AMERICAN GUARANTY LIABILITY INSURANCE CO v. FEDERICO SALON INC

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Supreme Court, Appellate Division, First Department, New York.

AMERICAN GUARANTY & LIABILITY INSURANCE CO. as subrogee of Tom James Company doing business as Oxxford Clothes, Plaintiff-Appellant, v. FEDERICO'S SALON, INC., et al., Defendants-Respondents.

Decided: October 15, 2009

ANDRIAS, J.P., SWEENY, NARDELLI, RICHTER, ABDUS-SALAAM, JJ. Cozen O'Connor (William N. Clark, Jr. and Guy A. Bell of the Bar of the Commonwealth of Pennsylvania, admitted pro hac vice, of counsel), for appellant. Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for Federico's Salon, Inc., respondent. Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for Solil Management, L.L.C., respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 17, 2008, which, insofar as appealed from as limited by the briefs, granted the motion of defendant Federico's Salon Inc. (Federico's) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

 Plaintiff, as subrogee of Oxxford Clothes, seeks to recover for property damage resulting when a toilet on the unoccupied fourth floor of the commercial building in which Oxxford was a tenant became clogged and overflowed, flooding Oxxford's store and destroying its inventory.   At the time, Federico's leased the fifth floor of the building and was renovating its space.

 Federico's made a prima facie showing of entitlement to judgment as a matter of law, as it demonstrated that no negligence on its part contributed to the leak.   In opposition, plaintiff sought to rely on the doctrine of res ipsa loquitur, which the motion court correctly determined was inapplicable.   Even assuming that the evidence was sufficient to support a finding that the toilet malfunction was of a type caused by negligence, plaintiff failed to present competent evidence that Federico's control of the fourth-floor bathroom was of “sufficient exclusivity to fairly rule out the chance that the defect ․ was caused by some agency other than [its] negligence” (Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986];  see Edmonds v. City of Yonkers, 294 A.D.2d 330, 743 N.Y.S.2d 117 [2002], lv. denied 98 N.Y.2d 612, 749 N.Y.S.2d 475, 779 N.E.2d 186 [2002] ).   Indeed, the evidence shows that Federico's did not control any portion of the fourth floor, but was occasionally allowed access when the elevator or emergency stairwell door was left unlocked.   When the doors were unlocked, the building porter, real estate agents, and the independent contractors retained by Federico's had access to the fourth-floor bathroom.   Furthermore, to the extent the evidence permits an inference that the contractors hired by Federico's negligently disposed of debris in the toilet, it is well established 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, 584 N.Y.S.2d 765, 595 N.E.2d 840 [1992] ), and plaintiff provides no reason to depart from this general rule.