John P. Mery et al., Appellants,v.Frank Eginger, Defendant, Society of Friends Church,, Respondent.BriefN.Y.June 5, 2018 Tel: (212) 233-8100 Fax: (212) 766-4380 April 2, 2018 Court of Appeals, State of New York 20 Eagle Street Albany, NY 12207-1095 Att.: John P. Asiello, Chief Clerk & Counsel to the Court Re: John P. Mery v. Frank Eginger APL-2017-00235 Dear Mr. Asiello: This office is appellate counsel to the Rutberg Breslow Personal Injury Law Firm, attorneys for the plaintiffs-appellants John P. Mery and his wife, Jennifer Mery, in the above- captioned matter. I submit this letter memorandum pursuant to the Appellate Division, Second Department’s grant of plaintiff’s motion for leave to appeal to this Court on the certified question of whether the Second Department’s decision dated April 12, 2017 was properly made and entered. This Court, after leave was granted, decided to determine this matter based on letter memoranda pursuant to 22 NYCRR §500.11. We offer this submission pursuant to that decision. Introduction The issue presented herein is whether the use of a powerful commercial lawnmower by an independent contractor, which gives rise to injury, can constitute an inherently dangerous activity, and form the basis of derivative liability against the owner of premises adjacent to public streets and sidewalks that hired the contractor. An important consideration in determining this issue is that the machine in question is not a hand-pushed lawnmower, but one in which the operator sits elevated above the ground, and which spews large amounts of grass and potentially other objects at exceptionally high speed. This case is distinct, we believe, from cases where ordinary lawnmowers were held not to trigger the “inherently dangerous” exception to the rule of owner non-liability for the negligent conduct of an independent contractor. See, Rosenberg v. Equitable Life, 79 NY2d 663 [1992]. At bar, a shard of metal flew out of a lawnmower and struck Mr. Mery in the eye while he was driving on a road adjacent to the premises owned and maintained by defendant- POLLACK, POLLACK, ISAAC & DECICCO, LLP ATTORNEYS AT LAW www.ppid.com ARTHUR POLLACK (I950-19&5) CONRAD E. POLLACK* BRIAN J. ISAAC* FRED A. DECICCO*" ADAM S. HANDLER*"! JILLIAN ROSEN* JOSEPH B. CARACCIO"$ JOHN CHUNG*"MATTHEW D. GQQDSTEIN— H. REBEKAH KIM* NELSON A. MADRID* H. SUSAN OH* YUNYI PARK*' BRIANNA S. WALSH* YI Z. ZHAO*' WESTCHESTER OFFICE 906 SOUTH STREET PEEKSKILL, NY 10566 TEL: 914-326-2400 225 BROADWAY, 3RD FLOOR NEW YORK, NY 10007 _____ OF COUNSEL ALLEN E. KAYE JACOB ARONAUER GREGG A. PINTO MICHAEL E. PISTON ADMITTED IN NY*|Nj- | DC* | MAI | CA» 2 respondent Society Friends Church a/k/a The Poughkeepsie Monthly Meeting of the Religious Society of Friends, a/k/a Friends Meeting. It is black letter precedent that whether an activity is inherently dangerous so as to constitute an exception to the independent contractor rule of non- liability generally presents a question of fact for a jury to determine under a proper charge from the court. It is essentially undisputed on this record that it is dangerous to use this type of lawnmower without taking measures to prevent foreign objects from being spewed out of its chute. It is also established that debris, foreign matter and metallic objects were regularly present on the lawn being mowed by Frank Eginger, a supposed independent contractor, who performed a variety of maintenance and housekeeping tasks for the church for over 2 decades. In addition, we will show that the motion was “premature” under CPLR §3212[f] because key information regarding the condition of the lawn had recently been uncovered by plaintiff’s counsel, requiring further discovery. Statement of the case Plaintiff sustained injuries when his left eye was impaled by heavy gauge wire while he was driving next to the church’s lawn, which was being mowed by Mr. Eginger. Plaintiff suffered 100% loss of vision in his left eye, requiring a prosthetic eye replacement. At his deposition, plaintiff testified that on May 4, 2012, he was driving west on Hooker Avenue, a two-way road, on his way to work (68, 70).1 His windows were down; traffic was moderate. Plaintiff suddenly felt a sharp pain in his left eye (70, 76), and then heard the noise of a lawnmower on the lawn of the church at the corner of Hooker Avenue and Whittier Street (76- 78). Plaintiff pulled two pieces of heavy gauge wire out of his left eyeball (79); he believed someone was riding a lawnmower on the church’s lawn. He stopped his vehicle; feeling faint and weak, he sat at a nearby Rite Aid, telling an individual that the mower “projected something out and it hit me”; he was then taken by ambulance to St. Francis Hospital (86, 90). Mr. Eginger testified that for 21 years he did “a lot of different things” for the church; these included cleaning and mowing jobs (190-91). He assumed, incorrectly, that he was covered under the church’s insurance policy as an employee (295, 311). He cleaned the church on Fridays and Saturdays, and mowed the lawn; he was paid for these tasks (191-92). He removed leaves and branches from the lawn, trimmed the hedges, and picked up garbage (194). Mr. Eginger knew that garbage would regularly accumulate on the lawn from church activities and events (218-19). He identified the mower he used, and described it as a “Zero Turn” mower; he bought it in 2011 for the church (195, 203). Levers controlled the operation of the mower, which had three blades set in a triangular pattern (195-96 203, 309). The mower contained warnings that objects could be launched from the chute, and Mr. Eginger was aware of the danger (243). The mower had previously launched leaves, paper, and other “light things” as well as golf balls (209, 278-79). The operator rode on a seat on top of the mower (210). Mr. Eginger normally inspected the lawn and picked up debris prior to mowing to eliminate launching hazards (244).2 He also knew he should hinge the grass catcher and chute to face away from pedestrians or passersby (208, 211, 287). The chute normally faced upward, and did not lock (287-89). Mr. Eginger did not mow when the church was occupied, and he searched around him as he mowed 1 Numbers in parentheses refer to pages of the record on appeal, which is being sent to this Court along with the parties’ briefs. 2 As we will show, Mr. Eginger did not adhere to this practice on the date that plaintiff was injured. 3 to be sure no one was nearby who could be injured; he would stop or move the machine if someone approached (223-41). Mr. Eginger was using the mower on the date of the accident; the discharge chute faced Hooker Avenue, and the area was elevated above the sidewalk and higher than other parts of the lawn (238, 245, 281). A bystander waved him down, and told him plaintiff had been struck by something that came out of the mower (261). Plaintiff asked Mr. Eginger to move his car, which faced west (261-62). Mr. Eginger testified that he noticed a walk-behind mower operated by a teenager two houses away from the church (261-64, 275). After the accident, Mr. Eginger met with Armen Fisher, an employee of the church, and they decided to test the mower to determine whether it could expel objects by running over a soda can; the mower shredded the can and blasted it into the ground (276). Mr. Eginger recounted a prior incident in which the mower propelled a golf ball into a car (278-79). Frederick W. Doneit Sr., a trustee of the church, affirmed that Mr. Eginger was an independent contractor who received no income statements from the church (149-54). The lawn “right now” might have “debris” on it. The church did not authorize mowing operations when people were present for services or other organizations were using the property; this demonstrates an awareness of the dangers posed by the power and capability of the machine.3 The church also provided certain materials for Mr. Eginger’s work (152, 160-61). In sworn affidavits, Messrs. Doneit and Arman Fisher, a church employee (276), stated that the church’s “Building and Grounds Committee” was responsible for assuring that the grounds were kept free of debris and garbage. Mr. Doneit affirmed that there were no complaints of debris on the lawn; there was no indication as to when the lawn was last inspected (21-26). The nature of the dispute between the parties The church moved for summary judgment based on the assertion that Mr. Eginger was an independent contractor for whose negligence it was not vicariously liable. The church asserted in this regard that lawn mowing was not an inherently dangerous activity (382-83). In opposition, plaintiff submitted proof regarding this mower, which was not substantially rebutted, raising a question of fact that could not be summarily determined. Plaintiff argued that the issue of whether the use of this lawn mower was “inherently dangerous” such that the church could be liable for the actions of Mr. Eginger was case-specific (Wright v. Tudor City, 276 NY 303 [1938]) (401). To that end, plaintiff set forth statistics indicating that 80,000 Americans suffered mower-related injuries yearly (403). Plaintiff also cited to Poughkeepsie ordinances imposing a non-delegable statutory duty on landowners to maintain their lawns in a reasonably safe and appropriate manner (399, 404). Robert H. Balog- Robinson’s expert affidavit described the accident from the perspective of physics. Donald Fryar submitted an affidavit showing that Mr. Eginger’s mower struck rocks and debris and that his chute was open at the time, facing Hooker Avenue (511-14). Peter Elliott, a metallurgist, submitted an affidavit as to the effect of a mower blade striking heavy gauge wire; this testimony was incorporated in his report by reference (477, 511-28). Lauren Salmonese, a resident of the 3 A defendant’s failure to follow its own rules and practices constitutes some evidence of negligence. See, Haber v. Cross County Hospital, 37 NY2d 888 [1975]; Danbois v. NY Central RR, 12 NY2d 234 [1963]. 4 neighborhood, submitted an affidavit stating that the only mower in use on Hooker Avenue belonged to Mr. Eginger (539). Gabriel G. Alexander’s expert affidavit attested to the speed of the mower blade. Taken together, this evidence establishes that the lawnmower in question, based upon its design, configuration and use, was exceptionally dangerous if not used correctly. Defendant failed to refute this evidence; accordingly, the Appellate Division, though it unanimously affirmed the trial court’s order granting summary judgment and dismissal of the complaint, recognized that the issue merited review by this Court. Government requirements; expert testimony. The Consumer Product Safety Division, in its “CPFC Fact Sheet”, took note of the “constant parade of people [who enter] into hospital emergency rooms with injuries from walk- behind power mowers”, and set forth safety requirements, including checking lawns for foreign objects before mowing them, because objects could be struck by the blade and thrown, “resulting in severe injuries and deaths” (474-76). Of course, at bar, the riding mower used by Mr. Eginger was far larger and far more powerful than walk-behind mowers that are routinely used by homeowners to manicure the grassy and lawn areas of their homes. Mr. Balogh-Robinson, a specialist in computational physics, in his affidavit (477-91), described the power and speed of this mower’s blades. If the mower was used at a standing operating speed, “an object launched from the tip of the blade can travel at 220 miles per hour” (478); the maximum speed listed by the manufacturer is 18,500 feet per minute or 3,700 inches per second, which would produce an astounding exit speed of 220 mph (478). Even at an “idle speed”, an object that was propelled from this mower would travel at 91 mph, given that the speed of the blade idling was 8,000 feet per minute or 1,600 inches per second. Mr. Balogh-Robinson cogently observed, “It does not require a physicist to know that projectiles moving at those speeds can cause injuries” (478). Moreover, the “height of the lawn above the roadway in this instance” increased “the danger of projectile injury” because it “is added to the height of the path of the projectile” such that the object would reach the road at the “height of a child’s head or an adult’s face” or, as in this case, “the windows of a passing vehicle.” Mr. Balogh-Robinson attached a detailed report, whose contents he incorporated into his affidavit (479-91). The report contains mathematical computations, physical findings, drawings, an analysis of the accident site and the mower that was being used, and calculations of the speed of the projectile and the speed of the blade, all establishing that the mower was inherently dangerous when not being used properly. Mr. Fryar in his affidavit (511-14) confirmed the nature of Mr. Eginger’s work, and stated that the mower was “running over rocks and other items which made loud noises” (511); the chute was open and unguarded. Mr. Fryar used to have a lawnmower business, and thought this mower was missing a guard or was simply left open to project foreign objects away from the mower – in this case, toward the street (512). He heard Mr. Eginger run over something hard, and then saw a pickup driver (plaintiff) pull over with one eye bleeding. Mr. Fryar went to plaintiff, who said, “that something was shot out of the mower” and “went into his eye”; Mr. Fryar called 911 from his cell phone (512-14). Mr. Elliott in his affidavit (515-28) set forth his analysis of the two pieces of metal wire that Mr. Mery “pulled out of his eye”; he determined, with a reasonable degree of engineering 5 and metallurgical certainty, that the object “had been a single piece of wire which was cut as a result of contact with a rotating blade”; the metal was probably incompletely severed, after which it came apart when Mr. Mery pulled the wire out of his eye and dropped it on the floor of his truck (515-16). Mr. Elliott attached his report to his affidavit (517-28), which contained photographs, an examination of the physical evidence, and his expert opinion supporting plaintiff’s theory of liability. Gabriel C. Alexander, a well-credentialed professional engineer, submitted an affidavit, which provides a forensic analysis. He visited the accident scene and made a diagram; he described how the machine operated (530-32). His affidavit confirmed how the accident occurred, and that the mower Mr. Eginger was using was inherently dangerous when used improperly. Defendant did not dispute any of this evidence by submitting its own expert testimony, witness statements or documentary evidence. Accordingly, the speed, power and force of the subject mower are essentially undisputed on this record. Additional Considerations Although this matter is properly before this Court based on the Second Department’s grant of plaintiff’s application seeking leave to appeal, there is a discovery issue, which merits this Court’s attention. There is also an evidentiary issue disclosed by this record. We discuss these two issues in this section of the letter memorandum. With respect to the newly discovered evidence issue, plaintiff secured information that an excavation at the church’s lawn was undertaken for purposes of performing a utility installation. Mr. Salmonese, the mother of Lauren Salmonese, who submitted an affidavit in favor of plaintiff in opposition to the motion, informed plaintiff’s attorneys that the church’s lawn had been left in disarray after a utility installation was completed (411). Obviously, if the church’s lawn had litter, debris and construction materials strewn about as the result of an ongoing project, the need not to perform mowing work with a machine capable of propelling objects at a speed of over 200 miles an hour would be clear. This new evidence would powerfully support plaintiff’s assertion that the use of a lawnmower can constitute, in appropriate circumstances, an inherently dangerous activity which would negate the general rule that one who employs an independent contractor to perform a task is not liable for the contractor’s negligence. In this regard, in a reply affirmation, the church conceded that in March of 2012, it was required to raise its gas meter a few inches to install a backflow mechanism on its water line inside the building (548). Mr. Doneit affirmed that the work was contained within the building’s “tapestry room” (551); Mr. Doneit also affirmed that no work or excavation was done in March of 2012 (551). However, as plaintiff’s counsel noted in his brief in the Appellate Division (Brief at 13), the affidavit lacked statements regarding the disposal of the material used to perform the work. Additionally, Lauren Salmonese’s affidavit refuted any claim by Mr. Eginger that the projectile that struck plaintiff in the eye came from a different person who was using a different 6 lawnmower. Ms. Salmonese’s affidavit (539) made it clear that the projectile came, and had to come, from Mr. Eginger’s mower. Accordingly, on this record, the overwhelming proof established that plaintiff was injured as a result of being struck by a piece of metal that contacted the blades of Mr. Eginger’s mower, and exited at high speed from the chute toward the road on which plaintiff was driving, striking the plaintiff in the eye through an open window of his vehicle. Regarding the inspection procedures employed at the church before mowing activities were undertaken The evidence regarding Mr. Eginger’s activities before he began mowing the lawn prior to plaintiff’s accident plays a prominent role in this appeal. Plaintiff’s position is that the defendant’s testimony establishes an awareness of the dangers posed by the improper use of this lawnmower. In this regard, Mr. Eginger admitted that he had a policy and procedure of picking up debris while mowing because he was aware that mowers could shoot projectiles that could cause severe injuries, including injuries to the eye (220, 243). Mr. Doneit admitted that the church’s lawn was habitually strewn with debris: “If you look at our lawn, like right now, you might find some debris” (153). While Mr. Doneit was not aware of prior incidents where projectiles had injured people (163), the record shows that the church normally ensured that no mowing took place while people were on the lawn or utilizing the property (152). This, of course, confirms the church’s recognition of the potential danger that mowing posed. Mr. Doneit testified that the lawn was a busy area and that children would walk across it when he was present (152, 163-164). Mr. Eginger was quite candid that he was cognizant of the mower’s propensity to launch items at high velocities (243), which is why he would cease mowing activities if people were nearby (241). In the trial court and Appellate Division, defendant took the position that Mr. Eginger picked up debris prior to beginning any lawn mowing activities. But a careful review of the record establishes that while Mr. Eginger had a procedure of inspecting grass before mowing to reduce the probability of mower related injuries, he did not adhere to this practice on the day of the accident (219, 244). This was especially egregious since Mr. Eginger admitted that he found soda cans and other litter on the lawn previously (219), that litter and debris could spew out of the shoot of the mower and had done so previously (200, 209, 219, 228). He, in fact, testified that he had seen the machine launch projectiles at high speeds during his work for the church including a golf ball (243, 274-91), and that he was aware that debris accumulated on the lawn previously (218-219). Plaintiff submits that the church’s policy of inspecting the lawn for debris demonstrates its awareness of the dangers posed by such condition (Burgundy Basin Inn v. Watkins Glen Grand Prix, 51 AD2d 140 [4th Dept. 1976]). The church’s knowledge invokes the doctrine of heightened duty arising out of conditions reasonably to be expected from the undertaking (Kelsey v. PA, 52 AD2d 801 [1st Dept. 1976]). Plainly, on this record, there is evidence to support the proposition that the church and Mr. Eginger violated their policy that mowing must stop when people were on or near the lawn, and also failed to properly inspect the lawn before mowing. In this regard, a defendant’s failure to follow its own accepted practice has been held sufficient to warrant summary judgment in plaintiff’s favor in some circumstances (Gregory v. New York City Transit Authority, 112 AD2d 1084 [2d Dept. 1985]). 7 The decision of the trial court In a decision and order dated March 10, 2015, the trial court granted the church’s motion for summary judgment (4). Justice Christine A. Sproat compared lawn mowing to blasting and other construction activities, and concluded that the lawn mowing in which Mr. Eginger was engaged was not inherently dangerous as a matter of law. With respect to plaintiff’s claim that Poughkeepsie ordinances on lawn maintenance imposed a non-delegable duty on the church that would provide plaintiff with a cognizable tort claim against it, the trial court held simply that plaintiff’s position was not legally tenable. The trial court did not address the new facts raised in plaintiff’s opposition or the fact that the church had notice of a dangerous defect on its property. On appeal to the Appellate Division, the trial court’s order was affirmed in all respects The Appellate Division rejected plaintiff’s claims that Eginger’s activities were inherently dangerous, stating that plaintiff “fails to raise a triable issue of fact in opposition to the church’s prima facie of entitlement to judgment as a matter of law.” With respect to plaintiff’s claim that the church had a non-delegable statutory duty to maintain the lawn based on the Poughkeepsie Codes, the court similarly held that plaintiff’s proof was legally insufficient to controvert defendant’s prima facie showing. Despite the terseness of the decision, the Appellate Division subsequently granted plaintiff’s motion for leave to appeal to this Court, recognizing expressly that issues of public import were present on this record warranting review by this Court as a substantive legal matter. For the reasons outlined herein at length, it is respectfully submitted that the decisions of the Appellate Division and trial court should be reversed and that plaintiff’s complaint should be reinstated in full.4 4 In the last sentence of the Appellate Division’s decision that court stated: “The plaintiff’s remaining contentions are without merit.” (See, Mery v. Eginger, 149 AD3d 827, 828 [2d Dept. 2017]). As such, plaintiff’s claim that the grant of summary judgment was premature was rejected by the Appellate Division, albeit without extended discussion. 8 Discussion POINT I THE TRIAL COURT ERRED IN GRANTING THE CHURCH’S MOTION FOR SUMMARY JUDGMENT AS THE RECORD CONTAINS QUESTIONS OF FACT REGARDING WHETHER THE USE OF A HIGH POWERED, EXTREMELY DANGEROUS, COMMERCIAL LAWNMOWER ON A PREMISES OPEN TO THE PUBLIC THAT ABUTS A PUBLIC STREET CONSTITUTES AN INHERENTLY DANGEROUS ACTIVITY WHEN THE FACTS ARE VIEWED IN A LIGHT MOST FAVORABLE TO THE PLAINTIFF AS THE PARTY OPPOSING SUMMARY JUDGMENT; IN ADDITION, A QUESTION OF FACT IS PRESENTED AS TO WHETHER THE CHURCH HAD A NON-DELEGABLE DUTY OF MAINTENANCE BASED ON CERTAIN LOCAL CODES AND WHETHER SUMMARY JUDGMENT WAS PREMATURE DUE TO THE DISCOVERY OF ADDITIONAL EVIDENCE THAT BORE ON THE DANGEROUS NATURE OF MR. EGINGER’S LAWN MOWING ACTIVITIES Regarding the general law respecting vicarious liability for the acts of independent contractors. It is axiomatic that “a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” (Kleeman v. Rheingold, 81 NY2d 270, 273 [1993]). The exceptions to this general rule are so numerous that “it has been observed that the general rule is now primarily important as a preamble to the catalogue of its exceptions” (Brothers v. New York State Electric and Gas Corp., 11 NY3d 251, 258 [2008] citing Pacific Fire Insurance Co. v. Kenny Boiler Mfg. Co., 2001 Minn. 500 [1937]). This Court has observed that liability in negligence is generally “premised on a defendant’s own fault, not the wrongdoing of another person” (Feliberty v. Damon, 72 NY2d 112, 117 [1988]). However, liability is vicariously imputed to a defendant for another person’s fault where it is found that defendant has some ability to control the acts of the wrongdoer, or where public policy requires the imposition of such responsibility (Kavanaugh v. Nussbaum, 71 NY2d 535, 546 [1988]). The primary justification for the rule that the employer of an independent contractor is not ordinarily liable for the latters negligence is that the employer has no right to control the manner in which the independent contractor works (Brothers v. New York State Gas and Electric Corp., supra, 11 NY3d at 257-8, Kleeman v. Rheingold, supra, 81 NY2d at 274]). As the Appellate Division properly noted, an exception to the general rule arises where the undertaking can be classified as inherently dangerous. In Rosenberg v. Equitable Life Assurance Society, supra, 79 NY2d at 669, this Court described that exception as follows: One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has 9 reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger. This exception to the general rule of non-liability is one of long standing (McDonald v. Shell Oil Co., 20 NY2d 160, 166 [1967]; Rohlfs v. Weil, 271 NY 444, 448 [1936]), and has been recognized by the authors of the Restatement of Torts. See, Restatement [Second] of Torts, §427. Otherwise stated, the exception applies when “the work involves a risk of harm inherent in the nature of the work itself,” and the employer recognizes or should recognize “that risk in advance of contract” (Rosenberg, supra, at 669). In Wright v. Tudor City, 276 NY 303 [1938], this Court stated: “Whether danger is inherent in the work contracted for and should be reasonably anticipated is a question dependent on the facts of each case.” As a general rule whether the work is inherently dangerous presents a question of fact to be determined by the jury. However, it can, in appropriate circumstances, be decided as a matter of law (Rosenberg v. Equitable Life, supra, at 670; Schwartz v. Merola Brothers, 290 NY 145, 152 [1943]). In Rosenberg, this Court held that the inherently dangerous exception to the non- responsibility of a principal for the acts of its independent contractor did not apply to a truck driver’s operation of his vehicle at an excessive speed. By way of contrast, excavation work performed adjacent to a thoroughfare or road presents inherent dangers that subject the one contracting for that work to liability for the negligent acts of an independent contractor. In Wright v. Tudor City, supra, this Court held that washing rubber mats with soap and water on a sidewalk could be deemed inherently dangerous work. In this regard, hazardous chemical waste disposal (State v. Schenectady Chems., 103 AD2d 33, 38 [3d Dept. 1984]), work on a scaffolding outside a building without appropriate warning signs on the sidewalk below (Rohlfs v. Weil, supra), terrazzo construction inside a building that led to the piling of terrazzo pebbles on the sidewalk (Schwartz v. Merola Brothers, supra), and the installation of fireproof doors on an elevator while the elevator was being used by building tenants (Besner v. Central Trust, 230 NY 357 [1921]), have all been held to be inherently dangerous activities for which the employer of an independent contractor can be found liable. The intermediate Appellate Divisions have issued decisions that are in accord with these general rules. See, Baek v. Red Cap Services, 129 AD3d 752 [2d Dept. 2015] (Window washing in the absence of signs or barriers could be an inherently dangerous activity); Great North Insurance Co. v. Milo Real Estate, 123 AD3d 482 [1st Dept. 2014] (Improper storage of sawdust which eventually led to a fire was potentially and inherently dangerous activity sufficient to impose vicarious liability on the employ of an independent contractor); Gamer v. Ross, 49 AD3d 598 [2d Dept. 2008] (The presence of wires and debris on a public sidewalk adjacent to a construction site created a “special danger upon the sidewalk…that is inherent in the work and anticipated by the landowner” such that the defendant could be vicariously liable to the acts of the contractor). 10 In the lower courts, the church relied principally on Wood v. Auburn Lodge, 12 Misc.3d 683 [Cit. Ct. 2006], which did not deal with the “inherently dangerous” exception to vicarious liability. Instead, the pertinent issue was whether plaintiff met his burden during trial to establish that the mower was defective. We concede that case law from other jurisdictions establishes that “Cutting grass is not automatically (and) inherently dangerous activity.” But, “what can make it dangerous is the equipment used” (Gore v. Ohio DOT, 2003 Ohio App. LEXIS 1567 [Ohio Ct. of App., 10th Dist. 2003]). Courts have noted that some lawn mowing activities might not be inherently dangerous (Campbell v. Kovich, 273 Mich. App. 227 [Mich. 2006]). But, Eginger’s activities could be classified as inherently dangerous based on the facts disclosed by this record. See, Stayton v. Funkhouser, 148 Ind. App. 75, 81 [Ind. 1970]; Stronger v. Riggs, 21 SW3d 18 [Mis. 2000]; Embry v. Henderson, 511 SW2d 218 [Ky. 1974]; Motter v. Snell, 250 IA 1247 [IA 1959]. While no New York case has decided precisely this issue, a review of decisional law dealing with lawnmowers supports plaintiff’s assertion that, at the very least, an issue of fact is present on this record as to whether the lawnmower used by Mr. Eginger, in the circumstances at the time plaintiff was injured, triggers the exception to the rule that normally exonerates5 an independent contractor for the latters negligent acts because of the danger of the endeavor. A lawnmower can constitute a dangerous instrumentality depending on how it is used and how it is configured. For example, in LaPaglia v. Sears Roebuck, 143 AD2d 173, 174-176 [2d Dept. 1988], a plaintiff’s verdict was affirmed where the infant plaintiff was watching his 9 year old friend mow grass in the latter’s backyard when plaintiff was struck in the right eye with a small object, resulting in blindness. The plaintiff sued on the theory that the design of the lawnmower was defective because the shoot deflector was designed so that it could be removed, making the machine not reasonably safe. The Appellate Division upheld an award in plaintiff’s favor. In Grivas v. Grivas, 113 AD2d 264 [2d Dept. 1985], the Appellate Division held that a parent could be liable for injuries sustained when a 2½ year old plaintiff was injured when he attempted to retrieve a ball that had rolled near an unattended lawnmower whose rotary blades were turning, because of the danger presented by the machine in itself. And the cognizability of a claim that occurred when a plaintiff was struck in the eye with a stone that emanated from a non- commercial lawnmower was recognized by the Supreme Court in Northrop v. Hogestyn, 75 Misc.2d 486 [Sup. Ct. 1973]. Plaintiff concedes that one court has specifically held that a lawnmower does not “constitute an inherently dangerous instrumentality” as a matter of law (Popkin v. Shanker, 36 Misc.2d 242, 243-243 [Sup. Ct. 1962]). But even the Popkin court went on to state, “We are also not prepared to say as a matter of law…that the infant plaintiff could not recover upon any theory of proof that may be advanced.” Interestingly, liability has been decided based on whether the defendant had knowledge that the area being mowed was potentially dangerous based on the presence of debris or other objects that could be propelled through the chute of the mower. See, Castagna v. Lakeland Garden, 2010 NY Misc. LEXIS 6258 [Sup. Ct. 2010]; see, Wood v. Auburn Lodge, supra; citing 5 Plaintiff notes that the Consumer Product Safety Commission has promulgated detailed safety regulations applicable to walk-behind power lawn mowers. See, 16 CFR §1205, et. seq. 11 Jones v. St. Louis Housing Authority, 726 SW2d 766 [MO 1987]. It is true that in Wood the plaintiff sued for property damage where a member of a local Elks club was operating a lawnmower on premises maintained by the club. The Wood court noted that some out of state cases predicated liability on whether the actors knew or should have known of the presence of debris or other foreign objects on the lawn that could be propelled in the direction of passersby. See, Loonan v. Wanamaker, 131 NW2d 78 [SD 1964]. Cochran v. David, 378 So.2d 1100 [Ala. 1979] (Plaintiff’s claim dismissed because no evidence was presented that the lawnmower had discharged debris on previous occasions, and debris had been cleared from the mowing area prior to the commencement of work). We also note that in Jones v. St. Louis Housing Authority, supra, the Housing Authority was held liable for the negligence of an independent contractor that was mowing high grass on its premises when the mower propelled a stick into the air, striking the 10-year-old plaintiff. We believe that this Court should adopt the following rule as being reflective of New York jurisprudence: While a mower is not necessarily an “inherently dangerous instrumentality” in every case, that finding does not mean that a “lawnmower may never be…inherently dangerous” (Stayton v. Funkhouser, supra 148 Ind. App. 75, 81 [Ind. 1970]). Given the absence of countervailing evidence submitted by the defendant controverting plaintiff’s proof regarding the speed, power and dangerous nature of the lawnmower that injured him, we believe, in accordance with New York case law on point, that the issue of whether the work leading to the accident was inherently dangerous presents a question of fact to be determined by a jury (Rosenberg v. Equitable Life Assurance Society, supra. The commentary to the Pattern Jury Instruction (“PJI”) specifically §2:256, p. 753 [2016 Edition], states that the inherently dangerous exception to the vicarious liability rules ordinarily applicable to independent contractors contain “two overlapping” situations. The first is where the hirer should recognize that the work is likely to create a peculiar risk of harm unless special precautions are taken. The second is where the danger inherent in the work is such that the hirer should take reasonable precautions against the danger. See, Christie v. Raneri & Sons, 194 AD2d 453 [1st Dept. 1993]; Janice v. State, 201 Misc. 915 Ct. Cl. 1951]; Restatement, Second, Torts §427. However, as the authors of the PJI note, since courts tend to treat the situations separately, it would “serve little purpose” to categorize the exceptions by category (Id.) Here, as we have shown, the defendant clearly recognized the potential danger involved in improper use of its lawnmower. In this regard, it has been held that the hirer of an independent contractor is not required to anticipate a danger that arises not from the nature of the work, but from the manner of its performance (Schwartz v. Merola Brothers, supra.) For instance, an employer of an independent contractor is not liable where the contractor lays a board on a windowsill from which it is dislodged, causing injury to a tenant in the yard (Hyman v. Barrett, 224 NY 436 [1918]). Similarly, an owner is not liable where a plaintiff is injured by a loose board by high wind from a scaffold erected 15 feet from the sidewalk (Hexamer v. Webb, 101 NY 377 [1886]). By way of contrast, an owner who hires a painter to paint a sign over a sidewalk is responsible to a pedestrian injured when the scaffold collapses and the painter falls (Rohlfs v. 12 Weil, supra). Similarly, an owner is potentially liable for passersby injuries resulting from the use of fluid containing bleach that is being used by an independent contractor to clean a building’s exterior (Kopinska v. Metal Bright Maintenance, 309 AD2d 633 [1st Dept. 2003]). As we have shown, an owner is liable for an independent contractor’s negligence where it causes a dangerous condition on a sidewalk or other public way (Rothstein v. State, 284 AD2d 130 [1st Dept. 2001]). Here, given the power of the mower, its position, the force it generated, and defendant’s safety practices, which demonstrate its awareness of danger from objects projected from the chute, plaintiff submits that the issue of whether Eginger was engaged in an inherently dangerous activity at the time he injured plaintiff, at the very worst, raises a question of fact that must be determined by a jury. The issue of whether the Poughkeepsie Codes impose a non-delegable duty of maintenance furthers plaintiff’s claims in this regard. In Feliberty v. Damon, supra, this Court described a non-delegable duty as one that the employer is not free to transfer to a contractor. Whether a duty is non-delegable turns on policy considerations, and the doctrine is ordinarily invoked when “the responsibility is so important to the community that the employer should not be permitted to transfer [it] to another” (Id.) In the case at bar, Poughkeepsie Ordinances §9-6 and §9-7 make it “unlawful” to “permit or maintain on any…lot or land any growth of weeds, grass or other rank vegetation to a greater height than 12 inches in the average…”. Further, it is the duty of the owner or occupant of the land “to cut and remove or to kill by spraying or cause to be cut or removed or killed by spraying all such weeds, grass or other…vegetation…”. Of course, it is not unusual for the law to impose upon an owner the responsibility to comply with statutory or regulatory enactments even where it has no control over the injury causing actions or activities (Mas v. Two Bridges Associates, 75 NY2d 680 [1990]; Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993]). In making this argument, we are aware of older case law holding that statutes, ordinance or municipal charters which require an abutting owner to maintain public sidewalks do not impose tort liability unless specific language to that effect is included in the statutory or regulatory enactment (Rochester v. Campbell, 123 NY 405 [1890]). But given the nature of the mowing activity undertaken by Mr. Eginger and the actual terms of the pertinent Poughkeepsie Code provisions, plaintiff’s position is that summary dismissal of this case is not appropriate on this record. Discovery Issue6 Finally, plaintiff submitted newly discovered evidence from Ms. Salmanese, the mother of Lauren, that the church’s lawn was in disarray following a utility installation (411), a matter which, under the case law, may have a bearing on the applicability of the rule that the employer 6 Plaintiff concedes that procedural issues such as prematurity, pursuant to CPLR §3212[f], is somewhat inconsistent with the Appellate Division’s grant of leave, which was based on the substantive importance of the issue of whether the church could be vicariously liable for the negligence of Mr. Eginger. For the sake of completeness, however, and based on past opinions this Court has issued in similar circumstances (Groves v. Land’s End Hous., 80 NY2d 678 [1982]), we discuss the issue here beleiving it furthers plaintiff’s claims and contentions. 13 of an independent contractor is not liable for the latter’s negligence. The better practice would have been to deny the church’s motion to allow plaintiff to explore the new issues concerning the defective condition of the lawn. CPLR §3212[f] provides in part: “Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had, and may make such other order as may be just.” Of course, “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (Singh v. Avis, 119 AD3d 768, 770 [2d Dept. [2014]). But, “Where plaintiff has not had a reasonable opportunity to conduct discovery, and has no personal knowledge of the relevant facts, the motion should be denied on prematurity grounds” (Castagna v. Almaghrabi, 113 AD3d 804 [2d Dept. 2014]). At bar, plaintiff was not dilatory in securing the new information regarding the condition of the church’s lawn, and should have been granted leave to conduct additional discovery before a merit determination was made by the court (Best v. Yutaka, 90 NY2d 833 [1997]). Conclusion For the foregoing reasons, it is respectfully submitted that the order of the Appellate Division should be reversed and plaintiff’s complaint reinstated, with this Court granting any other, further or different relief it deems just, proper and equitable. Very truly yours, Brian J. Isaac, Esq. cc: Jeffrey Samel, Esq. Law Office Jeffrey Samel & Partners Attorneys for Defendant-Respondent 150 Broadway, Suite 1600 New York, NY 10038 Tel: 212-587-9690 14 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR §500.13(c) that the foregoing letter brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 12 Line spacing: Single The total number of words in the letter brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by §500.1(h) is 6,610. Dated: April 2, 2018