PITTMAN v. LENOX REALTY LLC (2008)

In an action to recover damages for personal injuries and wrongful death, the defendants S.P. Lenox Realty, LLC, Rubbro Realty Corp., R.S. Management, Ltd., and Larry Richards appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated February 15, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff's decedent died from severe burns after a halogen lamp ignited liquid that he was using to refinish the floors in an apartment building owned by the defendant S.P. Lenox Realty, LLC (hereinafter Lenox), and managed by the defendant Rubbro Realty Corp. (hereinafter Rubbro), formerly known as R.S. Management, Ltd. (hereinafter RS).  The defendant Larry Richards worked as the building superintendent.   Lenox, Rubbro, RS, and Richards (hereinafter collectively the defendants), moved for summary judgment on the grounds that they were not liable for the decedent's injuries and wrongful death because he was an independent contractor, and that they had no notice of any dangerous condition or defect which caused his injuries.

While the defendants met their burden of establishing, prima facie, their entitlement to summary judgment (see Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772;  Friends of Animals v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298;  Chiarini v. County of Ulster, 9 A.D.3d 769, 780 N.Y.S.2d 669), the plaintiff's opposition papers, particularly the affidavit of Dora Edwards, raised a triable issue of fact as to whether the defendants created the condition complained of by providing a dangerous, defective, or unsteady halogen lamp that ignited the fire (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Contrary to the defendants' contentions, the content of the Edwards affidavit is admissible under the declaration against interest exception to the hearsay rule (see Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128) and, upon admission, the plaintiff's evidence overall is subject to the lesser standard of proof afforded under the doctrine enunciated in Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744.   Furthermore, as to the independent contractor defense, the facts alleged in the Edwards affidavit raise a triable issue of fact as to whether the defendants exercised any control over the means and methods of the work performed (see Chainani v. Board of Educ. of City of N.Y., 87 N.Y.2d 370, 380-381, 639 N.Y.S.2d 971, 663 N.E.2d 283;  Willis v. City of New York, 266 A.D.2d 208, 208-209, 697 N.Y.S.2d 311;  Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297, 707 N.Y.S.2d 64).

The defendants' contention that the Edwards affidavit should not be considered because Edwards was not disclosed as a witness prior to the filing of the note of issue is raised for the first time on appeal and is thus not properly before this Court (see Lawler v. City of Yonkers, 45 A.D.3d 813, 847 N.Y.S.2d 121).

The defendants' remaining contentions either have been rendered academic by this determination or are without merit.