ATHENAS v. SIMON PROPERTY GROUP LP

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

Donna ATHENAS, Appellant, v. SIMON PROPERTY GROUP, LP, et al., Respondents, et al., Defendants.

2017–04904

Decided: July 22, 2020

CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ. Kenneth J. Ready, Mineola, NY, for appellant. Kennedys CMK LLP, New York, N.Y. (Michael R. Schneider of counsel), for respondents Simon Property Group, LP, Smith Haven Center Associates, LLC, Mall at Smith Haven, LLC, and Simon Management Associates, LLC. Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondents Cohen's Fashion Optical Store 149, LLC, and D.K. Optical, Inc.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated March 22, 2017.  The order, insofar as appealed from, granted those branches of the motion of the defendants Simon Property Group, LP, Smith Haven Center Associates, LLC, Mall at Smith Haven, LLC, and Simon Management Associates, LLC, and the separate motion of the defendants Cohen's Fashion Optical Store 149, LLC, and D.K. Optical, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

This is a premises liability matter involving a shopping mall, which was owned and operated by the defendants Simon Property Group, LP, Smith Haven Center Associates, LLC, Mall at Smith Haven, LLC, and Simon Management Associates, LLC (hereinafter collectively the landlord defendants).  Retail space within the mall was leased by the defendant Cohen's Fashion Optical Store 149, LLC, which was operated under a franchise agreement by the defendant D.K. Optical, Inc. (hereinafter together the tenant defendants).  The plaintiff allegedly was injured when she slipped on Pine Sol in the interior common area of the mall, causing her to fall.  The Pine Sol had been spilled by a janitor whom the tenant defendants employed to perform cleaning services at their store approximately once a week.  According to the janitor's deposition testimony, she spilled the Pine Sol just seconds before the plaintiff's accident, and the spill occurred while the janitor was walking towards the tenant defendants' store to begin cleaning that evening.

The plaintiff subsequently commenced this action against the landlord defendants and the tenant defendants, among others.  Thereafter, the landlord defendants and the tenant defendants separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them.  The Supreme Court granted those branches of the motions, and the plaintiff appeals.

The tenant defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them.  “Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property” (Russo v. Frankels Garden City Realty Co., 93 A.D.3d 708, 710, 940 N.Y.S.2d 144;  see Kubicsko v. Westchester County Elec., Inc., 116 A.D.3d 737, 738–739, 983 N.Y.S.2d 591).  Moreover, “a tenant's common-law duty to maintain premises in a reasonably safe condition is limited to those areas which it occupies and controls, or makes a special use” (Knight v. 177 W. 26 Realty, LLC, 173 A.D.3d 846, 847, 103 N.Y.S.3d 503).  Here, the tenant defendants established, prima facie, that the location where the accident occurred was within the common area of the mall, and that they had no contractual or common-law duty to maintain it (see id. at 847, 103 N.Y.S.3d 503;  Kubicsko v. Westchester County Elec., Inc., 116 A.D.3d at 739, 983 N.Y.S.2d 591;  Millman v. Citibank, 216 A.D.2d 278, 627 N.Y.S.2d 451).

The tenant defendants also established, prima facie, that they were not responsible for the allegedly negligent conduct of the janitor under a theory of respondent superior since the janitor was an independent contractor.  “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, 584 N.Y.S.2d 765, 595 N.E.2d 840;  see Gadson v. City of New York, 156 A.D.3d 685, 686, 67 N.Y.S.3d 287;  Weinfeld v. HR Photography, Inc., 149 A.D.3d 1014, 1014, 52 N.Y.S.3d 458).  “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results.  Control over the means is the more important consideration” (Abouzeid v. Grgas, 295 A.D.2d 376, 377, 743 N.Y.S.2d 165;  see Fenster v. Ellis, 71 A.D.3d 1079, 1080, 898 N.Y.S.2d 582).  “Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule” (Bynog v. Cipriani Group, 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090;  see Fenster v. Ellis, 71 A.D.3d at 1080, 898 N.Y.S.2d 582).  However, “[m]inimal or incidental control over an employee's work product without the employer's direct supervision or input over the means used to complete the work is insufficient to establish a traditional employment relationship” (Bhanti v. Brookhaven Mem. Hosp. Med. Ctr., 260 A.D.2d 334, 335, 687 N.Y.S.2d 667).

Here, the tenant defendants established, prima facie, that the janitor was an independent contractor by demonstrating that she did not have fixed hours or days on which she worked.  She had several other clients for whom she performed cleaning services, and she was not on the tenant defendants' payroll, was paid cash without any tax withholdings, and received no other benefits or compensation.  Moreover, the janitor performed cleaning services without any supervision by the tenant defendants, and she was responsible for determining which cleaning agents to use and for supplying the same (see Weinfeld v. HR Photography, Inc., 149 A.D.3d at 1015, 52 N.Y.S.3d 458;  Wecker v. Crossland Group, Inc., 92 A.D.3d 870, 871, 939 N.Y.S.2d 481).

In opposition to the tenant defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact.

The landlord defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint asserted as asserted against them by demonstrating that they did not create the alleged hazardous condition or have actual or constructive notice of it (see Rivera v. 2160 Realty Co., L.L.C., 4 N.Y.3d 837, 838–839, 797 N.Y.S.2d 369, 830 N.E.2d 267;  Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Kubicsko v. Westchester County Elec., Inc., 116 A.D.3d at 739, 983 N.Y.S.2d 591).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiff's remaining contentions are without merit.

Accordingly, we agree with the Supreme Court's determination granting those branches of the separate motions of the landlord defendants and the tenant defendants which were for summary judgment dismissing the complaint insofar as asserted against each of them.

CHAMBERS, J.P., COHEN, BRATHWAITE NELSON and IANNACCI, JJ., concur.

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