Mitchell v. Route 21 Associates

• Decision Date: 25 November 1996
• Parties: Michael MITCHELL, Plaintiff-Respondent, v. ROUTE 21 ASSOCIATES, et al., Appellants, Peer Construction Corp., Defendant-Respondent, et al., Defendant (And a Third Party Action).
• Court: New York Supreme Court — Appellate Division

Page 288

650 N.Y.S.2d 288

233 A.D.2d 485

Michael MITCHELL, Plaintiff-Respondent, v. ROUTE 21 ASSOCIATES, et al., Appellants, Peer Construction Corp., Defendant-Respondent, et al., Defendant

(And a Third Party Action).

Supreme Court, Appellate Division,

Second Department.

Nov. 25, 1996.

Moore & Lafferty (Michael Majewski, Mineola [Nicole Norris] of counsel), for appellants.

Friedman, Levy & Goldfarb, P.C., New York City (Ira H. Goldfarb, Lawrence J. Buchman, and Joseph M. O'Connor, of counsel), for plaintiff-respondent.

Matthew M. Cordrey, New York City, for defendant-respondent.

Before ROSENBLATT, J.P., and THOMPSON, SANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants Route 21 Associates and Max Finkelstein, Inc., appeal from an order of the Supreme Court, Kings County (Belen, J.), dated November 8, 1995, which denied their motion for summary judgment to dismiss the complaint and cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs, the motion is granted, the complaint and cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The plaintiff, employed by the third-party defendant Rapid Dismantling Corporation, was injured while removing asbestos from a warehouse located in New Jersey which was owned by the appellant Route 21 Associates and leased by the appellant Max Finkelstein, Inc. The parties do not dispute that New Jersey law applies to this case (see, generally, Huston v. Hayden Building Maintenance Corp., 205 A.D.2d 68, 617 N.Y.S.2d 335).

Under New Jersey law, a landowner has a nondelegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers. However, a landowner is not responsible for harm which occurs to an employee of an independent contractor as a result of the very work which that employee was hired to perform. In the absence of interference by a landowner in the performance of an independent contractor's work, the duty to insure that the job is performed in a safe manner is solely that of the contractor (see, Bozza v. Burgener, 280 N.J.Super. 583, 656 A.2d 49; Izzo v. Linpro Co., 278 N.J.Super. 550, 651 A.2d 1047; Wolczak v. National Elec. Prod. Corp., 66 N.J.Super. 64, 168 A.2d 412).

Upon our review of the record, we conclude that the appellants made a prima facie showing of entitlement to judgment as a matter of law. The appellants' representative testified at an examination before trial that the...