Metling v. Punia & Marx, Inc.
| Decision Date | 03 March 2003 |
| Citation | 756 N.Y.S.2d 262,303 A.D.2d 386 |
| Court | New York Supreme Court — Appellate Division |
| Parties | SHEILA METLING, Respondent,<BR>v.<BR>PUNIA & MARX, INC., et al., Appellants. |
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff, a tenant in a building owned and managed by the defendants, allegedly slipped and fell on water as she stepped out of the elevator on her way to the laundry room on the seventh floor of the building. After she fell, she saw that the water was seeping from a toilet that recently had been removed from an apartment and set against the wall opposite the elevator. The plaintiff did not recognize the man standing next to the toilet as a regular employee of the building. The plaintiff did not know how long the water had been there and had never complained about water in the hallway before her fall.
At the time of the accident, the building was involved in a low-flush toilet exchange program sponsored by the City of New York for the purpose of water conservation. The defendants had hired Reliable Mechanical Plumbing and Heating, Inc. (hereinafter Reliable), a company in which Irving Brofsky, a licensed plumber, was a partner, to do the replacement work.
To succeed on their motion for summary judgment, the defendants had to show that they neither created the defective condition nor had either actual or constructive notice thereof and a reasonable time within which to correct it (see Goldman v Waldbaum, Inc., 297 AD2d 277 [2002]; Maguire v Southland Corp., 245 AD2d 347 [1997]).
Accepting the plaintiff's version of the occurrence as true for the purposes of this motion, and relying on the sworn statements of both the plaintiff and the building manager, the defendants satisfied their initial burden of showing that they had no actual or constructive notice of the condition.
The defendants also claim they are not liable for creating the alleged condition because it was created by an independent contractor, Reliable. In response, the plaintiff contends, inter alia, that the defendants exercised sufficient control over the work done by Reliable to hold them vicariously liable for any torts committed by Reliable.
As a general rule, a party who engages an independent contractor is not liable for the independent contractor's negligent acts (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; see also Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663 [1992]). The rule developed from the premise that the employer of an independent contractor has no right to control the manner in which the contractor's work is to be done and that it is therefore more sensible to place the risk of loss on the contractor (see Zedda v Albert, 233 AD2d 497, 498 [1996]; Mercado v Slope Assoc., 246 AD2d 581 [1998]).
It is clear from the record that Reliable was a licensed plumbing concern hired by the defendants for this particular project. The critical question with respect to whether Reliable can be considered an employee of the defendants for the purpose of imposing vicarious liability on the defendants, is whether the defendants exercised...
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...Primary Home Care did its work ( see Willis v. City of New York, 266 A.D.2d 208, 208–209, 697 N.Y.S.2d 311; cf. Metling v. Punia & Marx, 303 A.D.2d 386, 388, 756 N.Y.S.2d 262; Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 298, 707 N.Y.S.2d 64). Moreover, Personal Touch's submissions ......
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Nachman v. Koureichi
...New York , 111 A.D.3d 5, 972 N.Y.S.2d 48 ; Calandrino v. Town of Babylon , 95 A.D.3d 1054, 944 N.Y.S.2d 286 ; Metling v. Punia & Marx , 303 A.D.2d 386, 756 N.Y.S.2d 262 ). Factors relevant to assessing control include whether a worker (1) worked at [her or] his own convenience, (2) was free......
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Calandrino v. Town of Babylon
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