UNITED SERVICES AUTOMOBILE ASSOCIATION v. Kate O'Brian, et al., appellants, et al., defendant.  (Action No. 1)

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

UNITED SERVICES AUTOMOBILE ASSOCIATION, etc., plaintiff-respondent, v. Ed WILEY, et al., defendants-respondents, Kate O'Brian, et al., appellants, et al., defendant.  (Action No. 1)

Edward Powers III, etc., respondent-appellant, Molly Spencer, plaintiff-respondent, v. Ed Wiley, etc., et al., defendants-respondents, Kate O'Brian, et al., appellants-respondents,

Eastchester Fire District, appellant, et al., defendant.  (Action No. 2) State Farm Fire & Casualty Company, etc., respondent, v. Ed Wiley Slate Co., et al., defendants,

Eastchester Fire District, appellant.  (Action No. 3) State Farm Fire & Casualty Company, etc., respondent, v. Village of Bronxville, et al., defendants, Eastchester Fire District, appellant.  (Action No. 4).

Decided: March 31, 2009

REINALDO E. RIVERA, J.P., DAVID S. RITTER, JOSEPH COVELLO, and DANIEL D. ANGIOLILLO, JJ. Penino & Moynihan, LLP, White Plains, N.Y. (Vinai C. Vinlander of counsel), for appellants Kate O'Brian and Thomas Smith in Action No. 1 and appellants-respondents in Action No. 2. Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (Susan Weihs Darlington of counsel), for appellant Eastchester Fire District. Graubard Miller, New York, N.Y. (Nancy R. Sills, Peter A. Schwartz, and Caryn L. Marcus of counsel), for respondent-appellant in Action No. 2. Stuart D. Markowitz, P.C., Jericho, N.Y. (Kristen Renzulli of counsel), for respondent State Farm Fire & Casualty Company.

In four related actions to recover damages for injury to property, (1) Kate O'Brian and Thomas Smith appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered July 13, 2007, as denied their motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against them in Action Nos. 1 and 2, (2) the Eastchester Fire District separately appeals from so much of the same order as denied its motion for summary judgment dismissing all complaints and cross claims insofar as asserted against it, and (3) Edward W. Powers III, cross-appeals from so much of the same order as denied that branch of his cross motion which was for summary judgment on the issue of liability against the defendants Kate O'Brian and Thomas Smith in Action No. 2.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying the motion of Kate O'Brian and Thomas Smith for summary judgment dismissing the complaints and all cross claims insofar as asserted against them in Action Nos. 1 and 2, and substituting therefor a provision granting that motion, and (2) by deleting the provision thereof denying the motion of the Eastchester Fire District for summary judgment dismissing all complaints and cross claims insofar as asserted against it, and substituting therefor a provision granting the motion except to the extent that the complaints and cross claims concern the alleged conduct of its employee Paul Chrystal;  as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to Kate O'Brian and Thomas Smith payable by Edward Powers III.

These related actions arise from a fire that damaged, inter alia, three attached townhouses located at 9, 11, and 13 Willow Circle in Bronxville.   Thomas Smith, the owner of 9 Willow Circle, hired Ed Wiley, d/b/a Ed Wiley Slate Co. (hereinafter Wiley) on behalf of himself and Kate O'Brian, the owner of 11 Willow Circle, to perform work on a shared roof.   During the course of the work, a fire apparently started when an open flame being used to solder copper gutters ignited a wood fascia board.   The fire caused damage to the units owned by O'Brian, Smith, and Edward W. Powers III, who owned 13 Willow Circle.   The fire was extinguished by the Eastchester Fire District.   After insurance claims were paid, actions were brought by and on behalf of Powers against, among others, O'Brian, Smith, Wiley, and the Eastchester Fire District, and on behalf of O'Brian and Smith against, among others, Wiley and the Eastchester Fire District.   After the actions were directed to be jointly tried, the Eastchester Fire District moved for summary judgment dismissing all complaints and cross claims insofar as asserted against it on the ground that it could not be held liable in the absence of a “special relationship” with an injured party, which was lacking.   O'Brian and Smith moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action Nos. 1 and 2 on the ground that they were not negligent in the happening of the fire and could not be held vicariously liable for the alleged negligence of Wiley, who was an independent contractor.   Powers cross-moved for summary judgment on the issue of liability against Wiley, O'Brian, and Smith.   Powers argued that Wiley was negligent in the happening of the fire and that O'Brian and Smith could be held vicariously liable for such negligence.   The Supreme Court, inter alia, granted that branch of Powers' motion which was for summary judgment on the issue of liability as against Wiley, but denied the remaining branches of Powers' motion and the motions of the Eastchester Fire District and O'Brian and Smith.   We modify.

 O'Brian and Smith demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that they were not negligent in the happening of the fire and that Wiley was an independent contractor for whose alleged negligence they could not be held liable (see Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 584 N.Y.S.2d 765, 595 N.E.2d 840;  Lofstad v. S & R Fisheries, Inc., 45 A.D.3d 739, 846 N.Y.S.2d 283;  Chou v. A to Z Vending Serv. Corp., 36 A.D.3d 745, 830 N.Y.S.2d 204;  Abreu v. Schneilwert, 303 A.D.2d 527, 756 N.Y.S.2d 855).   In opposition, no party raised a triable issue of fact as to whether Wiley was an independent contractor, or whether any exception to the general rule of nonliability applied (see Lofstad v. S & R Fisheries, Inc., 45 A.D.3d 739, 846 N.Y.S.2d 283;  Abreu v. Schneilwert, 303 A.D.2d 527, 756 N.Y.S.2d 855).   Thus, O'Brian and Smith should have been awarded summary judgment dismissing the complaints and all cross claims insofar as asserted against them in Action Nos. 1 and 2.

 The Eastchester Fire District demonstrated, prima facie, that the allegations, other than those concerning the alleged conduct of its employee Paul Chrystal, involved discretionary acts for which it could not be held liable in the absence of a special relationship with an injured party, and that such a relationship was lacking as to any injured party (see Pelaez v. Seide, 2 N.Y.3d 186, 198-199, 778 N.Y.S.2d 111, 810 N.E.2d 393;  Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184;  Haddock v. City of New York, 75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987;   Etienne v. New York City Police Dept., 37 A.D.3d 647, 830 N.Y.S.2d 349;   Blancovitch v. City of New York, 131 A.D.2d 418, 516 N.Y.S.2d 77;  Kroger v. City of Mount Vernon, 104 A.D.2d 855, 480 N.Y.S.2d 370;  Harland Enters. v. Commander Oil Corp., 97 A.D.2d 785, 468 N.Y.S.2d 524, affd. 64 N.Y.2d 708, 485 N.Y.S.2d 733, 475 N.E.2d 104).   In opposition, no party raised a triable issue of fact as to such allegations.   However, the Eastchester Fire District failed to demonstrate, prima facie, that the alleged conduct of Chrystal involved discretionary rather than ministerial acts for which it could not be held liable in the absence of a special relationship with an injured party (see McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419;  see generally Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184;  Haddock v. City of New York, 75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987;  Mon v. City of New York, 78 N.Y.2d 309, 574 N.Y.S.2d 529, 579 N.E.2d 689;  Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182;  Lapidus v. State of New York, 57 A.D.3d 83, 866 N.Y.S.2d 711;  Town Law § 176-a[1];  L. 1960, ch. 220;  1992 Ops. St. Comp. No. 92-25).   Thus, the Eastchester Fire District should have been awarded summary judgment except to the extent the complaints and cross claims concern the alleged conduct of Chrystal.

The parties' remaining contentions are without merit.

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