| Calandrino v Town of Babylon |
| 2012 NY Slip Op 03795 [95 AD3d 1054] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Joseph Calandrino et al., Respondents, v Town of Babylon,Respondent-Appellant, and Delta Well and Pump, Co. Inc.,Appellant-Respondent. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell and Kenneth M. Seidell ofcounsel), for respondent-appellant. Jay D. Umans, East Meadow, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant Delta Well andPump Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Farneti, J.), dated January 4, 2011, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and the defendantTown of Babylon cross-appeals, as limited by its brief, from so much of the same order as deniedthose branches of its motion which were for summary judgment dismissing the complaint and allcross claims insofar as asserted against it and for summary judgment on its cross claim forcontractual indemnification against the defendant Delta Well and Pump Co., Inc.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the defendant Delta Well and Pump Co., Inc., which were forsummary judgment dismissing the complaint and the cross claim of the Town of Babylon forcontribution on the ground of comparative negligence insofar as asserted against it, andsubstituting therefor provisions granting those branches of the motion; as so modified, the orderis affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiffpayable by the defendant Town of Babylon, and one bill of costs to the defendant Delta Well andPump Co., Inc., payable by the plaintiff.
The plaintiff Joseph Calandrino (hereinafter the injured plaintiff) allegedly sustained injurieswhen he slipped on water on the swim platform of his boat while it was docked at a marinaowned and operated by the Town of Babylon. The injured plaintiff, and his wife, suingderivatively, commenced this action against the Town, alleging that a pipe that dischargedoverflow water from an artesian well system had been negligently designed and installed so thatit discharged water onto boats docked at the marina. The plaintiffs later amended the complaintto add as a defendant Delta Well and Pump Co., Inc. (hereinafter Delta), which constructed theartesian well system under contract with the Town and whose subcontractor installed theoverflow discharge pipe.[*2]
The Supreme Court denied the Town's motion, inter alia,for summary judgment dismissing the complaint and all cross claims insofar as asserted against itand for summary judgment on its cross claim for contractual indemnification against Delta. TheSupreme Court also denied Delta's motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against it.
"Generally, 'a party who retains an independent contractor, as distinguished from a mereemployee or servant, is not liable for the independent contractor's negligent acts' " (Brothers v New York State Elec. & GasCorp., 11 NY3d 251, 257 [2008], quoting Kleeman v Rheingold, 81 NY2d 270,273 [1993]; see Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668[1992]). The underlying rationale for the rule is that "one who employs an independent contractorhas no right to control the manner in which the work is to be done and, thus, the risk of loss ismore sensibly placed on the contractor" (Kleeman v Rheingold, 81 NY2d at 274; seeMetling v Punia & Marx, 303 AD2d 386, 387-388 [2003]). Thus, control of the method andmeans by which the work is to be done is the critical factor in determining whether one is anindependent contractor or an employee for the purposes of tort liability (see Gfeller v Russo, 45 AD3d1301, 1302 [2007]; Metling v Punia & Marx, 303 AD2d at 388).
Delta demonstrated its prima facie entitlement to judgment as a matter of law by presentingevidence that it hired Bensin Contracting, Inc. (hereinafter Bensin), to install the overflowdischarge pipe and that it did not control Bensin's work. In opposition, the plaintiffs failed toraise a triable issue of fact. Accordingly, the Supreme Court erred in denying those branches ofDelta's motion which were for summary judgment dismissing the complaint and the Town's crossclaim for contribution on the ground of Delta's alleged comparative negligence insofar asasserted against it.
However, the Supreme Court properly denied that branch of the Town's motion which wasfor summary judgment dismissing the complaint insofar as asserted against it. While a propertyowner has a duty to maintain its property in a reasonably safe condition, it has no duty to protector warn against an open and obvious condition, which as a matter of law is not inherentlydangerous (see Atehortua v Lewin,90 AD3d 794, 794 [2011], lv denied 18 NY3d 811 [2012]; Surujnaraine v Valley Stream Cent. HighSchool Dist., 88 AD3d 866, 866 [2011]; Cupo v Karfunkel, 1 AD3d 48, 51-52 [2003]). "Whether a hazard isopen and obvious cannot be divorced from the surrounding circumstances" (Atehortua vLewin, 90 AD3d at 794 [internal quotation marks omitted]). "A condition that is ordinarilyapparent to a person making reasonable use of his or her senses may be rendered a trap for theunwary where the condition is obscured or the plaintiff is distracted" (Katz v Westchester County HealthcareCorp., 82 AD3d 712, 713 [2011]).
Here, the Town failed to establish, prima facie, that the alleged condition of the waterflowing from the pipe was open and obvious and not inherently dangerous (see Surujnarainev Valley Stream Cent. High School Dist., 88 AD3d at 867; Katz v Westchester CountyHealthcare Corp., 82 AD3d at 713). The Town also failed to establish, prima facie, that theinjured plaintiff assumed a risk inherent in the recreational activity of boating (cf. Best vTown of Islip, 265 AD2d 357, 358 [1999]). Since the Town did not meet its initial burden,the burden never shifted to the plaintiffs to submit evidence sufficient to raise a triable issue offact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
The Supreme Court correctly denied that branch of Delta's motion which was for summaryjudgment dismissing the Town's cross claim against it for contractual indemnification. TheSupreme Court also correctly denied those branches of the Town's motion which were forsummary judgment on its cross claim against Delta for contractual indemnification and forsummary judgment dismissing Delta's cross claim for contractual indemnification. Angiolillo,J.P., Dickerson, Hall and Cohen, JJ., concur. [Prior Case History: 2011 NY Slip Op30139(U).]