Bennett v. State Farm Fire & Cas. Co.

• Decision Date: 20 October 2021
• Docket Number: 2020-06044,Index Nos. 10385/13, 385/14, 602582/14
• Citation: 198 A.D.3d 857,156 N.Y.S.3d 92
• Parties: Richard BENNETT, etc., et al., plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, et al., defendants. (Action No. 1) State Farm Fire and Casualty Company, etc., et al., plaintiffs, v. Creative Landscaping by Cow Bay, Inc., et al., defendants. (Action No. 2) Richard Bennett, etc., et al., plaintiffs-Respondents, v. State Farm Fire and Casualty Company, et al., appellants, Milro Associates, Inc., defendant-respondent. (Action No. 3)
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 857

156 N.Y.S.3d 92

Richard BENNETT, etc., et al., plaintiffs,

v.STATE FARM FIRE AND CASUALTY COMPANY, et al., defendants.

(Action No. 1)

State Farm Fire and Casualty Company, etc., et al., plaintiffs,

v.Creative Landscaping by Cow Bay, Inc., et al., defendants.

(Action No. 2)

Richard Bennett, etc., et al., plaintiffs-Respondents,

v.State Farm Fire and Casualty Company, et al., appellants,Milro Associates, Inc., defendant-respondent.

(Action No. 3)

2020-06044

Index Nos. 10385/13, 385/14, 602582/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 30, 2021

October 20, 2021

Rivkin Radler, LLP, Uniondale, N.Y. (Cheryl F. Korman, Michael A. Troisi, Paul V. Majkowski, and Henry Mascia of counsel), for appellant State Farm Fire and Casualty Company.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Keith J. Stevens of counsel), for appellant Holzmacher, McLendon and Murrell, P.C.

Edward J. Boyle, Manhasset, NY, for plaintiffs-respondents.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In related actions, inter alia, to recover damages for gross negligence, the defendant State Farm Fire and Casualty Company appeals, and the defendant Holzmacher, McLendon and Murrell, P.C., separately appeals, from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated May 6, 2020. The order denied those defendants’ separate motions for summary judgment dismissing the amended complaint and all cross claims insofar as asserted as against each of them in Action No. 3.

ORDERED that the order is affirmed, with one bill of costs to the plaintiffs in Action No. 3 payable by the defendants State Farm Fire and Casualty Company and Holzmacher, McLendon and Murrell, P.C.

These related actions arise from an oil contamination incident that occurred in May 2011 on property owned by Richard Bennett and Mary Wendell Bennett (hereinafter together the plaintiffs). At the time of the incident, the plaintiffs had an insurance policy with State Farm Fire and Casualty Company (hereinafter State Farm). In connection with the incident, State Farm provided coverage pursuant to a third-party liability provision in the policy to the extent of remediating the property as directed by the New York State Department of Environmental Conservation (hereinafter the DEC). State Farm engaged Holzmacher, McLendon and Murrell, P.C. (hereinafter H2M), as an environmental consultant, inter alia, to oversee the work of Milro Associates, Inc. (hereinafter Milro), the remediation contractor hired by the plaintiffs at State Farm's expense.

In 2014, the plaintiffs commenced the third related action (hereinafter Action No. 3 ) to recover damages relating to the remediation process. In an amended complaint, the plaintiffs asserted, among other things, that State Farm and its agent H2M supervised the remediation work at the property, and that State Farm, H2M, and Milro caused additional damage to the property beyond the damage incurred in the initial oil contamination incident. The Supreme Court denied the separate motions of State Farm and H2M for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against each of them in Action No. 3. Those defendants separately appeal.

"To hold a defendant liable in common-law negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) that the breach constituted a proximate cause of the injury" ( Lynfatt v. Escobar, 71 A.D.3d 743, 744, 896 N.Y.S.2d 450 ; see Dance Magic, Inc. v. Pike Realty, Inc., 85 A.D.3d 1083, 1088, 926 N.Y.S.2d 588 ). "To constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others" ( Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926, 929, 78 N.Y.S.3d 169 [alterations and internal quotation marks omitted]).

Generally, liability in negligence is premised on the defendant's own fault, not the wrongdoing of another (see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d 251, 257, 869 N.Y.S.2d 356, 898 N.E.2d 539 ; Feliberty v. Damon, 72 N.Y.2d 112, 117, 531 N.Y.S.2d 778, 527 N.E.2d 261 ). However, under the doctrine of vicarious liability, liability for another person's wrongdoing is imputed to the defendant (see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 257, 869 N.Y.S.2d 356, 898 N.E.2d 539 ; Feliberty v. Damon, 72 N.Y.2d at 117–118, 531 N.Y.S.2d 778, 527 N.E.2d 261 ). The doctrine "rests in part on the theory that—because of an opportunity for control of the wrongdoer, or simply as a matter of public policy loss distribution—certain relationships may give rise to a duty of care, the breach of which can indeed be viewed as the defendant's own fault" ( Feliberty v. Damon, 72 N.Y.2d at 118, 531 N.Y.S.2d 778, 527 N.E.2d 261 ; see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 257, 869 N.Y.S.2d 356, 898 N.E.2d 539 ).

In most cases, a party who retains an independent contractor is not liable for the independent contractor's negligent acts (see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 257, 869 N.Y.S.2d 356, 898 N.E.2d 539 ; Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712 ). "The primary justification for this rule is that ‘one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor’ " ( Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 257–258, 869 N.Y.S.2d 356, 898 N.E.2d 539, quoting Kleeman v. Rheingold, 81 N.Y.2d at 274, 598 N.Y.S.2d 149, 614 N.E.2d 712 ). "Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results. A person who works for another subject to less extensive control is an independent contractor" ( Matter of O'Brien v. Spitzer, 7 N.Y.3d 239, 242, 818 N.Y.S.2d 844, 851 N.E.2d 1195 ; see C.B. v. Incorporated Vil. of Garden City, 194 A.D.3d 897, 897, 149 N.Y.S.3d 465 ).

There are various exceptions to the general rule against vicarious liability for the acts of an independent contractor (see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ; Kleeman v. Rheingold, 81 N.Y.2d at 274, 598 N.Y.S.2d 149, 614 N.E.2d 712 ). These exceptions fall into three basic categories: "negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or ‘inherently’ dangerous; and, finally, instances in which the employer is under a specific nondelegable duty" ( Kleeman v. Rheingold, 81 N.Y.2d at 274, 598 N.Y.S.2d 149, 614 N.E.2d 712 [footnote and citations omitted]; see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ). There are no clearly defined criteria for identifying duties that are nondelegable (see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ; Kleeman v. Rheingold, 81 N.Y.2d at 275, 598 N.Y.S.2d 149, 614 N.E.2d 712 ). A nondelegable duty has been found, for example, "when services, though in reality rendered by an independent contractor, were accepted by a third party after assurance that they were being supplied by its employer" ( Feliberty v. Damon, 72 N.Y.2d at 119, 531 N.Y.S.2d 778, 527 N.E.2d 261, citing Miles v. R & M Appliance Sales, 26 N.Y.2d 451, 454, 311 N.Y.S.2d 491, 259 N.E.2d...