Opinion
0106531/2005.
August 14, 2007.
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits . . .________
Answering Affidavits — Exhibits _______________ __________________
Replying Affidavits _________________________________ __________________
Cross-Motion: Yes [X] No
Upon the foregoing papers, it is ordered that this motion
Defendant Maxi Construction Corp. (Maxi) moves, pursuant to CPLR 3212 (a), for summary judgment dismissing the complaint as to it.
This action arises out of property damage resulting from a fire that occurred at plaintiff's apartment (Apartment) on February 13, 2005. Plaintiff had hired Maxi as the general contractor to renovate the Apartment. Maxi, in turn, had retained defendant Very Fine Painting, Inc. (Very Fine) to paint the interior walls and, among other things, to refinish the floors of the Apartment. As required by the specifications of plaintiff's architect, and at Maxi's direction, Very Fine applied tung oil to the floors. Tung oil is a drying oil that permeates wood. It is highly combustible. Plaintiff contends that the fire was caused by the spontaneous combustion of tung oil-soaked rags that were improperly left under a staircase by Very Fine. In the course of the second renovation of the Apartment, after the fire, Maxi's president applied the required tung oil himself. At his deposition, he stated that the directions printed on the container are to dispose of any oil- soaked materials in a fireproof container.
Maxi argues that it did not supervise Very Fine's application of the tung oil, or Very Fine's disposal of the rags that it had used in the process, and that, as the general contractor, it may not be held vicariously liable for any negligence in the course of such disposal on the part of Very Fine. See e.g. Rosenberg v Equitable Life Assur. Soc. of the U.S., 79 N.Y.2d 663 (1992).
While, as a general rule, one who employs an independent contractor is, indeed, not liable for the negligence of that contractor, one exception to that rule is where the work that resulted in the injury is inherently dangerous, and where the employer knew or had reason to know of the danger involved. Id.; Wright v Tudor City Twelfth Unit, Inc., 276 NY 303 (1938); Klein v Beta I LLC, 10 AD3d 509 (1st Dept 2004);Laecca v NYU, 7 AD3d 415 (1st Dept 2004). Maxi acknowledges this exception, but argues that, unlike blasting, for example, polishing floors is not an inherently dangerous activity. Further, Plaintiff and Very Fine maintain that Maxi is not entitled to summary judgment because there is an issue of fact as to whether Maxi was negligent in hiring or supervising Very Fine. See Leeds v D.B.D. Servs., Inc., 309 AD2d 666 (1st Dept 2003).
Whether certain work is inherently dangerous, that is, whether it "involves the creation of a dangerous situation (Wright v Tudor City Twelfth Unit, Inc., 276 NY, supra, at 306), depends on the particular circumstances in which that work is performed, and is generally a question of fact for the jury (Rosenberg v Equitable Life Assur. Soc., supra). Thus, for example, washing mats with soap and water does not, generally, carry an inherent danger. However, there is an inherent danger to passing pedestrians when that activity is performed on a sidewalk on 42nd Street. Wright supra; see also Rohlfs v Weil, 271 NY 444 (1936) (work performed on scaffolding outside building made inherently dangerous by failure to place warning signs on sidewalk). It has been held that there is a triable issue of fact whether sanding and refinishing floors with flammable materials is inherently dangerous where an oven gas pilot light is left on while the materials are being applied. Montano v O'Connell, 186 AD2d 461 (1st Dept 1992).
In Montano, the New York Board of Fire Underwriters had opined that the flammable vapors from the products used had probably been ignited by the gas from the pilot light. Here, it is undisputed that tung oil is so combustible that oil-soaked rags must be disposed of in fireproof containers. Moreover, plaintiff testified at her deposition that when she arrived at the Apartment after the fire had been suppressed, a fireman told her that the fire was believed to have been caused by the spontaneous combustion of the oil-soaked rags. So too, Mrs. Okjo Choi, the secretary of Maxi, testified at her deposition that a representative of Maxi's insurance company had told her that the fire had broken out on the rags. To be sure, all this testimony is hearsay and, in part, double hearsay. However, while hearsay may not be used to support a motion for summary judgment, it may be used in opposition to such a motion where it is not the only evidence relied upon. Arnold Herstand Co. v Gallery: Gertrude Stain, Inc., 211 AD2d 77 (1st Dept 1995). In sum, this court will not find, as a matter of law, that the application of tung oil and the subsequent disposal of the oil-soaked rags were not an inherently dangerous activity, where the testimony indicates that the material is so combustible that the oil soaked rags must be disposed of in fireproof containers.
Further, given the testimony of the owner of Very Fine, that he informed Maxi that he had never used tung oil before, but that he used other stains, and the acknowledgment by Mrs. Choi that she had seen a container of tung oil prior to the fire, knew how to prevent fires, and was able to read the directions on it, an issue of fact is raised as to whether Maxi knew or should have known of the danger posed an inherently dangerous activity, or, was negligent in hiring or supervising Very Fine. Accordingly, it is hereby
ORDERED that the motion is denied.
This Constitutes the Decision and Order of the Court.