the plaintiff was attempting to lift a roll-up door withhis hands, it rapidly descended and caused him to fall onto his back. At the time of theoccurrence, the plaintiff was employed by nonparty Perini Corp. (hereinafter Perini), the generalcontractor on the project. Perini subcontracted the installation of roll-up doors at the bus depot tothe defendant third-party plaintiff (hereinafter the defendant), and the defendant subcontractedthe installation of the subject roll-up door to the third-party defendant.
"As a general rule, a party who retains an independent contractor, as distinguished from amere employee or servant, is not liable for the independent contractor's negligent acts" (Langner v Primary Home Care Servs.,Inc., 83 AD3d 1007, 1009 [2011] [internal quotation marks omitted]; see Kleeman vRheingold, 81 NY2d 270, 273-274 [1993]; Rosenberg v Equitable Life Assur. Socy. ofU.S., 79 NY2d 663, 668 [1992]). "Whether an actor is an independent contractor or anemployee for the purposes of tort liability is usually a factual issue for the jury. However, wherethere is no conflict in the evidence, the question may properly be determined as a matter of law"(Langner v Primary Home Care Servs., Inc., 83 AD3d at 1009 [internal quotation marksomitted]).[*2]
Here, the defendant demonstrated its prima facieentitlement to judgment as a matter of law by submitting evidence that the third-party defendantwas an independent contractor for whose alleged negligence it could not be held liable (seeRosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d at 668).
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff'scontention, the Supreme Court properly declined to consider his expert affidavit submitted inopposition to the defendant's motion. The expert was not identified by the plaintiff until after thenote of issue and certificate of readiness were filed attesting to the completion of discovery, andthe plaintiff did not provide any excuse for failing to identify the expert in response to thedefendant's discovery demands (see CPLR 3101 [d]; Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891 [2011]; Ehrenberg v Starbucks Coffee Co., 82AD3d 829, 830-831 [2011]; Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961 [2009]).
In light of our determination, we need not reach the defendant's remaining contention. Dillon,J.P., Florio, Chambers and Lott, JJ., concur.