SHIMUNOV v. ASHIROV (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for injury to property, the defendants appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered August 16, 2022.  The order, insofar as appealed from, denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging negligence and trespass.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs commenced this action, inter alia, to recover damages for injury to their property allegedly caused by renovation work performed at the defendants’ property next door.  The plaintiffs alleged, among other things, that the defendants redirected storm water onto the plaintiffs’ property and sidewalk, causing recurring flooding of the plaintiffs’ property, and that the defendants constructed a stone wall that encroached onto the plaintiffs’ property.  The complaint sought damages pursuant to theories of negligence, nuisance, and trespass, and permanent injunctive relief.

After the completion of discovery, the defendants moved for summary judgment dismissing the complaint.  In an order entered August 16, 2022, the Supreme Court denied the motion.  The defendants appeal from so much of the order as denied those branches of their motion which were for summary judgment dismissing the causes of action alleging negligence and trespass.

“In most cases, a party who retains an independent contractor is not liable for the independent contractor's negligent acts” (Bennett v. State Farm Fire & Cas. Co., 198 A.D.3d 857, 858, 156 N.Y.S.3d 92;  see Fiscina v. Boro Rug & Carpet Warehouse Corp., 195 A.D.3d 998, 998–999, 151 N.Y.S.3d 131).  “The primary justification for this rule is that ‘one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor’ ” (Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d 251, 257–258, 869 N.Y.S.2d 356, 898 N.E.2d 539, quoting Kleeman v. Rheingold, 81 N.Y.2d 270, 274, 598 N.Y.S.2d 149, 614 N.E.2d 712).  “Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability” (Sanabria v. Aguero–Borges, 117 A.D.3d 1024, 1025, 986 N.Y.S.2d 553;  see Meehan v. County of Suffolk, 144 A.D.3d 640, 641, 40 N.Y.S.3d 494).  “Minimal or incidental control over the work product without ‘direct supervision or input over the means used to complete the work is insufficient to establish a traditional employment relationship’ ” (Allstate Veh. & Prop. Ins. Co. v. Glitz Constr. Corp., 214 A.D.3d 691, 692, 186 N.Y.S.3d 33, quoting Athenas v. Simon Prop. Group, LP, 185 A.D.3d 884, 885, 128 N.Y.S.3d 284).

“The general rule that a party who retains an independent contractor is not liable for the independent contractor's negligence is subject to various exceptions, one of which is ‘instances in which the employer is under a specific nondelegable duty’ ” (id. at 693, 186 N.Y.S.3d 33, quoting Kleeman v. Rheingold, 81 N.Y.2d at 274, 598 N.Y.S.2d 149, 614 N.E.2d 712).  “[T]he class of duties considered ‘nondelegable’ is not limited to statutorily imposed duties,” and “examples of nondelegable common-law duties abound” (Kleeman v. Rheingold, 81 N.Y.2d at 275, 598 N.Y.S.2d 149, 614 N.E.2d 712).  “In large part, whether a duty—or, perhaps more accurately, whether liability—is nondelegable turns on policy considerations” (Feliberty v. Damon, 72 N.Y.2d 112, 119, 531 N.Y.S.2d 778, 527 N.E.2d 261 [internal quotation marks omitted]).  “A duty is nondelegable when the responsibility is so important to the community that the employer should not be permitted to transfer it to another” (id. [internal quotation marks omitted]).

Here, in opposition to the defendants’ prima facie showing that they did not control the method and means by which their contractors’ work was performed, the plaintiffs raised a triable issue of fact (see Bennett v. State Farm Fire & Cas. Co., 198 A.D.3d at 859–860, 156 N.Y.S.3d 92).  Contrary to the defendants’ assertion, statements made in an affirmation by the plaintiffs’ son concerning the defendants’ supervision and direction of construction workers did not flatly contradict his prior deposition testimony and was not otherwise impermissibly tailored to create a feigned issue of fact (see Williams v. Foster, 222 A.D.3d 1035, 1036, 202 N.Y.S.3d 451).  Moreover, the defendants failed to establish, prima facie, that they did not owe a nondelegable duty to the plaintiffs (see Seltzer v. Bayer, 272 A.D.2d 263, 709 N.Y.S.2d 21;  see also Herman v. City of Buffalo, 214 N.Y. 316, 319, 108 N.E. 451;  Long v. Sage Estate Homeowners Assn., Inc., 16 A.D.3d 963, 966 n. 2, 792 N.Y.S.2d 219).  Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the causes of action alleging negligence.

“ ‘The essential elements of a cause of action sounding in trespass are the intentional entry onto the land of another without justification or permission’ ” (Leavitt Enter., Inc. v. Two Fulton Sq., LLC, 181 A.D.3d 662, 663–664, 120 N.Y.S.3d 363, quoting Reyes v. Carroll, 137 A.D.3d 886, 888, 27 N.Y.S.3d 80;  see 211–12 N. Blvd. Corp. v. LIC Contr., Inc., 186 A.D.3d 69, 82, 128 N.Y.S.3d 551).  A landowner who retains an independent contractor “may be liable for trespass if the owner directs the trespass or a trespass is necessary to complete the contract” (Tschetter v. Sam Longs’ Landscaping, Inc., 156 A.D.3d 1346, 1347, 68 N.Y.S.3d 292;  see Vetere v. Pembrooke Land Dev. LLC, 156 A.D.3d 1195, 1197, 68 N.Y.S.3d 165;  Semon v. Chasol Constr. Corp., 7 A.D.2d 1009, 1009, 184 N.Y.S.2d 193).

Here, the defendants failed to establish, prima facie, that the wall erected by their contractors did not enter onto the plaintiffs’ property or that the defendants had permission to erect the wall on the plaintiffs’ property.  Moreover, the record presented a triable issue of fact as to whether the defendants directed the trespass and, thus, may be held liable for it (see Tschetter v. Sam Longs’ Landscaping, Inc., 156 A.D.3d at 1347, 68 N.Y.S.3d 292).  Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the causes of action alleging trespass.

The parties’ remaining contentions are without merit.

CONNOLLY, J.P., GENOVESI, CHAMBERS and WAN, JJ., concur.