RABEN v. Avis Rent A Car, Inc., et al., Defendants. (2003)

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 29, 2002, which granted the respective summary judgment motions of defendant Conde Nast Publications, Inc. and Advance Magazine Publishers, Inc. and of third-party defendants Willardt Photography & Film and Kent Pill, and dismissed the complaint in its entirety, unanimously affirmed, without costs.

 Plaintiff, a model, sustained injury in a fall from a bicycle during the course of a photography session.   Since defendant publishers did not control the manner in which third-party defendants carried out the photography assignment, they are not subject to liability for injury caused by any negligence of independent contractors (Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712;  Rosenberg v. Equitable Life Assur. Socy., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840).   Although a determination as to control typically involves a question of fact, the issue may properly be resolved as a matter of law where the evidence presents no conflict (Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297, 707 N.Y.S.2d 64).   The contract between defendant publishers and the photographer specifies that he is an independent contractor, and the testimony demonstrates that while he undertook to achieve an agreed result, he was not subject to the publishers' direction with respect to the means employed to perform the assigned work (see Berger v. Dykstra, 203 A.D.2d 754, 610 N.Y.S.2d 401, lv. dismissed 84 N.Y.2d 965, 621 N.Y.S.2d 513, 645 N.E.2d 1212).   Finally, the record does not support plaintiff's claim that the work which the photographer was hired to perform was inherently dangerous. Any hazard that might have been present was not “readily foreseeable” from the nature of the photography work contracted for (Wright v. Tudor City Twelfth Unit, 276 N.Y. 303, 307, 12 N.E.2d 307).   Rather, the accident was the result of “ ‘more or less usual negligence’ ” (MacDonald v. Heuer, 253 A.D.2d 795, 796, 677 N.Y.S.2d 630,quoting Prosser and Keeton, Torts, § 71, at 514 [5th ed.] ).