Saini v. Tonju Associates

• Decision Date: 21 November 2002
• Citation: 750 N.Y.S.2d 55,299 A.D.2d 244
• Court: New York Supreme Court — Appellate Division
• Parties: GURDIT SAINI et al., Respondents,<BR>v.<BR>TONJU ASSOCIATES et al., Respondents, and<BR>EXPERT BOILER REPAIR & WELDING, INC., Appellant.

299 A.D.2d 244

750 N.Y.S.2d 55

GURDIT SAINI et al., Respondents,

v. TONJU ASSOCIATES et al., Respondents, andEXPERT BOILER REPAIR & WELDING, INC., Appellant.

Decided November 21, 2002.

Concur — Williams, P.J., Nardelli, Andrias and Marlow, JJ.

On April 9, 1997, then six-year-old Gurdit Saini was scalded by water from a bathroom faucet in the apartment where he lived with his family in the building designated as 94-06 34th Avenue, Jackson Heights, New York (the building). Approximately one month prior, the owner of the building, defendant Loyalty Realty, Inc. (Loyalty), determined that the boiler in the building had to be replaced and hired defendant Expert Boiler Repair & Welding, Inc. (Expert) to do the work. On or about March 12, 1997, Expert forwarded an agreement to Loyalty which delineated the costs of installing a temporary boiler, and the trailer to house it, which was necessary to ensure that the building would continue to have heat and hot water while the old boiler was replaced. The agreement, executed by the president of Expert and subsequently agreed to by Loyalty, provides that "[a]ll work will be performed in a neat manner and fully covered by insurance for your protection."

Although the chronology is somewhat puzzling, there appears to be no dispute that defendant Mobil Steam Boiler Rental Corp. (Mobil), which was hired by Expert, brought a temporary boiler to the building on March 6, 1997, and housed it in a trailer outside. Mobil then isolated the existing boiler and connected the temporary unit in its place by "cutting into pipes" and directly connecting to the heat exchanger, which heats water for the residents' use. Mobil contends that after the installation of the temporary boiler was complete, a Mobil supervisor tested the temperature of the hot water by running it over his hand in a slop sink located in the boiler room. The superintendent of the building, who was employed by Loyalty, maintains that he complained to Mobil on three separate occasions, beginning immediately after the temporary boiler was installed, that the water was too hot. There is no testimony that Expert was informed of these complaints and Expert denies any knowledge of them.

Plaintiff commenced the within action in August 1998 alleging, inter alia, that Loyalty, Expert and Mobil were liable for injuries sustained by the infant plaintiff from excessively hot water. Defendants answered and Loyalty interposed a cross claim against Expert for indemnification based upon the aforementioned clause in the agreement. Expert, at the close of discovery, moved for summary judgment, which was denied by the motion court on the ground that issues of fact exist as to Expert's supervision and control over the installation and operation of the temporary boiler. We disagree.

As a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 380-381; Kleeman v Rheingold, 81 NY2d 270, 273-274; Melbourne v...