SAMPEDRO v. ELLWOOD REALTY LLC (2018)

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered October 4, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The record establishes that the subject building's superintendent was not responsible for performing flooring renovations on defendants' behalf, and that defendants did not undertake to perform, contract for, or pay for flooring work in tenants' apartments.  Although the superintendent recommended plaintiffs to a tenant who was interested in having flooring work in her apartment, he assisted plaintiffs in performing some of the work, and recommended that plaintiffs use paint or lacquer thinner as part of the flooring work, the work he performed was not part of his duties for the building owner or manager.  Since the superintendent was not acting within the scope of his employment, defendants cannot be held liable for his actions (see Davis v. City of New York, 226 A.D.2d 271, 641 N.Y.S.2d 275 [1st Dept. 1996], lv denied 88 N.Y.2d 815, 651 N.Y.S.2d 17, 673 N.E.2d 1244 [1996];  Stavitz v. City of New York, 98 A.D.2d 529, 531, 471 N.Y.S.2d 272 [1st Dept. 1984] ).

Furthermore, “[a]s 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” (Saini v. Tonju Assoc., 299 A.D.2d 244, 245, 750 N.Y.S.2d 55 [1st Dept. 2002] ).  Here, the relationship between defendants, as property owner/manager, and plaintiffs, as independent contractors, is even more attenuated than the typical principal-independent contractor relationship.  Plaintiffs were not retained by defendants to perform the flooring work, but by a third party, namely a tenant in defendants' building.  Accordingly, defendants cannot be held liable for the results of the means and methods of an independent contractor which they did not hire in the first instance, and over whose work they had no control.

We have considered plaintiffs' remaining contentions and find them unavailing.