Mildred Mele, appellant, v. USTA (2011)

Argued-January 28, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (R. Miller, J.), dated January 6, 2010, as granted that branch of the motion of the defendant Muslum Avei which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Muslum Avei which was for summary judgment dismissing the complaint insofar as asserted against him is denied.

“The general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts” (Rosenberg v Equitable Life Assur.   Socy. of U.S., 79 N.Y.2d 663, 668;  see Kleeman v. Rheingold, 81 N.Y.2d 270, 273-274).   Here, under the circumstances presented, the defendant Muslum Avei failed to establish, prima facie, that the defendant USTA Construction was his independent contractor, and that the so-called “independent contractor rule” therefore applied (see Willis v. City of New York, 266 A.D.2d 208;  cf.  Pittman v. S.P. Lenox Realty, LLC, 49 AD3d 621).   Since Avei did not tender “sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324), he failed to meet his prima facie burden and, thus, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).   Accordingly, the Supreme Court should have denied that branch of Avei's motion which was for summary judgment dismissing the complaint insofar as asserted against him.

MASTRO, J.P., SKELOS, BALKIN and LEVENTHAL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court