Opinion
2015-04-08
Winifred JACKSON, et al., respondents-appellants, v. Emile P. CONRAD, et al., respondents, Shells Only of Suffolk, Inc., appellant-respondent.
Torino & Bernstein, P.C., Mineola, N.Y. (Bruce A. Torino and Michael A. Amodio of counsel), for appellant-respondent. Siben & Siben, LLP, Bay Shore, N.Y. (Alan J. Faber of counsel), for respondents-appellants.
Torino & Bernstein, P.C., Mineola, N.Y. (Bruce A. Torino and Michael A. Amodio of counsel), for appellant-respondent. Siben & Siben, LLP, Bay Shore, N.Y. (Alan J. Faber of counsel), for respondents-appellants.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Anne C. Leahey of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, etc., the defendant Shells Only of Suffolk, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated April 3, 2013, as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and granted the motion of the defendants Emile P. Conrad and Lorraine Conrad for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as granted that branch of the motion of the defendants Emile P. Conrad and Lorraine Conrad which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the appeal by the defendant Shells Only of Suffolk, Inc., from so much of the order as granted that branch of the motion of the defendants Emile P. Conrad and Lorraine Conrad which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as it is not aggrieved by that portion of the order ( seeCPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132); and it is further,
ORDERED that the order is affirmed insofar as reviewed on the appeal by the defendant Shells Only of Suffolk, Inc., and insofar as cross-appealed from by the plaintiffs; and it is further,
ORDERED that one bill of costs is awarded to the defendants Emile P. Conrad and Lorraine Conrad, payable by the plaintiffs, and one bill of costs is awarded to the plaintiffs payable by the defendant Shells Only of Suffolk, Inc.
The plaintiff Winifred Jackson (hereinafter the injured plaintiff) allegedly was injured when an elevated deck on a residential property owned by the defendants Emile P. Conrad and Lorraine Conrad (hereinafter together the owners) separated from the building and fell. The injured plaintiff, and her husband suing derivatively, commenced this action against the owners and the defendant Shells Only of Suffolk, Inc. (hereinafter the contractor), which had constructed the deck. In the order appealed from, the Supreme Court, inter alia, granted the owners' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and denied the contractor's cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
“A defendant property owner who moves for summary judgment in a personal injury action arising from an alleged hazardous or defective condition on his or her property has the burden of establishing that he or she did not create the hazardous or defective condition or have actual or constructive notice of its existence” ( Schnell v. Fitzgerald, 95 A.D.3d 1295, 1295, 945 N.Y.S.2d 390; see Hoffman v. Brown, 109 A.D.3d 791, 792, 971 N.Y.S.2d 130). “A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected” ( Nicoletti v. Iracane, 122 A.D.3d 811, 812, 996 N.Y.S.2d 697; see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774). “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” ( Schnell v. Fitzgerald, 95 A.D.3d at 1295, 945 N.Y.S.2d 390; see Nicoletti v. Iracane, 122 A.D.3d at 812, 996 N.Y.S.2d 697; Hoffman v. Brown, 109 A.D.3d at 792, 971 N.Y.S.2d 130).
Here, the owners established, prima facie, that they did not create or have actual or constructive notice of the alleged hazardous condition ( see Nicoletti v. Iracane, 122 A.D.3d at 812, 996 N.Y.S.2d 697; Hoffman v. Brown, 109 A.D.3d at 792, 971 N.Y.S.2d 130; Schnell v. Fitzgerald, 95 A.D.3d at 1295–1296, 945 N.Y.S.2d 390). The owners also made a prima facie showing that the so-called “independent contractor rule” applied ( see Soussi v. Gobin, 87 A.D.3d 580, 581, 928 N.Y.S.2d 80; Campbell v. HEI Hospitality, LLC, 72 A.D.3d 860, 861, 898 N.Y.S.2d 864). “As a general rule, one who hires an independent contractor may not be held liable for the independent contractor's negligent acts” ( Sanchez v. 1710 Broadway, Inc., 79 A.D.3d 845, 846, 915 N.Y.S.2d 272; see Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712; Campbell v. HEI Hospitality, LLC, 72 A.D.3d at 861, 898 N.Y.S.2d 864).
In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the owners created or had actual or constructive notice of the condition that caused the accident ( see Schnell v. Fitzgerald, 95 A.D.3d at 1296, 945 N.Y.S.2d 390; McMahon v. Gold, 78 A.D.3d 908, 910, 910 N.Y.S.2d 561; Lal v. Ching Po Ng, 33 A.D.3d 668, 668–669, 823 N.Y.S.2d 429), or whether any recognized exception to the independent contractor rule applied to the facts of this case ( see Rosenberg v. Equitable Life Assur. Soc. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840; Soussi v. Gobin, 87 A.D.3d at 581, 928 N.Y.S.2d 80; Sanchez v. 1710 Broadway, Inc., 79 A.D.3d at 846–847, 915 N.Y.S.2d 272; see generally Backiel v. Citibank, N.A., 299 A.D.2d 504, 505–507, 751 N.Y.S.2d 492; Richardson v. Simone, 275 A.D.2d 576, 576–577, 712 N.Y.S.2d 672). Moreover, contrary to the plaintiffs' contention, the doctrine of res ipsa loquitur is not applicable here ( see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226–228, 501 N.Y.S.2d 784, 492 N.E.2d 1200; Durri v. City of New York, 95 A.D.3d 1273, 1274, 944 N.Y.S.2d 755; McMahon v. Gold, 78 A.D.3d at 910, 910 N.Y.S.2d 561).
The contractor failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it. “Although a contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party, a contractor can be held liable to a third party if it negligently creates a dangerous condition by launching a force or instrument of harm” ( Campbell v. Barbaro Elec. Co., Inc., 116 A.D.3d 728, 729, 984 N.Y.S.2d 79; see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 141–142, 746 N.Y.S.2d 120, 773 N.E.2d 485; Ragone v. Spring Scaffolding, Inc., 46 A.D.3d 652, 654, 848 N.Y.S.2d 230). Here, the contractor's submissions failed to eliminate all triable issues of fact as to whether it launched an instrument of harm by allegedly negligently constructing the deck ( see Anastasio v. Berry Complex, LLC, 82 A.D.3d 808, 809, 918 N.Y.S.2d 216; see generally Powers v. 31 E 31 LLC, 24 N.Y.3d 84, 92–93, 996 N.Y.S.2d 210, 20 N.E.3d 990; Rosato v. 2550 Corp., 70 A.D.3d 803, 805, 894 N.Y.S.2d 513). Since the contractor failed to make a prima facie showing, it is not necessary to consider the sufficiency of the submissions in opposition ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Anastasio v. Berry Complex, LLC, 82 A.D.3d at 809, 918 N.Y.S.2d 216).
The remaining contentions of the plaintiffs and the contractor are not properly before this Court ( see Deutsch v. Grunwald, 110 A.D.3d 949, 951, 973 N.Y.S.2d 335; Schiller v. St. Francis Hosp., Roslyn, N.Y., 108 A.D.3d 758, 760, 970 N.Y.S.2d 241; Matter of Corrigan v. Orosco, 84 A.D.3d 955, 956, 921 N.Y.S.2d 893).
Accordingly, the Supreme Court properly granted the owners' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and properly denied the contractor's cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.