VULLO v. Manhattan Autocare, et al., Defendants. (2019)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered March 8, 2018, which, to the extent appealed from, denied defendant Hillman Housing Corporation's (Hillman) motion for summary judgment, unanimously affirmed, without costs.

Plaintiff alleges that in October of 2014 she tripped an fell on a metal protrusion and/or sign post stump on a sidewalk outside a building owned by Hillman.  After receiving a DOT violation related to the condition of the sidewalk, Hillman had hired an outside contractor to perform cement sidewalk resurfacing work between August and October of 2014.

Although the “general rule is that a party who retains an independent contractor ․ is not liable for the independent contractor's negligent acts,” an exception arises when the hiring party “is under a specific nondelegable duty” (Kleeman v. Rheingold, 81 N.Y.2d 270, 273–274, 598 N.Y.S.2d 149, 614 N.E.2d 712 [1993] ).  Here, Hillman, as the property owner, had a nondelegable duty to maintain the sidewalk, including the sidewalk around the subject sign post stump (Bronfman v. East Midtown Plaza Hous. Col, Inc., 151 A.D.3d 639, 58 N.Y.S.3d 337 [1st Dept. 2017];  Administrative Code of City of N.Y. § 7–210).

Contrary to Hillman's contention, the motion court did not conclude that Hillman is, in fact, liable for any alleged wrongs committed by the independent contractor in performing cement sidewalk resurfacing work.  Rather, the motion court correctly found that under these circumstances the record raises issues of fact as to whether the cement work ordered by this defendant, the property owner, caused or exacerbated a hazardous tripping condition, and whether Hillman had actual or constructive knowledge of the metal protrusion on the sidewalk outside its building.  Factual issues are also presented as to whether the condition was open and obvious, or, alternatively the defect trivial (Nigro v. Cervinara, LLC, 106 A.D.3d 428, 963 N.Y.S.2d 871 [1st Dept. 2013] ).

We have considered Hillman's remaining arguments and find them unavailing.