| Nelson v E&M 2710 Clarendon LLC |
| 2015 NY Slip Op 05391 [129 AD3d 568] |
| June 23, 2015 |
| Appellate Division, First Department |
[*1]
| Everton Nelson, Appellant, v E&M 2710Clarendon LLC, et al., Respondents. |
Law Office of Nicole R. Kilburg, New York (Nicole R. Kilburg of counsel), forappellant.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel),for E&M 2710 Clarendon LLC, respondent.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), forFerhati, LLC, respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered December 19, 2013,which granted defendants' motions for summary judgment dismissing the complaint andcross claims against them, and denied plaintiff's cross motion to amend the complaint toassert a cause of action under Labor Law § 240 (1), unanimously affirmed,without costs.
After a fire in a mixed-use building, defendant Ferhati, LLC was retained on behalfof the owner, defendant E&M 2710 Clarendon LLC (E&M), to performclean-up services. E&M also agreed to let a salvager, whom its plumber had used toremove an item from the building during boiler repairs, and whom its principalrecognized from church, take certain items. The salvager was permitted to walk throughthe residential portion of the building and mark the items that he wanted. However,according to E&M, Ferhati was supposed to bring the items outside.
Plaintiff, an employee of a company hired to fix the building's roof, was asked by thesalvager and his helper to help them move a refrigerator down a flight of stairs. Plaintiffagreed and held the back of the refrigerator as he walked backwards down the stairs. Thehelper held the front end and walked forwards.
When they reached a landing, the salvager and his helper argued over who wouldcarry the refrigerator. After the salvager repeatedly told the helper to give him therefrigerator, the helper let go. The refrigerator slid down the stairs and plaintiff fell withit, injuring his ankle. After the accident, the salvager and the helper told plaintiff thatthey worked for Errol Morris, one of E&M's principals.
Ferhati and E&M established their prima facie entitlement to summaryjudgment dismissing plaintiff's claims. In opposition, plaintiff failed to raise a materialissue of fact.
Ferhati established that there is no basis to hold it responsible for the actions of thesalvager and/or his helper. On the record before us, the contention that the salvagerand/or his helper were independent contractors of, or otherwise working for Ferhati, isunsupported. Accordingly, Ferhati owed no duty to plaintiff.
E&M established that even if it hired the salvager as an independent contractor,there is no basis to impose liability on it. "As a general rule, a principal is not liable forthe acts of an independent contractor because, unlike the master-servant relationship,principals cannot control the manner in which independent contractors perform theirwork" (Saini v Tonju Assoc., 299 AD2d 244, 245 [1st Dept 2002]; see also Goodwin v ComcastCorp., 42 AD3d 322 [1st Dept 2007]). Although "liability will attach 'where theemployer is negligent in selecting, instructing or supervising the contractor, where thecontractor is employed to do work that is inherently dangerous or where the employerbears a specific nondelegable duty' " (Leeds v D.B.D. Servs., 309 AD2d666, 667 [1st Dept 2003], quoting Tytell v Battery Beer Distrib., 202 AD2d 226,226-227[*2][1st Dept 1994]), these exceptions areinapplicable.
In opposition to the motions, plaintiff argues that pursuant to Multiple Dwelling Law§ 78, E&M had a non-delegable duty to maintain the premises in areasonably safe condition. However, Multiple Dwelling Law § 78 does notapply because the accident occurred as a result of the means and methods of the work,not due to a condition of the premises (see Lombardi v Stout, 80 NY2d 290, 295[1992]).
Nor can plaintiff avail himself of the inherently dangerous exception, which cannotbe applied unless a risk inherent in the nature of the procedures is apparent orcontemplated by the employer (see Rosenberg v Equitable Life Assur. Socy. ofU.S., 79 NY2d 663, 669-670 [1992]). Here, the risk arose from the manner in whichthe work was performed and the accident was the result of ordinary negligence (seeChainani v Board of Educ. of City of N.Y., 87 NY2d 370, 381 [1995]; Goodmanv 78 W. 47th St. Corp., 253 AD2d 384, 387 [1998]).
Plaintiff's contention that issues of fact exist as to whether E&M or its principalwere negligent in selecting the salvager, i.e. whether they failed to exercise reasonablecare in ascertaining whether he was qualified to move a refrigerator down a flight ofstairs, is also unavailing. "[A]n employer has the right to rely on the supposedqualifications and good character of the contractor, and is not bound to anticipatemisconduct on the contractor's part . . . ." (Maristany v Patient SupportServs., 264 AD2d 302, 303 [1st Dept 1999].) Thus, an employer "is not liable on theground of his having employed an incompetent or otherwise unsuitable contractor unlessit also appears that the employer either knew, or in the exercise of reasonable care mighthave ascertained, that the contractor was not properly qualified to undertake the work"(id.). "Cases finding employers liable for negligent hiring have done so only invery specific circumstances" (id.) not present here. There is no competentproof that E&M knew or should have known of any propensity on the part of thesalvager or his helper to engage in the conduct that allegedly caused the accident (see Schiffer v Sunrise Removal,Inc., 62 AD3d 776, 779 [2d Dept 2009]). Furthermore, plaintiff has not shownthat E&M had any reason to question the qualifications of the salvager, whoE&M knew had been used by its plumber on a prior occasion, to move a refrigerator(see Liberty Mut. Fire Ins. Co. vAkindele, 65 AD3d 673, 674 [2d Dept 2009]). Moreover, there was no reasonfor E&M to suspect that the salvager would enlist an employee of the roofingcontractor to assist him.
The denial of the cross motion to amend the complaint to add a cause of actionalleging a violation of Labor Law § 240 (1) was not an improvidentexercise of discretion. Labor Law § 240 (1) does not apply because plaintiffwas a volunteer, not an "employee," when he was injured (see Stringer v Musacchia, 11NY3d 212, 213 [2008]). Notably, no one directed plaintiff to help move therefrigerator. Rather, the salvager and his helper asked plaintiff to help, and he agreed todo so of his own accord. Concur—Sweeny, J.P., Renwick, Andrias, Moskowitzand Gische, JJ.