Posa v. Copiague Pub. Sch. Dist.

• Decision Date: 03 May 2011
• Parties: John POSA, et al., plaintiffs-respondents,v.COPIAGUE PUBLIC SCHOOL DISTRICT, et al., defendants-respondents,Health and Education Equipment Corp., appellant, et al., defendant.(and a third-party title).
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 770

922 N.Y.S.2d 499

266 Ed. Law Rep. 932

2011 N.Y. Slip Op. 03826

John POSA, et al., plaintiffs-respondents,

v.COPIAGUE PUBLIC SCHOOL DISTRICT, et al., defendants-respondents,Health and Education Equipment Corp., appellant, et al., defendant.(and a third-party title).

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

May 3, 2011.

Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for appellant.Gallo, Vitucci, Klar, New York, N.Y. (Yolanda L. Ayala of counsel), for defendants-respondents Copiague Public School District and Irwin Contracting of Long Island, Inc.Greenfield & Ruhl, Mineola, N.Y. (Brian J. Greenfield and Scott L. Mathias of counsel), for defendant-respondent TKO Contracting Corp.JOSEPH COVELLO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, etc., the defendant Health and Education Equipment Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated January 7, 2010, as denied those branches of its motion which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law § 200 and common-law negligence insofar as asserted against it and on its cross claim for common-law indemnification against the defendant TKO Contracting Corp., and granted that branch of the cross motion of the defendants Copiague Public School District and Irwin Contracting of Long Island, Inc., which was for summary judgment on their cross claim for contractual indemnification asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the motion of the defendant Health and Education Equipment Corp. which were for summary judgment dismissing the causes of action to recover damages for violations of Labor Law § 200 and common-law negligence insofar as asserted against it, and substituting therefor a provision granting those branches of the motion, and (2) by deleting the provision thereof granting that branch of the cross motion of the defendants Copiague Public School District and Irwin Contracting of Long Island, Inc., which was for summary judgment on their cross claim for contractual indemnification asserted against the defendant Health and Education Equipment Corp., and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant Health and Education Equipment Corp., payable by the defendants Copiague Public School District and Irwin Contracting of Long Island, Inc., and the plaintiffs, and one bill of costs to the defendant TKO Contracting Corp., payable by the defendant Health and Education Equipment Corp.

The plaintiff John Posa (hereinafter the plaintiff), an employee of a nonparty company which installed bathroom partitions, was injured while working at Copiague High School (hereinafter the school) when two tabletops that were to be installed in the school's science laboratories fell on his foot. At the time of the accident, the tabletops had been stored on their sides in the school's hallway, leaning against the hallway wall. The defendant Irwin Contracting of Long Island, Inc. (hereinafter Irwin), was the general contractor retained by the defendant Copiague Public School District (hereinafter the School District) to renovate portions of the school at the time of the accident. The defendant Health and Education Equipment Corp. (hereinafter H & E) entered into a subcontract with Irwin to provide and install furniture and fixtures in the laboratories. H & E, in turn, subcontracted to the defendant TKO Contracting Corp. (hereinafter TKO) the responsibility to unload the furniture and fixtures, store those items, and install the furniture and fixtures in the science laboratories.

The Supreme Court should have granted that branch of H & E's motion which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 200 insofar as asserted against it. H & E established its prima facie entitlement to judgment as a matter of law with respect to that cause of action by demonstrating that it was a subcontractor who did not control the work that allegedly caused the plaintiff's injury ( see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316–317, 445 N.Y.S.2d 127, 429 N.E.2d 805; Tomyuk v. Junefield Assoc., 57 A.D.3d 518, 521, 868 N.Y.S.2d 731; Kelarakos v. Massapequa Water Dist., 38 A.D.3d 717, 718, 832 N.Y.S.2d 625; Zervos v. City of New York, 8 A.D.3d 477, 481, 779 N.Y.S.2d 106). In opposition, the plaintiffs failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

In addition, the Supreme Court should have granted that branch of H & E's motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against it. H & E made a prima facie showing that its employees did not create an unreasonable risk of harm that caused or contributed to the accident which injured the plaintiff ( see Tomyuk v. Junefield Assoc., 57 A.D.3d at 521–522, 868 N.Y.S.2d 731; cf. Erickson v. Cross Ready Mix, Inc., 75 A.D.3d 519, 523, 906 N.Y.S.2d 284; Kelarakos v. Massapequa Water Dist., 38 A.D.3d at 719, 832 N.Y.S.2d 625; Marano v. Commander Elec., Inc., 12 A.D.3d 571, 572–573, 785 N.Y.S.2d 109), and the plaintiffs failed to raise a triable issue of fact in opposition ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). To the extent the cause of action alleging common-law negligence insofar as asserted against H & E was predicated upon the alleged negligence of TKO, H & E's subcontractor, “[a]s a general rule, an employer who hires an independent contractor is not liable for the negligent acts of the independent contractor” ( Steel v. City of New York, 271 A.D.2d 435, 436, 705 N.Y.S.2d 641; see Backiel v. Citibank, 299 A.D.2d 504, 505, 751 N.Y.S.2d 492; Mercado v. Slope Assoc., 246 A.D.2d 581, 667 N.Y.S.2d 289). Here, the plaintiffs' opposition papers failed to raise a triable issue of fact as to whether H & E exercised any control over the method or manner in which TKO performed its duties, and were thus insufficient to raise a triable issue of fact as to whether H & E supervised TKO for vicarious...